LAW 205

Module 1
What is Public Law?

Public and Private Law

Public:
- Creates the institutions and organs of government (ex/ parliament, courts, tribunals)
- Regulates the relationship between different parts of the government (establishes roles
and responsibilities of different parts of government)
- Regulates the relationship between individuals and the government
o Public law is about power, who can exercise it and how

Private:
- Governs the legal relationships between individuals
 Contract law (private agreements. Ex/ renting an apartment, getting a gob)
 Tort law (non-contractual obligations, basically whether you are responsible for someone
else’s losses ex/ mail man slips on your icy driveway)
 Property law ( rights arising from ownership of property)

- Gov enters into contract, can sometimes be reliable in tort law, holds large amounts of
property
- Public law is about the exercise of government power
- Private law is about legal relationships between individuals

The Rule of Law: Roncarelli vs. Duplessis 1959

- Frank Roncarelli vs. Maurice Duplessis

Roncarelli:
- Lived in montreal, owned restaurant
- Member of Jehovah’s witness, conflict with catholic church
- Posted bail for over 300 Jehovah’s witnesses

Duplessis:
- Annoyed him
- Premier cancelled his liquour license because of him bailing out JW’s

Issue: was it lawful for Premier Duplessis to revoke Roncarelli’s liquor license?
Decision: No, the revocation of liquor license was not lawful
- S. 35 “ the commission may cancel any permit at its discretion”
 The grounds for cancelling a liquor license must be compatible with the statue
 The decision to deny or cancel a license is “at the discretion of the commission, but the
decision must be based on relevant considerations
 Discretion implies good faith

- Narrow Rule: it was unlawful for Duplessis to revoke Roncarelli’s liquor license due to
the fact that he posted bail for Jehovah’s Witnesses.
 - Broad Rule: the rule of law requires that power be exercised in good faith, in accordance
with the objects and purposes of the relevant statute.
Canada’s Legal Inheritance: Reception of European Law
- Battle of the Plains of Abraham (1759), British defeated French for control of Quebec
City
- Treaty of Paris gave French colonies in North America to the UK, therefore the UK’s
common law of colonization that provided for the basic rules of reception of law into
British north America.
- Story of Canadian law is basically the story of receiving a system of laws from the UK
and slowly making it Canadian

U.K. Rules of Reception

Settlement:
- The settlers brought the law with them into a void and this became the initial law of the
colony (rest of Canada other than Ontario and QB)
Conquest:
- The law of the conquered people continued in force, except to the extent that it was
inconsistent with British Law (Ontario and QB)
Adoption:
- Colonial legislature can adopt the laws of England as of a certain date (western
provinces)
Imposition:
- The U.K. could impose English laws on a colony (initially happened in Quebec)

Quebec:
- Acquired by the U.K. in 1763
- English law imposed by royal proclamation of 1763 asserted British law on the colony
- Quebec act, 1774 restored French civil law
- Constitutional act, 1791 provided for English/ british common law in upper Canada and
French civil law in lower Canada

Canada’s Legal Inheritance: Aboriginal Law

Aboriginal Rights:
- “when Europeans arrived in North America, AP were already here, living in communities
and participating in distinctive cultures”
- “European settlement did not terminate the interests of AP arising from their historic
occupation and use of the land. To the contrary, Aboriginal interests and customary laws
were presumed to survive the assertion of sovereignty and were absorbed into common
law as rights”
- Protection of certain customs, practices and traditions

Aboriginal Title:
- Confers ownership rights similar to those associated with a fee including, right to decide
how the land will be used, right of employment and occupancy, right to possess the land,
right to the economic benefits of the land and right to manage the land
- AT is a unique form of property right and confers unique ownership
 1. Sufficient occupation prior to European sovereignty
2. If present occupation is used as proof, there must be evidence of continuity of occupation
3. Exclusive historic occupation

Fiduciary Obligations:
- Responsibility of the crown an equitable obligation, enforceable by the courts, to deal
with the land for the benefit of the Indians
- It is a fiduciary duty. If the crown breaches the fiduciary duty it will be liable to the
Indians in the same way and extent as if such trust were in effect

Constitution act 1982

- S35(1)
- The existing aboriginal and treaty rights of the AP of Canada are hereby recognized and
affirmed
- However, constitution does not elaborate further and has been subject of litigation and
courts have been developing our understanding of aboriginal law.

Sources of Public Law:

 Common Law
o Inheritance from British legal system
- Law that is not statutory
- Found in the decision of judges
- Based on principles and precedents

 Equity
- Principles applied to correct injustices in the common law
- Developed in the U.K., where the court of chancery emerged to temper the decisions of
the common law courts
- U.K. and Canadian Courts now apply both common law and equitable doctrines
- Most relevant to private law, but there are some equitable duties of interest to public law

 Royal Prerogative
- Powers that the crown can exercise without being authorized by statute
- Foreign relations
- Issue of passports
- Declarations of war and peace
- Granting honours
- Granting mercy

 Statutes
- Laws enacted by parliament and the legislatures
- The primary way that governments implement their policies into law

 Constitution
- Supreme court of Canada
- Provides a framework for the exercise of power
 - Most of the constitution is entrenched (amended thru special procedures)

 International Law
- Treaties, implemented thru legislation
- Customary international law, incorporated into Canadian law through common law

 Aboriginal Law
- Reconciles British assertion of sovereignty with the rights and legal interests of AP
- Common law and equitable principles
- Statutes enacted by parliament (Indian act)
- Constitutional recognition of aboriginal and treaty rights (constitution act 1982)

The Hierarchy of Public Law Rules

- Bottom of hierarchy of public law rules in common law/ royal prerogative

- Rule of Equity will prevail in case of conflict in common law rule
- Equity, common law and royal prerogative are all subject to any statutory rules enacted
by parliament of provincial legislature.
- International law is not usually part of domestic Canadian law until it is implemented by
legislation
- Rules of customary international law are automatically incorporated into the common law
- Aboriginal law spans all of the sources of public law, important to identify which aspect
of AL is of issue in a case
- Courts have recognized Aboriginal rights thru the common law
- Also imposed certain obligations owed by the crown to the AP thru equitable principles
- Parliament has enacted statutes dealing with aspects of AL
- S35 of constitution recognized existing treaty rights.

Abdelrazik vs. Canada (Minister of Foreign Affairs) 2009

Facts:
- Mr. Abdelrazik is a dual national of Sudan and Canada
- He travelled to Sudan and while there his Canadian passport expired
- The minister of foreign affairs refused to issue him a new passport
- In 2006 Mr. Abdelrazik was listed as an associate of Al Queda which subhected him to a
travel ban
- Mr. Abdelrazik released
Issue:
 - Was the minister of foreign affairs decision to refuse to issue a passport or emergency
travel document lawful?
- Refused on national security grounds
- Mr. Abdelrazik challenged in federal court
- He argued that S6 of the charter (constitutional right to enter and remain in Canada)
Decision:
- Mr. Abdelrazik has a right to enter and remain in Canada, which requires the issuance of
a Canadian passport
- The refusal of a passport or other travel document was not justified
Module 2

Constitutionalism and the Rule of Law

Constitutionalism

- The Canadian constitution is about the distribution of power and authority

- Constitution constitutes/ creates the organs of government
- Controls the exercise of power
- Provides legal rules for governing
- In other words, the constitution determines who can exercise which types of powers and
what the limit of those powers are

- Differences among constitutions depend on history, tradition and ideology as well as

physical, economic and social conditions
- Some countries, like the USA, constitution plays a central role in politics as well as in
defining American national identity
- In other countries, constitution has more of a limited role and does not have the same link
to national identity
- Constitutionalism implies a system of government that is oriented around public
institutions governed by legal rules intended to define and constrain the exercise of state
power based on ascertainable legal criteria
- Law and legal processes core of modern constitutionalism

Other Influences:
- Economic, elite, social, popular values
- Constitutional regime provides a legal framework within which these other influences
can operate
- This definition of constitutionalism can be contrasted with systems of government
oriented around other fundamental organizing principles and legitimizing ideologies
(aristocracy, religion, military, personality)

Contemporary Constitution:
- Popular Sovereignty: the will of the people is the basis of legitimate government. Closely
linked is;
- Democratic principle: constitutionalism requires a commitment to political democracy
and representative government
 Government must remain subject to control by democratic political institutions.
- Constitutional Supremacy: constitution must be supreme, government must conform to
the constitution and to any limitations the constitution imposes.

Implications of Constitutional Supremacy:

1. Hierarchy of Laws
 - if the constitution is supreme, than any law inconsistent with the constitution is of no
force or affect.
2. Adjudication by Courts
- In order for constitutional supremacy to be effective there must be a mechanism for
adjudicating whether a law or government action is consistent with the constitution
- Constitution must be interpreted and applied
3. Counter- Majoritarian
- Operate as a check on majority preferences
- Constitution imposes limits on what types of law can be enacted by majorities in
parliament, in this way constitutions protect individual and minority interests against
majority action
- Values and rights imbodied in constitution are those that the constitutional framers
anticipated to be necessary
4. Amendment by Super- Majority
- Process for amending constitution
- In many systems, constitution is generally not amendable thru ordinary legislative
process, rather must be a super majority, representing more than just the majority of one
order of government

Canada’s Constitutional Development 1867

Confederation 1867
- Constitution product of Canadas historical development
- Canadas constitution opening words provinces (Canada, nova scotia and New
Brunswick) want to be federally united
- Step in Canadas development as a British colony
- Charlottetown conference, Quebec City

Accomplished at Confederation
- 1867, UK parliament enacted the BNA which since 1982 has been known as the
constitution act
- Unified three colonies, Canada (Ontario and Quebec), New Brunswick, Nova Scotia
- Provided for the exercise of legislative, executive and judicial power
 S17, federal parliament, queen, senate and HoC
 S69 created legislation of Ontario consisting of the Lieutenant governor, and the
legislative assembly of Ontario
 S9, executive authority vested in the Queen
 Provinces given the power to make laws in relation to provincial courts while federal
parliament given the power to make laws in relation to a general court of appeal for
Canada which later used to create the SCC as well as federal courts for better
administration of laws of Canada
- Provided for the admission of other provinces to Canada (newfoundland, BC, PEI,
Rupert’s Land and NW Territories, out of which Manitoba, Saskatchewan, Alberta and
the 3 territories would later be created)
- Distributed legislative authority between the federal parliament and the provincial
legislatures
 - Continued the laws that were in existence at confederation to extent that they were
consistent with constitution of 1867. Laws could be amended or appealed after
confederation by either the federal or provincial legislatures

Not Accomplished at Confederation

- No break with the colonial past
 Canada to remain a colony of the UK although a self-governing one
 Canada to be united under crown of the UK as well the union of the provinces would
promote the interests of the British empire
- No amending procedure
 Could only be amended by UK parliament as it was a statute of the UK parliament
- No Canadian supreme court
 JCPC was Canada’s final court of appeal until 1949. 1933 criminal appeals and 1949 civil
appeals
- No Bill of Rights
- No general constitutional protections for human rights
 Limited protection for the use of English and French (S. 133) and for denominational
schools (S.93)
- Not a complete codification
 Constitutional conventions and practices were not codified
 Constitution is silent on convention of responsible government

Canada’s Constitutional Development 1926-31

Imperial Conference
- One outcome of 1926 conference was the Balfor Declaration where it was agreed that the
dominions are autonomous communities within the British empire, equal in status, in no
way subordinate one to another in any aspect of their domestic or external affairs, though
united by a common allegiance to the crown and freely associated as members of the
British Commonwealth of Nations
- Another imperial conference held in 1930 and in 1931 UK parliament enacted statute of
west minister, to formalize outcome of conferences

Statute of Westminister, 1931

- Dealt with the new relationship of equality of status among commonwealth countries
- Acknowledged that Canada would have an international role distinct of that from the UK
- No law of the UK would extent to Canada unless Canada has requested and consented to
the law
- Canada can amend UK laws that apply to Canada except for the Constitution acts 1867 to
1930.
 Canada could amend any UK laws except constitution because there was no consensus in
Canada in terms of what constitutional amending procedures should apply, by default UK
parliament remained in control of Canada’s constitution, although it would henceforth be
amended only at the request of Canada.
Canada’s Constitutional Development 1982

Canada Act 1982

- In 1982 at the request of Canada the UK parliament enacted the Canada act.
 Referred to in Canadian history as the patriation of constitution
 Final time UK parliament would legislate in relation to Canada because Canada was
taking formal control of its own constitution
- Provided that the UK would no longer legislate in relation to Canada
- Schedule B contains the constitution act, 1982 including the charter of rights and
freedoms and the constitutional amending procedures.

Constitution Act 1982

- Was brought into force by proclamation signed by the Queen
- Central feature of constitution is the Canadian charter of rights and freedoms
- Part 5 of constitution act set out procedures for amending constitution
- Constitution act 1982 was the final step in Canadas gradual evolution from a colony of
the UK to a self-governing member of the commonwealth and finally to a fully
independent country.

Constitutional Amending Procedures

Constitutional Supremacy
- Since 1867 the constitution of Canada has been supreme in the sense that all laws enacted
by parliament or the provincial legislatures must be consistent with it
- However legal basis for the supremacy of the constitution changed as Canada developed
from a colony of the UK to an independent country
- Constitution act 1867 was first enacted as a law of the parliament of the UK
- From 1867-1931 the UK Colonial Laws Validity Act (1867-1982) rendered void and
inoperative
- CLVA “Any colonial law which is or shall be in any respect repugnant to the provisions
of any act of parliament extending to the colony to which such law may relate… shall, to
the extent of such repugnancy, but not otherwise, be and remain absolutely void and
inoperative”
- Statute of Westminster 1931 allowed the parliament of Canada and provincial legislatures
to amend UK laws that applied to Canada.
- Nevertheless, the supremacy of the constitution act was maintained b/c it was excepted
from the UK statues that could be amended in Canada
- When constitution act 1982 was enacted, it explicitly stated the supremacy of the
constitution of Canada
- Sub section 52(1) of the constitution act provides that “ the constitution of Canada is the
supreme law of Canada and any law that is inconsistent with the provisions of the
constitution is to the extent of the inconsistency of no force or effect.
- Until 1982 constitution could only be amended by UK parliament at the request of
Canada
Constitutional Amending Procedures: Constitution Act, 1982, Part 5
1. Unanimous consent procedure (S.41): requires amendments to be authorized by the
senate and the HoC and all of the provincial legislative assemblies
- Limited to certain things,
- The office of the queen, GG and lieutenant governor of a province
- The right of a province to a number of members in the HoC not less than the number of
senators by which the province is entitled to be represented at the time this part comes
into force S51A
- Subject to S43, the use of English or French language
- Composition of the SCC
- Amendment to this part, amendment to amending procedures

2. General Procedure (S.38): requires amendments to be authorized by the Senate and the
HoC and of at least 7 of the provincial legislative assemblies representing 50% of the
population of the provinces
- Limited to
- The principle of proportionate representation of the provinces in the HoC prescribed by
the constitution of Canada
- The powers of the senate and method of selecting senators
- Number of members a province is entitled to be represented in the senate and the
residence qualifications of senators
- Subject to paragraph 41(d), the SCC
- The extension of existing provinces into the territories
- Notwithstanding any other law or practice, establishment of new provinces

3. Bilateral Procedure (S.43): requires amendments to be authorized by resolutions of the

senate and HoC and of the legislative assemblies of the provinces to which the
amendment applies
- Includes;
- Any alteration to boundaries between provinces
- Any amendment to any provisions that relates to the use of the English or the French
language within a province

- Under these 3 procedures, the senate has only a suspensive veto. S47

Regional Veto Act

- An act respecting constitutional amendments
- This act of parliament cannot amend the amending procedures, that would require a
unanimous consent amendment
 - Act creates an expectation that federal ministers will not commence the formal
constitutional amending process w/o first securing support of each of the regions of
canada

4. Unilateral federal procedure (S.44): by statute enacted by parliament.

- Allows parliament via statue to amend the constitution in relation to the executive
government of Canada or the senate and HoC
5. Unilateral provincial procedure (S. 45): by statute amending the provincial constitution
enacted by a provincial legislature
- Allows the provincial legislatures via statute to make laws amending the constitution of
the provinces.

Constitutional Amendments Since 1982

1. 1983, provisions clarifying aboriginal and treaty rights were added to part 2 of the
constitution act 1982
- Only amendment since 1982 that has been enacted pursuing to the general amending
procedure
2. 1985, 2011, the numbers of members in the HoC and representation of provinces and
territories in the house were changed by amendments to the constitution act 1867
3. 1993, Charter of Rights and freedoms was amended to give equality of status and equal
rights and privileges for English and French in New Brunswick
4. 1993, Prince Edward Island Terms of Union were amended to replace the constitutional
guarantee of efficient steam service with a fixed link to New Brunswick, the
confederation bridge
5. 1987, 1997, 1998, amendments made to Terms of Union with Newfoundland in relation
to denominational school rights
6. 1997, denominational schools in Quebec
7. 1999, Nunavut was given representation in the senate and HoC
8. 2001, terms of union with Newfoundland renamed the province newfoundland and
Labrador
9. 1987, Meech Lake Accord and 1992, Charlottetown Accord were the two biggest failed
constitutional reform initiatives. Trying to bring Quebec in (5 demands)

Constitutional Interpretation

2 Dominant Approaches to Constitutional Interpretation

Originalism:
- Focuses on the intentions of those who framed or drafted the constitution
 - Some originalists examine the subjective intentions of the framers but most try to discern
the original meaning of the constitutional text
- An originalist believes, the interpretation of a written constitution should be based on
what the words used meant at the time they were enacted
- Can be discerned from dictionaries and contemporary legal documents, it can also be
inferred from the historical context within which a constitution was enacted as well as
from the debates that gave rise to constitutional provisions.

Progressive:
- Those who see the constitution as a living document, treat the text of a constitution as
exemplifying the way that a particular subject was dealt with in its historical context
- From the provisions and structure of the constitution, one can discern values or principles
that can then be applied to situations that were not contemplated at the time the
constitution was enacted
- This view is premised on the fact that constitution ought not to confine the institutions
that it creates and upon which it confers powers to the situations existing only at the time
that the constitution was enacted.
- Proponents of originalism see it as the legitimate role of political actors to update the
constitution while supporters of progressive interpretation believe that the constitution
can evolve to certain extent to meet contemporary realities and respond to shifting social
values
- The tension between originalism and progressive interpretation plays out regularly in the
USA (ex/ the second amendment)

Constitutional Interpretation in Canada

- In interpreting the constitution of Canada, courts have generally proffered to use
principles of progressive interpretation
- Originalism is occasionally used to interpreted fundamental constitutional compromises

The Persons Case

- The most famous case concerning constitutional interpretation was decided in relation to
the eligibility of women to be appointed to the senate
- The famous five
- Interpretive question to the courts was wither the term ‘qualified persons’ in S24 of the
constitution of 1867, must be read as it was understood in 1867 which would have
excluded women or whether it could be understood in relation to changing attitudes and
circumstances in Canadian society

Edwards V. Canada
- Gov referred the question to the SCC
- Asked if the word persons in S24 of the BNA included female persons
- SCC said no
- JCPC said yes “why should it not” – viscount Sankey

Progressive Interpretation
 - The living tree approach to constitutional interpretation has allowed the Canadian
constitution to adapt to changing circumstances w/o formal constitutional amendments
- In the same sex marriage reference the SCC was confronted with the argument that
federal legislative authority over marriage only included marriage as it was understood in
1867 that is between a man and a woman.
- The court rejected this argument, finding that “the ‘frozen concepts’ reasoning runs
contrary to one of the most fundamental principles of Canadian constitutional
interpretation: that our constitution is a living tree which, by way of progressive
interpretation, accommodates and addresses the realities of modern life
- Toronto Corporation v. Bell Telephone Co. of Canada
- Parliaments legislative competence in respect of telephones was recognized on the basis
of its authority over interprovincial “undertakings” in S.92(10)(a) even though the
telephone had yet to be invented in 1867

Limits to Progressive Interpretation

- “The BNA planted in Canada a living tree capable of growth and expansion within its
natural limits” on the extent to which progressive interpretation may be used to interpret
the constitution
- Terms of Union PEI 1983
- Canadian government will pay for all charges for efficient steam service for the
conveyance of mails and passengers between PEI and the mainland of New Brunswick.
Following 1873, steamships were replaced by diesel powered vessels, conveyance of
mails and passengers grew to include the automobiles of the passengers
- 1990’s confederation bridge-built b/w NB and PEI providing a fixed link between the
island and the mainland.
- Friends of the Island Inc. v. Canada (Minister of Public Works)
- Issue: does the “fixed link” satisfy the requirement to provide “efficient steam service”?
- Decision: “the words ‘efficient steam service simply do not bear an interpretation which
means a bridge. To conclude otherwise would be to take on a role which more
appropriately belongs to the legislators, not to the courts.
- Used progressive interpretation

Originalism in Canada
- Occasionally the courts will resort to originalism, restricted to aspects of the constitution
that were clearly part of a political compromise w/o which confederation would not have
occurred.
- EX/ Macdonald v. City of Montreal 1986
- SCC interpreted certain constitutionally guaranteed language rights in light of the
historical compromise that was reached at confederation
- 1987 Reference re Bill 30, An act to amend the education Act of Ontario
- SCC interpreted the guarantee to certain denominational religious education in Ontario,
in light of the compromise or basic compact of confederation
- Reference Re Senate Reform, 2014
- SCC has used originalism in relation to the interpretation of the protected features of
national institutions
 - SCC relied on the intention of the framers to interpret the place of the senate and the SCC
in the constitutional framework

Federalism Part 1

Division of Powers
- Found in S91 (powers given to parliament) and S92 (powers given to provincial
legislatures) of the constitution act 1867

S91
- Intention in 1867 was to give a strong central gov which is why S91gives parliament
broad powers in peace, order and good government of power
- Exclusive power to make laws in these sections;
 Regulation of trade and commerce
 Raising of money by any mode or system of taxation
 Militia, military and naval service and defence
 Navigation and shipping
 Currency and coinage
 Patents of invention and discovery
 Indians, and lands reserved for Indians
 Marriage and divorce
 Criminal law

S92
- S92 gave the provinces exclusive legislative authority in relation to local matters;
 Direct taxation within the province in order to the raising of a revenue for provincial
purposes
 Municipal institutions in the province
 Shop, saloon, tavern, auctioneer and other licences in order to the raising of a revenue for
provincial, local or municipal purposes
 Property and civil rights in the province, the administration of justice in the province
 Generally, all matters of a merely local or private nature in the province
S95
- Gave parliament and the provincial legislatures concurrent authority over agriculture and
immigration. Specifying that the federal law was to prevail in the case of a conflict

The JCPC and the Division of Powers

- SCC established in 1875 its decisions could be appeal to the JCPC
- JCPC consisted of senior UK judges sitting as a committee of the UK Privy Council and
advised the Queen as to the outcome of cases
- The ‘advice’ of the board was treated in the same way as judicial decisions
- Viscount Haldane appeared before the board as council for the provinces in numerous
cases, after being appointed as a judge, he authored 23/67 cases decided between 1911
and 1928.
- He along with Lords Watson and Atkins, have been characterized by some critics as the
wicked step fathers of confederation on account of their interpretations of the constitution
- Initial critics accused the JCPC of misunderstanding the text of the constitution and the
intentions of the framers.
- Kennedy wrote a quote
- S91 and 92 contain an enumerated list and each arguably contain a residual clause. At the
federal level the power to make laws for the peace , order and good government, and the
provincial level, the power to make laws generally for all matters of a merely local or
private nature in the province
- JCPC tended to interpret federal powers narrowly and provincial powers broadly

Federal Powers Interpreted Narrowly

- The broad powers to legislate for the peace, order and good government was limited by
the JCPC to 3 situations
- Emergencies such as war
- Gaps in the constitution, not included in constitution in 1867
- Areas of national concern
- Narrowed powers of trade and commerce, limited to
- International trade
- Inter-provincial trade
- Trade of concern to Canada as a whole

Provincial Powers Interpreted Broadly

Property and Civil Rights:
- The power to legislate in relation to property and civil rights was read expansively to
include the entire body of private law (contracts, torts, property law, regulation of
professions, regulation of particular trades and businesses) which governs the relationship
between individuals

Approaches to the Division of Powers

- JCPC approach was premised on S91 and S92 being watertight compartments that did not
overlap
- General trend since 1949 has been to recognize the need to give effect to legislation
enacted by both levels of government
 - Certain subject areas have a double aspect, that is for some purposes they fall within
federal legislative authority and for others within legislative authority of the provinces
- Ex/ highway driving, provinces and parliament can legislate
- Act of driving has aspects relating to criminal law (federal) S91 and property and civil
rights (provincial) S92
- Cooperative federalism “a court should favour where possible, the ordinary operation of
statutes enacted by both levels of government”

Federalism Part 2

Legal Framework

Validity (pith and substance)

- First step of division of powers analysis is whether the law is valid by applying the pith
and substance analysis to determine what the law is about
- Characterization of the law
- Purpose of the law
- Legal effect of the law
- Assignment to a head of power
- Federal law is valid if it falls within federal legislative authority

Operability (paramountcy)
- A valid provincial law is inoperative to the extent that it conflicts with a valid federal law
- Operational conflict
- Frustration of federal purpose

Applicability (inter-jurisdictional immunity)

- If the provincial law is valid and operates it is still necessary to ask is it applicable
- Provincial law will be inapplicable if it impairs the core of a federal head of power
- Generally, requires it to impair a specific federal attribute of an undertaking, person or
thing within federal jurisdiction

Examples of Validity:

Bank Act S28 (1)

- The letters patent incorporating a bank must include; the name of the bank, the province
in which the head office of the bank is situated and the date that the bank came or is to
come into existence
- Purpose of this law is to make known certain info about banks and legally require that
this info be incorporated in the letters patent
Section 91(15): Banking, Incorporation of Banks and the issue of paper money

- In R. V Morgentaler, the SCC examined a Nova Scotia statute that prohibited abortions
outside of hospitals
- Outside of provincial jurisdiction
Examples of Operability:

Law Society of BC V. Mangat

- Federal immigration act stipulated that a party could be represented by a non-lawyer for a
fee before the Immigration and Refugee Board
- Conversely, BC’s legal profession act prohibited non- lawyers from practicing law and
thereby appearing before a tribunal for a fee

Example of Applicability:

Quebec v. Canadian Owners and Pilots Association 2010

- SCC was faced with a provincial law that prohibited the use of land in a designated
agricultural region for any purpose other than agriculture
- An airport was built on such lands
- Court held that the federal power over aeronautics, part of the power to make laws in
relation to the peace, order and good government of Canada, included not only the
regulation of the operation of aircrafts and airports but also the power to determine the
location of airports and aerodromes
- Court viewed that it was in federal aeronautics power

Module 3

The Charter of Rights and Freedoms

The Protection of Human Rights in Canada

Charter of Rights and Freedoms:

- Protects 6 main kinds of rights
1. Fundamental freedoms such as freedom of thought, belief, opinion and expression
(including freedom of the press and other media of communication); freedom of peaceful
assembly, and freedom of association;

2. Democratic rights, such as the right to vote and to be qualified for membership in the
House of Commons or a provincial legislative assembly;

3. Mobility rights such as the right to enter and remain in Canada, and to move to any
province;

4. Legal rights, such as the right to life, liberty and security of the person; and other rights
in relation to the criminal justice system;

5. Equality rights before and under the law, as well as the right to equal protection and
equal benefit of the law without discrimination; and,
 6. Language rights in relation to the official languages of Canada, including the equality of
status they enjoy as to their use in the institutions of the Parliament and government of
Canada.

Application of the Charter

32(1)

- Applies to the federal parliament and government as well as the legislature of each of the
provinces and territories

- Charter is a limit on government action and on the legislative authority of parliament and
the legislatures

- Does not apply to private organizations or individuals, doesn’t mean they can violate
rights

Rights subject to reasonable limits

- Canadian charter of rights and freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society
- Means charter rights are not absolute, can be limited in order for the government to be
able to achieve important objectives that infringe rights in a limited way and that pass the
3 part test set out in the Oakes case for whether a limit on a right is justifiable
1. There is a pressing and substantial state objective, must be a good reason
2. There is a rational connection between the limit on the right and the objective
3. The limit on the right is proportionate to the state’s objective, proportionality between the
effect of the rights limitation and the object sought to be achieved by the law
- Main question for the courts is whether the appropriate balance is struck between the
limitation of the right and the objective that is being pursued

Structure of a Charter Argument

- 3 questions to ask
1. Is the alleged right protected by the charter?
2. Was there an infringement of the protected charter, right?
3. Can the government justify the infringement?
Fundamental Freedoms

Constitution Act, 1982

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

2(a) Freedom of Religion

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295.

“The essence of the concept of freedom of religion is the right to entertain such religious beliefs
as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or
reprisal, and the right to manifest religious belief by worship and practice or by teaching and
dissemination.”

- SCC struck down the Lord’s Day Act, a federal law that prohibited most commercial
activity on Sundays

R. v. Edwards Books and Art, [1986] 2 S.C.R. 713.

- Ontario Retail Business Holidays Act prohibited most stores from opening on Sunday.
- Not religious, common day of rest for retail workers
- Court held that it infringed freedom of religion because it created pressure on non-
Christians to abandon non-Sundays days of rest or religious observance
 - Law saved under S1, court found that the purpose of providing a common day of rest was
a reasonable limit on freedom of religion

2(b) Freedom of Expression

- In the Irwin Toy v. Quebec 1998 1 S.C.R 927, the SCC articulated 3 rations for a very
broad definition of freedom of expression
1. Seeking and attaining the truth is an inherently good activity
2. Participation in social and political decision-making is to be fostered and encouraged; and
3. The diversity in forms of individual self-fulfillment and human flourishing ought to be
cultivated
- Because of the importance of expression to each of these core values, the SCC has
interpreted freedom of expression very broadly. Nearly any activity that is expressive will
be protected if it attempts to convey meaning
- For charter purposes, expression falls into 3 categories
- Not expression (does not convey meaning) (rare, include purely physical activity that is
not intended to convey meaning) expression that is not protected (violence) 
protected expression (content neutral which means that what you are expressing will have
no bearing on whether it is protected or not)

2(b) Freedom of Expression Con’d

- Since freedom of expression has been defined so broadly, most things enter the ambit of
expression that will be protected at least at the threshold stage
- Question usually for the courts is whether any limits on the right can be justified under S1
- The closer that the protected expression is to the core values articulated in Irwin Toy, the
less likely it is that an infringement will be justified
- For example, the Irwin Toy case itself was about commercial expression, in that case
there was a charter challenge to legislation in Quebec that prohibited advertising to
children under age 13. SCC held that commercial speech is protected under S 2b but
because commercial speech was not one of the core values that S 2b is meant to protect,
the law could justifiably restrict the manner in content of advertising.
- Result, law was held to be justified under S1 because its purpose was to protect children
from being manipulated by the media

1. Political expression (most difficult to justify restricting given its role in a democratic
society) and protest
2. Commercial expression (e.g. advertising, like in Irwin Toy) and artistic expression
3. Hate speech, to the point it incites violence
4. Degrading expression (e.g. some types of pornography)

- 2 cases of the SCC highlight the analysis the court supply when deciding how much
protection should be given to expression and what limits can be placed on it
1. R. v. Keegstra, [1990] 3 S.C.R. 697
  Alberta teacher was charged with wilfully promoting hatred against an identifiable group
by communicating anti-Semitic statements to students.
 Promotion of hatred is protected speech.
 The Criminal Code offence prohibiting the promotion of hatred was upheld as a
reasonable limit on the right.
 SCC found that he was protected by S2b, it conveyed a meaning and was non-violent

2. R. v. Zundel, [1992] 2. S.C.R. 731

- An individual who denied that the Holocaust occurred was charged with spreading false
news causing harm to a public interest.
- Deliberate falsehoods are protected speech.
- But the Supreme Court held that the law could not be justified under s. 1.
- There was no pressing purpose for the offence, and it was overly broad.
- Non-violent, protected under the charter. Question was whether the criminal offence was
justified in a free and democratic society
- Court held the law could not be justified under S1, parliament had no pressing and
substantial objective in enacting the offence
- Provision could not be upheld under S1, court found the provision was overly broad
-

2(d) Freedom of Association

- One of the charter rights that has changed the most since 1982 on account of judicial
interpretation
- Much of the initial case law has been reversed and our understanding of the right now is
very different than it used to be
- Initially it was defined by 2 limits BELOW

Ref Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 (“Labour Trilogy”)

Majority reasons

1. First like most fundamental freedoms, Section 2(d) protects individual and not collective
Rights. Strikes takes place in a group.
2. Second, Section 2(d) does not provide “positive rights,” only negative ones. A right to
collective bargaining would require the state to do something to be effective (i.e. provide
for bargaining in good faith). Could prevent the government from doing something
unconstitutional but could not be used to require positive action from the government.
3. No specific model of labour relations is constitutionalized. Collective bargaining is a
feature of a specific type of labour regime (Wagner Model).

- Late 1980’s the SCC heard the first labour trilogy, 3 related cases dealing with the right
of freedom of association.
- Majority of the SCC interpreted section 2d as not protecting the right to strike, court held
that S2d protected rights that are exercised by individuals.
 - Strikes are exercised by groups collectively are not protected
- Majority also that freedom of association did not require the government to take positive
action ex/ collective bargaining

Dissenting reasons

1. “Association” implies activities that have no individual equivalent and can only be exercised
collectively.

2. Implicitly recognized that section 2(d) could include positive obligations, in the sense of the
employer meeting employees on more equal terms.

3. There is a right to strike and a right to collectively bargain.

- Since the 1980’s labour trilogy, the SCC has significantly changed the interpretation of S2d

• 2001 Dunmore v. Ontario, [2001] 3 S.C.R. 1016. Extended certain labour rights – like the
right to form a union – to vulnerable farm workers excluded from labour legislation. Although a
very limited exception, it began the first departure from the Labour Trilogy, recognizing both a
collective component to section 2(d) and positive rights in some cases.

- Dealt with agricultural workers in Ontario

- Briefly given collective bargaining rights, but when that law was repelled, the repel was
held to be unconstitutional
- SCC held that S2d in some cases, should protect activities that are collective in nature,
where they cannot be performed by individuals acting alone ex/ trade unions can
accomplish things that individuals alone cannot accomplish
- Court found that excluding agricultural workers from legislation protecting workers
substantially violated their rights

•2007 BC Health Services, 2007 SCC 27. Extended understanding of collective rights to cover
rudimentary collective bargaining, accepting a positive component to section 2(d). Section 2(d)
now protects a procedural right to collective bargaining, in which the employer is required to
bargain with employees or unions in good faith.

- Prevented certain health care workers from collectively bargaining specific issues
- SCC recognized under 2d employees had the right to engage in association with their
employers on fundamental work place issues
- Limited right

• 2011 Ontario (A.G.) v. Fraser, 2011 SCC 20. Although the right to bargain in good faith is
protected, the right to a particular way of resolving impasses is not (like a strike or an
arbitration).

- Ontario had labour legislation that gave fewer union and employee rights to farm workers
than to other workers
 - SCC upheld the law, held that although a meaningful process for collective bargaining
was guaranteed, there is no guarantee to a particular model of collective bargaining or
any particular outcomes
- Strong decent in Fraser decision which was critical to the development of S2d by the
majority. At its most basic level the descents concern was how the courts could protect
any aspect of collective bargaining without constitutionalizing much of a particular model
of labour law

The “Old” Labour Trilogy, 1987

1. 2(d) protects individual not collective rights.

2. 2(d) does not require the state to act positively to protect a right (to impose a duty to
bargain in good faith).

3. No specific model of labour relations is constitutionalized. Collective bargaining is a

feature of a specific type of labour regime (Wagner Model).

The “New” Labour Trilogy, 2015

1. 2(d) protects right to join with others to form associations.

2. To be able to meet the employer on equal terms, 2(d) includes a duty for the employer to
negotiate in good faith and includes strikes.

3. 2(d) protects dispute resolution mechanisms “commonly used in labour relations,” because
dispute resolution is indispensable to collective bargaining.

- right to engage in collective activity and form associations

- a right to join with others in support of other constitutional rights
- a right to join with others to meet those with power on more equal terms
- court held that a meaningful collective bargaining regime will give employees a choice of
representation with sufficient independence from the employer to let them pursue their
interests collectively
- court also found that freedom of association under the charter can include a right to
strike, right to strike is an indispensable component of the right to bargain collectively

Democratic Rights
- Sections 3,4,5

Constitution Act, 1982

3. Every citizen of Canada has the right to vote in an election of members of the House of
Commons or of a legislative assembly and to be qualified for membership therein.

4. (1) No House of Commons and no legislative assembly shall continue for longer than five
years from the date fixed for the return of the writs at a general election of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be
continued by Parliament and a legislative assembly may be continued by the legislature beyond
five years if such continuation is not opposed by the votes of more than one-third of the
members of the House of Commons or the legislative assembly, as the case may be.

5. There shall be a sitting of Parliament and of each legislature at least once every twelve
months.

Figueroa v. Canada (A.G.), [2003] 1 S.C.R. 912

- Right to vote

Facts: Under Canada Elections Act, Certain benefits given only to political parties that nominate
candidates in at least 50 electoral districts. Parties that did so could become registered parties and
qualify for the right to issue tax receipts for donations made outside an election period and to list
the party affiliation of the ballot next to the name of their candidates

Issue: Whether the 50-candidate rule violates s. 3 of the Charter

Decision: The right to vote should be understood as the right of each citizen to play a meaningful
role in the electoral process. The 50-candidate rule violates s. 3 and is not save by s. 1.

- Court held that each citizen must have a genuine opportunity to take part in the
governance of the country through participation and the selection of elected
representatives

- Restricting benefits for parties that ran less than 50 candidates, interfered with the right to
meaningfully patriciate in the electoral process and was not saved by section 1

Mobility Rights S6

Constitution Act, 1982

6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada. Prevents the
exile or banishment of citizens, also protects movement of citizens within Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of
Canada has the right

(a) to move to and take up residence in any province; and (b) to pursue the gaining of a
livelihood in any province.

(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that
discriminate among persons primarily on the basis of province of present or previous residence;
and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of
publicly provided social services.

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the
amelioration in a province of conditions of individuals in that province who are socially or
economically disadvantaged if the rate of employment in that province is below the rate of
employment in Canada.

- Not subject to section 33

Right to Enter and Remain in Canada

- Positive Aspect: Citizens stranded outside of Canada have a s. 6 right to an emergency

passport to return to Canada.
 Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580
- Negative aspect: Extraditing Canadians to face trial in a foreign country violates s. 6, but
is saved by s. 1.
 United States of America v. Cotroni, [1989] 1 S.C.R. 1469
 Canadians alleged in a conspiracy to import and distribute heroin in USA
 USA sought extradition which the Canadians argued violated their S6 rights to remain in
Canada. The SCC held that the extradition act did violate S6 but majority of the court
held that the violation was saved by S1
 Investigation, prosecution and suppression of crime and the maintenance of peace and
public order was found to be an important societal goal
 Procedures in the extradition act were found to be tailored to infringe the charter right as
little as possible

Legal Rights

- Primarily related to criminal proceedings

Section 7
Constitution Act, 1982

7. Everyone has 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.

- Typically arises when the government is seeking to enforce laws on individuals that
implicate their liberty or freedom of choice with respect to significant matters
- Liberty interests also arise in other contexts; in immigration cases, child protection cases,
health care decisions
- Applies to everyone who is physically present in Canada
- Internal limitation
- If your rights are interfered with, it is difficult to see how this could be upheld under sec 1
- The SCC has never found a breach of S7 to be saved by S1 although it has left open the
possibility for a future case
- Situation that may justify the infringement of a S7 law is something in the nature of war
or an epidemic, extrodinary circumstances

3 Interests Protected:

Death

- The right to life is engaged wherever the law or government action in question imposes
death or an increased risk of death either directly or indirectly

Physical Restraint

- The right to liberty is predominantly related to physical restraint. Any law that imposes
the penalty of incarceration is a deprivation of liberty and must be in accordance with
principles of fundamental justice in order to comply with S7.

Autonomy

- The SCC has not yet extended the right to liberty beyond freedom from physical restraint
- Security of a person has been interpreted relating to the health and safety of individuals.
It is implicated when there are concerns about autonomy and free choice being engaged
in health and safety decisions or when government action causes a serious effect on a
persons psychological integrity

- Accepted few rights is that S7 does not protect a positive right to have your life, liberty or
security of the person insured, maintained or strengthen. It does not require the
 government to provide you with anything to achieve these rights it only protects you from
having your life, liberty or security of the person infringed or taken away, that is not in
accordance with the principles of fundamental justice

Some of the accepted principles of fundamental justice:

- legal principles capable of precise definition in about which there is a consensus in society.
They cannot be vague principles but must be precise enough that you can look in S7 rights and
use the principles of fundamental justice as a measurable standard against which to access the
deprivation.

1. Prohibition against arbitrariness.

- laws that affect s7 interests cannot be arbitrary. Must be a rational relation to the objective
behind the law considering the state interests and societal concerns.

2. Duty of fairness.

- If a law is to affect S7 interests, the individual affected must be treated fairly.

- At a minimum the individual is entitled to know how their rights will be affected, and to
have an opportunity to make submissions to an unbiased decision maker
- When there are more serious effects on S7 rights, greater procedural protections are
required
3. Clarity (non-vagueness).
- Laws that engage S7 b/c their breach would cause someone to be imprisoned must be
sufficiently clear to let the individual know what conduct is criminal and what is not
4. Overbreadth.
- Laws that are overbroad are drafted in a way that overreaches and catches conduct that is
not rationally related to the legislative objective
- Laws that affect S7 interests have to be specifically tailored to only engage the conduct
rationally related to the government’s objectives
-
- Other principles of fundamental justice have been accepted in particular contexts

Section 799

Rodriguez 1993

 Preventing a terminally ill person from getting help in ending her life was in accordance
with the principles of fundamental justice.
 Court focused on that human life must be respected
 Overbreadth was not a thing yet

Carter 2015
  A total ban on assisted suicide to protect the vulnerable from being induced to commit
suicide is overly broad, because it prevents individuals who are competent, intolerably
suffering and who wish to die from getting assistance to end their lives.

Constitution Act, 1982

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if
the detention is not lawful.

Constitution Act, 1982

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the
offence; (direct)
(d) to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to
the benefit of trial by jury where the maximum punishment for the offence is
imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or
omission, it constituted an offence under Canadian or international law or was criminal
according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty
and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied
between the time of commission and the time of sentencing, to the benefit of the lesser
punishment.

Constitution Act, 1982

12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.

13. A witness who testifies in any proceedings has the right not to have any incriminating
evidence so given used to incriminate that witness in any other proceedings, except in a
prosecution for perjury or for the giving of contradictory evidence. (indirect)

14. A party or witness in any proceedings who does not understand or speak the language
in which the proceedings are conducted or who is deaf has the right to the assistance of an
interpreter.

Equality Rights

- S15 contains 4 different protections for equality rights; equality before the law, equality
under the law, equal protection of the law and equal benefit of the law
- Protects people from discrimination or differential treatment from laws themselves but
also from government actors carrying out laws.
- Charter says that treating people differently on the basis of certain grounds is
inappropriate

Constitution Act, 1982

15. (1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.

Discrimination:

Listed grounds:
 - “...race, national or ethnic origin, colour, religion, sex, age or mental or physical
disability...”

Analogous grounds:

- citizenship, marital status, sexual orientation

- in interpreting S15 the courts look for direct and indirect forms of discrimination, formal
and substantive equality
- law prohibiting women from becoming police officers is a direct form of discrimination
- law prohibiting anyone under 6 feet tall from becoming a police officer is a indirect form
of discrimination ( given that women are not as tall as men they are indirectly
discriminating against them ).
- Sub section 2 authorizes the creation of affirmative action programs to improve
conditions of disadvantaged individuals or groups.

Structure of an equality rights argument

1. Does the law impose a distinction in comparison to other comparable person based on a
prohibited ground?

2. Is the distinction discriminatory, in that it perpetuates prejudice or disadvantage engages in a

stereotype?

A. Is the group historically disadvantaged or particularly vulnerable?

B. Is the distinction made by the law based on the actual needs and capacities of individuals
or on stereotypical assumptions?
C. Is the distinction meant to ameliorate conditions of a more disadvantaged group?
D. How severe and what kinds of impacts on a group is caused by the distinction?

Halpern v. Canada (A.G.) (2003), 65 O.R. (3d) 161 (C.A.)

- 7 gay and lesbian couples applied for civil marriage licences from the clerk of the city of
Toronto and were refused
- At the same time, the Metropolitan community church of Toronto presided over the
weddings of 2 other gay couples and tried to register the marriages
- Registrar refused to register the marriages on account of the common law definition of
marriage
- All of the couples challenged the definition under the charter arguing that it discriminated
against them contrary to S15
 Facts: The common law definition of marriage was “...voluntary union for life of one
man and one woman, to the exclusion of all others.”
 Issue: Does the common law definition of marriage violate s. 15 of the Charter?
 Decision: The dignity of persons in same-sex relationships is violated by the exclusion of
same-sex couples from the institution of marriage. The common law definition of
marriage violates s. 15(1) of the Charter and is not saved by s. 1.
 - As a remedy the definition was changed to “the voluntary union for life of two
persons, to the exclusion of all others”

Language Rights

Constitution Act, 1982

16. (1) English and French are the official languages of Canada and have equality of status and
equal rights and privileges as to their use in all institutions of the Parliament and government of
Canada.

(2) English and French are the official languages of New Brunswick and have equality of status
and equal rights and privileges as to their use in all institutions of the legislature and government
of New Brunswick.

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the
equality of status or use of English and French.

17. (1) Everyone has the right to use English or French in any debates and other proceedings of
Parliament.

(2) Everyone has the right to use English or French in any debates and other proceedings of the
legislature of New Brunswick.

- statues, records and journals must also be printed and published in French and English

19. (1) Either English or French may be used by any person in, or in any pleading in or process
issuing from, any court established by Parliament.

(2) Either English or French may be used by any person in, or in any pleading in or process
issuing from, any court of New Brunswick.

20. (1) Any member of the public in Canada has the right to communicate with, and to receive
available services from, any head or central office of an institution of the Parliament or
government of Canada in English or French, and has the same right with respect to any other
office of any such institution where

(a) there is a significant demand for communications with and services from that office in such
language; or

(b) due to the nature of the office, it is reasonable that communications with and services from
that office be available in both English and French.
23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic
minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside
in a province where the language in which they received that instruction is the language of the
English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that
language in that province.

Remedies

Constitution Act, 1982

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no
force or effect. (court striking down the law, often suspends the effect of its decision it orders to
give parliament or legislature time to respond with new legislation. New legislation will either
take the court’s decision into account and will respond to the constitutional issue that was
identified or the new law may invoke the notwithstanding clause

- Read in certain words to cure a conflict with the constitution

- Read down a statute to avoid a conflict with the constitution

Constitutional Exemption

- In extreme cases the court will provide particular laitance with a constitutional exemption
- Law remains on the books, but courts will authorize an individual not to comply with it
Remedies

 A father applied for paternity benefits under section 32 of the Unemployment Insurance
Act, which provides parental benefits for adoptive parents.

 Other than for adoption, fathers were not entitled to paternity benefits under the Act.

 The Supreme Court held that the Act was discriminatory: it discriminated between natural
and adoptive parents.

 What was the appropriate remedy?

Schachter v. Canada, [1992] 2 S.C.R. 679

Unemployment Insurance Act

32. (1) [...] initial benefit is payable to a major attachment claimant who proves that it is
reasonable for that claimant to remain at home by reason of the placement with that claimant of
one or more children for the purpose of adoption pursuant to the laws governing adoption in the
province in which that claimant resides.

- A biological father successfully argued that the unemployment insurance act was
discriminatory because it provided paternity benefits to only adoptive fathers.

Choice of remedy depends on: How does the law fail section 1?

• No pressing & substantial objective or unconstitutional purpose  strike down

• Scheme not minimally impairing or disproportionately affects Charter rights:

- If it fails S1 analysis because it is not minimally impairing, the two other options are
available

o If under-inclusive  read in
o If specific provision infringes  sever the offending piece
o If Court can’t do either without offending Parliament’s objectives  strike down

- Made parental benefits to both biological and adoptive fathers, but only for a 10 week
period rather than 15 weeks which was when the provision only applied to adoptive
fathers

Fisheries Act
7 (1) [...] the Minister may, in his absolute discretion, wherever the exclusive right of fishing
does not already exist by law, issue or authorize to be issued leases and licences for fisheries or
fishing, wherever situated or carried on.

- What if the minister began exercising this power in an unconstitutional manner?

- In these circumstances, rather than getting it struck down, plaintiffs would seek to
challenge the minister’s decision making under the act.

Constitution Act, 1982

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy
as the court considers appropriate and just in the circumstances.

- In fisheries act, that remedy might be quashing a decision that was made on
unconstitutional grounds of race and requiring the minister to consider an application
only according to constitutionally permissible criteria.
- other S24 remedies include an injunction from prohibiting government from continually
violating your rights and sometimes an award of monetary damages to compensate for a
rights violation.

Canada (Prime Minister) v. Khadr, 2010 SCC 3

- Canadian citizen accused by the USA of war crimes

- Questioning occurred while the USA was subjecting him to the frequent flyer program, a
sleep deprivation technique making him less resistant to interrogation
- SCC declined to order the government to repatriate him instead the SCC declared that his
rights have been violated and left it to the government to decide how best to respond to
the court’s decision.
- The SCC concern was that the request for repatriation would occur in the broader context
of Canadas foreign relations with the USA and it would be entirely up to the USA
whether to return him to Canada or not.
- After pleading guilty in the USA he returned to serve his sentence in Canada in an
agreement between Canada and the USA.

 Facts: Omar Khadr was questioned by Canadian officials while in detention at

Guantanamo Bay, Cuba.
  Issue: Did this violate his section 7 rights, and (if so) what is the appropriate remedy?
 Decision: Mr. Khadr’s rights were violated, but it is up to the Government to determine
the appropriate remedy. Facts

Constitution Act, 1982

24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter,
the evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission of it in the proceedings would bring the administration of justice into disrepute.

- Privacy rights, if police violate your right to privacy, you can ask the court to exclude the
evidence obtained by the police so that is cannot be used against you at trail.
- Balancing test, evidence will be excluded only if admitting it would bring the
administration of justice into disrepute. The court will do that by balancing the
seriousness of the charter infringing conduct, the impact of the breach on the charter
protected interests of the accused, and societies interest in the prosecution of the offence.

Section 33

The Notwithstanding Clause

Constitution Act, 1867

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament
or of the legislature, as the case may be, that the Act or a provision thereof shall operate
notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. [...]

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes
into force or on such earlier date as may be specified in the declaration.
Marginal note:

- Can operate for a maximum 5 years at a time

- Never been used by federal parliament

- After 1982 Quebec enacted all its laws using the notwithstanding clause to protest the
fact that the constitution act 1982 was brought into force over the objections of Quebec
Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712

- Most famous use of section 33

- National assembly of Quebec to get around the SCC decision in the ford case

Facts: The Charter of the French Language required public signs and commercial advertising to
be only in French.

Issue: Does this restriction violate Charter?

Decision: Yes. The provisions violate the right to freedom of expression and are not saved by s.
1.

- National assembly re-enacted the provision requiring uni-lingual French signage outside
but allowing bilingual sings indoors

- Used notwithstanding clause

- 5 years later signs outside were bilingual but French text is predominant

Module 4

Parliament

Constituent Elements of Parliament

17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled
the Senate, and the House of Commons.
Provincial Legislatures

69. There shall be a Legislature for Ontario consisting of the Lieutenant Governor and of One
House, styled the Legislative Assembly of Ontario.

- at confederation the other provinces also had appointed upper houses called legislative
council, but these were eventually abolished at the provincial level

- Quebec’s was last to be abolished in 1968

Life of a Parliament

Federal Elections

Constitution Act, 1867

50. Every House of Commons shall continue for Five Years from the Day of the Return of the
Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no
longer.

Constitution Act, 1982

4. (1) No House of Commons and no legislative assembly shall continue for longer than five
years from the date fixed for the return of the writs at a general election of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be
continued by Parliament and a legislative assembly may be continued by the legislature beyond
five years if such continuation is not opposed by the votes of more than one-third of the
members of the House of Commons or the legislative assembly, as the case may be.
Federal Elections

1. (1) Dissolution of Parliament

2. (2) Fixing the date for the issue of writs, the day of voting and for the return of the writs
3. (3) Summoning of new Parliament

Dissolution  writs issued  election (Must be at least 36 days)  return of writs  new
parliament summoned

“Fixed” Election Dates

Canada Elections Act

56.1 (1) Nothing in this section affects the powers of the Governor General, including the power
to dissolve Parliament at the Governor General’s discretion.

(2) Subject to subsection (1), each general election must be held on the third Monday of October
in the fourth calendar year following polling day for the last general election, with the first
general election after this section comes into force being held on Monday, October 19, 2009.

Federal Elections Since 2007

2008: Prime Minister advised dissolution of “dysfunctional” Parliament

2011: Minority Government defeated on non-confidence vote

2015: First federal election held on the “fixed date” in October

Conacher v. Canada (Prime Minister), 2010 FCA 131

Issue: Should the 2007 amendments to the Canada Elections Act have prevented the Prime
Minister from advising a dissolution before the “fixed date” set for elections?

Decision: “Section 56.1 does not prohibit the Governor General from dissolving Parliament and
setting an election date. In fact, this discretion and power (enshrined in section 50 of the
Constitution Act, 1867) is specifically preserved by subsection 56.1(1). The Governor General’s
status, role, powers, and discretions are unaffected by section 56.1.”
2008 Prorogation

October 14, 2008: General Election

November 19, 2008: Speech from the Throne

November 27, 2008: Vote on throne speech passes • Fiscal Update presented

December 1, 2008: Coalition agreement

December 4, 2008: Prorogation

May 2, 2011: Dissolution

Government Formation

 Since the Government must maintain the confidence of the House of Commons, the party
standings in the House following a general election usually determine which party will
form the government.

 Prime Minister and Ministers are appointed to those positions by the Governor General.

o If one political party wins a majority of seats in the HoC, it can be assumed that the
leader of that party will command the confidence of the HoC and will continue in office,
if already the Prime Minister, or else will be invited to form a government by the GG.
 o Following a general election, the incumbent Prime Minister takes the initative in deciding
whether to meet the HoC and seek its support or whether to signal to the GG an intension
to resign as Prime Minister.

o If a PP, other than that of the incumbent Prime Minister wins the majority of seats in the
HoC, the PM may, in theory, decide to meet the HoC and remain in office until formally
defeated on a matter of confidence.

o However, the Canadian practice is for the PM to indicate an intension to resign rather
than face near certain defeat in the House. There are no examples at the federal level of a
PM remaining office where another political party has secured a majority of seats in the
HoC.

 If the PM resigns, The Governor General must appoint a Prime Minister who can secure
the confidence of the HoC.

o The appointment of the PM’s successor is one of the rare occasions where the GG may
act independently of the incumbent PM’s advice.

o However, the GG discretion is significantly controlled by constitutional convention.

o The GG overriding concern must be to find an individual, conform a government that

will enjoy the support of a majority of the members of the HoC.

o Usually, the outcome of the election will make it clear which individual will likely be
able to command the confidence of the house.

o In the event of uncertainty, following a close election or negotiation of among party

leaders for support, the GG’s rule is to let the political actors determine among
themselves who is likely to be able to form a government.

o Once this individual has been identified, the GG may then invite the individual to become
PM and to form a government.

Minority and Coalition Governments

 There are a number of possible outcomes where no party has a majority of seats in the
House of Commons:

o The leader of the party with the greatest number of seats could seek to govern as the leader of a
minority government, securing the support of the House of Commons on a case-by-case basis;
or,

o The leader of a party could seek to govern with the declared support of one or more of the
other parties; or,
o The leaders of two or more parties could seek to govern in a formal coalition government (i.e.
with those parties represented in the Ministry).

Minority Government since 1967

- 1957- John Diefenbaker Prime Minister

 St. Laurent (Liberal) resigned after winning seven fewer seats than John Diefenbaker’s
Progressive Conservatives. Neither party had an outright majority in the HoC. PM St.
Laurent consulted with cabinet before deciding whether or not to remain in office. Two
ministers felt that the gov should stay on, meet parliament, and ask for a vote of
confidence. The rest of the cabinet thought that the PM should resign and let Diefenbaker
try to form a government.
- 1963- Lester B. Pearson
 Prime Minister Diefenbaker (Progressive Conservative) resigned after winning fewer
seats than Mr. Pearson’s Liberals but neither party had a majority in HoC.
- 1979- Joe Clark
 Prime Minister Pierre Trudeau (Liberal) resigned after winning fewer seats than Mr.
Clark’s Progressive Conservatives. 4 – Paul Martin leads a minority government
- 2004 - Paul Martin
 Prime Minister went into the 2004 election leading a majority government but did not
secure a majority of seats.
- 2006- Stephen Harper
 Prime Minister Martin (Liberal) resigned after winning fewer seats than Mr. Harper’s
Conservatives.

Coalition Governments

 Canada does not have much experience with coalition governments at the federal level.

 During the First World War, the Liberal Party Leader, Sir Wilfred Laurier, rejected
Conservative Prime Minister Robert Borden's proposal to form a coalition government
for the remainder of the war.

 The Prime Minister then formed the Unionist Party, composed of members of the
Conservative Party, some members who left the Liberty Party, and several independent
members of the House of Commons.

 The Unionist Party formed the Government between 1917 and 1921.

Unclear Election Outcome

 Following a very close election, there may be occasions where it is difficult to determine
whether or not the Government will be able to command the confidence of the House of
Commons.
  The principle of responsible government suggests that, even where an opposition party
may have obtained a plurality of the seats in the House, the Prime Minister may remain in
office until meeting the House of Commons in order for it to express whether or not it has
confidence in the Government.

 That being said, only once has the Prime Minister met the House of Commons where
another party had won more seats in the House.

Continuity of Government

 There must always be a Prime Minister and Ministers in Office

 If a Prime Minister decides to resign following a general election, he or she and the rest
of the Ministry remains in office until a successor is appointed.
o In practice the outgoing PM signals an intension to resign so the GG may invite another
individual to become PM.
o The outgoing PM officially tenders his or her resignation to the GG immediately before a
successor is appointed.

Caretaker Convention

 In Canada’s Westminster form of government, it is a constitutional convention that the

government command the confidence of the HoC at all times.

 When a government has been defeated on a vote of non-confidence, when a Prime

Minister has advised that Parliament be dissolved, or where it is clear that another
political party has won majority of seats in the House of Commons the Government
enters a “caretaker” period.

 During the caretaker period, the Government restricts itself to matters that are: o (a)
routine, or
o (b) non-controversial, or
o (c) urgent and in the public interest, or

o (d) reversible by a new government without undue cost or disruption, or

o (e) agreed to by opposition parties (in those cases where consultation is appropriate).

• The caretaker period ends when a new government is sworn in, or when an election
result returning an incumbent government is clear.

- The privy council office has published guidelines on the conduct of Ministers, Ministers
of State, exempt staff and public servants during an election.

The Confidence Convention

Re: Resolution to amend the Constitution, [1981] 1 SCR 753

“It is also a constitutional requirement that the person who is appointed prime minister or
premier by the Crown and who is the effective head of the government should have the support
of the elected branch of the legislature.... Ministers must continuously have the confidence of the
elected branch of the legislature, individually and collectively. Should they lose it, they must
either resign or ask the Crown for a dissolution of the legislature and the holding of a general
election.”

• Lack of confidence may be indicated by:

1. Explicit motions of non-confidence

November 28, 2005

“That this House has lost confidence in the government.”

Defeat of the Paul Martin Government

March 25, 2011

“That the House agree with the finding of the Standing Committee on Procedure and House
Affairs that the government is in contempt of Parliament, which is unprecedented in Canadian
parliamentary history, and consequently, the House has lost confidence in the government.”

- Defeat of the Stephen Harper Government

2. Motions expressly declared by the government to be questions of confidence

- By declaring a vote to be a matter of confidence the government is indicating that it

intends to resign or request dissolution if it loses the vote

3. Matters traditionally considered to be questions of confidence:

  The approval of the address is reply to the Speech from the Throne
 The budget (PM’s Diefenbaker, Trudeau, Clark all forced to recommend the dissolution
of government when the house voted against the budget)
 The Authorization of spending

 Confidence of the HoC is a political question, not every vote is a matter of confidence
and the government may even temporarily lose control of the house without having to
resign or request dissolution
 Ambiguity about whether or not the government has the confidence in the HoC can be
resolved by designating a vote as a confidence matter or else explicitly asking the house
whether it has confidence in the government.
 The reason for the confidence convention is the democratic principle. The government
should remain in office only so long as it has the support of the people through their
elected representatives in the HoC.
 The senate is not a confidence chamber and the government may be defeated in the
senate without engaging in the confidence convention.
 The government may decide that certain matters should be settled by what are called ‘free
votes’, that is according to the judgment of individual members of the HoC
 Some matters of morality and conscience are often the subject of free votes especially
where opinion within political parties is divided
 “Free votes” do not engage the confidence convention
 Matter such as abortion, capital punishment, same sex marriage have been the subject of
free votes in the HoC

The Queen

- The Queen is usually represented in Parliament by the Governor General.

 The GG gives royal ascent in the Queen’s name to bills passed by the Senate and the HoC
 The GG also reads the speech from the throne which begins each session of parliament

Constitution Act, 1867

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and
House of Commons, to make Laws....

• Enacting clause, each federal law begins with: “Her Majesty, by and with the advice and
consent of the Senate and House of Commons of Canada, enacts as follows....”

 Queen is almost always represented in the parliament of Canada by the GG

  Occasionally the king or queen will perform a parliamentary function on a royal visit to
Canada (1939 King George VI gave royal assent, Queen Elizabeth II reads speech from
the throne in 1957 and 1977

The Senate

• 105 Senators

• Appointed by the Governor General on the advice of the Prime Minister

• May serve until the age of 75, since 1965

• Qualifications:

(1) At least 30 years old

(2) Canadian citizen

(3) At least $4,000 real property

- The provision originally ensured that only those with a significant property interest in
their communities were eligible to appointment to the senate. No longer has the same
effect.

(4) At least $4,000 net worth

(5) shall be resident in the Province for which he or she is appointed

Disqualification of Senators

- S31 of Constitution Act 1867 provides five circumstances that will result in a senator
losing their place in the senate.

A Senator may lose his or her seat in the Senate if he or she:

 fails to attend two consecutive sessions of Parliament

 becomes the citizen of another country

 becomes bankrupt

 is convicted of treason or a serious crime

  ceases to qualify the residency requirements

- The Senate also claims the power to expel a Senator for conduct that brings the Senate
into disrepute.

- The original regions of Canada, Ontario, Quebec and the Maritimes were given 24,24 and
24 senators each
- Power from the queen in S26 above has only been exercised once. 1990, 8 additional
senators were appointed to assist in the passage of government legislation that was stalled
in the Senate.

Role of the Senate - representation

 It is rare for a modern democracy to have an unelected chamber as part of its national
legislature.
 The Senate was a fundamental aspect of the Confederation compromise.

- At the time it was believed crucial to have an appointed upper house that could act as a
cheque on the elected HoC and that would provide regional representation for the
provinces with smaller populations.

 The Senate has increasingly represented the ethnic, gender, religious, linguistic, and
indigenous groups who have not always been represented in the House of Commons in
proportion to their share of the Canadian population.

Role of the Senate - legislation

 All legislation must be passed by the Senate.

 The Government can introduce legislation in the Senate.
 Senators may introduce their own bills.
 “Money Bills” must originate in the House of Commons.
 The Senate usually acts as a revising chamber for legislation coming from the House of
Commons.
  The Senate usually exercises its powers with restraint. (bills on abortion, free trade and
the Pearson airport contract, and climate change are among the limited number of
legislative initiatives defeated by the senate in the modern era.
 The library of parliament maintains a list of bills passed by the house that were amended
by the senate.
 Senate plays a formal and central role in the legislative process, in particular as a forum
for the study of proposed legislation and as a diligent revising chamber for legislation
emanating from the HoC.

Reference re Senate Reform, 2014 SCC 32

C-7 (2011) proposed Senate Reform Act

- In 2014 the SCC examined the senate’s place in the constitution of Canada in the context
of a reference submitted to it by the government and council. The gov referred several
questions to the court, including questions in relation to a proposed senate reform act.

 PM to reconsider results of “consultative elections”

- This would have meant that where a province put in place a mechanism for asking its
population who it wanted to be represented by in the senate, the PM would have been
bound to consider but not necessarily accept the results of that consultation.

 9-year non-renewable terms

- The court concluded the changes to the fundamental nature and role of the senate
required a resort to the constitutional amending procedures and could not be
accomplished through a federal statute.
- Changes to the method of selection of senators including the use of consultative elections
or the imposition of term limits require resort to the general amending procedure.
- On the issue of consultative elections, the court held that these would change what it
called the constitution’s architecture by giving senators a popular mandate inconsistent
with the senate’s fundamental nature and role as an appointed and complementary
legislative chamber of sober second thought
- The court reasoned that the imposition of fixed terms for senators engages the interests of
the provinces by changing the fundamental nature or role of the senate.
- Senators may currently serve to the age of 75, effectively until the end of their active
professional lives. This allows them to function with independence.
- The imposition of fixed senatorial terms is a significant change that implies a lesser
degree of independence.
- The court held that any fixed terms, even length ones, constitutes a change that engages
the interests of the provinces and falls within the constitutional amending procedures.

Consultative Elections

 Change the Constitution’s architecture

  Give the Senate a popular mandate inconsistent with its role
 Change the fundamental nature or role of the Senate
 Engage the interests of the provinces

Term Limits:

 Change the fundamental nature or role of the Senate

 Engage the interests of the provinces

Appointments

- The process used for making senate appointments used to be shrouded in some mystery.
Many senators were former members of the HoC or party loyalists. The senate was often
viewed as a way of dispensing patronage to supporters of the governing party.
- In addition to those selected based on political service or affiliation, other emanant
Canadians have also been appointed to the senate.
- Senators have included NHL hockey player Frank Mahovlich, a roman catholic nun from
Nova Scotia, Peggy Butts, jazz musician Tommy Banks and Olympic gold medalist
Nancy Green.
- Although no proposed constitutional change in relation to the senate has been successful
since the abolition of life tenure in 1965, several recent informal changes have placed the
senate in a period of transition.
- In 2016, an independent advisory board for senate appointments was established to assist
the PM in assessing candidates for appointment to the senate.

Constitution Act, 1867

24. The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under
the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions
of this Act, every Person so summoned shall become and be a Member of the Senate and a
Senator.

Independent Advisory board

 Tasked with recommending to the Prime Minister individuals for appointment to the
Senate who will bring an independent, non-partisan perspective to their work as Senators.
 Among other qualities, the board assesses whether candidates for appointment would
bring an independent and nonpartisan perspective to the senate.
  Since 2016 the PM has only recommended, and the GG has only appointed individuals to
the Senate who are not affiliated with a political party.
 This is a significant departure from past practice, where PMs tended to recommend with
few exceptions the appointment of senators with partisan affiliations who would sit with
the government caucus.
 Since November 2016, non-affiliated senators have occupied a plurality of places in the
senate.

The Senate in Transition

 The influx of independent Senators has changed the dynamics in the Senate.
 Since confederation, the party system has influenced the senate’s rules, procedures and
practices.
 Until recently, senators were either members of the governing party or of the opposition,
with only a few of them choosing to sit as independents. The influx of independent
senators has been a challenge for chamber usually relied on the leadership of the political
parties to negotiate the daily agenda and the work of the senate.
 The new merit-based appointment system has also encouraged the newly-appointed
senators to believe they were appointed not due to party loyalty but rather because of
their skills and abilities.
 Some senators are using their independence to move significant amendments to
legislation emanating from the HoC.
 Under the constitution, the senate is legally entitled to amend or defeat legislations sent to
it from the HoC. There is no consensus on the circumstances in which the senate may be
justified in opposing the HoC.
 In the event of overt or prolonged conflict with the house, the senate’s lack of democratic
legitimacy suggests that it should not use its formal legal powers to thwart the will of the
elected representatives of Canadians.

Reference re Senate Reform, 2014 SCC 32 at para. 58.

“...the choice of executive appointment for Senators was also intended to ensure that the Senate
would be a complementary legislative body, rather than a perennial rival of the House of
Commons in the legislative process. Appointed Senators would not have a popular mandate —
they would not have the expectations and legitimacy that stem from popular election. This would
ensure that they would confine themselves to their role as a body mainly conducting legislative
review, rather than as a coequal of the House of Commons.”

The House of Commons

  338 members (seats), number of seats is adjusted periodically as the population grows
and moves between provinces
 Elected by single-member plurality, most votes wins
 Representation by population
o Produces stable governments
o Benefits larger parties
o Disadvantages parties with diffused support
o False majorities
o Favours larger political parties

- 2008 election, the green party received 1m votes across Canada totalling near 7% of
population however not a single candidate was elected to the HoC

 Preeminent democratic forum for discussion of public policy, debate on legislation and
the accountability of Ministers.

 Provides democratic legitimacy to laws enacted by Parliament and the continuation in

office of Ministers.

 Members of HoC also often act as ominous persons for their constituents, by raising
matters of individual or local interests with the government and with ministers.

Roles of the Senate and House of Commons

Legislate

 Consider and vote on bills introduced by the government

 Certain parliamentarians also have an opportunity to put forward their own private
members bill for consideration

Deliberate

 Opportunity for parliamentarians to raise issues outside debate on particular pieces of

legislation

Hold the Government to Account

 Opposition parties can hold the government to account

The Federal Legislative Process

 - 2 broad categories of bills, private and public.
- Private bills are rare, between 2007 and 2017 only 6 private bills were enacted.
- Private bills are not laws of general application. They deal with the particular rights and
interests, usually the rights of organizations that are incorporated by private bills.
- Ex/ queens university was established by a royal charter which was subsequently
amended by private legislation.
- In 2011, bill S-1001, an act respecting queen’s university at Kingston was enacted by
parliament. This act made certain changes to the composition and powers of the board of
trustees and the university council.
- The vast majority of legislation dealt with by parliament is in the form of public bills.
These are proposed laws of general application that often propose amendments to
existing laws, such as the criminal code, the income tax act or the immigration and
refugee protection act.
- Most public bills are presented to the senate or the HoC by the government.
- Gov bills are used to implement the platform upon which government was elected. Also
used to respond to needs that arise during the course of a government’s mandate.
- Parliamentarians who are not ministers or parliamentary secretaries may introduce their
own bills called private members bills.
- Enactment of these bills is rarer.
- Limited opportunity for debate on private members bills, and the sponsor of such a bill
must negotiate the support of parliamentarians in order for it to be enacted.
- At the beginning of each parliament there is a random lottery which determines the order
in which members of the HoC can propose private members bills.
- This bill (C-248) calls upon the minister of the environment to develop such a strategy.

Government Bills

- Work on gov bills begins long before they are introduced into parliament.
- Policy Development by public servants on behalf of Ministers
- Cabinet decision on policy and approval of drafting instructions
- Drafting of bill by Department of Justice (in English and French)
- Introduction into the Senate or the House of Commons

Private Members’ Bills

 Policy development varies

 o Sometimes the parliamentarian will be personally committed to a particular issue. Other
times the policy for a private members bill will be developed by lobbyists, NGOs or
interest groups who will then try to find a parliamentarian to sponsor the bill.
o An example of this can be found in recent amendments to the criminal code in relation to
the sentencing for assault. A bill was instigated by a transit workers union and made it an
aggregating factor on sentencing to have been convicted of assaulting a public transit
operator.

 Usually drafted by Parliamentary Counsel

- Nonpartisan lawyers who work for the senate or the HoC administration.

 If a ”money bill” must be introduced first in the House of Commons

 If a “money bill” must receive the royal recommendation

o Is provided by the GG only on the advice of ministers, which effectively gives the
government a veto over legislation from private members that would authorize the raising
or spending of public money.

Parliamentary Process

Introduction and First Reading  Second Reading  Committee Stage  Report Stage 
Third Reading

X2

Royal Assent

Constitution Act, 1867

55. Where a Bill passed by the Houses of the Parliament is presented to the Governor General
for the Queen’s Assent, he shall declare, according to his Discretion, but subject to the
Provisions of this Act and to Her Majesty’s Instructions, either that he assents thereto in the
Queen’s Name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the
Signification of the Queen’s Pleasure.

- Final stage in the legislative process

- The GG may signify royal assent either in parliament assembled at a ceremony including
senators and members of the HoC in the senate chamber, or in private by written
declaration.
 - Royal assent must be signalled in parliament assembled at least twice in each calendar
year, including following the passage of the first appropriation act in a session of
parliament.
- S55 of the constitution act 1867 authorizes the GG to grant or withhold royal assent in the
queen’s name. but that discretion is not wholly constrained by the convention that the GG
assent is a matter of course to bills passed by the senate and the HoC.

Deliberating and Holding the Government to Account

Deliberation

 The Senate and the House may debate matters that do not involve legislation.
 The Houses of Parliament can express their opinions through resolutions. (for ex/ when
the HoC first convened following 9/11. BELOW
 Individual members have opportunities to make statements. ( often use these
opportunities to make a statement on an issue of the day or an issue of interest to their
constituent in their ridings)

September 17, 2001

“That this House express its sorrow and horror at the senseless and vicious attack on the United
States of America on September 11, 2001.”

May 2, 2007

“That this House apologize to the survivors of Indian Residential Schools for the trauma they
suffered as a result of policies intended to assimilate First Nations, Inuit and Métis children,
causing the loss of aboriginal culture, heritage and language, while also leaving a sad legacy of
emotional, physical and sexual abuse.”

Holding the Government to Account (opposition)

 Questions (oral and written) (daily question period)

 Approval of the Budget and estimates (amount of money to be authorized for government
operations, programs, and services
  Petitions

 Committee Reports

 Reports of officers of Parliament (e.g. Auditor General) (tool opposition parties can use
to hold the government to account)

Ministerial Responsibility

 Both individually and collectively accountable to the house of commons

Individual

 Personal behaviour
 Ministerial portfolio
- Ministerial accountability does not mean that a minister is presumed to have knowledge
of every matter that occurs within their department or portfolio. Or that they are
responsible to accept blame for every matter
- It does require that minister must responds to questions raised in the HoC, and that the
minister must take appropriate corrective action to address any problems that may have
arisen
- Minister TUTU resigned from Trudeaus cabinet for addiction treatment and matters of
inappropriate personal relationship

Collective

 Decisions of other ministers

 Policies of the Government
- Cannot disassociate themselves from the decisions of the cabinet and their ministerial
colleagues
- Ministers work in close consultation with their cabinet colleagues in order to achieve
consensus
- They can air differences of views in private but once a decision has been reached it must
be supported by the entire cabinet
- Several ministers have resigned b/c they could not support decisions taken by cabinet
- WW2 PM Mackenzie King lost 2 ministers from cabinet, 1 resigned for supporting
conscription before it was a policy of the cabinet, and the other resigned for opposing
conscription once it became the policy of the cabinet
- Occasionally, some legislative proposals are subject of free votes in the HoC where
ministers are not bound by collective responsibility.

Parliamentary Privilege
“Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and
powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and
by each member individually, without which they could not discharge their functions.”

Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667

Facts:

 Mr. Vaid, the Speaker’s driver, was dismissed from his job.
 He alleged that this was because of the colour of his skin.
 The Speaker disagreed, but argued that the matter was not reviewable by the courts.

Issue:

 Does parliamentary privilege include the “management of all employees”?

Decision:

• “... the scope of the appellants’ claim clearly exceeded what is considered necessary [...]; and it
is not consistent with the classic definition of privilege as being the sum of the privileges,
immunities and powers enjoyed by the Senate, the House of Commons....”

Module 5

The Executive Branch of Government

Growth of Government
- Role of government has expanded since confederation
 In 1867, the gov had a much more limited impact on the lives of Canadians than it does
today.
 The dominant political thought of the 18th century favoured a laissez faire philosophy
whereby individual autonomy was emphasized and gov regulation an activity was limited
to a very narrow sphere.
 The govs priorities after confederation including establishing and securing Canada’s
borders and promoting significant public works, particularly railways and canals.
 The industrialization and urbanization of the late 19th century combined with the first and
second world wars and the great depression between them resulted in a significant
expansion of the role of government.
 Govs began to regulate industry for example, by imposing health and safety protections
in factories and by fixing rates and standards of service for the railways.
 Govs also began to address social inequality by establishing social services such as health
insurance, unemployment insurance and old age pensions
- The first and second world wars and the great depression saw governments take major
initiatives in the economy (including rent and price controls, measure to prevent hoarding
and the control of the marketing of Canadas principle products) and social welfare
 Gov owned companies were established in the fields of rail, ship and air transportation,
banking and credit, harbour administration and commodity marketing.
- The modern social welfare state emerged after WW2.

Royal Commission on Dominion-Provincial Relations (Rowell-Sirois Commission, 1940)

“people saw how governments could mould their lives and civil servants learned how to do it.
[…] The belief that governments could and should use their powers to improve social
conditions”

- In the 21st century, virtually no aspect of our lives is free from gov regulation or activity.
- Today, over 2.5 million Canadians are employed in the public sector.

Is it Useful to Refer to Distinct Branches of Government?

- Some systems of gov, for ecample in USA, have a strict separation of powers between 3
completely separate branches of government.
- In the USA, the president and cabinet secretaries of the executive branch of government
are constitutionally forbidden from holding seats in the legislative branch, either in the
senate or HoC.

Canada has a Fusion of Powers

- In Canada, the constitution act 1867 distinguishes between the different branches of
government, the legislative, executive and judicial, but does not establish sharp
demarcations between the branches of government such as those in the USA.
- Canada like most parliamentary systems of responsible government has a fusion of the
legislative and executive branches of government.
 - There is a constitutional convention that requires Canadian cabinet ministers to also be
senators or members in the HoC, or to secure a seat in one of the houses of parliament
within a reasonable length of time.
- The cabinet, therefore provides a degree of overlap between the legislative and executive
branches of government.
- This fusion of powers was most famously described by the British journalist, Walter
Bagehot, who wrote that
- "a cabinet is a combining committee, a hyphen which joins, a buckle which fastens, the
legislative part of the state to the executive part of the state. In its origin it belongs to the
one, in its functions it belongs to the other.”

Functional Separation of Powers

Executive
- Proposes legislation to the houses of parliament
- Exercises constitutional, statutory and prerogative powers
- Administers and enforces laws
- Makes subordinate legislation

Legislative
- Enacts laws
- Debates public policy
- Holds the government to account

Judicial
- Adjudicates disputes according to law

Separation of Powers in Canada

- The separation of powers is a “fundamental constitutional principle”
- Reference re Remuneration of Judges on the Provincial Court (PEI) 1997
- The “Canadian constitution does not insist on a strict separation of powers”
- Reference re secession of Quebec 1988
 The SCC has reconciled the functional separation of powers with the fusion of powers by
recognizing the separation of powers as a fundamental constitutional principle, but also
by noting that the Canadian constitution does not insist on a strict separation of powers.
 And that the separation of powers is not a rigid and absolute structure

The Sources of Executive Power

There are 3 sources of executive power, the constitution, statutes enacted by parliament and the
provincial legislatures and finally a combination of the royal prerogative and the common law.

Constitution Act 1867

- The constitution confers a few powers on executive actors, such as the Queen and the GG
S96. The governor general shall appoint the judges of the superior, district and county courts in
each province, except those of the courts of probate in Nova Scotia and New Brunswick.
S11. There shall be a council to aid and advise in the government of Canada, to be styled the
Queen’s Privy Council for Canada; and the persons who are to be members of that council shall
be from time to time chosen and summoned by the governor general and sworn in as Privy
Councillors, and members thereof may be from time to time removed by the GG.
S24. The GG shall from time to time, in the queen’s name, by instrument under the Great Seat of
Canada, summon qualified persons to the Senate and subject to the provisions of this act, every
person so summoned shall become and be a member of the senate and a senator.

Statute

- The majority of executive powers are statutory, authorized by parliament or the

provincial legislatures that explicitly authorize the executive branch of government to act.
- Parliament cannot provide for every conceivable possibility or eventuality in its laws.
Many of the powers conferred on the executive give a discretion to the decision maker.
- S25.1 confers a discretion on the minister of citizenship and immigration to grant
permanent resident status to a foreign national who would otherwise be inadmissible to
Canada. If the minister is of the opinion that it is justified by humanitarian and
compassionate considerations.
- This is an example of parliament enacting a general legal framework of rules dealing with
who may visit, study or work in Canada, but also leaving a measure of discretion for a
minister to consider humanitarian and compassionate considerations in individual cases.
- Parliament could never in advance set out in a statute rules government how to deal with
every conceivable humanitarian and compassionate consideration that might arise. So it
entrusts this task with a minister.
- Other times, parliament will enact mandatory rules that do not leave any discretion in
their application. We find this type of rule in another part of IRPA S19.
Re George Edwin Gray (1918), 57 S.C.R. 150.

- Are there any limits to what parliament or a legislature may authorize the executive to
do?
- Parliament enacted the war measures act at the onset of the war in 1914.
- It provided among other things, that the governor in council could, because of the war,
make any orders and regulations it deemed necessary or advisable for the security,
defence, peace, order and welfare of Canada.
- Under this provision the governor in council by regulation enlarged the category of
Canadians who were required to register for compulsory military service
- Mr. Grey was a farmer who was previously exempt from military service, but these new
regulations removed his exemption.
- He challenged the regulations on several grounds, including that parliament could not
delegate its lawmaking powers to another body, such as the governor in council.
- Mr. Grey argued that the scope of the GIC’s authorization to make laws was too wide and
that it offended the separation of powers.
- He said that under the constitution it is the role of parliament alone to make laws,
executive bodies like the GIC to execute them, and the courts to interpret them.
- He argued that parliament could not confer its lawmaking authority on another body such
as the GIC.
- But a majority of the SCC disagreed, the court held the regulation was within parliaments
power. The court noted that it was longstanding practice for parliament to authorize
administrative bodies to make regulations to carry out the purposes of acts of parliament
instead of setting out all of the details in the act itself.
- The court looked at the explicit words in the war measures act, and concluded that it
seemed obvious that parliament intended, to clothe the executive with the widest powers
in time of danger.
- Taken literally, the language of the sections contains unlimited powers. The court
cautioned that a complete abdication of parliament of its legislative functions would be
unconstitutional, but that so long as parliament remain itself prepared to either amend or
withdraw the authorization or to otherwise legislate itself, parliament could authorize
others to exercise all of its legislative authority.
- The case establishes that there is no scope of what parliament may authorize another to
do, but are there any limits on who may be authorized?
Are there limits to what Parliament or a legislature may authorize the executive to do?
- A.G. Nova Scotia V. A.G. Canada, [1951] SCR 31
- In 1951, the SCC decided a case where the federal parliament had delegated its powers
over federal unemployment and taxation to the provincial legislature of Nova Scotia.
- In turn the provincial legislature had delegated its powers over provincial employment to
the federal parliament.
- This was an attempt by both levels of government to create a cooperative unemployment
insurance scheme.
- The SCC held that these delegations were constitutionally invalid. It held that parliament
and the legislatures could not delegate to each other because such delegations upset the
constitutional division of powers found primarily in S91 and 92 of the constitution act
1867, which assigned exclusive lawmaking authority to each level of government.
- To allow parliament to delegate to a legislature or vice versa would be tantamount to a
constitutional amendment.
- P.E.I Potato Marketing Board V. Willis, [1952] 2 S.C.R 392
- One year later the SCC was faced with a slightly different scenario. Parliament and the
legislature of PEI both delegated powers to a potato marketing board, which was a part of
the provincial executive.
- The federal parliament authorized the board to exercise certain powers in relation to the
international and interprovincial marketing of potatoes, while the provincial legislature
authorized the board to exercise certain powers in relation to the marketing of potatoes
within the province.
- SCC held that this scheme was constitutionally valid, it distinguished the nova scotia case
on the basis that delegation to an executive body did not offend the constitutional division
of powers.
- Executive bodies, unlike parliament or the legislatures, must exercise their delegated
powers solely in accordance with the scheme established by the delegating body.
- Parliament and legislatures on the other hand are sovereign bodies that act in accordance
with the constitution and not pursuant to delegations.
- These two cases illustrate that it is impermissible for parliament or a legislature to
delegate to each other, but that they may delegate their powers to any other body.

Royal Prerogative/ Common Law

- Inherent powers of the crown
- These powers have origins from era where kings and queens used to govern personally.
These powers were curbed through the development of the UK’s constitutional history,
most notably by the bill of rights of 1689 that was enacted following the Glorious
Revolution.
- For ex/ the king or queen can no longer impose tax, spend money, or raise an army
without parliamentary authorization.
- The royal prerogative includes:
o Conduct of foreign affairs, declarations of war and peace, issuance of passports, creation
and conferral of honours and the granting of mercy, appointing ministers
 - The royal prerogative is exercisable in relation to Canada, subject to local conditions,
applicable statutory provisions and the limits imposed by the constitution.
- The crown also has the powers of a natural person (e.g. to hold property, to contract and
otherwise to enter into a binding legal obligation. For example, if you enter into a
contract with the government of Canada, you will formally be contracting with her
majesty the queen in right of Canada. The benefits or obligations of the contract do not
accrue to the queen personally but rather to Canada.

The Structure of the Executive Branch of Government

What the Constitution says about the Executive Branch of Government

- Constitution Act, 1867 premable
- “whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their
desire to be federally united into One Dominion under the Crown of the United Kingdom
of Great Britain and Ireland, with a constitution similar in principle to that of the United
Kingdom…”
- This makes it clear that Canada was meant to be a constitutional monarchy similar to the
one developed in the United Kingdom.
- In addition to the preamble, several provisions of the constitution deal with the executive
branch of government.

- However, the text of the constitution does not tell the whole story. These provisions of the
constitution led the eminent political scientist, Robert McGregor Dawson, to conclude
that the most striking feature of the Canadian form of government is undoubtedly the
superficial absurdity of the dual nature of the executive power.

Dual Nature of Power

- What Robert Dawson meant was that formal executive legal power was placed in the
hands of the Queen and the GG and the Queen’s Privy Council for Canada.
- But in reality, these formal legal bodies only exercise their powers on the advice of the
PM, ministers and the cabinet, political actors who were not mentioned in the texts of the
constitution.
 - This form of responsible government is based on a system that emerged in the UK.
- As Dawson observed, cabinet government was the product to the series of historical
accidents, experiments and temporary expedience so haphazard in its origin and
development that no one could have planned it in advance or even if this had been
possible, would have been so rash as to suggest that it could ever have been made to
work.
- We see the formal executive which is empowered by the text of the constitution.
- We see the political executive whose behaviour is animated by unwritten constitutional
conventions.
- Walter Baggett again coined two enduring terms of praise when he described the formal
executive as ‘dignified’ and the political executive as ‘efficient’.

The Queen
- Earlier in the course we examined the Queen’s role in the legislative branch of
government. Here we look at her role in the executive branch.
- The opening words of the constitution act 1867 declared that:
- “whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their
desire to be federally united into One Dominion under the Crown of the United Kingdom
of Great Britain and Ireland, with a constitution similar in principle to that of the United
Kingdom…”
- In 1867, the Queen contemplated was Queen Victoria (who reigned from 1831-1901 and
never visited Canada)
- Whoever is king or queen of the UK is automatically the king or queen of Canada.
- The queen is Canada’s Sovereign and Head of State.
- The current Queen of Canada, Elizabeth II, is the same person as the Queen of the UK
and her other realms and territories.
- The Queen personifies the Crown.
- The Queen (or Crown
in right of Canada (i.e. the executive branch of the Government of Canada) is a distinct
legal entity from the Queen in right of the UK and the Queen in right of each of the
provinces.
- As a constitutional monarchy, the Queen reigns but she does not govern.
- The queen acts on the advice of her ministers.

Succession to the Throne

- Succession to the throne was originally based on hereditary common law principles that
govern the inheritance of land.
- These rules were premised on male primogeniture which expressed the preference for
male heirs over female heirs.
- The common law was supplemented by British statutes, particularly the English bill of
rights of 1689 and the act of settlement of 1701.
- These were enacted during a time of constitutional and religious tension. In addition to
providing that only protestant heirs could succeed to the throne, they provided that
merely marrying a roman catholic would disqualify a person from succeeding to the
throne.
 - The discrimination against Roman Catholics became an issue in 2007 when the Queen’s
eldest grandson Peter Phillips became engaged to Canadian Roman Catholic Autumn
Kelly.
- Miss Kelly converted to the Anglican church before her 2008 wedding in order that Mr.
Phillips retain his place in line of succession. He was 11th in line at the time.
- Following Prince William and Katherine Middleton’s Wedding in 2011, commonwealth
heads of government of the 16 countries who recognize the Queen as Head of State met
in Perth, Australia to discuss modernizing the rules governing succession to the throne.
- There was a concern that it would not be in accordance with prevailing opinion if the
couple’s first child was a girl who might later lose her place in the line of succession to a
younger brother.
- The commonwealth heads of government agreed to two changes to the rules respecting
the succession to the throne.
- The first was to end the system of male preference under which a younger son could
displace an elder daughter in the line of succession.
- The second was to remove the legal prohibition making anyone who married a Roman
Catholic ineligible to succeed to the throne.
- In accordance with the constitutional convention recorded in the preamble to the Statute
of Westminster, 1931, the parliament of Canada enacted the succession to the Throne Act
2013 assenting to the alteration of the law attaching the succession to the throne.
- The UK statute alerting the law of succession came into force in March 2015.
- Two law professors from Laval University challenged the modernization of the rules of
succession in the Canadian courts, arguing that the modernization can only be achieved
through a formal Canadian constitutional amendment authorized by the Senate and the
House of Commons as well as all 10 provincial Legislative Assemblies.
- The superior court of Quebec rejected this argument in Meota in Canada. In so doing,
elaborated on the rules of succession to the throne and their legal status in Canada.

The Governor General (GG)

- The GG is the Queen’s representative in Canada. The constitution presumes the existence
of the GG by conferring several powers upon such a person but the office of GG was
created by the royal prerogative.
- The most recent letters patent constituting the Office of the GG were issued by King
George VI in 1947.
- The GG is appointed by the Queen on the advice of the PM.
- There is no fixed term, the GG are usually appointed on the understanding that they will
serve for approx. 5 years, this can be lengthened or abbreviated.
- From confederation until the early 1900s, GG acted as agents of the UK government until
1926/1931. Since the understanding reached to the Imperial Conference in 1926 which
was confirmed by the Statute of Westminster in 1931, the GG has been a direct
representative of the King or Queen and has acted exclusively on the advice of Canadian
ministers.
- Nevertheless, GG continued to be British aristocrats until Vincent Massey was appointed
in 1952. Since then, only Canadians have been appointed as GG.
 - From the 1950s to the 1990s, GG tended to be former politicians. The appointment of
Adrian Clarkson in 1999 broke that trend and since then, GG have had distinguished past
careers in the arts, sciences and academia.

The Lieutenant Governors

- In each province, there is a lieutenant governor appointed by the Governor in Council on
the recommendation of the PM.
- LGs serve for a term of 5 years and then at pleasure
- Originally, it was thought that LGs were agents of the federal government. However, the
JCPC ruled in 1892 that LGs are direct representatives of the Queen.
- They act for the most part on advice from provincial ministers.

Queen’s Privy Council for Canada

- The CPCC is a body to aid and advise the government in Canada which was established
by S11 of the constitution act, 1867.
- Privy Councillors are appointed by the GG on the recommendation of the PM.
- Individuals are appointed to Privy Council for 1/3 reasons.
1. In order to serve in the ministry, as all ministers must be privy councillors.
2. As a mark of recognition for service to Canada (Ex/ former GG and former clerks to the
Privy Council are usually appointed, however it’s not just high officers of state that are
honoured in this way. Former Montreal Canadians Captain Maurice Richards was
appointed to the Privy Council in 1992.
3. In order to receive confidential information. Leaders of the opposition parties are often
appointed to the PC for this reason.
- Privy councillors are appointed for life but may be removed by the GG on the advice of
the PM. Removal is extremely rare.
- Conrad black was removed from the PC in 2014, he had been appointed in 1992 along
with several other Canadians to mark the 125th anniversary of confederation.
- He was removed following criminal convictions and imprisonment in the USA.
- By constitutional convention, the active part of the PC is the cabinet.
- Since privy councillors were appointed for life, the privy council includes both current
and former ministers as well as those who have been appointed for honorary reasons or
else to receive confidential information.
- The active part of the privy council is the cabinet, a committee of the privy council which
meets in the absence of the Queen or the GG.
- It is a constitutional convention that only current ministers, those who are responsible to
the HoC tender advise as PCs.
- When parliament wants to confer power on the cabinet, it vests the formal legal power in
the GIC.
- This is the GG acting by and with the advice and consent of the Queen’s Privy Council
for Canada.
- Once the cabinet has decided how this power should be exercised, it then sits as a
committee of the PC and tender’s formal advice to the GIC usually in the form of an
order in council.
 - The order in council is transmitted to the GG who indicates that he or she accepts the
advice by signing it.

Prime Minister (PM)

- The prime minister is the head of government. The PMs role is not comprehensibly set
out in the constitution rather it is developed gradually and informally
- Each PM has an individual style that influences the organization and operations of the
government.
- The GG appoints the PM, one area where the GG does not act on advice.
- The choice of PM is usually clear: the PM is the leader of the political party that is able to
secure the confidence of the house of commons.
- The PMs personally vested with very few legal powers and his or her is based on
constitutional convention.
- The PMs influence arises from his or her position of leadership in the cabinet. The PM
determines the government’s priorities and he or she speaks on behalf of the government
of Canada, determines how the government’s decisions will be made, resolves differences
of opinion among ministers and calls the consensus of the cabinet.
- In practice, the PM usually sets the broad policy agenda of the government and then
personally focuses on select priorities that require his or her attention. The PM provides
mandate letters to each minister, which sets out the PMs expectations in terms of how
ministers are expected to conduct themselves and in terms of what each minister is
expected to achieve or accomplish while in office.

Ministers
- The PM has considerable flexibility in deciding on the size and complexion of the
ministry in order to reflect regional, linguistic, religious, ethnic and other aspects of
Canada.
- The GG appoints Ministers on the recommendation of the PM.
- It is a constitutional convention that Ministers are chosen from among the members of the
senate or HoC (or those willing to secure a seat in the house of parliament within a
reasonable length of time).
- Ministers serve as pleasure
- PM decides the membership in the ministry and can ask a minister to resign or advise the
GG to dismiss or replace a minister at any given time.
- Guergis v. Novak, 2012 ONSC 4579, aff’d 2013 ONCA 449
- Confirmed by the Ontario Court of Appeal in Guergis v. Novak a case where Ms. Helena
Guergis alleged that the PM and others had conspired to remove her as the minister of
state for the status of women.
- The court of appeal rejected these allegations on the basis that the choice of who will
serve as a minister is a question solely for the PM and not reviewable in the courts.

Types of Ministers
 - The prototypical minister is a minister who presides over a department. For example, the
minister of finance presides over the department of finance and the administer of the
environment presides over the department of the environment.
- The legal titles of ministers are usually set out in legislation, such as the Salaries Act or in
departmental statutes.
- However, the PM may also give a minister a working title that reflects the priorities of the
government. For example, in 2015 PM Trudeau styled the minister of the environment as
the minister of the environment and climate change. This was to highlight this aspect of
the minister’s work.
- Some departmental ministers may be supported by an additional or associate minister.
- For example, parliament has provided that an associate minister of national defence may
be appointed to perform some of the powers, duties, and functions of the minister of
national defence.
- Similarly, a minister for international development may be appointed to assist the
minister of foreign affairs in relation to international development, poverty reduction and
humanitarian assistance. A minister if international trade may also be appointed to assist
the minister of foreign affairs in relation to international trade. These ministers do not
have their own departments but rather are supported by in these cases the Department of
National Defence and the Department of Foreign Affairs Trade and Development.
- Departmental ministers may also be supported by a minister of state appointed to assist
them in the performance that their powers, duties and functions.
- The PM first recommends to the GG that a minister of state be appointed, then under the
Two Ministries and Ministers of State Act, the governor and counsel assigns the minister
of state to assist one or more ministers.
- A second type of minister of state may be a appointed, not to assist another minister but
to himself or herself preside over a ministry of state. Under the ministries and ministers
of state act the governor and counsel may with the approval of the HoC establish a
ministry of state to formulate and develop policy in relation to any matter within the
responsibility of the government of Canada.
- These ministers are established not to provide services or operations like other
departments, but rather to coordinate policy across government departments.
- For example, PM Trudeau established ministries of state for science and technology,
urban affairs and social and economic development.
- Ministries of state were popular in the 1970’s and early 1980’s but have not been used
since.
- Finally, ministers may be appointed without any particular portfolio. Ministers without
portfolio were sometimes appointed to provide regional representation in cabinet or to
bring an expert or experienced minister into the cabinet without the burden of portfolio
responsibilities.
- However, over time PMs tended to nevertheless give these ministers particular
responsibilities which blurred the distinction between ministers without portfolio and
those appointed to specific portfolios.
- In recent times the appointment of ministers without portfolio has fallen into disuse.

The Ministry and the Cabinet

 - The ministry includes all ministers, departmental ministers, additional and associate
ministers, ministers without portfolio and ministers of state.
- However, the PM decides which ministers will be in the cabinet. Some PMs like
JTrudeau have included all ministers in the cabinet.
- Other PMs have chosen only some ministers to serve in the cabinet. Some PMs have
established both a cabinet and an inner cabinet of select ministers who may make certain
decisions on behalf of the whole cabinet.
- However, it is configure the cabinet is at the heart of the executive branch of government.
- It is the principal form for ministers to bring different perspectives to bear on the issues
of the day.
- The cabinet is both a political decision-making body that sets the policies of the
government and an executive body responsible for the governments operations and
communications.
- Cabinet is the forum where ministers bring political and strategic considerations to bear
on the issues of the day.
- Cabinet and as we shall see cabinet committees are used to set strategic direction on the
governments priorities to consider policy proposals and to manage emerging issues,
communications and parliamentary strategy.
- In particular, the cabinet ensures whole of government considerations are taken into
account when the government makes decisions.
- A minister wishing to introduce a bill into the houses of parliament must first secure the
approval of the cabinet.
- Similarly, significant government decisions such as entering into international treaties
also require cabinet approval.
- Any public policy issue could be a potential subject of discussion at cabinet.
- The cabinet allows ministers to achieve consensus in private before taking a position in
parliament or the public

The Cabinet
- PMs usually establish several cabinet committees.
- The number of cabinet committees has ranged from a high of 16 under PM Mulroney to a
low of 4 under PM Chretien.
- Full cabinet means weakly or bi-weekly when the HoC is sitting, usually on Tuesday
mornings, if actively discusses a limited number of main items.
- This means that many decisions are effectively made in committees and are brought to
the cabinet or if there is one to the inner cabinet for final approval.

The Machinery of Government (ministerial departments)

- Ministerial departments are presided over by a minister who has the management and
direction of the department.

Ministerial Departments
- Ministers are political appointees who are chosen by the PM.
 - Each minister has a deputy minister who is appointed by the governor and counsel on the
recommendation of the PM.
- Although appointed in this way deputy minister are apolitical.
- They serve the gov of the day of whatever political outlook.
- Unlike ministers who change when a new party forms the government, deputy ministers
generally transcend a change of government.
- They are expressly prohibited from engaging in any political activities other than voting.
- The deputy minister is the principle source of public service support to a minister and
organizes the day to day activities of the department.
- The rest of the ministerial department consists of public servants appointed on the basis
of merit and non-partisanship under the public service employment act.
- Like the deputy minister, they too are apolitical and do not change when governments
change.
- An issue that arises from time to time is the extent wo which public servants are able to
critique the government. This brings into conflict the rights of those who work for the
government to be able to express their views on issues of public importance and the need
for Canadians to have trust and confidence in a government that is being administered by
individuals who will loyally support the democratic decisions of ministers regardless of
their personal views

Fraser V. Public Service Staff Relations Board, [1985] 2 S.C.R. 455

Facts:
- Mr. Fraser worked for Revenue Canada (part of gov responsible for collecting taxes).
- He opposed the metric system and the charter
- He criticized the PM and the gov in a newspaper and on a radio call-in show.
Issue:
- Where Mr. Fraser’s comments inconsistent with his duties as a public servant?
Decision:
- Public servants owe a duty of loyalty to the government of the day.
- When the case got to the SCC, the court was faced with balancing the freedom of speech
of public servants with the competing value of having an impartial and effective public
service.
- Mr. Fraser’s comments displayed a lack of loyalty that was inconsistent with his duties as
a public servant and that would cultivate distrust among the public about the impartiality
and effectiveness of the public service.
- Fraser disagreed that he could speak out about the government that didn’t have anything
to do with his job.

The Machinery of Government (agencies, boards, commissions, and tribunals)

Ministerial Department
 - Democratically accountable ministers are uniquely placed to make decisions in relation to
issues, such as foreign policy and national defence.
- The allocation of public funds and tax policy.
- However sometimes the effectiveness and credibility of certain types of government
activity, make it desirable to distance a responsible minister from day to day operations
and decision making.

Other Model
- Oversight of government (auditing)
- Technical, scientific or artistic assessments.
- Commercial activities (operation of airline or railway or a public utility)
- Adjudication of competing interests

- Parts of the executive branch of gov, outside of the ministerial departments, can take
many different forms, under a variety of names. Such as agencies, boards, commissions,
tribunals and crown corporations.
- Their mandates usually include adjudicating disputed between individuals or between
individuals in the government. Regulating a particular thing or industry. Or overseeing
aspects of government activity.
- Authorities for these organizations are usually vested in the organization itself or in its
deputy head. With varying degrees of autonomy from ministers.
- The perceived objectivity of these organizations may be bolstered by prescribing a more
limited role for the responsible minister.
- For example, an agency might be vested with wither regulatory or adjudicative powers,
subject only to ministerial policy or appeal to a minister.
- In exceptional cases, a tribunal might operate with near complete autonomy from
ministers.
- For example, the Canadian human rights tribunal, applies the Canadian human rights act,
completely independently of ministers.
- The proliferation of various types of executive bodies, raises the question of whether
some of them are required to have a certain degree of independence from the rest of the
executive branch of government.
- This was the question that was before the SCC in the Ocean Port Case.

Ocean Port Hotel Ltd. V. British Columbia, 2001 SCC 52

Facts:
- Members of the B.C. Liquor Appeal Board served at pleasure on a part-time basis
- The chair established panels whose members were paid on a per diem basis.
- Ocean Port Hotel was investigated by provincial inspectors who alleged that it was in
violation of the provincial liquor control and licensing act.
- The hotel challenged the finding on the basis that the Liquor Appeal Board was not
sufficiently independent from the executive branch of government.
- This was on the basis that the chairperson of the board and its members, served at the
pleasure of the lefthanded governor and council. This means that they could be dismissed
at any time, for almost any reason.
 - In practice, members of the board were appointed for one-year terms and served on a
part-time basis. All members but the chair were paid on a per diem basis. Meaning that
they only paid on days that they worked.
- The chair established panels of one or three members to hear matters before the board.
- Ocean port argued that the lack of security of tenure and lack of financial security of the
members of the board, meant that it was not sufficiently independent from the executive
branch of government.
-
Issue:
- What is the degree of “independence” required by bodies like the Liquor Appeal Board?
(administrative tribunal, part of the provincial executive)
Decision:
- “absent constitutional constraints, the degree of independence required of a particular
government decision maker or tribunal is determined by its enabling statute. It is the
legislature or parliament that determines the degree of independence required of tribunal
members”.
- SCC reasoned that unless there is a constitutional guarantee of an independent decision
maker, the degree of independence required of a particular government decision maker or
tribunal is determined by its enabling statute.
- In other words, its determined by parliament or the legislature.
- This doesn’t mean that members of administrative tribunals, like the liquor licensing
board, don’t have to act fairly, they do.
- However, the SCC decision in Ocean Port means is that it is up to parliament or the
provincial legislature to determine the degree of independence of the various parts of the
executive branch of government.

“Independence” of Administrative Decision Makers

- Here is a visual depiction of the different parts of the federal executive.

- Which summarizes the structure of the executive branch of government and helps to
illustrate the varying degrees of independence of different parts of the executive.
- this red circle represents the crown. at the heart of the executive branch of government
are the Queen, and the governor general who personify the crown. The queen’s privy
council for Canada, advises the governor general and when they act together they are the
governor and council.
 - By constitutional convention the cabinet is the active part of the Privy Council. Next, we
have the ministry which includes our ministers sometimes the ministry is coextensive
with the cabinet, other times there are ministers who are not in the cabinet.
- Ministers preside over departments, those primary purpose is to support the minister in
the exercise of the minister’s powers, duties and functions.
- There are also department like bodies, that typically have narrower mandates than
departments and are more focused on regulation of a particular subject, delivering
particular services or activities.
- Some powers might be vested directly in these organizations or their deputy head but
they are never the less subject the overall control and direction of a minister.
- Next is adjudicative regulatory and oversight bodies. These agencies, boards, commission
and tribunals, can take many forms under a variety of names. Their mandates usually
include adjudicative regulatory and oversight functions.
- Authorities for these organizations are vested directly in the organizations or their deputy
head with varying degrees of autonomy for ministers.
- Finally, are crown corporations. These are companies owned by the government but that
operate as commercial enterprises. So far all of these entities are in the red circle, this
means that they are part of or agents of the crown. Therefore, they share the privileges
and immunities of the crown and otherwise buying the federal crown and the obligations
in to which they enter.
- Parliament may also create public bodies which are not or not for all purposes part of the
federal crown. This means they are separate legal entities from the federal crown and do
not engage the crown’s liability, nor do they share in the crowns privileges and
immunities.

The Machinery of Government (police and prosecutors)

- The police and crown prosecutors are unique because of the significant powers that the
have to interfere with the liberty of individuals in Canada.
- To a certain extent, police and prosecutors must be able to exercise their powers without
political interference. However, the rule of law requires that police and prosecutors still
be account for their conduct.
- The tension between accountability and independence was explored in the two cases
next.
- The Campbell case involved the status of police officers while the Kreiger case involved
a crown prosecutor.

R. V. Campbell, [1999] 1 S.C.R. 565

Facts:
- RCMP set up a “reverse” sting by offering to sell drugs and then arresting those who
attempted to buy them.
- The defendants argued that the charges against them should be thrown out on the basis
that the RCMP had, themselves, seriously breeched the law, by offering to sell drugs.
- The RCMP responded that they were a part of the crown and therefore that they shared
the presumption that the crown is immune from statutes, including the one making an
offence to offer to sell illegal drugs.
Issue:
- What is the nature of the relationship between the police and the crown?
Decision:
- “a police officer investigating a crime is not acting as a government functionary or as an
agent of anybody. He or she occupies a public office initially defined by the common law
and subsequently set out in various statutes.
- When engaged in criminal investigations, the police are not subject to political direction.
They are independently from the executive branch of government and guided solely by
the law in terms of how to investigate crimes and lay criminal charges.

Krieger v. Law Society of Alberta, 2002 SCC 65

Facts:
- Crown prosecutor received DNA evidence implicating someone other than the accused in
a murder trial.
- The prosecutor did not disclose the DNA evidence to the defence before the preliminary
hearing.
- The defence lawyer made a complaint to the Law Society of Alberta about the crown
prosecutor’s conduct.
Issue:
- Does the Law Society’s investigation of the Crown prosecutor’s conduct interfere with
prosecutorial independence?
Decision:
- The SCC confirmed that the attorney general and crown prosecutors working for the
attorney general must act independently in making prosecutorial decisions.
- The SCC recognized that “the gravity of the power to bring, manage and terminate
prosecutions, which lies at the heart of the attorney general’s role, has given rise to an
expectation that he or she will be in this respect fully intendent from the political pressure
of the government”
- It would be intolerable if political considerations could lead the attorney general to
prosecute political adversaries or those or those who do not share the political outlook of
the government.
- However the court also clarified what falls within the ambit of prosecutorial discretion.
- Prosecutorial discretion includes “whether a prosecution should be brought, continued or
ceased, and what the prosecution ought to be for.[…] a crown prosecutors tactics or
conduct before the court, do not fall within the scope of prosecutorial discretion.”
- In result, the Law Society of Alberta could not second guess any genuine prosecutorial
decisions, but it could examine whether Mr. Kriegler followed the applicable legal and
ethical roles in the handling of evidence.

Public Prosecution Service of Canada

- Many jurisdictions have formalized the independence of prosecutorial decisions.
- At the federal level, the public prosecution service was established
- The director of the public prosecution service acts as the deputy attorney general of
Canada in initiating and conducting federal prosecutions on behalf of the attorney general
 - The attorney general may issue directives to the director of public prosecutions, which
may be general or about specific prosecutions. These directives must be published in the
Canada gazette.
- The attorney general may, after consulting the director of public prosecutions, assume the
conduct of a prosecution. The attorney general must publish notice of his or her intent to
assume conduct of a prosecution in the Canada gazette.
- For some purposes police and prosecutors are a part of the crown and for some purposes
they are not.
- Police in the investigation of crime are not part of the crown.
- But they are when they are performing other functions
- Similarly, prosecutors act independently from the attorney general when exercising
prosecutorial discretion. But they are part of the crown and subject to various
accountability structures for their conduct in areas that are not at the heart of
prosecutorial discretion.

Module 6
Court Structure

- Canada has 4 levels of courts

- Administrative tribunals are not courts but their decisions can be appealed or reviewed in
the provincial or federal courts
- Provincial/ territorial courts and created by the provincial/territorial legislatures and
there judges are appointed by the provinces and territories.
 Have jurisdiction have less serious criminal offences, private law cases up to a monetary
amount established by each province. Deal with family law except for divorce, young
offenders, traffic and by law violations
 To dispute a speeding would end up before a provincial court
- 3 specialized courts:
- Tax court hears dispute out of the federal income tax act between the gov and tax payers
- The federal court hears matters arising under most federal statutes as well as actions for
damages against the federal government
- Military courts hear disciplinary cases involving members of the Canadian forces and
civilians who accompany the forces on active service
- Provincial superior courts are courts of inherent jurisdiction. Have general jurisdiction
to hear any case except where the subject matter is explicitly assigned to another court
 - Provincial superior court hear the most serious criminal cases, as well as divorce and civil
cases above the amount set to be heard in the provincial courts.
- All of these trial courts usually hear cases at first instance, meaning they are the first
court to hear and decide the matter.
- Trials are conducted before a single judge and for serious criminal matters in superior
court, the accused may also elect to be tried by a jury. Exceptionally, jury’s may be used
in civil matters in superior court, but this is rare. During trial court may hear from
witnesses who are examined, and cross examined as well as other evidence is put before
the court along with the legal arguments of the parties
- Federal courts also hear appeals or judicial reviews from federal administrative
tribunals. Superior courts may also hear appeals or judicial reviews from the provincial
courts or provincial administrative tribunals
- Next level of courts is apelet courts (federal court of appeal, provincial courts of
appeal, court marital appeal court), generally do not hear cases of first instance and
generally do not hear new evidence. Rather the apelet courts usually decided whether or
not the trial courts below have made errors of fact or of law. Apelet courts usually sit in
panels of 3 judges. For more important cases or the apelet court is asked to reverse one of
its own precedents, it may sit 5 judges to hear the case
- The SCC is at the apex of the judiciary and is Canadas final court of appeal. In most
cases you need permission or leave of the court to appeal to the SCC. The court receives
several hundred applications for leave to appeal each year and usually hears between 50-
80 cases.
- Court asses leave applications based on whether they raise an issue of national
importance, cases heard by the supreme court usually involve novel arguments, uncertain
areas of the law or issues where there are conflicting decisions from different provincial
courts of appeal.
- In a small number of criminal matters, there is an automatic appeal to the SCC.

Reference Power:
- Both the federal and provincial gov have a unique way to get a matter before the courts.
Unlike other litigants who have to bring a contentious case, govs can refer legal questions
to the courts for their opinion.
- Provincial gov may bring a refer to the provincial court of appeal while the federal gov
may refer questions directly to the SCC
- Opinion of a provincial court of appeal on a reference may be appealed to the SCC as of
right, that is without the need to secure leave of appeal.
 - This effectively gives the provinces an avenue to ask for the SCC opinion (ex/ patriation
reference and Quebec secession reference)

Courts and the Constitution

Constitution Act, 1867

92(14). [Provincial Jurisdiction over] Gives legislative authority to the provinces in The
Administration of Justice in the Province, including the Constitution, Maintenance, and
Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including
Procedure in Civil Matters in those Courts.

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts
in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County
Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty
Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed
and provided by the Parliament of Canada.

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time
provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for
Canada, and for the Establishment of any additional Courts for the better Administration of the
Laws of Canada.

Yellow: created by provinces pursuant to section 92(14). These courts go by different names, in
many of the provinces they are simply called the provincial court. In Quebec it is the something
de Quebec and Ontario it is the Ontario court of justice.

Blue: federal gov pays their salaries. This arrangement due to the framers of the constitution in
1867 wanting to retain federal control over these judicial appointments which were then viewed
as a significant source of gov patronage. Different names in diff provinces. Some called the court
of Queen’s bench where in others it is called the supreme court of the province. In Ontario it is
called the superior court of justice.

- Canada has a unified court structure which means that the provincial, territorial and
superior courts apply both federal and provincial law unless a matter is exclusively
assigned to another court. Provincial courts and provincial superior courts hear cases that
arise under both federal and provincial law. Ex/ these courts will decide cases under the
federal criminal code, they will also decide cases under the provincial highway traffic act.

Ontario Courts:
- The provincial court is the Ontario court of justice. It hears less serious criminal cases
- The Ontario court of justice has the division that deals with young offenders. In some
cities it also has a drug treatment court whose goal is to reduce recidivism by providing
treatment and alternatives to incarceration to those that have addictions to drugs.
- In parts of Ontario where there is no family court division of the superior court of justice,
the Ontario court of justice hears certain family law matters relating to child protection,
adoption, custody, access, child support and spousal support.
- The provincial superior court is the Ontario superior court of justice. It hears the more
serious criminal cases including any case with a jury. It also has inherent jurisdiction to
hear any other matter not assigned to another court.
- In Ontario the small claims court is a division of the superior court of justice. The
superior court of justice hears divorce cases and cases about the division of family
property.
- Many cities in Ontario also have a family court as party of the superior court of justice.
Where this is the case the superior court can also decide child protection, adoption,
custody, access and support issues that otherwise would have gone before the Ontario
court of justice.
- The superior court of justice can also hear certain appeals from the Ontario court of
justice
- The divisional court is a branch of the superior court of justice. The divisional court hears
appeals from the administrative tribunals in the province and applications for judicial
review of provincial government action. The divisional court also hears appeals from the
superior court of justice.
- The court of appeal for Ontario is the highest court in the province. While the other courts
have judges throughout the province, the court of appeals sit in Toronto and exceptionally
in Kingston to hear inmate appeals from individuals in correctional facilities.
Core Jurisdiction of Provincial Superior Courts

- The provincial superior courts occupy a special place in the Canada court system. The
role of superior courts can be traced back to the very beginnings of the common law
system in England.
- The courts have interpreted the constitution to safeguard the role of the provincial
superior courts. They have done so by limiting the circumstances under which provincial
superior court jurisdiction can be given to other types of courts.
- If the provinces were free to create provincial courts without any limits, they could usurp
the role of the superior courts and avoid the necessity of federal involvement in the
appointment of superior court judges

Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714

- In the residential tendencies act case, the SCC dealt with the core jurisdiction of the
provincial superior courts. The legislature of Ontario enacted a law to govern landlords
and tenants and established the residential tenancy commission to oversee and enforce it.
- The SCC was asked whether this contravenes section 96 of the constitution by interfering
with the core jurisdiction of the superior courts.
- The SCC articulated a 3-part test for determining whether or not something is within the
core jurisdiction of the superior courts.
- In applying this test to the residential tenancies commission, the court found that the
superior courts did have jurisdiction over landlords and tenants in 1867
- The commission was established to exercise the judicial powers, by determining
contractual and property rights as between landlord and tenants
- Each case before the commission involved analysis of law, an application of law to the
facts and a decision
- Finally, the SCC found that, in substance, the tribunal is exercising judicial powers
roughly in the same way as they are exercised by courts.
- The residential tenancies act reference stands for the proposition that a provincial law
will infringe section 96 and therefore will be invalid if it establishes what is in effect a
section 96 court.

Held:
“It is plain that what was sought to be achieved through . . . the intended effect of s. 96 would be
destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and
then confer on the tribunal theljurisdiction of the superior courts.”

Test”

(1) Was the power exercised by a superior court at Confederation?

(2) Is the provincial body exercising power in a judicial manner?

(3) Is the institutional setting fundamentally judicial?

Constitutional Status of the SCC

- Until recently there was considerable academic debate about the constitutional status of
the SCC.
- The court was established by act of parliament in 1875.
- The legal academics have had different perspectives about the extent to which parliament
can continue to legislate in relation to the court.
- The status of the SCC was clarified by the courts own advisory opinion in the 2014
supreme court act reference
- In that case, a 6-judge majority was of the view that the constitution act 1982 confirmed
the court status as a constitutionally protected institution.
- The effect of the constitution act 1982, in the majority’s view was to freeze the status quo
in relation to the courts constitutional role pending future changes.
- The majority held that the unanimous consent procedure in section 41d of the constitution
act 1982 protects: BELOW

Constitution Act, 1867

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time
provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for
Canada, and for the Establishment of any additional Courts for the better Administration of the
Laws of Canada.

Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21.

Decision:

• Protected by unanimous consent amending procedure: The continued existence of the

Court, the Court’s composition (a chief justice and eight other judges) and the eligibility
requirements for appointment as they were in 1982.
• Protected by general amending procedure: The Court’s jurisdiction as the final general court
of appeal for Canada, including in matters of constitutional interpretation, and its independence.

Judicial Appointments:

Federal Judicial Appointments

- Over 1000 federally appointed judges in Canada.

Non-Supreme Court Appointments

 Minister of Justice is supported by the Commissioner for Federal Judicial Affairs, a

nonpartisan official who is independent from the department of justice
 Individuals apply for federal judicial appointments.
 Qualifications:

o 10 years at the bar of a province/territory, or

o Combination of 10 years’ experience as a lawyer and provincial court judge

 Advisory Committees assess applications as highly recommended, recommended or

unable to recommend.
 The minister makes the final determination from among the recommended candidates.
 The candidate is then recommended to the Governor General for appointment.
 Judges are formally appointed by the GG or the governor in council on the
recommendation of the minister of justice.
 The PM usually recommends the appointment of chief justices and associate chief
justices.

- The provinces have similar processes for selecting provincial court judges.

Supreme Court Appointments

- Established by statute in 1875

 There are 9 Justices on the Supreme Court of Canada, including the chief justice of
Canada.

 May serve until the age of 75.

 Qualifications:

o Anyone who is or has been a judge or a lawyer for at least ten years in Canada.

 By law, three judges must come from Quebec.

  By convention three judges are from Ontario, two from the west and one from Atlantic
Canada.

Qualifications for appointment set out in the supreme court act:

Supreme Court Act

5. Any person may be appointed a judge who is or has been a judge of a superior court of a
province or a barrister or advocate of at least ten years standing at the bar of a province.

6. At least three of the judges shall be appointed from among the judges of the Court of Appeal
or of the Superior Court of the Province of Quebec or from among the advocates of that
Province.

- SCC justices are appointed by the governor in council on recommendation of the PM

- The qualifications for appointment to the SCC came an issue in 2013, when PM harper
recommended the appointment of federal court of appeal judge Marc Nadon to one of the
three seats for Quebec on the SCC.
- A Toronto immigration lawyer challenged the appointment in federal court, on the
grounds that justice Nadon did not meet the eligibility criteria in section 6 of the SCA,
since he was not from among the judges of the court of appeal or of the superior court,
nor was he a practising lawyer.
- Federal gov referred this to the SCC
- Gov argued that S 5 and 6 of the SCA needed to be read together.
- Reading S6 in isolation would mean that a lawyer who has been called to the bar for one
day would be eligible for appointment to the SCC.
- Would have been eligible if sections 5 and 6 were read together

Reference re Supreme Court Act, ss.5and6,2014SCC21

Facts: In 2013, Justice Nadon, a judge of the Federal Court of Appeal, was appointed to the
Supreme Court of Canada to one of the three spots for Quebec.

Issue: Can a person who was, at any time, an advocate of at least 10 years standing at the
Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme
Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act?

Decision: A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment
to the Supreme Court of Canada under s. 6 of the Act.

- Majority decided that only practising lawyers of at least 10 years standing or judges of
the Quebec superior court or court of appeal were eligible for appointment to the seats
reserved for Quebec on the SCC.
 - Justice Moldaver dissenting characterized this interpretation as cherry picking. That is,
choosing from section 5, only those aspects of it that are convenient and jettisoning those
that are not.

Supreme Court Appointments 2006-2017:

Supreme Court Appointments: 2006 - 2017

Advisory Public Recommended for

Year Justice(s)
Committee Hearing Appointment by

2006 Justice Rothstein Yes Yes PM Harper

2008 Justice Cromwell No No PM Harper

Justices Karakatsanis and

2011 Yes Yes PM Harper
Moldaver

2012 Justice Wagner Yes Yes PM Harper

2013 Justice Nadon* Yes Yes PM Harper

2014 Justice Gascon No No PM Harper

2014 Justice Côté No No PM Harper

2016 Justice Rowe Yes Yes PM Trudeau

2017 Justice Martin Yes Yes PM Trudeau

 - The SCC appointments process used to be conducted almost entirely in secret.

- Officials might have conducted private consultations, but there were no applications and
no formal committee vetting.

- Since 2005, govs have experimented with different approaches to the appointment of
SCC judges.

- Advisory committee provided a short list of candidates in the 2005 replacement

- During Harpers time in office, he used ad hoc advisory committees for three of the six
judges that he recommended for appointment to the supreme court.

- Justice Rothstein was the first candidate for appointment to the SCC to appear before a
parliamentary committee.

- In the USA, the USA senate must vote to confirm the president’s appointees to the
supreme court of the USA.

- This is provided for some interesting exchanges between candidates and senators.

- Robert Bork’s confirmation hearing he gets into a heated exchange about privacy rights.
He was not confirmed by the US senate.

- In Canada, parliamentarians have no formal role in approving the appointment of SCC

judges.

- Nevertheless, justice Rothstein appeared before an ad hoc committee of parliamentarians

in 2006, before the PM formally recommended his appointment to the GG.

- Committee appearances are a way for parliamentarians and the public to get know new
SCC justices and to hear about their approach to deciding cases and their thoughts on the
role of judges in a constitutional democracy.

- However as noted by professor Hogg, judges must be careful not to comment on matters
that might come before the court, so as not to give the impression that they have
prejudged an issue.

- This means that certain lines of questioning are off-limits.

- Between 2006-2017, 6 of the 9 nominees for appointment to the SCC have appeared
before ad hoc parliamentary committees.

Independent Appointments Board

  Announced by Prime Minister Trudeau in 2016, to help him fill the vacancy created by
the retirement of Justice Cromwell.

 For the first time individuals were invited to apply to be a judge in the SCC.

 To assess applications for the Supreme Court against merit-based criteria and to
recommend a short list of 3-5 candidates to the PM.

 Chaired by kim campbell, a former PM and minister of justice.

o Personal skills and experience

o Personal qualities
o Institutional needs of the court

 Used to appoint Justices Rowe and Martin

Judicial Independence
- The rule of law depends on an independent judiciary to resolve disputes according to law.
- In BC and imperial tobacco, the SCC defined judicial independence as the freedom to
render decisions based solely on the requirements of law and justice.
- Requires the judiciary be left to act without improper interference from any other entity
- Judicial independence maintains public confidence in the justice system by providing a
framework within which judges will adjudicate cases solely on the basis of law and the
requirements of justice.
- Judges must not be influenced or pressured by the other branches of government.
- Judiciary must be independent and be perceived as being independent.

“Judicial independence consists essentially in the freedom ‘to render decisions based solely on
the requirements of the law and justice’ ... It requires that the judiciary be left to act without
improper ‘interference from any other entity’.”

British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473

 - The charter guarantees the right not to be convicted of a criminal offence except before
an independent and impartial tribunal.
- The SCC has inferred broader protections for judicial independence by using unwritten
constitutional principles to elaborate the provisions and structure of the constitution.
- In particular, the SCC has extended the right to an independent and impartial tribunal to
noncriminal proceedings.
- 3 constitutional protected aspects of judicial independence:
 Security of tenure
 Financial security
 Administrative independence

Security of Tenure  Removal only for cause (misconduct serious enough to compromise their
actual or perceived ability to perform judicial functions), Judiciary inquiry before removal
(federally appointed judges are removable by the GG on address of the senate and HoC.

Financial Security  Salaries established by law (executive branch of government must not be
able to manipulate judicial salaries), Compensation committee process

Administrative Independence  Control over administrative decisions that bear directly on the
judicial function. These matters include control over the assignment of judges to cases, court
sittings, court lists, allocation of courtrooms and direction of court administrative staff.

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3

- The SCC elaborated on the constitutional protection of judicial independence in the

context of questions dealing with financial security.

Facts: During the 1990s recession, several provinces sought to lower the salaries of provincially
appointed judges. Caused friction between judges and governments.

- Alberta gov introduced 5% reductions in judges pay. A judge in Alberta indicated that he
would not sit in protest of this reduction. Four provinces referred questions to their courts
of appeal about how the salaries of provincially appointed judges may be altered. All 4
were appealed to the SCC.

Issue: Does the Constitution restrict how provincial governments and legislatures can reduce the
salaries of provincial court judges?

Decision: Judicial independence protects the salaries protects the salaries of all provincial court
judges. An independent, objective and effective salary commission process must be used to
adjust judges’ salaries.
 - These recommendations are nonbinding, but chief justice Lamare indicated that any
departure from a recommendation would need to be justified in court if necessary.

Canadian Charter of Rights and Freedoms, s. 11(d)

11. Any person charged with an offence has the right [...] (d) to be presumed innocent until
proven guilty according to law in a fair and public hearing by an independent and impartial
tribunal; This covers some but not all the cases heard in provincial court. Does not extent to civil
matters, like a dispute over a contract or the ownership of property.

Constitution Act, 1867 (deal with appointment, tenure, and salaries of judges of the
superior courts)

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts
in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

99.(1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office
during good behaviour, but shall be removable by the Governor General on address of the
Senate and House of Commons.

100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County
Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty
Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed
and provided by the Parliament of Canada.

 The Charter only applies to criminal proceedings.

 Sections 96-100 do not apply to provincially appointed judges.

- Dilemma facing the majority of the court was that the text of the constitution doesn’t say
very much about judicial independence.

- Given the incomplete nature of the express protection for judicial independence in the
text of the constitution, chief justice lamer resorted to unwritten constitutional principles
to elaborate a broader constitutional protection for judicial independence.
Chief Justice Lamer held that:

“In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an
exhaustive written code for the protection of judicial independence in Canada. Judicial
independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution
Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of
the Constitution, that the true source of our commitment to this foundational principle is
located.”

“The historical origins of the protection of judicial independence in the United Kingdom, and
thus in the Canadian Constitution, can be traced to the Act of Settlement of 1701. [...] that Act
was the “historical inspiration” for the judicature provisions of the Constitution Act, 1867 .
Admittedly, the Act only extends protection to judges of the English superior courts. However,
our Constitution has evolved over time. [...] judicial independence grown into a principle that
now extends to all courts, not just the superior courts of this country.”

Majority’s Salary Commission Process

- After elaborating the unwritten source of judicial independence, chief justice lamer
explained how it applied to the facts of the case.

 “...as a general constitutional principle, the salaries of provincial court judges can be
reduced, increased, or frozen, either as part of an overall economic measure which affects
the salaries of all or some persons who are remunerated from public funds, or as part of a
measure which is directed at provincial court judges as a class.”

 “However, any changes to or freezes in judicial remuneration require prior recourse to a

special process, which is independent, effective, and objective, for determining judicial
remuneration, to avoid the possibility of, or the appearance of, political interference
through economic manipulation.”

 “Governments are constitutionally bound to go through the commission process. The

recommendations of the commission would not be binding on the executive or the
legislature. Nevertheless, though those recommendations are non-binding, they should
not be set aside lightly, and, if the executive or the legislature chooses to depart from
them, it has to justify its decision -- if need be, in a court of law.”

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3

- In a strong dissent, Justice La Forest took issue with the chief justice’s use of the
preamble to the constitution and unwritten constitutional principles
 - He emphasized the protection of judicial independence in the text of the constitution and
he criticized as illegitimate and undemocratic the chief justice’s resort to unwritten
principles, which he characterized as a dubious theory of an implicit constitutional
structure.
- From La forest’s perspective, the express provisions of the constitution are not
elaborations of the underlying, unwritten and organizing principles found in the preamble
of the constitution act 1867. On the contrary, they are in the constitution
- To assert otherwise is to subvert the democratic foundations of judicial review
- La Forest did not find the salary commission process to be a constitutional requirement.
- The process established by the majority has led to salaries for provincial court judges in
Ontario that are 288,000 a year in 2018.
- Federally appointed judges whose salaries are set through a similar process at the federal
level are now paid 314,000 a year.

“Our Constitution expressly contemplates both the power of judicial review (in s. 52 of the
Constitution Act, 1982) and guarantees of judicial independence (in ss. 96 -100 of the
Constitution Act,1867 and s. 11 (d) of the Charter). While these provisions have been interpreted
to provide guarantees of independence that are not immediately manifest in their language, this
has been accomplished through the usual mechanisms of constitutional interpretation, not
through recourse to the preamble. The legitimacy of this interpretive exercise stems from its
grounding in an expression of democratic will, not from a dubious theory of an implicit
constitutional structure. The express provisions of the Constitution are not, as the Chief Justice
contends, “elaborations of the underlying, unwritten, and organizing principles found in the
preamble to the Constitution Act, 1867” (para. 107). On the contrary, they are the Constitution.
To assert otherwise is to subvert the democratic foundation of judicial review.”

Assessing Judicial Independence

- When courts are assessing their independence, they approach the issue from two
perspectives.
 Subjective “...it is very important that the judiciary should actually remain
independent....”
 Was the judge or court in question actually independent in the circumstances? This would
preclude a judge from deciding a case in which they had a personal interest.
 Canada (Minister of Citizenship and Immigration v. Tobiass, [1997] 3 S.C.R. 391
o Objective “...whether a reasonable person who is fully informed of all the circumstances
would consider that a particular court enjoyed the necessary independent status.”
o
o Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405

Judicial Accountability

- Within the framework of judicial independence, judges are accountable through two
mechanisms: the appeals process, which corrects errors of fact or of law, and judicial
discipline bodies such as the Canadian Judicial Council, which deal with issues
 surrounding the conduct of superior court judges and their capacity to perform their
judicial functions.
- A litigant who is unhappy with the outcome of their case and who thinks the judge got it
wrong should pursue any available appeal routes to a higher court
- On the other hand, someone who believes that a judge’s conduct is inappropriate should
bring the matter to the attention of the Canadian Judicial council

Canadian Judicial Council

- Established under the Judges Act

- Consists of federally appointed Chief and Associate Chief Justices.
- Mandated to promote:
o Efficiency
o Uniformity
o Accountability
and to improve the quality of judicial service in the superior courts of Canada
- Consists of 39 judges, chaired by the Chief Justice of Canada

Removal of a Judge

Constitution Act, 1867

99. (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office
during good behaviour but shall be removable by the Governor General on address of the Senate
and House of Commons. There are similar provisions for other federally appointed judges in the
SCA, the federal courts act and other relevant federal statutes.

(2) A judge of a superior court, whether appointed before or after the coming into force of this
section, shall cease to hold office upon attaining the age of seventy-five years, or upon the
coming into force of this section if at that time he has already attained that age.

- As we saw earlier, a judge may only be removed for cause and following a judicial
inquiry.
-
 - The CJC fulfills the requirement for judicial inquiry.
- A complaint about the conduct of a federally appointed judge may be made to the
executive director of the CJC.
- The executive director screens the complaint, and those that meet the criteria for review
are sent to the Judicial conduct committee.
- Copy of the complaint is sent to the judge in question and the chief justice of that judge’s
province, with a request for comments. Complainant may also be asked to provide
comments.
- If the complaint is not resolved, it is sent to a review panel of 5 members for further
study
- If the complaint might be serious enough to warrant the judges removal from office, the
review panel can decide that there should be an inquiry committee, to hear the matter
- Inquiry committee is composed of CJC members and senior lawyers. If the complaint
comes from a provincial attorney general or the minister of justice of Canada, the matter
may go directly to an inquiry committee.
- The inquiry committee can conduct its own investigation into the complaint and hear
from the judge in question, the person who made the complaint, and anyone else with
something relevant to say.
- Inquiry committee normally holds a public hearing, where the judge and the person who
complained can attend and give evidence about the matter that led to the complaint.
- The inquiry committee prepares a report which goes to the full CJC for discussion and
decision.
- CJC must decide whether or not to recommend the judges removal to the minister of
justice.
- On receipt of the CJC report, the minister decides whether or not to recommend that the
senate and HoC agree to remove the judge.
- Only on address of the senate and HoC would the GG remove the judge from office.
- Since confederation no judges have been removed. Some have come close but resigned
once it was clear that the senate and house would recommend removal.

Conduct of Justice Bienvenue (1996)

Majority

- Recommended that he should be removed from the bench, while a minority was of the
view that other forms of discipline were appropriate.
“...it seems unthinkable that a judge would, after serious thought, make remarks about women
made by Mr. Justice Bienvenue in a sentence, repeat them the following day in the media, make
a later, rather meaningless apology to ‘all women who may have been shocked or offended by
his statements’ and, finally, restate before this Committee, and expand on, the statements the
judge had already made.”

Minority

“A reasonable, informed and objective person will quickly recognize that Mr. Justice Bienvenue
is continuing to trade in a variant of the stereotypical view about essential personalities and
characteristics of men and women. The view, once orthodox and mainstream was universally
held by leaders and other members of society including our law makers — parliamentarians and
judges — and our appointers of judges. It found expression in our many institutions such as our
schools and churches, in our many intellectual, social, cultural and sport associations, and, in our
laws — both statutory and judge-made.

...we strongly disagree that a reasonable and informed person would assess the remarks
concerning women in this harsh fashion and would in the end have the complete lack of
confidence and the reasonable apprehension . . . to the point where he or she would vote to
remove Mr. Justice Bienvenue from office.”

Module 7
Constraints on Legislative Action

Judicial Review of Legislation

U.K. Parliamentary sovereignty

- professor Albert Venn Dicey provided the classic definition of parliamentary sovereignty
in the UK.
- professor dicey was speaking about the powers of the UK parliament. In the UK there is
no rigid or entrenched constitution. So, the UK parliament is free to make or unmake any
law whatever, and the courts will not invalidate those laws.
- The situation has always been different in Canada.
- In the UK, one can truthfully say that parliament in supreme.
 - In Canada, the parliament and the legislatures are sovereign, that is, they can make or
unmake any law whatever, but only within the limits set by the constitution.
- “The principle of Parliamentary sovereignty means neither more nor less than this,
namely, that Parliament [has] the right to make or unmake any law whatever; and, further,
that no person or body is as having a right to override or set aside recognised by the law
of England as having a right to override or set aside the legislation of Parliament.”

U.S. Constitutional Supremacy

- The USA, like Canada, also has a written constitution.

- In 1803, the US supreme court was called on to decide whether or not the constitution
was supreme in the face of legislation that was inconsistent with it.
- The USA constitution does not have a supremacy clause like Canada’s.
- Chief justice Marshall reasoned from first principles in favour of the SC’s ability to
invalidate legislation that was inconsistent with the constitution.
- The controversy in Marbury and Madison arose when president John Adams appointed
Marbury to be a justice of the peace in the district of Columbia.
- President Adams did so after he’d been defeated in the election but before president
Jefferson was sworn in.
- Mr. Marbury’s commission had been signed by the relevant officials, but president
Jefferson’s new secretary of state, James Madison, refused to deliver the signed
commission to Mr. Marbury.
- Marbury challenged this in the supreme court.
- One of the issues before the court was whether congress’s grant of original jurisdiction to
the supreme court to hear the challenge was consistent with article 2 of the US
constitution which limited the circumstances in which the supreme court could exercise
original jurisdiction.
- “The question, whether an act, repugnant to the constitution, can become the law of the
land, is a question deeply interesting to the Untied States; but, happily, not of an intricacy
proportioned to its interest. It seems only necessary to recognize certain principles,
supposed to have been long and well established, to decide it.”
- “It is emphatically the province and duty of the judicial department to say what the law
is. Those who apply the rule to particular cases, must of necessity expound and interpret
that rule. [...] If then the courts are to regard the constitution; and the constitution is
superior to any ordinary act of the legislature; the constitution, and not such ordinary act,
must govern the case to which they both apply.”

-- Marbury v. Madison, 5 U.S. 137 (1803)

Canadian Constitutional Supremacy

- Constitution of Canada has always been supreme, first on the account of the Colonial
Laws Validity Act and since 1982 due to the supremacy clause.

- Unlike in the UK, Canadian judges have always had the power to invalidate laws that are
inconsistent with the constitution.
 - Unlike in the USA, the judges themselves did not have to articulate the basis for this
constitutional power of judicial review.

- That being said questions are still sometimes raised about the legitimacy of constitutional
judicial review in Canada.

1867 – 1982: Colonial Laws Validity Act

• “2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act
of Parliament extending to the colony to which such law may relate[...] shall, to the extent of
such repugnancy, but not otherwise, be and remain absolutely void and inoperative.”

1982 – present: Constitution Act, 1982

• “52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no
force or effect.”

Re Manitoba Language Rights, [1985] 1 S.C.R. 721

- The SCC was faced with the constitution act 1871, a part of the constitution of Canada,
that required that all public documents, as well as the acts of the legislature of Manitoba,
be published in both English and French.
- In 1890 Manitoba legislature enacted Manitoba’s official languages act, which provided
that the acts of the legislature need only be printed and published in English.
- Until the 1980’s Manitoba’s laws were enacted in English only.
- The SCC held that the constitution act, 1871 entrenched a mandatory requirement to
enact and publish Manitoba’s laws in both English and French.
- It was a specific manifestation of the general right of Franco-Manitobans to use the
French language.
- The court held that any law in English only was inconsistent with the constitution and,
therefore, of no force and effect.
- But this presented a dilemma. Manitoba had been enacting English only laws since 1890.
If the SCC declared that all of them were of no force and effect, there would have been a
legal vacuum and chaos in Manitoba.
- Only laws enacted in both French and English from before 1890 would have continued to
have been invalid and matters not regulated by laws enacted before 1890 would have
been unregulated.
- Even the composition of the Manitoba legislature itself would have been called into
question since English only statutes had increased the membership of the legislative
assembly since 1890.
- The SCC was of the view that simply declaring the acts of the province to be invalid
without more would undermine rather than promote the principle of the rule of law.
Constitution Act, 1871

“... all public documents, as well as all Acts of the Legislature, be published in both languages.”

Official Language Act, 1890

“The Acts of the Legislature of the Province of Manitoba need only be printed and published in
the English language.”

Rule of Law:
1. The law is supreme (meant that laws made by the legislature of Manitoba that
were not in compliance with the constitution should be declared of no force and
effect).
2. Requires the creation and maintenance of an actual order of positive laws
- To avoid leaving Manitoba without a functioning legal system, the SCC declared that all
Manitoba laws enacted in English only were unconstitutional, but the court suspended the
effects of this decision to give Manitoba time to translate and re-enact its laws.
- The court was of the view that temporarily giving effect to the unconstitutional laws
consistent with the principle of the rule of law so as to avoid legal chaos.
- Sometimes cases such as the Manitoba Language Rights reference, where it is plainly
clear that a law is unconstitutional.

“Thus the Constitution requires that temporary validity and force and effect be given to the
current Acts of the Manitoba Legislature from the date of this judgment, and that rights,
obligations and other effects which have arisen under these laws and the repealed and spent laws
of the province prior to the date of this judgment [...] are deemed temporarily to have been and
continue to be effective and beyond challenge. It is only in this way that legal chaos can be
avoided and the rule of law preserved.”

Vriend v. Alberta, [1998] 1 S.C.R. 493

- Questions of legitimacy can also rise when it comes to the remedies that courts will
consider for unconstitutional laws.

 Mr. Vriend was fired from his job as a teacher because he was gay.
 At the time, Alberta’s human rights legislation did not prohibit discrimination on the basis
of sexual orientation.
 Mr. Vriend challenged the provincial human rights law on the basis that it was
inconsistent with the equality rights in s. 15 of the Charter.
 The SCC was unanimous that Alberta’s law violated S15.
  The court found that the lack of protection for discrimination on the grounds of sexual
orientation could not be justified under S1.
 Excluding sexual orientation was not rationally connected to the objective of preventing
discrimination.
 Alberta failed to demonstrate that it had a reasonable basis for excluding sexual
orientation and the exclusion constituted total, not minimal, impairment of the S15 right.
 The court then considered what the remedy should be. Ordinarily, a law that is
inconsistent with the constitution is declared of no force and effect.
 Then it is up to the legislative branch of government to re-enact it, hopefully in a manner
that is consistent with the constitution.

Majority:

- Alberta’s Law violates s. 15 of the Charter and is not saved by section 1.

- Sexual orientation should be “read in” to Alberta’s law as a prohibited ground of
discrimination.
- Majority of the court chose not to strike down ( which would have deprived all Albertans
from provincial human rights protection) the Alberta human rights legislation, but rather
to read in sexual orientation as a prohibited ground of discrimination.
- “Much was made in argument before us about the inadvisability of the Court interfering
with or otherwise meddling in what is regarded as the proper role of the legislature,
which in this case was to decide whether or not sexual orientation would be added to
Alberta’s human rights legislation. Indeed, it seems that hardly a day goes by without
some comment or criticism to the effect that under the Charter courts are wrongfully
usurping the role of the legislatures. I believe this allegation misunderstands what took
place and what was intended when our country adopted the Charter in 1981-82.” – Justice
Iacobucci

- Justice Iacobucci wrote that it was the deliberate choice of the provinces and the federal
government to adopt the charter. The charter guarantees rights which could only be
limited in certain circumstances.
- It was inevitable that disputes over the meaning of the rights and any justification would
have to be settled by judges.
- Giving courts the power to invalidate legislation has not eliminated the debate over the
legitimacy of the court in doing so.
 - Many still alleged that it is undemocratic for judges to overturn laws enacted by
democratically elected lawmakers.
- Justice Iacobucci emphasized that the enactment of the charter was at least in the sense a
redefinition of Canadian democracy.
- In carrying out their responsibility under the constitution, courts are not second-guessing
legislatures or making value judgments; rather, they are upholding the constitution as the
constitution itself authorizes them to do.
- Justice Iacobucci also elaborated the framework within which courts and legislatures
interact.
- He pointed to S1, S7, which both habe a role for legislatures to articulate reasonable
limits on rights. The lawmaking process is itself part of the principles of fundamental
justice.
- Finally, S33, the notwithstanding clause, allows parliamentary legislature to have the
final say on certain rights issues, even if this is contrary to a decision of the supreme
court.
- The interaction between courts and legislatures was described as a dialogue by professor
Peter Hogg and Allison Bushell.
- In reviewing legislative enactments and executive decisions to ensure constitutional
validity, the courts speak to the legislature and executive branches of government.
- If legislation is struck down, the legislature has the opportunity to respond with a law that
complies with the constitution or that invokes the notwithstanding clause.
- In this way, there’s a sort of dialogue between courts and legislatures.
- In 2004, then Chief Justice Beverly McLachlin gave a speech entitled, Respecting
Democratic Roles. In it she builds on some of the same themes as Justice Iacobucci did in
Vriend.

Judicial Review and the Legislative Process

Will courts supervise the legislative process?

- Courts will examine laws enacted by parliament and the legislatures to see if they are
consistent with the constitution.
- Will courts supervise the legislative process? The answer is generally no.
- In the patriation reference the SCC remarked that courts come into the picture when
legislation is enacted and not before.
- The court found that:

“How Houses of Parliament proceed, how a provincial legislative assembly proceeds is in either
case a matter of self-definition, subject to any overriding constitutional or self-imposed statutory
or indoor prescription”

“Courts come into the picture when legislation is enacted and not before....”

- This means that courts will not supervise the legislative process except to the extent that
there are constitutional or statutory provisions about the legislative process.
 - There are very few of these
- Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753

What rules will the courts enforce?

- “Manner and Form” Requirements

Constitution Act, 1867

133. Either the English or the French Language may be used by any Person in the Debates of the
Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both
those Languages shall be used in the respective Records and Journals of those Houses; and
either of those Languages may be used by any Person or in any Pleading or Process in or issuing
from any Court of Canada established under this Act, and in or from all or any of the Courts of
Quebec.

- S133 of the constitution is what is called a manner and form requirement.

- It speaks to the manner and form in which legislation is to enacted by requiring that both
English and French must be used in the records and journals of the senate and HoC.
- This has been interpreted to mean that statutes must be enacted in both English and
French.
- As we saw in the Manitoba Language Rights reference this type of limitation on the law-
making process will have effects on the validity of legislation if it is not followed.
- There are a handful of other manner and form requirements including the bills and
posting a tax, or authorizing the spending of public money must originate in the HoC.
- And that bills adopted by the senate and house of commons must receive royal assent
before they can come into force.

Turner v. Canada, [1992] 3 F.C. 458 (C.A.)

- In the absence of a legal rule that relates to the legislative process the courts will not get
involved in the process of legislating.
- This is so even when the motivations of lawmakers are called into account.

Facts:

- The Yukon Quartz Mining Act was amended with retroactive effect that deprived the
plaintiff of a defense in a civil case.
- The plaintiff alleges that the amendments (to the Yukon Quartz Mining Act) were enacted
negligently with the result that they deprived the plaintiff of a defence in an ongoing civil
case.
 - The plaintiff alleged that several ministers were negligent and had conspired to introduce
the legislation to disadvantage him through an unfair process.
- The federal court of appeal noted that the plaintiff did not seek to challenge the validity
of the legislation but rather was attacking the process through which it was enacted.
- This was not something that is reviewable in the courts.

Issue:

- Can you challenge the motivations of lawmakers?

Decision:

- “We are all of a view that an action against Her Majesty based on allegations that
Parliament has been induced to enact legislation by the tortious acts and omissions of
Ministers of the Crown is not justiciable.”

Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525

- The Canada assistance plan was originally enacted in 1967, it authorized the government
of Canada to enter into agreements with the provincial governments, to pay them
contributions towards their expenditures on social assistance and welfare.
- Broadly speaking, it authorized Canada to pay up to half of the provinces eligible
expenditures.
- The government of Canada entered into agreements with each of the provinces between
1967 and 1989 the amounts payable rose from $151 million to an estimated 5 and a half
billion dollars.
- In 1990, the federal gov decided to cut its expenditures in order to reduce the federal
budget deficit.
- The gov introduced the government expenditures restraint act which limited growth of
payments under the Canadian assistance plan to no more than 5% a year.
- The bill received royal assent in 1991.
- The gov of BC referred the matter to its court of appeal asking whether the gov of
Canada could introduce such legislation into parliament without the consent of BC.
- The matter was appealed to the SCC, BC argued that the 1990 amendments to the Canada
assistance plan were contrary to the 1967 agreement between Canada and BC.
- The SCC found that the federal legislation did not in fact violate the 1867 agreement.
- The court also noted that agreements between provinces and the federal gov cannot
prevent parliament from exercising its powers to legislate under the constitution.
- Any purported agreement to not introduce legislation would be an ineffective and
unenforceable limit on parliamentary sovereignty.
- The court noted that a restraint on the executive in the introduction of legislation is a
fetter on the sovereignty of parliament itself.

Facts:
 - B.C. and Canada entered into an agreement for Canada to contribute to spending on
social assistance and welfare.
- In 1990, Parliament enacted legislation reducing the payments to B.C.

Issue:

- Was Canada entitled to introduce legislation changing the terms of the agreement without
the consent of B.C.?

Decision:

- Yes: “A restraint on the Executive in the introduction of legislation is a fetter on the

sovereignty of Parliament itself.”

Legislation that is Unfair, Unjust or Unwise

Bacon v. Saskatchewan Crop Insurance Corp, [1999] 11 W.W.R. 51 (Sask. C.A.)

Facts:

- 386 farmers entered into contracts with the Government of Saskatchewan to insure their
crops.
- After the contracts had been entered into, the legislature of Saskatchewan passed
legislation that changed the terms of the contracts and that extinguished any claims for
breach of contract.
- The farmers challenged the legislation on the basis of the principle of the rule of law.
- The farmers argued that the contracts were binding on the government, and that the rule
of law prevented the government from having the legislature enact legislation changing
the terms of contracts.
- The farmers admitted that the case was not about the charter of rights and freedoms,
which does not protect property rights.
- The case was also not about the division of powers, since property and civil rights are
within provincial legislative authority.
- The farmers invoked the case of Roncarelli and Duplessis, but the Saskatchewan court of
appeal distinguished that case from the present one.
- Roncarelli was about an official exercising arbitrary power under a law or else acting
without legal authority.
- In the bacon case, the Saskatchewan legislature lawfully amended the terms of the
contracts.
- The farmers also invoked the principle of the rule of law as it was described in the
Quebec secession reference.
- Again, the court of appeal distinguished that case. In the secession reference, the SCC
emphasized that the law is supreme over the acts of both government and private persons.
 - The farmers argued that this meant that a government could not avoid its contractual
obligations any more than a private person could.
- Court of appeal disagreed. The court says that the law, as it exists at any particular time,
is applicable to both government and private persons.
- But there is not guarantee that the law will not change
- The law, including the common law of contract, is subject to change by legislation.
- The court then differentiated between legal and political accountability
- Protection is provided by our courts against arbitrary and unlawful actions by officials,
while protection against arbitrary legislation is provided by the democratic process of
calling our legislators into regular periods of accountability through the ballot box.
- This means you can go to court to challenge the actions of an official acting under the
authority of the law, but the wisdom of the law itself is not something the courts will
second-guess.

Issue:

- Did the changes to the insurance program violate the rule of law?

Decision:
- “Protection is provided by our courts against arbitrary and unlawful actions by officials
while protection against arbitrary legislation is provided by the democratic process of
calling our legislators into regular periods of accountability through the

Authorson v. Canada, [2003] 2 S.C.R. 40

Facts:

- Disabled war veterans were not paid interest that they were owed on their pensions and
benefits.
- The gov administered funds on behalf of the veterans, and it was admitted by the
government that it had neglected to pay interest to the veterans on these funds.
- Parliament, by legislation, made the debt unenforceable.
- Veterans argued they were owned compensations.

Issue:

- Must Parliament give just compensation to the veterans?

Decision:

- “The expropriation of property without compensation is discouraged by our common law

tradition, but it is allowed when Parliament uses clear and unambiguous language to do
so.”
- “The [act] takes a property claim from a vulnerable group [...] However, that taking is
within the power of Parliament.”
 - SCC found that while the common law discourages the expropriation of property without
compensation, parliament nevertheless has the power to take property when it uses clear
and unambiguous language.
- The court acknowledges that a vulnerable group was affected but held that there were no
legal limits on parliament’s legislative authority to structure the compensation owing to
veterans.

Wells v. Newfoundland, [1999] 3 S.C.R. 199

Facts:

- Andrew Wells was a member of the Public Utilities Board.

- The Legislature enacted a law restructuring the Board and reducing the number of
members on it from 6 to 3.
- All of the existing commissioners ceased to hold office
- Mr. Wells was not reappointed.
- This was a violation to his contract
- Mr. wells Argued that he was entitled to compensation for breach of contract.

Issue:

- Is Mr. Wells owed compensation?

Decision:

- The Legislature had the power to restructure the Board.

- The court drew a distinction between legislatively avoiding a contract and escaping the
consequences of doing so.
- In restructuring the board, the legislature avoided the obligation to maintain Mr. Wells as
a member of the board.
- However, the legislation was silent on whether Mr. Wells should be compensated for the
remainder of his contract.
- Clear and explicit statutory language is required to extinguish existing rights.
- Since the legislation did not explicitly deny Mr. Wells the right compensation, he was
entitled to it.

Legal and Political Accountability

- The courts will give legal remedies for laws that are unconstitutional or for arbitrary
action under a statute or where someone acts without legal authority.
- But for the most part, accountability lies in political processes and ultimately through
elections for laws that are unfair, unwise or unjust or carelessly enacted.

Unwritten Constitutional Principles

 - After the SCC used unwritten constitutional principles so prominently, litigants tried to
used them in many other contexts.
- In particular, plaintiffs tried to use the unwritten constitutional principle of the rule of law
to invalidate legislation.
- It is one thing for judges to interpret the text of the constitution in order to evaluate
whether laws are consistent with it.
- It is another thing for judges to themselves create or infer unwritten constitution of
principles that have full legal force.
- Recall justice La Forez descent in the provincial judge’s reference.
- The provincial judge’s reference and secession reference appear to have been the high
water mark for the use of unwritten constitutional principles.
- Following those cases the SCC has been unwilling to use unwritten constitutional
principles to invalidate laws enacted by parliament in the legislatures.

“It is well within the power of the legislature to enact laws, even laws which some would
consider draconian, as long as it does not fundamentally alter or interfere with the relationship
between the courts and the other branches of government.”

Babcock v. Canada (A.G.), [2002] 3 S.C.R. 3

- In the Babcock case the SCC upheld the provision in the Canada Evidence Act allowing
the government to keep certain cabinet documents secret during litigation.
- The plaintiffs argued that this offended the rule of law.
- The SCC recognized and affirmed the important of the rule of law, but it emphasized that
the rule of law must be balanced against other important constitutional principles.
- The principle of parliamentary sovereignty favours upholding legislation that complies
with the provisions of the constitution.
- Similarly, the statutory provisions relating to cabinet secrecy were themselves in
furtherance of an important constitutional principle namely responsible government.
- It is essential for cabinet ministers to have a confidential form to discuss their policies
before presenting them to parliament and the public.

British Columbia v. Imperial Tobacco Canada, 2005 SCC 49

Facts:

- Imperial tobacco challenged a provincial law designed to allow the government of BC to

recover healthcare costs that is spent on tobacco related illnesses.
- The law altered many of the normal rules of civil litigation.
- B.C. Legislation allowed the Government of British Columbia to recover from the
manufacturers of tobacco products health care expenditures incurred by the government.
 - The provincial legislation: exempted the government from the limitations period, allowed
for claims to proceed on the basis of aggregate data, and exempted individual health care
records from evidence. It also reversed the burden of proof.
- The government didn’t have to prove each of its costs but could rather rely on
epidemiological, sociological and statistical evidence in the aggregate.
- Individual healthcare records were not compellable by the tobacco companies to rebut the
governments allegations.
- The law operated retrospectively allowing the government to recover costs that it
incurred before the new cause of action was enacted.
- Tobacco companies challenged the law on the basis that it violated the rule of law.

Issue:

- Is the provincial legislation invalid because it offends the rule of law?

Decision:

- The SCC rejected the challenge finding that the provincial legislation does not implicate
the rule of law in the sense that the constitution comprehends that term.
- “The Act does not implicate the rule of law in the sense that the Constitution
comprehends that term.”

 Only the criminal law must be prospective

 Legislation can single out particular industries
 Tobacco manufacturers will receive a fair civil trial, consisting of a public hearing before
an independent and impartial court.
 The Court will determine their liability after the hearing, based on the law as applied to
the facts of the case.
 The tobacco companies might consider the law to be unjust and even unprecedented; but
it does not render the trial unfair.
 As in the Babcock case the SCC stressed the other relevant constitutional principles at
play.

 “...the appellants’ arguments overlook the fact that several constitutional principles other
than the rule of law that have been recognized by this Court — most notably democracy
and constitutionalism — very strongly favour upholding the validity of legislation that
conforms to the express terms of the Constitution (and to the requirements, such as
judicial independence, that flow by necessary implication from those terms). Put
differently, the appellants’ arguments fail to recognize that in a constitutional democracy
such as ours, protection from legislation that some might view as unjust or unfair
properly lies not in the amorphous underlying principles of our Constitution, but in its
text and the ballot box.”

Access to Justice

British Columbia (A.G.) v. Christie, [2007] 1 S.C.R. 873

Facts:

 The SCC rejected a challenge to a tax on legal services

 In the BC trial lawyers case, the SCC allowed a challenge to BC’s court hearing fees
finding that they unconstitutionally infringed access to the superior courts.
 B.C. imposed a 7% tax on legal services.
 Mr. Christie represented low income clients who could not afford the tax and therefore
were prevented from retaining him. He charged low fees.
 His net income between 1991 and 1999 did not exceed $30,000 a year.
 Often his clients were not able to pay, yet the BC law required him to submit a 7% tax to
the government. And this whether his fees had been paid or not.
 Mr. Christie’s small income made this difficult. And he claimed that the net effect of the
tax was to make it impossible for some of his clients to retain him.
 He challenged the law on the basis that it interfered with the rule of law and with access
to justice
 He argued that there was a general constitutional right to representation by a lawyer in
cases before courts and tribunals
 He was successful at trial and before the British Columbia court of appeal, but he was
unsuccessful before the SCC.

Issue:

 Is there a constitutional right to representation by a lawyer?

 If so, does the 7% tax infringe this right?

Decision:

 SCC acknowledged the important role that lawyers play in the criminal justice system
and noted that representation by a lawyer is constitutionally required in certain
circumstances, but the court found that there is no general constitutional right to a lawyer.
 No, there is no general constitutional right to a lawyer.
 The court was motivated by 2 considerations.
 First, there was no support in the law of the constitution for a general right to a lawyer.
 Section 10B of the charter provides a right to a lawyer only in limited circumstances
when an individual has been arrested or detained. This specific right would be redundant
if there was a more general right to representation by a lawyer.
 Furthermore, the court was not willing to infer a broader right from principles such as the
rule of law or access to justice
 The SCC again affirmed its understanding of the constitutional principle of the rule of
law, that the law is supreme over both government and private individuals.
 That there is a positive system of laws and that the relationship between individuals and
government is governed by law.
 None of these aspects of the rule of law support a general right to a lawyer.
 Neither was the SCC willing to recognize representation to a lawyer as a requirement of
access to justice.
  The court reasoned that everyone already has access to justice and that representation by
a lawyer is simply one form of access to justice.
 Mr. Christie was effectively asking for publicly funded legal aid for everyone with a case
before the courts.
 Constitutionally requiring this would create a massive financial burden on governments.
For these reasons the SCC found that there is no general constitutional right to a lawyer.
Decision

Trial Lawyers Association of British

Columbia v. British Columbia (A.G.), 2014 SCC 59

- The BC Trial Lawyers case arose from a custody dispute between two parents.
- Went to court to establish who would have custody of their child.
- The matter was set down for trial which lasted 10 days.

Facts:

- Litigants must pay a “hearing” fee for matters heard in B.C. courts
- $0 for first three days, $500 for days four to ten, and $800 for each additional day.
- The legislation provided an exception only for those who are indigent, that is in extreme
poverty.
- The plaintiff in this case was not impoverished but the court hearing fee amounted to
$3600, which was equal to her net monthly income and she could not afford to pay.

Issue:

- Are B.C.’s court hearing fees unconstitutional?

Decision:

- Yes, court hearing fees are unconstitutional when they deprive litigants of access to the
superior courts.
- The chief justice, writing for a majority of the court, found that the BC court hearing fees
were unconstitutional
- The chief justice held that any fees that cause undue hardship are unconstitutional.
- People who are impoverished must clearly be exempted, but litigants who are not cannot
be required to sacrifice reasonable expenses in order to bring matters to court.
- Chief justice acknowledged that it is the role of the provincial legislatures to devise a
constitutionally complaint hearing fee scheme.
- As a general principle, judges must be able to waive the fees for people who cannot by
reason of their financial situation bring non-frivolous or non-vexatious litigation to the
court.
- Hearing fees must be set at an amount so that anyone who is not impoverished can afford
them.
- The chief justice found these requirements in S96 of the constitution act, 1867.
 - Chief just found that the hearing fees without appropriate exemptions infringe S96
because they prevent access to the provincial superior courts.
- The chief justice defined the historical task of the superior courts as resolving disputes
between individuals and deciding questions of private and public law.
- Legislation that prevents individuals from coming to the courts to have those issues
resolved is inconsistent with this basic judicial function.
- According to the chief justice, hearing fees that prevent people from going to the superior
courts strikes at the very core of the jurisdiction of the superior courts that is protected by
S96.

Constitution Act, 1867

96. The Governor General shall appoint the Judges of the Superior (s96 has been interpreted to
protect the core jurisdiction of the superior courts through the three part test articulated in the
residential tenancies case.), District, and County Courts in each Province, except those of the
Courts of Probate in Nova Scotia and New Brunswick.

(1) Was the power exercised by a superior court at Confederation?

(2) Is the provincial body exercising power in a judicial manner?

(3) Is the institutional setting fundamentally judicial?

- Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714

Dissent:

- The hearing fee scheme in this case cannot be struck down on the basis of a novel reading
of s. 96 of the Constitution Act, 1867.
- There was a strong dissent in this case by justice Rothstein
- He would not have struck down BCs hearing fees.
- And he criticized the chief justice for taking a novel reading of S96.
- Justice Rothstein noted that it is up to the provincial legislatures to enact laws in relation
to the administration of justice in the provinces.
- S96 protests the core jurisdiction of superior courts, but it does not follow that legislation
places conditions on access to superior courts removes or infringes upon an aspect of
their core jurisdiction.
- Justice Rothstein notes that the majority does not apply the three-part residential
tenancies act test because it does not get to the result that the majority wants.
Access to Justice

- Always competing priorities, on the one hand justice must be fair and accessible to
everyone. On the other hand, an efficient justice system requires some way to keep
frivolous claims out of the courts and also to encourage the efficient use of court
resources.

Module 8

Judicial Review of Government Action

Administrative Law (8 themes):

1) Purpose of Judicial Review

2) Separation of Powers
3) Challenging Administrative and Government Decisions in the Courts
4) Procedural Fairness
5) Deference and Substantive Review of Administrative Action
6) How Courts Review Administrative Action and Government Decisions
7) Remedies
8) Political decisions, international agreements and honours – the justiciability doctrine

The Administrative State

- Modern Canadian society is a society of regulations and of regulatory schemes

- We often have individuals and decision-making bodies who exercise delegated authority
from the government. They are authorized to make certain decisions by the legislative
branch

- Administrative law is fundamentally about the interaction between courts on the one
hand, who are tasked with preserving the rule of law and making sure that the law is
consistent and clear and predictable for able citizens

- The other hand the executive and legislative branches of government who are tasked with
adopting policies and schemes and laws that will govern the modern Canadian state.

- These principles that we will be discussing apply equally to the federal government and
the provincial government in the sense that all government action in Canada is subject to
review and scrutiny by the courts under administrative law principles.

- 2 SCC decisions that highlight the SCC’s awareness of the degree to which regulation
and administrative decision-making impact citizens in Canada and are very much part of
our legal system just as much as decisions by courts.

- Historically the administrative state was the sole responsibility of the courts to interpret
and apply the law and to resolve legal disputes over legal and individual rights.

- But that has changed with the advent of the modern administrative state that’s been
described by the SCC in the next quote.

- These bodies are tasked with implementing policies and schemes that similarly affect
citizens rights and duties.

- Ex/ ministers making deportation orders in the immigration context

- Bodies created to adjudicate human rights, workplace injury complaints, labour disputes
in court like tribunals.

- Decision makers mandated for adjudicating pension benefits

- Other bodies that may grant or withhold license such as fishing or hunting or broadcast
licenses.

- budgetary decisions and municipal councils

- allocating costs for municipal improvements and other broad policy decisions like
entering into free trade agreements and allowing crews and missile testing

- All of these types of decision makers are contemplated by this broad notion of the
administrative state.
 - “Few areas of our lives are now untouched by regulation. Telephone, rail, airline,
trucking, foreign investment, insurance, capital markets, broadcasting licenses and
content, food, drug and safety standards, are just a few of the objects of public regulation
in Canada” ( ACTO Gas & Pipelines Ltd. V. Alberta (Energy and Utilities Board), 2006
SCC 4 at para. 2, per Bastarche J.)

- “It is difficult to think of an aspect of our lives that is not regulated for our benefit and for
the protection of society as a whole. From cradle to grave, we are protected by
regulations; they apply to the doctors attending our entry into this world and to the
morticians present at our departure. Every day, from waking to sleeping, we profit from
regulatory measures which are often taken for granted” ( [1991] 3 SCR 154, at para. 136,
per Cory, J.)

- “Administrative boards play an increasingly important role in our society. They regulate
many aspects of our life, from beginning to end. Hospital and medical boards regulate the
methods and practice of the doctors that bring us into this world. Boards regulate the
licensing and the operation of morticians who are concerned with our mortal remains.
Marketing boards regulate the farm products we eat; transport boards regulate the means
and flow of our travel; energy boards control the price and distribution of the forms of
energy we use; planning boards and city councils regulate the location and types of
buildings in which we live and work. In Canada, boards are a way of life. Boards and the
functions they fulfill are legion” (Newfoundland Telephone Co. V. Newfoundland (Board
of Commissioners of Public Utilities), 1992 1 SCR 623

- “In a complex society such as ours, administrative boards and tribunals are increasingly
necessary. The experience and expert knowledge of some boards surpasses that of the
courts. They provide a mechanism for speedy resolution of complex, and frequently
technical, matters. The tribunals, generally composed of experts in their fields, act
independently of the government. Two prime examples where the expertise of an
administrative body is invaluable are the fields of labour relations and energy” (Canada,
Attorney General) v. PSAC 1993

- “Parliament or a provincial legislature is often well advised to allocate an administrative

decision to someone other than a judge. The judge is on the outside of the administration
looking in. The legislators are entitled to put their trust in the viewpoint of the designated
decision maker (particularly as to what constitutes a reasonable outcome), not only in the
case of the administrative tribunals of principal concern to my colleagues but (taking a
“holistic approach”) also in the case of a minister, a board, a public servant, a
commission, an elected council or other administrative bodies and statutory decision
makers” (Dunsmuir v. New Brunswick, 2008 SCC 9, Per Binnie J.)

Why create an administrative tribunal?

 - Expertise: Experts with specialized knowledge can be appointed (food marketing and
transportation, telecommunications, broadcasting, labour relations)
- Desire for Innovation: Decision makers can be tasked with deciding disputes, but also
with developing policies and practices and remedies that the decision maker will utilize
in implementing those policies.
- Desire for Initiative: Tribunals can be given an investigative function (humans rights
commissions and securities commissions)
- Volume: Efficiency, expediency and cost-effectiveness (unemployment insurance
disputes, income tax objections, immigration matters) case load

Limits on the exercise of administrative power

- Administrative law is about the fundamental balance between government efficiency and
specialization on the one hand, and the rights of citizens to be governed in accordance
with the rule of law on the other hand.
- Plays a role in determining whether the legislative or executive branches of government
can allow the decision maker to have responsibility over the issue in the first place.
1. Core jurisdiction of S. 96 courts
- Gov cannot provide or take the core jurisdiction of the S96 courts and give it to an
administrative tribunal
2. Must be authorized by statute or common law (prerogative)
3. Decision making must be fair

The Rule of Law and Parliamentary Sovereignty

Fundamental Tensions:

“Courts have also come to accept that they may not be as well qualified as a given agency to
provide interpretations of that agency’s constitutive statute that make sense given the broad
policy context within which that agency must work.”

National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 SCR 1324, per Wilson J.

- Courts have a constitutional obligation to police the legality of gov decision making to
ensure compliance with the rule of law.
- Have to do in a way without stepping on toes of decision makers or substituting their
view of the matter in making the decision

Rule of law vs. Legislative Sovereignty

- Whether a matter should prevail on the rule of law side of things in terms of the court
having the final say on the scope of legal rights and obligations of citizens, or whether we
should leave it to parliament or the legislatures to decide how certain decisions should be
made
- This is how this fundamental tension will play out in the cases
RULE OF LAW:

- Mr. Roncarelli was the proprietor of a restaurant in Montreal and the holder of a liquor
license. Active Jehovah’s witness, liquor licence was arbitrarily cancelled by the Quebec
liquor commission allegedly at the instigation of the premier of Quebec, Maurice
duplessis.
- Premier had no legal authority to make any orders or otherwise direct the commission to
do anything let alone cancel a licence.
- Evidence: premier had cancelled licence as punishment because he had acted as a
bailsman for a number of Jehovah’s witnesses who had been charged with various bylaw
offences flowing from the distribution of leaflets.
- This case is about the rule of law but also very important for the proposition that
arbitrariness, or arbitrary government decision making
- Gov decision making being made without authority as the premier, Mr. Duplessis, had no
legal authority to direct commission to cancel licence.
- Arbitrariness in gov decision making is the beginning of the disintegration of the rule of
law.
- Courts step in to police the legality and the arbitrariness of delegated gov decision
making

Parliamentary Sovereignty

- If parliament or a provincial legislature or the federal or provincial cabinet determines

that it would be better from a governance perspective that people are bodies other than
judges or courts, have the responsibility to decide certain matters and render certain
decisions then that legislative or executive choice should be respected by the courts.
- Generally speaking, administrative decision makers will be left alone to make decisions
within the realm of the authority given to them by either the executive or the legislative
branch, but as the court says in the passage, courts are there to ensure the legality and the
reasonableness and the fairness of the administrative process and its outcomes.
- By virtue of ROL, all exercises of public authority must find their source in law which is
where the courts step in

Dunsmuir and the Concept of Deference

“By virtue of the rule of law principle, all exercises of public authority must find their source in
law. All decision-making powers have legal limits, derived from the enabling statute itself, the
common or civil law or the Constitution. Judicial review is the means by which the courts
supervise those who exercise statutory powers, to ensure that they do not overstep their legal
authority. The function of judicial review is therefore to ensure the legality, the reasonableness
and the fairness of the administrative process and its outcomes.”

Dunsmuir v. New Brunswick, 2008 SCC 9vereignty

- This is the way that the sort of administrative law, judicial review, interaction between
administrative decision makers and the courts will play out.
- Parliament or a provincial legislature, or cabinet will authorize a decision maker to
exercise powers under a statute.
- Then the decision maker may exercise only the authority assigned to it by statute.
- This represents the notion that administrative powers are exercised by decision makers
according to the statutory regimes that are themselves confined.
- A decision maker is not permitted to exercise authority that it has not specifically been
assigned by the gov and by acting in the absence of this legal authority the decision
maker may transgress the principle of the rule of law which the courts are there to
enforce.

Procedural Fairness

The Judicial Review of Administrative Action

 An individual affected by a government or administrative decision can challenge that

decision in court, through a process called “judicial review”

 Two possible bases: (1) breach of procedural fairness; (2) substantive merits

 Both of these bases of review allow the court to look at the decision that was made and
determine after the appropriate degree of scrutiny whether the decision maker acted
within its scope of its legal authority, acted fairly and made a defensible and transparent
decision in light of the applicable facts in the law.

Judicial Review’s “Polar Star”: Legislative Intent

 - determining how a court should approach a decision on judicial review, the fundamental
issue is the underlying legislation. The golf records and any application for judicial
review is to determine the intention of the legislature; what the courts will refer to as
legislative intent
- Legislative intent is an indication by the body who created the decision maker about the
decision makers authority in the first place. More specifically, the authority to decide on
the proper procedure and their obligations with respect to procedure and also whether it
was the governments attention that the decision-making body be left alone to make a
decision with only a minimal supervisory role for the courts. in other words, The question
is how much deference the court should show to the decision-makers decision.

Procedural Fairness 2.0

- The first bases upon which someone can challenge in administrative decision that affects
their rights of interest is procedural fairness.
- There are two key components to the right to procedural fairness the first is the right to
notice of the case to meet, and the second is the right to an impartial decision maker.

Notice of the case to meet  an impartial decision-maker

-The fact that a decision is administrative and affects “the rights, privileges or interests of an
individual” is sufficient to trigger the application of the duty of fairness (Cardinal v. Director of
Kent Institution, [1985], 2 SCR 643

-The content – or “degree” – of procedural fairness required by any particular decision is

determined by the facts and circumstances of the case (Knight v. Indian Head School Division,
No. 19, [1990] 1 SCR 653)

Notice of the Case to Meet:

53 Last but not least, a fair hearing requires that the affected person be informed of the case
against him or her, and be permitted to respond to that case. This right is well established in
immigration law. The question is whether the procedures “provide an adequate opportunity for
[an affected person] to state his case and know the case he has to meet” (Singh, at p. 213).
Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b)
of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case
to be met . . . [but] also be given an opportunity to challenge the information of the Minister
where issues as to its validity arise” (para. 123).

54 Under the IRPA’s certificate scheme, the named person may be deprived of access to some or
all of the information put against him or her, which would deny the person the ability to know
the case to meet. Without this information, the named person may not be in a position to
contradict errors, identify omissions, challenge the credibility of informants or refute false
allegations. This problem is serious in itself. It also underlies the concerns, discussed above,
about the independence and impartiality of the designated judge, and the ability of the judge to
make a decision based on the facts and law.
 - Charkoui v. Canada (Citizenship and Immigration), 2007 SCC 9
- Really nice example of the notice of the case to meet principal is the decision of the
Supreme Court of Canada There are two key components to the right to procedural
fairness in Charkoui v. Canada.
- this is an immigrate case decided to the immigration context dealing with the security
certificate procedure
- Under the account it is immigration regime security under Canada’s immigration regimen
security certificate process, the legislation did not allow individuals for whom the
government had sought preventative detention under the SCP, didn’t allow those people
to know all of the information that was being relied on by the government in making that
request
- so the statutory regime that governed the process for security certificate hearings was
found by the SCC to infringe S7 of the chatter and could not be saved by S1.
- In part, Because the regimen did not provide the person subject to the hearing with notice
of his or her case to meet. and the allegations and supporting evidence that were said to
give rise to the governments request to have that person lead subject to a security
certificate
- So the fundamental question on determining whether someone has been provided with
sufficient notice of the case that he or she has to meet is the question of whether the
procedures provided an adequate opportunity for the affected person to know the case
that he or she had to rebut before the decision was made and whether that person was
given an opportunity to challenge the information put before the decision maker before
the decision was made

The Right to a Fair Hearing

- The next fundamental principle with respect to procedural fairness is the right to a fair
hearing and there are really two fundamental concepts to this notion of a right to a fair
hearing.

Nemo Judex: no one should be a judge in his or her own cause (independence and impartiality of
the decision maker, underlies the doctrine of reasonable apprehension of bias and impartiality)

Audi alteram Partem: let the other side be heard (underlies the principle that no person should be
judged w/o a fair hearing in which each party is given the opportunity to respond to the evidence
against them.

- Leading case in Canada on the test for determining the degree of procedural fairness
needed in any particular circumstances and on the notion of what constitutes an impartial
decision maker is the Supreme Court of Canada’s decision in Baker v. Canada.
- Mavis Baker was a Jamaican woman who entered Canada as a visitor. she never received
permanent residency status, she has supported herself as a live in domestic for 11 years
and while she’s been in Canada she had four children all of whom were Canadian citizens
- Ms. Baker suffered from postpartum psychosis and was later diagnosed with paranoid
schizophrenia.
 - she had applied for welfare benefits in Canada as well. Baker was ordered deported in
1992 and she had applied for an extension based on humanitarian and compassionate
grounds which was an exception to deportation recognized in the immigration regime and
under international law
- The evidence before delegate responsible for making the deportation order was that
Baker had been making progress and might become ill again if she was returned to
Jamaica where she could not obtain treatment.
- the evidence was that she was the sole caregiver to two of her Canadian born children and
that the other two relied on her for emotional support and were in regular contact with her
and that Ms. Baker and her children would suffer emotional hardship if she were
deported.

Baker v. Canada (Citizenship and Immigration), [1999] 2 SCR 817

- Lorenz recommended she be deported from Canada.

Factors that determine the content of procedural fairness

1) The nature of the decision and the process followed by the decision-maker ( the more likely
that the process provided for the function of the tribunal, the nature of the decision-making body
and the determinations that must be made to reach a decision resemble judicial decision making,
the more likely it is that the procedural protections will be closer to the trial model.

2) The nature of the statutory scheme (greater procedural protections required when there is no
appeal procedure provided within the statute or when the decision is determinative of the issues
or is deemed final and further requests cannot be submitted.)

3) The importance of the decision to the individual (deportation orders, right to continue in one’s
profession, decisions that will greatly impact the individual interests of the individual are likely
to attract a higher degree of procedural fairness) (decisions of administrative bodies can have a
more immediate and profound impact of people’s lives than the decision of the courts).

4) The legitimate expectations of the parties

5) The decision-maker’s choice of procedure (legislation that empower the decision maker to
make the decision also empowers the decision maker to determine procedure that can be used in
making that decision and when that’s the case, the courts will, defer to or allow that decision
maker the flexibility to create a procedure that works within that broader scheme; subject to that
process being unfair.)

- important to note that reasons for a decision in a sense of court-like reasons for judgement or an
oral hearing will not always be required in the circumstances for there to be a fair procedure.

Duty of Procedural Fairness

- Content of the duty of procedural fairness is determined on a case by case basis

“...underlying all of these factors is the notion that the purpose of the participatory rights
contained within the duty of procedural fairness is to ensure that administrative decisions are
being made using a fair and open procedure, appropriate to the decision being made and its
statutory, institutional, and social context, with an opportunity for those affected by the decision
to put forward their views and evidence fully and have them considered by the decision-maker”

Reasonable apprehension of bias

- In Baker the court also talks about the importance of a reasonable apprehension of bias,
right to an impartial decision maker.
- Test for determining whether a decision maker has shown bias shown below

“...the apprehension of bias must be a reasonable one, held by reasonable and right minded
persons, applying themselves to the question and obtaining thereon the required information...
[T]hat test is ‘what would an informed person, viewing the matter realistically and practically –
and having thought the matter through – conclude. Would he think that it is more likely than not
that [the decision-maker], whether consciously or unconsciously, would not decide fairly’”
(Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369)

- Court concluded that officer Lorenz’s notes, which had been relied on by the actual
official making the decision to have Ms. Baker deported, the court concluded that those
reasons reflected a reasonable apprehension of bias.
- The notes and which were written did not disclose the existence of an open mind or a
weighing of circumstances free from stereotypes. The decision maker appeared to make a
link between Ms. Baker’s mental illness, her employment as a domestic worker and the
 fact that she had several children to conclude that she would be a strain on the Canadian
welfare system.
- Decision essentially reflected any number of stereotypical and discriminatory attitudes
that the court concluded lead to the existence of a reasonable apprehension of bias and so
on that basis, the deportation order was quashed.

Review of the Merits

Standards of Judicial review

- Looks at substance of the decision and the outcome that the decision marker arrived at
and their reasons for deciding in the manner in which they did.
- May involve a challenge to how the decision maker interpreted the legislation that grants
the authority to make the decision or that sets out the parameters or otherwise governs
how the particular decision ought to be made in accordance with the broader policy
regime.
- it also may involve a challenge to how the decision maker applied the relevant policy or
legislative factors to the facts of the matter or it may involve a challenge to the decision
based on the argument that the way the decision maker decided the matter engages
charter rights or values or results in an infringement of charter rights of an interested
party.

In reviewing administrative decisions on the merits, reviewing courts will apply one of two
standards to their review of the decision

Correctness Reasonableness

Which of the two standards applies in any given case will determine the amount or degree of
scrutiny that the courts will use in reviewing the decision.

The steps on Judicial Review:

Determine the standard of review  correctness, reasonableness
Apply the standard to review the decision 

- so in terms of the steps on any judicial review application first of all, the court will
determine which of the two standards of review applies and then once that decision is
made the court will apply that standard to the decision to determine whether the decision
can be upheld

Deference as Respect

“Deference is both an attitude of the court and a requirement of the law of judicial review. It does
not mean that courts are subservient to the determination of decision makers, or that courts must
show blind reverence to their interpretations, or that they may be content to pay lip service to the
concept of reasonableness review while in fact imposing their own review. Rather, deference
imports respect for the decision-making process of adjudicative bodies with regard to both the
facts and the law. The notion of deference is rooted in part in a respect for governmental
decisions to create administrative bodies with delegated powers” (Dunsmuir, at para. 48).

- No before explaining the content of the two different standards of review and the
circumstances in which they will apply it’s important to talk a little bit first about this
concept of difference.
- difference on the one hand it relates to the tension between the courts and governments in
terms of who gets to make the decision in the first place but it also plays out in terms of
how courts are tasked with reviewing administrative decision making on the merits went
to court sits on appeal of another court it is reviewing the decision of another body that
engages in the same function as it does the application of the facts to the law and the
determination of what the law is an any particular case and so courts are no more expert
than other courts at the task.
- It’s just we have trial courts and we have appellate courts but they’re all courts and
they’re all judges and they all do the same thing.
- in the administrative law context things are little bit different. what we have is a different
type of decision making body dealing with different types of specialized subject matter
and regimes and then the courts role there is to basically, not to make the decision itself,
it’s to make sure that the decision was made in a matter that complies with the
constitution and the statute that permits the decision to be made and with the law
generally
- in this context in exercising this constitutional role of judicial review to preserve and
protect the rule of law courts are required to be deferential towards the procedure adopted
by the decision maker and the outcomes that of the decisions that they made as this quote
demonstrates the differences in attitudes
- deference = respect
- courts must pay respectful attention to the reasons offered by a decision maker in support
of their decision.
- reasonableness is the deferential standard. it is the standard that warrants respect for the
decision maker and their process and their expertise and specialization in making the
decision
- correctness is not deferential, when this standard applies it is really the courts job to step
in and render the decision on the legal question that’s of broader importance.

Reasonableness as a Range:

“certain questions that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision- making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and the law” (Dunsmuir, at para. 47)

- deferential standard
- this quote is the quintessential definition of reasonableness review
- when the reasonableness standard applies, the court approaches the question with the
attitude that its job is not to determine if decision maker got it right or wrong, rather the
court is looking to whether broadly speaking the decision maker acted within the scope of
his authority and whether the decision is defensible on the facts and the law and therefore
one that it was reasonable for the decision maker to make in the circumstances.
- When applying the reasonableness standard, the court is going to acknowledge that there
may not be one outcome that is appropriate in the circumstances and that so long as the
decision maker is acting lawfully within its authority- the specific powers of decision that
the legislature or executive branch has given it – the decision is one that the gov intended
the decision maker and not the courts to make.

Correctness: What is the right answer?

“it is also without question that the standard of correctness must be maintained in respect of
jurisdictional and some other questions of law. This promotes just decisions and avoids
inconsistent and unauthorized application of law. When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning process; it will rather
undertake its own analysis of the question. The analysis will bring the court to decide whether it
agrees with the determination of the decision maker; if not, the court will substitute its own view
and provide the correct answer. From the outset, the court must ask whether the tribunal’s
decision was correct” (Dunsmuir, at para. 50).

- so correctness review when this standard applies the decision maker did have to get the
legal question it decided right generally speaking there is only one right answer and for
rule of law purposes it’s important that the court have the last word on what that answer it
- generally speaking there are four categories of types of questions that decision makers
can make that will attract correctness review.
- true questions of the decision makers jurisdiction or it’s authority to decide, so weather
essentially the decision maker is making a decision of the legislation permitted to make.
- The second is a general question of law that are outside the decision makers expertise and
are of importance to the legal system as a whole
- the third is constitutional questions and the fourth is questions involving the jurisdictional
limit of two overlapping tribunals or decision-makers

Generally speaking though in the absence of one of these types of decisions, reasonableness
is generally are deemed to be the appropriate standard of review and the question that is
decided including legal questions or the interpretation of legislation will be left to the
decision maker to make.

Correctness Review:
 The decision-maker needs to hit the bulls-eye

correctness review applies the decision maker needs to hit the bull’s-eye the court will
determine that there is really one right answer and the question is whether the decision-maker
found the right answer

Reasonableness Review:

The decision-maker only needs to hit the dartboard

but on the other hand with reasonableness review the decision maker only really needs to hit
the dartboard so the dartboard is the scope of the decision makers authority as conferred on it
by statute and as long as they hit the dartboard generally speaking the courts will understand
that it’s not their job to intervene

Standard of Review Analysis

Determining the appropriate standard:

- The SCC in the decision in Dunsmuir set out a two stage approach for
determining which of the two standards will apply in any particular case

1) Do the prior cases conclusively determine the standard of review to be applied to the type
of decision that is under review? If yes, apply that standard.

2) If not, apply the standard of review analysis

The Standard of Review Analysis:

- comes from para 64 of Dunsmuir decision. Analysis is tended to do is to determine the

legislatures intent with respect to the relationship between the decision maker and the
courts.
- Specifically, to get a sense of what the legislature intended in terms of how closely the
court should be reviewing the types of decisions that are before the court in any particular
case.
1. Is there statutory direction about the degree of deference owed? (privative clauses
basically say this decision of this body are deemed final, indicates to the courts
that their role in reviewing those types of decisions is much more minimal and the
courts should be much more deferential.) (statutory appeal might point towards
correctness, privative clause might point towards reasonableness.)
2. The purpose of the tribunal, as determined by the legislation that creates it
3. The nature of the question that has been decided (determine if reasonableness or
correctness is to be applied)
4. The expertise of the decision-maker

Applying the Standard of Review:

If the applicable standard is correctness:

 Is the decision-maker’s decision (i.e. the application of the law, interpretation of the
statute, consideration of the facts) correct?

 The Court decides without reference to the decision-maker’s conclusion or reasons.

If the applicable standard is reasonableness:

 Is the decision justifiable, transparent, and intelligent, and reflect a defensible outcome in
light of the applicable facts and the law?

 Does the decision fall within the range of reasonable outcomes or alternatives that were
available to the decision-maker, on the facts and on the law?

Remedies

Remedies:

 The Court decides to allow the application for judicial review, either because there has a
been a breach of procedural fairness, or the decision on the merits does not survive
review on the applicable standard

 What is the result? In other words, what remedies can the Court grant to the person
affected by the decision?

Breach of Procedural Fairness?

•The decision will be “quashed”, and the Court will order the decision- maker to make the
decision again, this time following the appropriate process

- Important to note, with respect to remedies for procedural fairness, that the applicant
doesn’t need to show that the breach of procedural fairness affected the result.
- b/c the decision maker acted in breach of the natural justice rights of the applicant, the
decision is deemed void and its as if it was never made.

Decision is Incorrect or Unreasonable?

 Traditionally, the remedies available to a successful applicant on judicial review were

based on the historic, English prerogative writs: certiorari (certified/ quash), mandamus
(we command), prohibition forbid or stop, equivalent of a stay order), habeus corpus ,
(you make have the body, order made to produce a person who has been detained or
release an illegally detained person) quo warranto (by what authority).
  All remedies involve The Courts directing the government to behave in a certain way or
make a certain decision, but the recognition that the courts were not permitted to
make the decisions themselves

 Quashing a decision, commanding a decision or a duty to be made or performed and

prohibition, stopping a proceeding from continuing on.

 Court is a supervisory role, when remedy is granted it is not the position of the court to
make the decision that the decision maker could or ought to have made

 Courts job to make a statement about the decision and then make an order back to the
decision maker then go on and decide, or act or behave in a certain way.

- Judge rejected request on the basis that it was not consistent with the remedies or the
remedial authority that courts are normally permitted to make in the context of a judicial
review application.
- Not appropriate for court on judicial review to substitute its decision for that of the
decision maker

Additional Remedies?

 There may be cases when the courts feel it is appropriate, notwithstanding the principle
that generally administrative decision-makers should be permitted to make the decision,
courts will provide direct relief to an applicant

 Seen most often when Charter rights are engaged by the administrative decision

When the Charter and Administrative Law Collide

  In the special circumstances of this case, concluded that it was appropriate to grant the
extraordinary remedy of ordering the Minister to immediately grant an exemption to
Insite under s. 56 of the CDSA forthwith.

 Based on the evidence, the only constitutional response to the application for a s. 56
exemption was to grant it.

 The Minister was required to exercise his discretion under s. 56 in accordance with the
Charter .

 There was nothing to be gained, and much to be risked, in sending the matter back to the
Minister for reconsideration

 Unreasonable decision for the minister to not exercise his discretion in favour of granting
an exemption because not granting the exemption violated important charter rights

 Court decides this case on the narrower administrative law grounds that it was an
unreasonable exercise of discretion but ultimately awarded Insite a fairly extraordinary
remedy.

 Exercise discretion of minister that was unconstitutional not the provision of CDSA itself.

The Omar Khadr Case:

- Canadian detained in Guantanamo Bay by the USA gov for over 7 years

- He was 15 when taken into US custody in Afghanistan

- Alleged to have thrown a grenade that killed an American soldier in the battle in which he
was captured.

- 2003, agents from CSIS and the foreign intelligence division of the department of foreign
affairs questioned him in relation to matters connected to the pending US military charges
against him. Shared the product of those interviews with USA authorities
 - Later interviewed again by Canadian authorities when they knew he had been subjected
to sleep deprivation tactics by US authorities.

- Despite repeated requested from Khader to ask for his repatriation, PM Harper refused.

- SCC agreed his rights had been violated under S7 of the charter by the Canadian
authority’s complicity in his detention in GB and some of their questioning of him.

 The Court agreed that Mr. Khadr’s rights under s. 7 of the Charter had been violated

 But disagreed that ordering the Prime Minister to request Mr. Khadr’s return to Canada
was an appropriate remedy for that breach under s. 24(1) of
the Charter .

 Consistent with the separation of powers and the well-grounded reluctance of courts to
intervene in matters of foreign relations, the proper remedy was to grant Mr. Khadr a
declaration that his Charter rights have been infringed, while leaving the government a
measure of discretion in deciding how best to respond.

 The Court noted the limited power of the court store view exercises of the prerogative
power for constitutionality, which must remain sensitive to the fact that the executive
branch of government is responsible for decisions under this power, and that the
executive is better placed to make such decisions within a range of constitutional options.
 The government must have flexibility in deciding how its duties under the power are to
be discharged, within the legal and constitutional limits set by the Courts
 Order directing the government to request Mr.Khadr’s repatriation gives too little weight
to the constitutional responsibility of the executive to make decisions on matters of
foreign affairs in the context of complex and ever-changing circumstances, taking into
account Canada’s broader national interests.

The Nova Scotia Francophone Schools Case (Doucet-Boudreau V. Nova Scotia)

 A case involving s. 23 of the Charter, and whether the Government of Nova Scotia was
fulfilling its constitutional obligation to provide French language public education to the
minority francophone population equivalent to the public education provided to the
English language majority

 The trial judge found a s. 23 violation and ordered the government to use its “best efforts”
to provide school facilities and programs by particular dates and, importantly, retained
jurisdiction to hear reports on the status of those efforts.

 The Supreme Court of Canada split 5-4 on whether the decision to retain jurisdiction was
appropriate, and the source of the disagreement centred primarily on the appropriate roles
of the Courts and the Legislative/Executive branches, respectively
  Best to leave it to the government to decide how to respond to this judgmenti n light of
current information, its responsibility for foreign affairs, and in conformity with the
Charter.

The Dissent:

 Felt that the trial judge’s decision to maintain supervision over the implementation of the
order breached the separation of powers principle.

 The separation of powers is now entrenched as a cornerstone of our constitutional regime,

and reflects the appropriate position of the judiciary within the Canadian legal system.
Aside from their duties to supervise administrative tribunals created by the executive and
to act as vigilant guardians of constitutional rights and the rule of law, courts should, as a
general rule, avoid interfering in the management of public administration.

“Once they have rendered judgment, courts should resist the temptation to directly oversee or
supervise the administration of their orders. They should generally operate under a presumption
that judgments of courts will be executed with reasonable diligence and good faith. Once they
have declared what the law is, issued their orders and granted such relief as they think is
warranted by circumstances and relevant legal rules, courts should take care not to unnecessarily
invade the province of public administration. To do otherwise could upset the balance that has
been struck between our three branches of government.”

Justiciability

- Question or a doctrine that targets the question of whether there are any government
decision that courts simply won’t review.
- Administrative law, law of judicial review gets to a point where we have to ask are there
certain questions that gov decide that shouldn’t be amendable to review by the courts on
judicial review?
- Law, legal accountability so review by the courts to ensure that decisions are held
accountable by virtue of their legality.
 - Politics, democratic accountability and review by the electorate. Not courts who hold gov
accountable for all decisions that they make. But the electorate has a role to play in
keeping governments accountable as well, democratic accountability.
- Issues in courts not reviewing is on the purely political or executive end of administrative
decision making.

Black v. Canada (Prime Minister), 2001

- 2001 decision from Ontario court of Appeal dealing with 3 individuals of considerable
prominence, Conrad Black, PM Jean Chrétien and Queen Elizabeth II
- PM Chretien had intervened with the queen to oppose Mr. Black’s appointment to the UK
house of lords and his awarding of peerage.
- In advising the queen, the PM had been exercising what is called his ‘honours
prerogative’
- Question in the case was whether Mr. Black’s claim against the PM was justiciable or
within the jurisdiction of the courts to review.

Ontario Court of Appeal:

 The prerogative is a branch of the common law, and engages the powers and privileges
accorded by the common law to the Crown (executive, cabinet level decision making)

 Descended from England to the rest of the Commonwealth

 Decisions made pursuant to the prerogative exist along a spectrum – “high policy”
(entering into war) vs. individualized decisions (issuing a passport)

o The court concluded that the fact that the exercise of the prerogative has taken place
alone is not enough to render the matter outside the review of the courts.

 Whether an exercise of the prerogative will be justiciable is determined by the subject

matter of the prerogative

“At the core of the subject matter test is the notion of justiciability. The notion of justiciability is
concerned with the appropriateness of courts deciding a particular issue, or instead deferring to
other decision-making institutions like Parliament... Only those exercises of the prerogative that
are justiciable are reviewable. The court must decide “whether the question is purely political in
nature and should, therefore, be determined in another forum or whether it has a sufficient legal
component to warrant the intervention of the judicial branch...”
 - Black’s rights not affected, however broadly rights must be construed, b/c no citizen, no
Canadian citizen has a right to an honour.
- Determined that Mr. Chretien’s intervention with the queen in relation to Black’s
appointment to the hoyse of lords was not something that was within the court’s role to
opine upon.
 Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (C.A.)

Operation Dismantle v. The Queen, [1985] 1 SCR 441

Facts:

 Canada allowed the United States to test cruise missiles in Canada.

 Operation Dismantle argued that this decision was a violation of s. 7 of the Charter.

Issue:

 Is the matter, relating to national defence and foreign affairs, reviewable by the Courts?

Decision:

 Yes. Question that the courts could opine upon, the Court is not being asked to review the
wisdom of the Government’s decision. The Court must decide whether the decision was
legal (i.e. whether it complied with the Charter).

Hupacaseth First Nation v Canada, 2015 FCA 4

“In rare cases, however, exercises of executive power are suffused with ideological, political,
cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process
or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted
within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking
courts beyond their proper role within the separation of powers. For example, it is hard to
conceive of a court reviewing in wartime a general’s strategic decision to deploy military forces
in a particular way” (para. 66).

- Federal court of appeals decision

- FN brought a judicial review application seeking to challenge Canadas decision to enter
into an agreement with china that was set to have a potential impact on Aboriginal rights
and interests that the FN had claimed over certain lands in BC.
- FN claimed that the gov duty to consult with it was triggered before the agreement was
allowed to come into force.
- By not having consulted with the FN prior to entering into the international agreement,
that decision was illegal and therefore subject to judicial review.
- Fed court of appeal noted these kinds of decisions by the government of Canada entering
into international agreements and treaties are exercises of prerogative power, but that
again alone was not enough to decide whether the question was judiciable.
 - The fed court of appeal confirmed that exercises of the prerogative can in principle be
judicially reviewed and that charter cases are justiciable regardless of the nature of the
gov action in question, again that sort of subtle modification to the justiciability doctrine
that was noted from operation dismantle case.
- In principle can be justiciable the court says but that doesn’t say that courts will review
them with any degree of scrutiny.
- Court goes on to say that these executive decisions will normally attract a wide margin of
appreciation from the courts.
- Challenge in this case was not just the decision to enter into a treaty, it was whether the
FN had legal rights to be consulted before the treaty was entered into and that assessing
whether or not legal rights exist on the facts of a case is exactly what courts do.

Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2

- Municipalities do not have any kind of inherent authority to make bylaws or regulations
that affect citizens in the municipality. Get their authority from provincial statutes.
- District of Cowichan had passed a bylaw dealing with taxation which had a negative
impact on Catalyst
- Catalyst took the district to court and argued that the bylaw was one that the district was
not authorized to pass or that it was an unreasonable bylaw within the meaning of the
judicial review concepts.
- Confirmed that the court can review bylaws to ensure the lawful exercise of power
conferred on municipal councils
- Courts must respect the responsibility of elected officials to serve the people who elected
them and to whom they are ultimately accountable
- Against the backdrop of the variety of factors that elected councillors may legitimately
consider in enacting bylaws
- Whether the bylaw is one that a reasonable body could have passed, taking into account
the broader social, economic and political issues

Summary of Justiciability:

 Generally speaking, courts will not use the threshold question of justiciability to prevent a
citizen from seeking to challenge executive government decision-making

 This is particularly so when it is alleged that Charter rights or values are implicated by
the decision – courts must scrutinize all government action (including political decisions)
for Charter-compliance

 Courts prefer to deal with these types of questions on the basis of deference.

So you want to take the government to court?

Taking the Government to Court:

  What am I seeking to challenge:

- Administrative decision or an exercise of administrative discretion?

- A law that I think is unconstitutional, on its face or in its application?

• What kind of remedy am I looking for? o Striking down the law?

- An individual remedy, like damages, or mandated government action, under s. 24(1)?

- An order that the person or body who exercised the discretion or decision- making power
go back and made the decision properly?

Module 9
Statutory Interpretation

Rules about Meaning

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I
choose it to mean

”The question is,” said Alice, “whether you can make words mean so many different things.”

Lewis Carroll, Alice Through the Looking Glass

- Statutory interpretation is all about giving meaning to the words used in a statute.
- Ex/ given by prof Ruth Sullivan a leading authority on statutory interpretation.

The meaning of “shower”

a shower

- The expression “a shower” doesn’t tell us very much about what type of shower is meant,
since there is an article in front of the word it must be a noun.

I need a shower.

- lets us infer that the shower in question is probably not a meteor shower

The farmer needed a shower.

- probably not a wedding shower or baby shower

The farmer needed a shower after all that planting.

- narrow down meaning of shower further, either a rain shower needed to encourage the seeds to
grow or the kind you take indoors need to wash away dirt.

The farmer needed a hot shower after all that planting. He was cold and tired.

- this makes it clear, leads us to conclusion that the shower in question is kind that you take
indoors.

-- Ruth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation”
(http://aix1.uottawa.ca/~resulliv/legdr/pmr.html)

The meaning of “beverage”

- Example from the case law

- 1990’s dispute between company that sells carbonated water (Perrier) and the minister of
national revenue
- Issue was whether carbonated water fell within the meaning of the word ‘beverage’ in the
Excise Tax Act, if it did it would be subject to tax
- Perrier argued that beverage meant a manufactured drink produced by mixing ingredients
and therefore excluded naturally carbonated water
- Ministry of national revenue argued that beverage meant any liquid fit for human
consumption and therefore included water.
- Court preferred the minister’s interpretation of the term

Disputed Meaning: Does carbonated water (Perrier) fall within the meaning of “beverage” in the
Excise Tax Act? Perrier Group of Canada Inc. v. Canada, [1996] 1 F.C.R. 586 (C.A.)

Rules about meaning

Ordinary or plain meaning: The meaning that spontaneously comes to the mind of a competent
reader. “The farmer needed a hot shower after all that planting. He was cold and tired.”

- In interpreting a statute, the starting point is always the ordinary or plain meaning of the
words that are used.
- The ordinary meaning is presumed to be the meaning intended by parliament.

Technical meaning: “No objection to a claim based on the sex or age of the claimed horse shall
be entertained by the Stewards.”
 - When legislation deals with a specialized topic and uses language that people
knowledgeable about the topic understand in a particular way, the specialized
understanding can prevail over the ordinary meaning.
- A person who claims that a word has a technical meaning must establish that there is such
a technical meaning and that it was intended in the particular context.
- BC resident bought a horse at a claiming race, the person didn’t want to race the horse
but rather use it for breeding.
- Purchaser believed the horse to be a colt, a young male horse. But turned out to be a
gelding, a castrated male horse, useless for breeding.
- The relevant BC law said that there could be no objection to a claim based on the sex or
the age of the horse.
- When the purchaser objected, the racing stewards relied on the rule that prohibited
objections based on the sex of a horse.
- Purchaser sought judicial review
- Argued that he was not objecting on account of the horse being male rather b/c it was a
castrated male horse.
- Court concluded that in this context the word ‘sex’ should be given its technical meaning
as understood in the horseracing industry rather than its ordinary meaning.
- “horse” includes a stallion, mare, gelding, colt, or filly.
- “age” as applied to a horse, shall be calculated from January 1st of the year in which it
was foaled
- Re Witts and Attorney General for British Columbia, (1982), 138 D.L.R. (3d) 555
(B.C.S.C.)

Shared meaning: Every one who, ... (b)... knowingly has in his possession any plate, die,
machinery, instrument or other writing or material that is adapted and intended to be used to
commit forgery, ... is guilty of an indictable offence ... French version used the word: “modifié” -
- R. v. Mac, 2002 SCC 24

- Shared meaning deals with the interpretation of bilingual legislation

- At the fed level, all statutes are drafted simultaneously in French and English, neither is a
version of the other

- Teams of legislative drafters work together in both official languages

- When there is a discrepancy between the language versions, the preferred technique of
interpretation is to look for the meaning that is shared b/w the two languages

- SCC applied the shared meaning rule in Regina and Mac.

- Mac charged with possession of tools for forgery, contrary to a provision of the criminal
code that prohibited being in possession of things adapted and intended to be used to
commit forgery.
 - English meaning of ‘adapted’ was ambiguous, could mean suitable for, that is merely
capable of forgery or else altered for forgery.

- His possession were suitable for making forged credit cards but had not been altered in
any way.

- SCC looked to the French version and found that the French term for adapted was
‘modifie’.

- Court found that this meant modified or altered and therefore, the shared meaning b/w
English and French was the narrower definition which included only things altered for
forgery.

Original meaning: Is the Harvard “onco” mouse an “invention” within the meaning of the Patent
Act?

- Invention: “any new and useful art, process, machine, manufacture or composition of
matter.”
- Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76
- Original meaning rule is premised on the fact that the meaning of the words used in a
legislative text is fixed at the time of enactment, but its application to facts over time is
not.
- Judges often struggle with whether to give words a static interpretation, to give them the
meaning they had when the legislation was enacted, or whether to interpret statutes
dynamically in light of charged circumstances.
- In the Harvard mouse case, the SCC was called on to determine whether or not the onco
mouse, a mouse that was genetically modified to be susceptible to developing cancer,
could be patented as an invention in Canada.
- Patent act, defined invention as “any new and useful art, process, machine, manufacture,
or composition of matter.”
- Even tho the mouse was a composition of matter, majority of the SCC preferred to give
the word ‘invention’ a static definition.
- Majority was of the view that parliament could not have contemplated the patenting of
higher life forms when it drafted the definition of invention.
- Not just about words but also the appropriate roles of legislatures and courts.

Plausible meaning: “645. ... (4) Where an accused ... (c) is convicted of more offences than one
before the same court at the same sittings ...the court that convicts the accused may direct that the
terms of imprisonment shall be served one after the other.”

- R v. Paul, [1982] 1 S.C.R. 621

- “Whatever meaning one tries to give today to “the same sittings” either results in a
reference to a time span of judicial activity that practically no longer exists (sessions) for
most courts, or else results in the granting of different sentencing powers to judges on the
basis of distinctions that resist any kind of possible rationalization and, in fact, simply do
not make any sense.” – Justice Lamer
 - If ordinary text is rejected the meaning adopted must be one that the text is plausibly
capable of bearing.
- Ruth Sullivan noted there is no firm line b/w plausible and implausible readings, and
probably no principled way to determine the point at which a proposed interpretation
becomes implausible.
- Judgements about plausibility are highly subjective and naturally differ from one reader
to the next
- SCC interpretation of 645 of criminal code which provides that a person convicted of one
or more offenses may be directed to serve the sentences consecutively rather than
concurrently if he or she was convicted before the same court at the same sittings.

The Modern Principle of Statutory Interpretation

Driedger’s Modern Principle

- Elmer driedger was a legislative drafter and former deputy minister of justice

- Published book on statutory interpretation in which he formulated the modern principle

of statutory interpretation.

- Been adopted by the SCC

- 3 dimensions to the modern principle, first the grammatical and ordinary sense of the
words, second is legislative intent (what did parliament mean when it enacted the law),
third is the entire context (where did the words occur in the scheme of the law act and
what is the broader context for the law)

- Modern principle has been criticized for suggesting that statutory interpretation consists
only of resolving doubt about the meaning of particular words.

- When in fact, judges consider a wide range of other issues when interpreting a statute.

- In theory, courts give effect the intention of parliament. In practice, at least in hard cases,
judges are required to balance a number of competing considerations in accordance with
their sense of what is appropriate in the circumstances

“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.”

Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27

Issue: Whether employees are entitled to claim termination and severance payments where their
employment has been terminated by reason of their employer’s bankruptcy
Employment Standards Act: “No employer shall terminate the employment of an employees who
has been employed for three months or more unless the employer gives [notice in writing].”

Decision: “...there is ample support for the conclusion that the words ‘terminated by the
employer’ must be interpreted to include termination resulting from the bankruptcy of the
employer.”

- SCC explicitly adopted Driedger’s modern principle in a case called Rizzo and Rizzo
Shoes.
- This case involved a company that went bankrupt and the court had to determine whether
employees were entitled to termination and severance payments where their employment
was terminated by reason of the employer’s bankruptcy.
- Employment standards act provided the trigger for these payments was noticed that the
employer must give if the employer terminates the employment of an employee who was
been employed for more than 3 months.
- Plain meaning of the word appears to restrict the obligation to pay termination and
severance pay to those employers who have actively terminated the employment of their
employees by laying them off.
- SCC used dridger’s modern principle to look at these objects and purposes of the
provision in its context.
- Court found that the purpose of the provision was meant to protect employees from the
adverse effects of economic dislocation.
- Likely to follow from the absence of an opportunity to search for alternative employment.
- Once the court articulated this objective, it became illogical to treat laid off employees
differently from those who lost their jobs due to their employers bankruptcy.
- Court was alive to the fact that a different interpretation would have meant that an
employee so-called fortunate enough to be fired the day before a company declared
bankruptcy would be in a better position than those employees who were on staff at the
moment the employer went bankrupt.
- Result, court used dridger’s modern principle to interpret the words “terminated by the
employer” to include employees who lost their jobs due to the employers bankruptcy.

Rules and Presumptions of Statutory Interpretation

Rules of Statutory Interpretation

Definitions in particular laws

- Definitions of particular terms

Interpretation Acts

- Interpretation acts at both the federal and provincial levels that set out general rules of
statutory interpretation
Common law rules

- Common law rules and principles that have been developed by the courts.

Definitions in statutes

Immigration and Refugee Protection Act

foreign national means a person who is not a Canadian citizen or a permanent resident, and
includes a stateless person.

Interpretation Acts

Interpretation Act

26. Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be
done on the day next following that is not a holiday. (deals with calculating time, provides a
default rule in relation to time periods to allow for the period to be adjusted if it falls on a
holiday)

33(2) Words in the singular include the plural, and words in the plural include the singular.

- Interpretation act provides general rules which will apply unless a contrary intent is
indicated in a particular statute.

Common law approaches and presumptions

- Courts have developed many common law rules and presumptions to assist with statutory
interpretation, more in the nature of guidelines.

 They are guidelines, not straightjackets.

 Many are presumptions that can be rebutted or displaced.

 Often, one so-called ”rule” points in one direction, while another offers different results.
  In each case, it is necessary to examine all of the relevant circumstances to decide what
weight to attach to any particular rule or presumption.

Non- application of a statutory provision

- Dilemma faced by courts is what to do with over-inclusive text

- When should a court read down or not apply part of a law
- Case of Ms. Vabalis who applied to change her name under Ontario’s Change of Name
act
- This wrinkle in this case in the quote below was that Ms. Vabalis used her maiden name
and had not adopted her husband’s name when she married. Therefore, to comply with
the provision would have required her husband to also change his name.
- Ontario court of appeal found this to be absurd and read down the provision so that it
only applied to a married person who has the same surname as his or her spouse.
 When to “read down” a law?

Change of Name Act

A married person applying for a change of surname shall also apply for a change of the
surnames of his or her spouse and all unmarried minor children of the husband or of the
marriage.

 Re Vabalis (1983), 2 D.L.R. (4th) 482 (Ont. C.A.)

Adding to a statutory provision

- Under inclusive
- Mr. Beattie was severely injured in a car accident. He was subsequently charged and
convicted of dangerous driving
- At the time of the accident he was insured under an automobile insurance policy under
which he was entitled to be paid accident benefits including income replacement.
- Ontario insurance regulations provided that where someone claiming insurance benefits
is charged with an offence, the insurer shall hold in trust any amounts payable until he
charges is finally disposed of.
- Regulation continued to say that the amount held in trust shall be returned to the insurer if
the person is found guilty of the offence or returned to the person if found not guilty of
the offence.
- Beattie did not dispute that the amounts accrued until he was found guilty should be
returned to the insurance company.
- However, he claimed that he was entitled to benefits for the period beginning after he was
convicted of dangerous driving.
 - Ontario court of appeal agreed.
- Court notes that an interpretation that leads to absurd consequences should be rejected in
favour of an interpretation that avoids absurdity, but in this case, b/c of the clear language
used in the regulation there’s no plausible alternative interpretation.
- Court did not consider it appropriate to ‘read in’ to the regulation. The words were clear
even though they led to an absurd result.
 When to “read in” to a law?

Ontario Insurance Regulations

“...the insurer shall hold in trust any amounts payable [...] until the charge is finally disposed of
[...] at which time the amounts [...] (c) shall be returned to the insurer, if the person is found
guilty of the offence or an included offence; or

(d) shall be paid to the person entitled to the payment, if the person is not found guilty of the
offence [...].”

 Beattie v. National Frontier Insurance Co. (2003), 68 O.R. (3d) 60 (C.A.)

 Municipal by-law referred to s. 4 (incoherent), instead of s. 5

 Morishita v. Richmond (Township of) (1990), 67 D.L.R. (4th) 608 (B.C.C.A
- Circumstances are rare when courts will read in to a law but it does occur.
- In Morishita v. Richmond the BC court of appeal was faced with the interpretation of a
municipal bylaw
- The bylaw referred to certain responsibilities of the municipal clerk which it said were
found in S4.
- However, S4 made no reference of the municipal clerk it was in S5.
- Court of appeal found that the only rational conclusion is that the reference to S4 is a
mistake that the court could fix by reading in a Reference to S5.

Common Law presumptions

- Courts have developed several common law presumptions which serve as the starting
point for statutory interpretation.
- Often provide an answer unless they can be rebutted or set aside by evidence of contrary
intent.
 - In general, legislation that confers rights or benefits will be construed broadly while laws
that create offences or interfere with rights or property will be interpreted strictly.

Liberal and strict constructions:

- Liberal construction is given to rights and benefits conferring legislation
- Strict construction is given to criminal law, laws interfere with rights

Presumption in favour of compliance with...

- The Constitution
 The burden is always on the person challenging a law to prove that it is unconstitutional.
- Related legislation
 Same topic as above
- The common law
 Presumed that a law does not alter the common law unless it does so expressly or by
necessary implication.
- International law
 Courts try to interpret compliance with Canadians international legal obligations

Presumption against...

- Extraterritorial application of legislation

- Retroactive application of legislation
- Interfering with vested rights
- Applying legislation to the Crown (laws only apply to the crown where they say so
expressly or where by necessary implication the scheme would not work if the crown was
not bound)
- Absurdity, irrational distinctions

Straightforward meaning: Parliament means what it says

Uniform expression: Parliament uses the same words and techniques to express the same
meaning and different words and techniques to express different words

No superfluous words: Parliament does not legislate in vain or redundantly.

Ejusdem generis: “house, office, room or other place for betting” (indoor place) “ice skating,
sledding, skiing, and other sports” (only sports played in winter)

- Latin maxim that means when a list of things is followed by a more general term, the
general term may be read down to include other things within the identifiable class.

Text or Intention?
R. v. McIntosh, [1995] 1 S.C.R. 686
Issue: Whether the self-defence justification is available to Mr. McIntosh

- SCC was faced with whether to give effect to the text of a provision of the criminal code
or the intention of parliament.
- Split 5-4 on result
- Slim majority relying on the text
- Mcintosh, the accused, was a disc jockey who had given the deceased, Hudson some
sound equipment to repair.
- Over the next 8 months, McIntosh made several attempts to retrieve his equipment, but
the deceased actively avoided him.
- On the day of the killing Mr. Mcintosh’s girlfriend saw the deceased working outside
- Mcintosh took a kitchen knife and approached the deceased.
- Words were exchanged and according to McIntosh the deceased pushed him and a
struggle ensued.
- Deceased picked up a dolly raised it above his head and came as McIntosh, he then
stabbed him and killed him.
- At his trial on a charge of second degree murder, McIntosh argued that he was acting in
self defence.
- However the trial judge instructed the jury that the self defence provisions of the criminal
code were not applicable in this case

R. v. McIntosh, [1995] 1 S.C.R. 686

Criminal Code

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in
repelling force by force if the force he uses is not intended to cause death or grievous bodily
harm and is no more than is necessary to enable him to defend himself. (McIntosh provoked the
assault by approaching with knife)

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in
repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the
violence with which the assault was originally made or with which the assailant pursues his
purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or
grievous bodily harm.

Criminal Code
35. Every one who has without justification assaulted another but did not commence the
assault with intent to cause death or grievous bodily harm, or has without justification
provoked an assault on himself by another, may justify the use of force subsequent to the
assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of
the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself
from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or
grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to
do so before the necessity of preserving himself from death or grievous bodily harm arose.

Issue: Whether subsection 34(2) applies to a person who provokes an assault?

Majority: Yes, the provision clearly applies to an initial aggressor.

- Lamer concluded it applied to McIntosh

Dissent: No, Parliament could not have intended it to apply to an initial aggressor.

- Mcloughlin dissented on the basis that parliament could have not intended SS34(2) to
apply to initial aggressors.

Majority

 The words are clear.

 Reading words in would be tantamount to

 Where a person’s liberty is at stake, the law should be interpreted in favour of the
accused.

 Words capable of only one meaning should be enforced however harsh or absurd or
contrary to common sense the result may be.
  The criminal law must be clear and certain.

Dissent

• The plain meaning of words is not as important as the intention of Parliament.

• History of the provision, practical problems and absurdities are relevant to interpretation.

• Parliament can legislate illogically if it so desires, but the courts should not quickly make the
assumption that it intends to do so.

• Majority’s approach is unwise. People who provoke attacks must know that a response, even if
it is life-threatening, will not entitle them to stand their ground and kill. Rather, they must retreat.