Constitutional Foundations Patrick J.

Monahan, Constitutional Law The Constitution Defined - the doctrine of parliamentary supremacy lies at the heart of the U.K. constitutional tradition states that Parliament can make or unmake any law on any subject - the only limit on U.K. legislative authority is that it cannot bind its successors o i.e. it cannot prevent future parliamements from amending a law enacted by the current one - when rights or norms are constitutionally entrenched they are se tout in a fundamental constitutional document that takes precedence over all other laws and they cannot be amended through the ordinary process of law making Canadas Entrenched Constitution - section 52(2) of the Constitution Act, 1982 states that the Constitution of Canada includes: o The Constitution Act, 1867 A U.K. statute which established the Dominion of Canada It defined Canada as a federal state It set out the respective legislative powers of Parliament and the provincial legislatures It provided a mechanism for the admission of new provinces into the Dominion o The Canada Act, 1982 A U.K. statute that enacted the Constitution Act, 1982 Abolished the authority of Westminster Parliament to legislate for Canada in the future o The Constitution Act, 1982 A U.K. statute that was enacted through the Canada Act, 1982 Includes the Canadian Charter of Rights and freedoms and guarantees for Aboriginal rights Implements a constitutional amendment procedure Provides for the supremacy of Canadas written or entrenched constitution o Various regulations of constitutional significance Mainly amendments to the BNA Act o All amendments to any of the statutes or regulations otherwise included in the section 52 definition of the constitution - The 1982 constitutional changes do not purport to comprehensively define the powers of the Canadian state o For example, they do not create or define the office of the Prime Minister o They do not include the documents from prior to confederation - There are also many common law principles of constitutional significance o i.e. those dealing with the powers of the Crown and Parliament - Section 52 does not make reference to constitutional conventions

o Rules of political behaviour that are regarded by political actors as binding on them but are not directly enforced by the courts For example, the Governor General has the authority to disapprove of any law passed by Parliament, but as a constitutional convention the governor general must approve all bills passed by parliament The section 52 definition uses the word includes, which is interpreted as meaning that the list is non-exhaustive One reason for not including a rule or document in the section 52 definition is to avoid the application of the special amending procedure that applies to the items in this category

Canada as a Federal State - in a federal system, sovereignty is divided between two orders of government, with each level restricted to the areas of jurisdiction assigned to it - the distribution of powers between national and provincial governments is exhaustive o there are no fields of jurisdiction that are not given to either one or the other - federalism requires an independent judiciary to police the distribution of powers - in a unitary state (such as France) undivided sovereignty is given to the national government o local governments might be established, but they are delegates of the national government which defines their powers o only the national government is constitutionally recognized - in a confederation (such as the European Union), sovereignty is retained by the member states which delegate powers or jurisdiction to a central authority - the Constitution Act, 1867, centralized the powers in the national government in a way that is described as quasi-federal o the federal government was given the power to annul any provincial law o the federal government was given the power to appoint the provincial lieutenant governors of the provinces - the federal governments powers of disallowance have fallen into disuse; their use is seen as inappropriate - the courts have tended to limit federal jurisdiction and expand provincial jurisdiction Canada as a Constitutional Monarchy - in a monarchy supreme power resides in the crown - in a republican state supreme power resides in the people - although Canada has a monarch for a head of state, all her powers have been transferred to the governor general - the governor general has the same constitutional role in Canada as the Queen does in England - for a bill to become law, it must be signed by the governor general - the governor general appoints the prime minister and members of cabinet, senators, superior court judges and the lieutenant governors of the provinces

o however, under the doctrine of responsible government all the powers of the governor general are to be exercised on the basis of the advice and consent of the prime minister the doctrine of responsible government removes most of the discretionary power of the governor general there are certain residual powers which permit the governor general to exercise some discretion o however, these can only be used in exceptional or unusual circumstances because of responsible government, Canada is able to function as a democracy while retaining the monarch as the head of state the principles of responsible government are constitutional conventions that are not legally enforceable

Guarantee of Individual and Group Rights - the drafters of the BNA Act opted for a constitution similar in principle to that of the United Kingdom o this meant that parliaments laws could not be held invalid as long as they stayed within their jurisdiction, even if they infringed on individual rights (i.e. parliamentary supremacy) o however, the BNA Act included guarantees designed to protect minority rights s. 93 protected religious minority education rights s. 133 protected the use of English and French language rights - the adoption of a federal system was designed to promote French control in Quebec - the Canadian Bill of Rights was a federal statute enacted by John Diefenbaker designed to protect individual rights o however it was a federal statute so it only applied to federal laws o it was very narrowly interpreted by the courts - when the Canadian Charter of Rights and Freedoms was enacted in 1982, the drafters avoided the language that the courts had used to narrow the scope of the Bill of Rights - before 1982 the main focus of judicial review related to federalism (jurisdiction) - after 1982 courts had to rule on whether laws were off-limits to governments in general Concentration of Political Power - the doctrine of separation of powers has never been a dominant feature of the Canadian or U.K. constitutions o in fact, these constitutions tend to concentrate powers in the hands of the executive o this is achieved through responsible government under which the legislative and executive branches are subject to the control of the prime minister o the prime minister controls the executive since the governor general must exercise all of its powers on the basis of the prime ministers advice

o the prime minister also controls the legislative branch since he is the leader of the party controlling the great4est number of seats in the House of Commons however, the executive and legislature are separated from the independent judiciary the Charter of Rights and freedoms guarantees the right to be tried by an independent and impartial tribunal which has been interpreted as requiring independence from the legislature and executive

Loss of Flexibility in the Constitution since 1982 - constitutions try to balance stability and flexibility - the 1867 constitutional framework was highly flexible and subject to continuing adjustment - the 1982 constitution limited the ability to amend any constitutional provisions - the Meech Lake and Charlottetown accords were failed attempts to amend the constitution - the unwritten elements of the constitution are more easily changed because they do not require use of the amendment formula Judicial Review - when an individual seeks to challenge the validity of government decision, that person is usually described as seeking judicial review - there are two kinds of arguments that a person can make: o that a statute was not followed properly (that the government action was beyond the authority conferred by a statute or common law rule) o that the rule itself is unconstitutional Reference Re: Secession of Quebec - the Supreme Court was asked to answer three questions: o under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? o Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession from Canada unilaterally? o In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada? - The constitution embraces written as well as unwritten rules - In the courts view, there are four fundamental and organizing principles of the constitution relevant to the secession reference: federalism, democracy, rule of law and respect for minorities

Historical Context of Confederation - when meeting to discuss the union of the colonies, the planners chose a federal system to ensure regional equality o without it, the maritime colonies and Canada East would not have joined o the federal system was meant to reconcile diversity with unity - the delegates included guarantees to protect French language and culture - there was an early attempt in Canadas history to secede from confederation o in Nova Scotia, secessionists won most of the provinces federal seats and seats in the provincial legislature o the colonial office in London rejected the premiers request to allow Nova Scotia to withdraw from confederation o The reason which the colonial secretary gave for the denial was: New Brunswick had entered into the union in reliance on having its sister province of Nova Scotia Vast obligations have already been contracted on the faith of a measure which had been discussed at length and solemnly adopted o These statements characterized interdependence between the provinces (and that interdependence has obviously increased since then) Analysis of Constitutional Principles - the principles are vital unstated assumptions on which the actual text of the constitution is based - some of them are implied in the preamble to the Constitution Act, 1867 Federalism - many have observed that according to the precise terms of the Constitution Act, 1867, Canada is only a partially federal system - although on paper the federal government has power which can undermine the autonomy of the provinces (i.e. the power of disallowance), it is a convention that disallowance not be used - in our federal system political power is shared by two orders of government, each assigned their own jurisdiction by the Constitution Act, 1867 - the underlying principle of federalism has exercised a considerable role in the interpretation of the written provisions of the constitution - the principle of federalism recognizes the diversity of component parts of confederation, and the autonomy of provincial governments to develop their societies within their spheres of jurisdiction - it facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province (i.e. Quebec) Democracy - democracy is used as an argument for Quebecs secession o the will of the people should be supreme; if they vote to leave Canada they should be allowed to - democracy is commonly understood as being a political system of majority rule

democracy is fundamentally connected to substantive goals, most importantly the promotion of self-government R. v. Oakes articulated some of the values inherent in the notion of democracy o respect for the inherent dignity of the human person o commitment to social justice and equality o accommodation of a wide variety of beliefs o respect for cultural and group identity o faith in social and political institutions which enhance participation of individuals and groups in society in institutional terms democracy means that each of the provincial legislatures and federal Parliament is elected by popular franchise the relationship between democracy and federalism means that there may be different and equally legitimate majorities in different provinces and at a federal level no one majority is more or less legitimate than the others democracy cannot exist without the rule of law o the law creates the framework within which the sovereign will is to be ascertained and implemented o to be accorded legitimacy democratic institutions must rest on a legal foundation

The Rule of Law - the rule of law conveys orderliness, subjection to known legal rules and executive accountability to legal authority - the rule of law is a shield for individuals from arbitrary state action - elements of the rule of law: o provides that the law is supreme over both the acts of government and private persons there is one law for all o the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general order o the exercise of all public power must find its ultimate source in a legal rule the relationship between the state and the individual must be regulated by law Protection of Minorities - there are a number of specific constitutional provisions protecting minority language, religion and education rights - protection of minorities has been a prominent concern especially sinc ehte enactment of the Charter Provincial Judges Reference - the issue was whether the guarantee of judicial independence in s.11(d) of the Charter restricted provincial governments ability to alter the salaries of provincial court judges

o s. 11(d) states that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal The Unwritten Basis of Judicial Independence - s. 11(d) of the Charter protects the independence of a wide range of courts and tribunals which exercise jurisdiction over offences - ss. 96-100 of the Constitution Act, 1867, protect the independence of provincial superior courts o s. 99 protects the security of tenure of superior court judges o s.100 guarantees the financial security of judges in superior, district and county courts o s. 96 guarantees the core jurisdiction of superior, district and county courts against legislative encroachment - however, these protections are not an exhaustive code for the protection of judicial independence o there are gaps, with not all levels of court being expressly protected o to some extent the gaps are covered by s.11(d) which applies to courts which exercise jurisdiction over offences o however, civil courts (such as provincial family law courts) are not expressly included however, superior courts hearing the exact same cases would be protected - section 100 provides that Parliament shall fix and provide the salaries of superior, district and county court judges o in light of the Act of Settlement of 1701, it is a partial guarantee of financial security, inasmuch as it vests responsibility for setting judicial remuneration with parliament (as opposed to the executive) o s.100 requires that Parliament must provide salaries that are adequate, and that changes or freezes to judicial remuneration only be made after recourse to a constitutionally mandated procedure (Beauregard) - s.96 confers power to the Governor General to appoint judges of the superior, district and county courts o judicial interpretation is that s.96 guarantees the core jurisdiction of the courts which come within the scope of that provision - the interpretation of ss.96 and 100 have come a long way from what those provisions actually say - in New Brunswick Boradcasting Co. v. Nova Scotia, McLachlin J. found that the refusal of the Assembly was an exercise of the Assemblys unwritten legislative privileges, and that the Constitution of Canada constitutionalized those privileges, and that the constitutional status of those privileges precluded the application of the Charter o in her judgment, she refers to s. 52(2) of the Constitution Act, 1982, which defines the Constituion of Canada using the word includes o the use of the word includes indicates that the list of constitutional documents in s. 52(2) is not exhaustive

the existence of many of the unwritten rules can be explained by reference to the preamble of the Constitution Act, 1867 o expressed their desire to be federally united this expresses the structure of the division of powers o with a constitution similar in principle to that of the United Kingdom points to the nature of the legal order that envelops and sustains Canadian society the legislation reducing the wages of judges are unconstitutional because the changes in salary were implemented prior to receiving advice from a judicial compensation commission

Democracy Peter W. Hogg, Constitutional Law of Canada - in a system of responsible government, the formal head of state must always act under the advice (direction) of ministers who are members of the legislative branch and enjoy the confidence of a majority in the elected house - the rules of responsible government are not found in ordinary legal statutes or decided cases The Executive Branch: The Ministry - it is the Governor Generals duty to select the prime minister o the GG must select a person who can form a government which will enjoy the confidence of the House of Commons o the GG rarely has any choice but to pick the leader of the political party that has a majority of seats in the House of Commons - when the prime minister has been appointed, he selects the other ministers and advises the Governor General to appoint them o the GG is obliged by convention to make the appointments advised by the Prime Minister o if the Prime Minister later wishes to make changes in the ministry, the Governor General will take whatever action is advised by the Prime Minister - the Prime Minister and members of the ministry must be members of the House of Commons o is a non-member of Parliament is selected, a member from a safe seat might be asked to resign so that a by-election can be called with the new minister running in that riding - a ministry lasts as long as the tenure of the Prime Minister o ministries do not come to an end when parliament is dissolved for an election; this would leave the country without a government The Cabinet and the Privy Council - when the ministers meet together as a group they constitute the cabinet o the cabinet is not mentioned in the constitution Act, 1867 - in most matters, the cabinet is the supreme executive authority

the cabinet formulates and carries out all executive policies and is responsible for the administration of all departments of government it is the only active part of the Privy Council and exercises the powers of that body the Governor general does not preside over or attend the meetings of cabinet

The Prime Minister - the Prime Minister (or provincial premier) has certain powers which are not shared by the cabinet in general - the two most important powers of the prime minister or premier are: o to select the other ministers (to select, dismiss, promote or demote them) o to advise the Governor General as to when Parliament should be dissolved for an election (and when an elected Parliament should be summoned to session) - the Prime Minister effectively controls the executive branch of government through control over ministerial appointments and over the cabinet Ministerial Responsibility - there is a minister at the head of each of the governmental departments - each minister in charge of a department has the administrative duties that go with such an office - the minister represents his or her department in Parliament - the administration of a department is done by civil servants who are supposed to be politically neutral - the senior civil servant is usually called a deputy minister o the deputy minister is the link between the minister and the civil servants o he acts both as an adviser and as a senior manager o the minister is under no obligation to follow the advice of the deputy minister - since the deputy minister is not tied to a political party, when the government changes the deputy minister usually retains their position - all the acts of the department are done in the name of the minister, and it is the minister who is responsible to Parliament for his ministrys acts - the word responsible is said to entail two consequences o the minister is supposed to explain to parliament the actions of his department o the minister is supposed to resign in the case of serious maladministration within his department The Legislative Branch: Parliament - Parliament consists of The Queen, an upper house styled the Senate, and the House of Commons - The cabinet is able to control the legislative process, even though they are not mentioned in the Constitution Act, 1867 The House of Commons

a body which is elected on the basis of universal adult suffrage the Prime Minister and cabinet are in office solely because they have the support of a majority of members in the House of Commons

The Senate - the members of the Senate are appointed by the Governor General (and by convention, this means they are appointed by the cabinet) - once appointed, a senator holds office until age 75 - governments tend to appoint its own supporters to the Senate, so a government which has been in office for a long time will have a majority of its own party in the senate - the senate was intended to serve as a protector of regional interests - its membership was drawn equally from the different regions of Canada - the Charlottetown Accord proposed to recreate the senate into an elected, representative body, but this failed The Governor General - the Governor General completes the legislative process by conferring royal assent - the imperial conference of 1930 resolved that the powers of reservation and disallowance of the GG must never be exercised The Cabinet - in a system of responsible government there is no separation of powers between the executive and legislative branches of government - the executive draws its power to govern from the legislative branch, and the executive controls the cabinet - the legislative program for each session of parliament is planned by the cabinet Defeat of the Government: Withdrawal of Confidence - a cabinet which has lost the confidence of the house cannot continue to be in power - if the House of Commons passes a motion of no confidence in the government, this would be the clearest possible evidence that the government had lost the confidence of the House - the defeat of the government on any important vote is usually regarded as a withdrawal of confidence Dissolution of Parliament - when confidence is withdrawn from the government, the government must either resign to make way for a new cabinet, or the House must be dissolved to make way for an election which will produce a new House of Commons - usually the prime minister will advise the governor general to dissolve parliament for a new election o the government gets to retain power until after the election

o however, the Governor General has the reserve power to refuse dissolution to a Prime Minister whose government has lost the confidence of the House of Commons, but this has only happened once this century Prerogatives of the Governor General - as long as the cabinet enjoys the confidence of a majority in the House of Commons, the Governor General is always obliged to follow lawful and constitutional advice tendered by the cabinet - however, if a government continues in office after it has lost the confidence of the House, there are occasions (such as after a very close election) where for a period it is difficult to determine whether or not the government does enjoy the confidence of a majority in the House of Commons o in this situation, the Governor General has a discretion to refuse advice tendered by the ministry in office Appointment of the Prime Minister - the Governor General has the power to select a Prime Minister whenever a Prime Minister resigns - the resignation of the Prime Minister (unless it is for a personal retirement) automatically vacates all ministerial offices and the entire ministry o this vacation of ministry does not occur in the case of the death of a prime minister Dismissal of a Prime Minister - the dismissal of a Prime Minister vacates the entire ministry - the Governor General may not dismiss a prime minister simply for disagreeing with the cabinets policies - the GG may dismiss a prime minister if he/she believes that the policies are illegal o there is a New South Wales precedent for such a dismissal Dissolution of Parliament - the Constitution Act 1867 states that the House of Commons shall continue for five years unless it is sooner dissolved by the Governor General - most Prime Ministers do not wait the full five years, but rather call elections at times they feel are beneficial to them (i.e. when they feel that they will win) - no Canadian Governor General has ever refused a dissolution requested by the Prime Minister Appointments to the Senate - the Governor Generals power to appoint senators is exercised on the advice of Cabinet - the Governor General in 1896 used its reserve powers to prevent an outgoing Prime Minister who had lost an election (but remained in power until the next sitting of Parliament) from appointing members of his party to the senate Justification for a Formal Head of State

responsible government cannot work without a head of state who has certain reserve powers although the use of these powers arises very rarely, the powers are of supreme importance because they prevent a situation in which there is no government or the extension of power of a government that has lost support

The Monarchy - the monarchy is not a necessary element of responsible government o India, Ireland, Israel and South Africa all have responsible government but do not have a monarch as head of state - Canada could become a republic by amending the Constitution to make the Governor General the formal head of state in her own right Patrick Monahan Constitutional Law The Legislative Process - when Parliament is summoned by the Governor General after an election, the first order of business is the Speech from the Throne - the speech is drafted by the Prime Minister and outlines the governments proposed legislative agenda - the first stage in the enactment of legislation is the introduction of a bill into either the House of Commons or the Senate - there are two kinds of bills, private and public o a private bill alters the law only in respect of an individual or a legal entity such as a corporation they are often first introduced in the Senate, where they are debated and refined before being sent to the House of Commons o a public bill is intended to alter the law applicable to the general public public bills can be subdivided into government and private members bills private members bills are introduced by MPs who are not members of the government (i.e. backbench MPs from the government part who are not ministers or parliamentary assistants to ministers) private members bills are rarely debated or voted on unless the government itself decides to adopt and sponsor the initiative government bills are public bills introduced by a minister in the House of Commons government bills have been approved by Cabinet and it represents government policy - bills are voted on (read) three times in each of the House of Commons and the Senate o once a bill has had three readings in one House, it goes to the other where the process of three readings begins again - bills that have passed all readings in both houses are sent for royal assent by the Governor General

a statute does not necessarily have the force of law on the giving of royal assent o where a statute is silent as to the date of its legal effectiveness, the act comes into force once royal assent has been given o sometimes a statute will provide that it does not come into force until some future date either a date specified in the statute itself or a date to be fixed by proclamation where a statute is to come into force by proclamation, it does not take legal effect until an order in council is issued by the federal cabinet proclaiming the act to be in force only statutes or Acts of Parliament (or regulations enacted pursuant to such statutes) have the force of law o resolutions or motions do not have the force of law o for example, the House of Commons 1995 resolution that recognized Quebec as a distinct society has no legally binding effect

Electoral Reform Law Commission of Canada Voting Counts: Electoral Reform for Canada - Canada inherited its first-past-the-post electoral system from Great Britain back in a time when significant sections of the population were disenfranchised - The strengths of this electoral system were: o It fostered competition between two major parties o It gave the winning party a strong (albeit artificial) legislative majority Back then party discipline and cohesiveness was less powerful than today - After WWI the socioeconomic basis of this system of representation began to change o The reasons included western immigration, urbanization and industrialization o New classes of people (i.e. farmers, workers, women) sought to enter the political system and created new political parties These new political parties were disadvantaged since the system was set up to favour the two major parties - In the 1970s and 80s new social movements created further social change and extra strain on our electoral system - The Commission recommends adding an element of proportionality into the electoral system o This would allow Parliament to more completely represent society and lower the barriers to greater diversity among representatives - A consequence of a mixed member proportionality would be that coalition or minority governments would occur more frequently - Recommendations of the Commission: o Adding an element of proportionality to the electoral system o Adopting a mixed-member proportional electoral system

o The system should be based on giving voters TWO votes: one for a constituency representative and one for a party list The party vote should determine who is elected from provincial and territorial lists drawn up by the parties before the election o Two-thirds of the House of Commons should be elected in constituency methods using the first-past-the-post system; the remaining one third should be elected from provincial or territorial party lists One list seat should be allotted for each of Nunavut, Northwest Territories and Yukon o Parliament should adopt a flexible list system with the option of either endorsing the party slate or ticket or indicating a preference for a candidate within the list David Beatty, Making Democracy Constitutional - there is a bias against smaller (usually issue-based) parties whose supporters are spread across the country o they have no realistic hope of winning an election o our election laws make it much more difficult for women and members of minority groups who are not concentrated geographically to stand as candidates - Canada is one of the few democratic societies that still use the winner-take-all method of election - The Supreme Court of Japan, which is regarded as cautious and conservative, declared three national elections unconstitutional o The government then adopted a modified system of proportional representation - In legal terms, a constitutional challenge to the Canada Elections Act is surprisingly straightforward o All of the major inequties identified in winner-take-all systems constitute clear violations of the right to vote (s.3) and/or right to equality (s.15) of the Charter - In the Sakatchewan Electoral Boundaries case, the SCC found that the right to votes overarching purpose was to ensure equal and effective representation of every citizen in the country o Relative parity of voting power was a pre-condition of the kind of effective representation that s.3 of the Charter guaranteed o The Court found that a system which dilutes one citizens vote unduly as compared with another citizens vote runs the risk of providing inadequate representation to the citizen whose vote is diluted - Our election laws frustrate rather than further the goals of parity of voting power and effective representation of each citizen - In the most recent federal elections, the value or weight of a vote cast by a supporter of the Liberal, Block or Alliance party has been worth as much as 30 times greater than a ballet marked for the Progressive Conservatives or NDP - The distortions in Quebec and BC have been so severe that the party that won the popular vote lost the election

In the 1993 federal election, a conservative vote counted for next to nothing o Even though they had more votes than the Bloc and as many as Reform, they only won two seats while the Bloc got 54 and the Reform got 52 seats o In effect, the Conservative party got one seat in the House for every 1,093,211 votes, while the Bloc got a member elected for every 34,186 votes Every case in which it is claimed that a law violates the Charter must pass through two stages o The onus is on those who claim rights violations to prove their case o The onus then shifts to the government to justify why a law which does not respect constitutional rights should be allowed to remain on the books The argument for our first-past-the-post system is that they produce more stable (therefore more effective) governments o However, this argument cannot be sustained Many countries (i.e. Germany, the Netherlands) use proportionality in their elections and have very stable governments

Peter Aucoin & Jennifer Smith, Proportional Representation: Misrepresenting Equality - proportional representation systems have several advantages o fairness to minor parties o more accurate representation of social groupings within the electorate - however proponents who argue for proportional representation on the basis of equality implies a mistaken understanding of proportional representation in a parliamentary system The Equality Critique - the equality critique has two main concerns o the frequency with which the first-past-the-post system produces governing parties with popular votes less than 50% o the concept of a wasted vote at the constituency level in a constituency, only one candidate wins. The other candidates do not win therefore the votes cast for them are said to be wasted - however, neither of these concerns are resolved by switching to proportional representation What are Elections For? - elections are meant to produce governments and legislatures - the new government is the key outcome insofar as far as government can be said to dominate legislature o any change in the electoral system that affects the formation of a cabinet is a significant change Equality and Government Formation - PR does not solve the problem of a minority of voters electing a majority government - PR can only solve the equality concern in regards to the legislature

The legislature will match the profile of the electorate o However, if the PR system still has multiple parties, a legislature comprised of several parties with minority shares of the seat will be the result o In negotiating to form a government, equality will be forgotten and the parties will try to form a coalition government that possesses varying agendas o Members of the largest party will try to seek pre-eminence by making partnerships with other parties o For example a typical coalition government might include a centre-right party and several tiny right wing parties The tiny minority of right wing voters in the electorate are rewarded while the larger minority of left-wing voters are neglected There is also no guarantee that the centre-right party is the largest of the two dominant parties, it may have just been able to gather enough support from other parties to form a coalition government

Equality and the Wasted Vote - PR has little to offer a parliamentary system in terms of solving the wasted vote problem - All parties that do not participate in the coalition government can be regarded as having lost their vote Federalism Peter W. Hogg, Constitutional Law of Canada Distribution of Governmental Power: Federalism - in a federal state power is distributed between a national authority and several regional authorities in such a way that every individual is subject to the laws of two authorities - the central and regional authorities are coordinate o neither is subordinate to the other - in a unitary state governmental power is vested in one national authority o local authorities are subordinate to the national authority o their powers can be taken away, altered or controlled at any time by the national legislature - depending on the actual balance of power between the centre and the regions, federal states may be placed on a spectrum running from a point close to disintegration into separate countries to a point that is close to a unitary state - K.C. Wheare defined the federal principle as the method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent o This definition has been criticized for stressing the separate and distinct spheres of the two authorities o Other definitions emphasize the interdependence of the two authorities

Federal states have issues regarding division of powers that are not problems for unitary states In many spheres the two powers overlap o Where they come into conflict the central power prevails

Confederation - Canada is described as a confederation (the process of union which culminated in 1867 is also referred to as confederation - Outside Canada, the term confederation is usually used to mean a loose association of states in which the central government is subordinate to the states o In this sense of confederation, the central government is the delegate of the states who retain the right to resume their delegated powers if they wish - The union of provinces in Canada established a central government that was in no way the delegate o f the provinces o It was independent of the provinces and coordinate with them Legislative Union - the closest kind of union is a legislative union in which the united states or provinces form a new unitary state which incorporates the former units and subjects them to a single central legislature Special Status - not all provinces are equal in wealth, status or actual power - a number of provisions in the constitution apply only to one or only some of the provinces o the terms upon which each province was admitted usually included unique terms - however, the differences between provinces are not big enough to justify the description of special status for any one province. o special status is a term which has been applied to proposals under which one province (i.e. Quebec) would possess larger powers than the other provinces o the Meech Lake Constitutional accord was a failed attempt to reconcile Quebec with the Constitution Act, 1982, to which it is bound bud did not assent. It made provisions for: the recognition of Quebec as a distinct society a provincial role in immigration a provincial role in appointments to the Supreme Court of Canada a limitation of the federal spending power a veto for Quebec over some kinds of constitutional amendments Reasons for Federalism - federalism was a compromise between proponents of unity (which preferred a legislative union) and proponents of diversity

in a country that covers a large area and includes diverse regions, there may be advantages of efficiency and accountability in dividing the powers of the government o a province, being more homogenous than the nation as a whole will occasionally adopt policies that are too innovative or radical to be acceptable to the nation as a whole the province can be a social laboratory the division of governmental power operates to preclude an excessive concentration of power and thus is a check against tyranny

The Terms of the Constitution - the framers of the BNA Act planned for a strong central government o the provinces only get enumerated powers, with the residue of power to the federal parliament o this is different than the United States where the states get the residual powers - the provinces were in a sense subordinate to the centre o in s.90 the federal government was given the power to invalidate provincial statutes o in s. 58 the federal government was given the power to appoint the Lieutenant Governor of each province o the federal parliament was given the power to unilaterally bring local works within their jurisdiction simply by declaring them to be for the general advantage of Canada Early Federal Dominance - in the early years of confederation the relationship between the government and the provinces was quasi-federal - it was more akin to a colonial relationship - the federal government (with most of the governmental revenues) exercised control over the provinces Judicial Interpretation of the Division of Powers - Lord Watson and Lord Haldane were members of the Privy Council (the final court of appeal for Canada in constitutional appeals until 1949) - They believed strongly in provincial rights and established precedents which elevated the provinces to coordinate status with the Dominion, and gave a narrow interpretation to federal powers Federal-Provincial Financial Arrangements - the present federal-provincial financial arrangements give the provinces more financial autonomy than the states of the United States or Australia Disallowance - The federal power to disallow provincial statutes was frequently used in the early years of consideration, but is no longer used

The federal government can only challenge provincial statutes on the grounds that they are ultra vires the provincial parliament

The Appointment of Lieutenant Governors - once an appointment is made, the Lieutenant Governor is in no sense an agent of the federal government - according to the conventions of responsible government he is obliged to act on the advice of the provincial cabinet - he does have the power under s.90 of the Constitution Act 1867 to withhold assent, but this power is never used Appointment of Judges - the federal government has the power under s. 96 of the Constitution Act 1867 to appoint the judges of the higher provincial courts - the tradition of judicial independence is so strong that it has never been seriously claimed that the federally appointed judges would tend to favour the federal interest in disputes coming before them Educational Appeals - under s.93 of the Constitution Act 1867, the federal government has the power to enact remedial laws to correct provincial incursions on minority educational rights - this power has never been exercised and has become obsolete Declaratory Power - the federal governments power to bring local work within federal jurisdiction by declaring it to be for the general advantage of Canada was frequently used in the past, but has not been used much in recent years The Supremacy of the Constitution - the distribution of power in a federal state requires a constitution which defines the powers divided among the central and regional authorities - the constitution must be supreme, binding on (and unalterable by) both authorities - the constitution must be rigid; it cannot be amended by simple statute - in the UK, the constitution is flexible (and mostly unwritten) The Development of Judicial Review - where a statute and the constitution conflict, the constitution prevails - the courts have the role of settling disputes as to the distribution of powers under the constitution - the Privy Council used to have the right to review the validity of legislation enacted by Canadian legislative bodies - when the Supreme Court of Canada was established, it assumed that same power - the Constitution Act, 1982 broadened the scope of judicial review by adding a Charter of Rights to the Constitution Limitations of Judicial Review

the questions that come before the courts are those which are difficult or doubtful the language of the Constitution is broad and vague there are a number of limitations on judicial review o their mandate to make decisions differs from that of other public officials in that judges are not accountable to the electorate or the government o their background is not broadly representative of the population o they do not necessarily have much knowledge or experience in public affairs o they have no power to initiate inquiries or research, or investigation

Aboriginal Self-Government - the Government of Canada recognizes the inherent right of Aboriginal selfgovernment as an existing right within s.35 of the Constitution Act, 1982 - negotiations among governments and Aboriginal peoples are clearly preferable as the most practical and effective way to implement the inherent right of selfgovernment - Aboriginal governments exercising their inherent right of self-government will operate within the framework of the Canadian constitution - The right of self government does not include a right of sovereignty in the international law sense, and will not result in a sovereign independent Aboriginal nation o Self-government should enhance the participation of Aboriginal peoples in the Canadian federation - The Charter of Rights and Freedoms applies to Aboriginal governments and institutions in relation to all matters within their jurisdiction and authority Campbell v. British Columbia - the plaintiffs seek an order declaring that the Nisgaa treaty concluded between Canada, British Columbia and the Nisgaa Nation is in part inconsistent with the Constitution of Canada and therefore is of no force and effect - this proceeding is in regards to treaty rights, not aboriginal rights - the three plaintiffs are sitting members of the Legislative Assembly of British Columbia (members of the opposition) o they challenge the constitutionality of the Nisgaa Treaty o they argue that it violates the Constitution because parts of it purport to bestow upon the governing body of the Nisgaa Nation legislative jurisdiction inconsistent with the exhaustive division of power grated to Parliament and the Legislative Assemblies of the Provinces under sections 91 and 92 of the Constitution Act 1867 o they also submit that the legislative powers set out in the treaty interfere with the concept of royal assent o they also submit that by granting legislative power to citizens of the Nisgaa Nation, non-Nisgaa Canadian citizens who reside (or have interest in) the territory subject to Nisgaa government are denied rights guaranteed to them by s.3 of the Charter the right to vote

the three defendants are the parties who negotiated the Nisgaa Final Agreement o Canada o British Columbia o The Nisgaa The intervenors are the In-Shuck-ch N-QUat-qua, one of the First Nations involved in the B.C. Treaty Process, and the First Nations Summit, an organization representing a number of First Nations in British Columbia involved in treaty negotiations The treaty is a complex tripartite agreement which purports to exhaustively define the treaty rights of the Nisgaa Nation The plaintiffs characterize the treaty as having 4 basic components o Substitution for aboriginal title with a grant of a fee simple to the Nisgaa Nation of just under 2000 square kilometers of land in the Nass Valley This would modify the existing aboriginal title o The treaty defines existing hunting, fishing and trapping rights in the Nisgaa lands, but also permits participation in wildlife and fisheries magement There are two areas of land involved The smaller fee simple area owned by the Nisgaa Nation over which it has defined legislative powers The larger area in which the Nisgaa have certain specified hunting, fishing and trapping rights o Payment of moey over a period of years which can be seen as compensation for what the Nisgaa have given up or possibly for the negative impact upon the Nisgaa which followed upon the arrival of Europeans o What the plaintiffs call a new order of government A government with certain legislative jurisdiction specified in Chapter 11 of the treaty The Nisgaa government is divided into two groups o The Nisgaa Lisims Government o The Nisgaa Village Governments The Nisgaa Government has power to make laws in a number of different areas which can be divided into two groupings o Subjects where the Nisgaa law conflicts with federal or provincial law, the Nisgaa law will prevail, but only if it is consistent with comparable standards established by Parliament, the Legislative Assembly or other relevant administrative tribunals the subject in this category are matters which concern the identity of the Nisgaa people, their education, preservation of culture, use of their land and resources, and the means by which they will make decisions in these areas these must be consistent with existing standards (i.e. adoption laws must be in the best interests of the child)

o Subjects where if there is a conflict with federal or provincial law, the federal or provincial law will prevail The plaintiffs submit that it is only those portions of the Treaty which allocate legislative power in the Nisgaa Government, and which provide that Nisgaa law will prevail over federal or provincial law, which are unconstitutional o The argument is that any right to such self-government or legislative power was extinguished at the time of Confederation o All legislative power was divided between Parliament and the legislative assemblies o Parliament and legislative assemblies can delegate authority, but they can not give up or abdicate that authority The preamble of the Constitution Act, 1867 recognizes unwritten principles in the constitution o British imperial policy had continued to recognize a diminished form of Aboriginal self-government even after the assertion of sovereignty of the Crown o Through the preamble, this policy continues the Nisgaa treaty does not create new Aboriginal rights, they are defined (given content) by the treaty The Constitution Act, 1867 did not distribute all legislative power to the Parliament and the legislatures o Those bodies have exclusive powers listed in ss. 91 and 92 o The Constitution Act, 1867 did not purport to end what remains of the royal prerogative or aboriginal treaty rights, including the power of selfgovernment which remained with the Nisgaa people S.35 of the Constitution Act, 1982 constitutionally guarantees the limited form of self-government which remained with the Nisgaa after the assertion of sovereignty

The Rule of Law Common Law Adjudication - the common law system is intertwined with the notion of rule of law o precedent is a major aspect of the common law system; the ratio of one case is applied to similar cases in the future o like cases should be treated alike; different cases should be treated differently - in order for a common law system to function, records must be kept o these records are open to the public - in the early days of the common law, it was thought that interpreting law was like a science o look at the old cases, locate relevant precedent then apply it to the current fact situation - 2 important schools of jurisprudence developed o natural law

laws had a moral component; they are rules given to us by God (in the British Christian tradition) o legal positivism law is a human invention; law is whatever humans determine it to be law and morality are not the same thing in the 20th century, theorists discussed flaws in both of the schools of jurisprudence o the theories are too simplistic; the situation is much more complicated than they propose o the American realist movement The American Realist Movement school of jurisprudence o A reaction to the black letter law; the scientific application of law o The black letter law was too formulistic and mechanical, and very black and white Proposed that there is really only one right answer to a legal question It entirely dismissed that there could be non-legal, non-precedent factors that are relevant to interpreting a case It was a closed system; all you need to do is know prior cases o The realists propose that by looking back at judge-made decisions, the science in the black letter law is an illusion They try to look at what is really going on in the judges mind when he is making a decision o The realism movement lessened its emphasis on black letter law The realist movement was still in a sense a positivistic approach o You can become a better predictor of judicial decisions, but you have to look at factors other than caselaw 2 subsets of the realist movement o rule skeptics in order to determine the rules or ratios of cases, you need to look at extra-legal factors in judicial decision making i.e. Llewellyn o fact skeptics questioned whether courts are actually able to properly determine facts judges, lawyers and law students often study appellate cases in appellate cases, the facts are assumed and are often omitted from the transcripts questions whether trial courts are capable of actually getting at factual truth i.e. Frank Llewellyn o Law should be forward looking

o o o o

It should attempt to meet the needs of society Common law is backwards looking Because of its backwards-looking nature, Llewellyn distrusted legal rules What is going on when a judge makes a decision? There are a lot of factors at play that might be hidden, even from the judge himself The judge themselves think that it is a science However in a way they make a decision, then look for justification later

Frank o Went further in criticism than the rule skeptics like Llewellyn o Questioned whether our adversarial system is the best way of uncovering facts Witnesses are unreliable Trial judges have prejudices Juries may make decisions which are not legal or factual, rather emotional o Law and facts should not be treated separately; they are intertwined

Statutory Interpretation Statutory interpretation is another aspect of Rule of Law Ruth Sullivans approach puts a nuanced approach to statutory interpretation o Common law and statutes give room for interpretation, but the rules are not completely wide open o There are certain constraints which bind judges in what they can do Originalism: o You interpret the words in the context of the time period in which they were written Some originalists look to the original intent Some originalists look to the original meaning of the words o Some argue that if you dont use the originalist strategy (by looking at the intent of parliament), then the courts would be intruding on the authority of parliament to enact what they want o This approach makes interpretation more predictable o i.e. Narcotic Control Act- provision making cannabis illegal 1950 Cannabis is defined as cannabis sativa L in 1980, someone was picked up for possession of marijuana and charged under this provision between 1950 and 1980 it was discovered that there were other types of cannabis other than sativa L the accuseds lawyer claimed that the element of the offence was not proven he did not have cannabis sativa L, he had a different kind

the court said that the statute should be interpreted historically in 1950, sativa L meant all cannabis therefore, the intent was to ban all cannabis o the originalist approach does not allow for change in historical context there needs to be room for evolution Legislative Objective o A subset of originalism o Not intention in the mind of the framers, but what mischief they were trying to prevent E.g. human rights act: no person shall discriminate against any individual or class of individuals with respect to enjoyment of accommodation, services and facilities that have public access In a mall there was a barbershop for men only (next door there was a ladies salon) A woman walks in to the barbershop and is refused She goes to the human rights tribunal and alleges breach of the human rights act In this case, the courts looked back to the time that the act was enacted o What mischief was parliament trying to remove from society? o The human rights act was meant to prevent affronts to human dignity or morally discreditable acts o Reasonable women would not feel that their dignity was wounded for being refused a haircut o The problem with this method is that it assumes that legislation only has one purpose Sometimes legislation is meant to deal with many types of mischief i.e. what is the purpose of the income tax act? o To redistribute wealth o To pay for services o Etc. Dynamic Interpretation o Statutory language is clay that can be moulded to fit different circumstances It can grow and adapt to different needs o Immigration act : aliens are excluded from entering country. Aliens includes persons afflicted with psychopathic personality, sexual deviation or mental defect. The purpose was meant to prevent homosexuals to enter the country The original definition was simply psychopathic personality

Courts later found that homosexuality are not sexual deviants and homosexuality was no longer read into the immigration act Even though the original purpose of the act was to keep out homosexuals, dynamic interpretation allowed for change in cultural understandings o Meaning is borne out of interpretation, it does not exist in words themselves o The dynamic approach is sometimes criticized for being too unpredictable o The courts are sometimes accused of usurping some of the legislatures duty o How do you know when social conditions have changed enough to warrant a change in the interpretation? Maxisms of Statutory Interpretation o Noscitur a Sociis know a ting by its association o Ejusdem Generis of the same class Try and take the items in the list and look at what they have in common What is the parliament trying to protect or prohibit? lions, tigers, bears and other animals must be housed in paddocks enclosing no less than 1 hectare per animal what other kinds of animals would be included? Expression Unius et Exlusio Alterius the expression of one thing is exclusion of another o pigs, chickens, cows and horses must be inspected by the agricultural bureau are sheep included? This does not have a catchall provision like the previous example with other animals Subtext and Analogy o first year students may pick up midterm grades at the Stutdent Affairs office on Friday, November 4, 2005. If it is posted in our school, it implies that it refers to first year law students, and midterm marks for exams taken at this school on this year What if it had been posted on the street? What would the meaning be there? o All department stores must be closed at 10 pm on each and every day of the week. Can you reopen at 10:01pm? When can you open again? o wages below minimum can be paid to person employed on farm whose employment relates to production of eggs, milk, grain, seeds, fruit, vegetables, maple, honey, tobacco, pigs, cattle, sheep and poultry. Mushrooms?

The actual case determined that mushrooms should be part of this provision.

Constitutional Interpretation interpreting the constitution is different than interpreting statutes constitutional interpretation is the only time that courts expressly state that they are taking a dynamic approach to interpretation

Edwards - 5 women challenged the BNA Acts provision that women could not be members of the senate - in 1928 the Supreme Court of Canada came up with an originalist interpretation of the word persons as meaning men - the Privy Council took a more dynamic interpretation and held that women were persons under the BNA Act in the debates leading up to the charter, the question was whether fundamental justice referred only to procedural justice or to the underlying purpose of the legislation o the SC interpreted fundamental justice in a dynamic way; it would not just mean procedural fairness o the originalist meaning of fundamental justice would imply just procedural fairness

Delegated Legislation - examples of regulations, orders, bylaws, etc., enacted by executive order o the right to make delegated legislation is given to the executive by the legislature through enabling provisions in statutes - Constitution: o Judiciary Makes common law o Legislature Bills/acts o Executive Regulations/bylaws (delegated legislation) International Law - more and more things are becoming controlled internationally - in Canada, treaties must be signed by the executive, but treaties are not operational in Canada unless legislation is passed

o the treaty may require either federal or provincial legislation in order to make it operational, depending on which jurisdiction the subject matter falls to F.L. Morton, The Rule of Law in the Canadian Constitution - the Magna Carta marked the beginning of the rule of law tradition - the Glorious Revolution of 1688 deposed the Stuart kings and established the supremacy of Parliament over the Crown o this initiated the establishment of representative government - John Lockes Second Treatise on Government is the most influential defence of government by consent (i.e. liberal democracy) o The principle of per legem terrae according to the laws of the land The Crown and legislature must both rule by declared and received laws interpreted by known authorized judges o A second restriction is the law of nature Not only must laws be duly enacted and fairly administered, but the laws themselves must not violate natural rights No person is inherently superior as to rule others without their consent - Historically there have been two approaches to institutionally expressing the principles of equality and liberty o The British Parliamentary (Westminster) model The Westminster model is based on an unwritten constitution A combination of historically important statutes, common law, and unwritten conventions o The American separation of powers model The American model is organized around their written constitution The American constitution includes an enumeration of the fundamental rights and liberties of the people against government (the Bill of Rights) - In the American model, the courts play a more influential political role o Ever since the 1803 case of Marbury v. Madison, American courts have assumed the function of interpreting and enforcing constitutional law o This judicial review of legislative and executive actions is intended to ensure that they conform to the procedures and limitations laid down in the constitution - In the 1950s and 60s the courts played a role in promoting minority rights when the majority governments refused to take any action in this regard - However, the expansion of judicial activism raises questions about the undemocratic character of judicial decision making o It violates the concept of consent of the governed - The British system of parliamentary supremacy (combined with rule of law) avoids this problem

o There are no written constitutional prohibitions for the courts to enforce against parliament o The courts do not interpret or enforce constitutional conventions o However, there are no adequate mechanisms to protect individuals or minorities from democratic majorities that violate their rights Until recently, Canada followed the British approach of parliamentary supremacy combined with rule of law In 1960 the Diefenbaker government enacted the Bill of Rights In 1982 Canada constitutionally entrenched the Charter of Rights and Freedoms placing explicit limitations on law-making power on both levels of government o This ended the concept of parliamentary supremacy in Canada The constitution is now supreme

William Kaplan, State and Salvation: The Jehovahs Witnesses and Their Fight for Civil Rights - after WWII many towns and municipalities in Quebec passed by-laws making it an offence to distribute literature without a license o these by-laws were intended to keep Jehovahs Witnesses off city streets o more than 800 charges were laid against Jehovahs Witnesses in 1946 - Duplessis believed that Witness activity in the province was a deliberate assault on Quebec values - The Witnesses responded by printing a pamphlet called Quebecs Burning Hate for God and Christ and Freedom is the Shame of All Canada o It reported the persecution of Jehovahs Witnesses in Quebec They had been beaten, arrested and sentenced to jail Civil authorities refused to provide police protection By-laws were passed which were directed against the sect, making distribution of their literature without a permit an offence o the pamphlet accused the Catholic Church of being behind the persecution o courts in Montreal and Verdun found that the by-laws were unconstitutional for their interference with free worship, but charges continued to be laid courts still tended to convict those charged, even though other courts had found the by-laws unconstitutional - Duplessis described the pamphlet as seditious and intolerable - A second leaflet was distributed again outlining persecution of the Jehovahs Witnesses - Between 1946 and 1953 Dyokessus instigated 1665 separate prosecutions against individual Jehovahs Witnesses o Charges ranged from disturbances of the peace to trials for sedition - The case of Boucher in which the accused was charged with sedition went to the Supreme Court o This appeal raised important questions about the scope of freedom of religion and freedom of speech

Roncarelli v. Duplessis - Frank Roncarelli brought an action for damages against Premier and AttorneyGeneral of Quebec Maurice Duplessis, for a wrongful revocation of a license to sell liquor - Roncarelli had been the proprietor of a busy Montreal restaurant - While his application to renew his liquor license was before the Liquor Commission, the existing license was cancelled and his application for renewal rejected, with an added declaration that no future license would ever be issued to him - Roncarelli was a Jehovahs witness - When provincial authorities began arresting Jehovahs witnesses for violating bylaws forbidding them to distribute their literature, Roncarelli often posted bail for those arrested o He was never involved in the distribution of Jehovahs Witness literature - Duplessis (the Premier and Attorney-General of Quebec) contacted the head of the Liquor Commission and told him to revoke Roncarellis liquor license o They not only revoked his license, but ordered that he would never be able to acquire a license again in the future - Liquor legislation stated that the Liquor Commission had power to grant licenses and cancel them at its discretion o The question of the appeal is whether the power of the Executive (i.e. the Premier) over its appointees destroys the business of a citizen, is there legal action that can be brought against him? - In a public regulation such as Quebecs Liquor legislation, there is no such thing as absolute discretion o Discretion necessarily implies good faith in discharging public duty o There is always a perspective within which a statute is intended to operate o A departure from that standard is just as objectionable as fraud or corruption - To deny or revoke a permit because a citizen exercises an unchallengeable right is totally irrelevant to the sale of liquor in a restaurant o It is beyond the scope of discretion conferred to the Liquor Commission conferred by the legislation Not only was the license revoked, the appellant was disqualified from ever receiving a license in the future - The act of the respondent (via the Commission) was a gross abuse of legal power expressly intended to punish the appellant for an act entirely irrelevant to the statute - Duplessis had no statutory power to interfere in the administration or direction of the Quebec Liquor Commission, even though as Attorney-General the Commission could consult him for legal opinions or advice o The Commission is not a department of government o It is an independent body with corporate status Polewsky v. Home Hardware Stores Ltd.

the plaintiff commenced a number of actions in Small Claims Court and brought motions for orders waiving payment of the fees required to have the actions set down for trial on the ground that he was unable to pay them his argument was that the fees deprived him access to the courts and that this was contrary to s. 15(1) of the Charter o poverty is an analogous ground of discrimination to those listed in s. 15(1) the court found that a Small Claims Court judge has no discretion to waive fees in the absence of an express statutory power and that s.25 of the Courts of Justice Act did not confer such power o all a judge is empowered to do is to hear in a summary all questions of law and fact the trial court found that there is no constitutional right of unimpeded access to the civil courts and that the fees did not violate s. 15(1) since poverty is not a prohibited ground of discrimination there is a common law right allowing the indigent to access the courts :in forma pauperis o this right is based on the constitutional principle of access to court o its effect is that the indigent should not be denied access to Small Claims Court when their cases are meritorious and they prove their inability to pay the prescribed fees [how can someone prove that their case is meritorious without going through a trial? Catch 22] the lack of a provision for the waiver or reduction of fees is a breach of the rule of law because it violates a persons right to access the courts the fees do not offend the Charter o however, this shows a weakness in the Charter since it prevents the poor from accessing the courts the Rule of Law doctrine says that people should be allowed access to the courts o the guarantees of rights and freedoms are meaningless unless a person can enforce them in a court

Administrative decision-making Ron Ellis, The Administrative Justice System in the New Millenium What is the Administrative Justice System? - the justice system should now be understood as comprising two distinct components the judicial justice system and the administrative justice system - administrative law agencies are about everyday justice o justice dealing with the day-to-day personal and economic lives of citizens - agency decision-making is an authorized means of making binding determinations of legal rights and obligations David Mullan, Administrative Law - administrative law constitutes the body of law that establishes or describes the legal parameters of powers that exist by virtue of statute or residual Royal prerogative

administrative law embodies the principles by which the courts supervise the functioning of persons and bodies that derive their powers either from statute or the Royal prerogative frequently statutes will confer powers on individual members of Cabinet or ministers of the Crown, specifically or implicitly through the creation of departments of state there is a presumption that ministers are entitled to act through their responsible officers so that in most instances the real decision makers are civil servants performing their functions within a departments organizational plan statutes often confer authority directly on a particular category of civil servant, such as immigration officers under the Immigration Act

David P. Jones and Anne S. deVillars, Principles of Administrative Law - most of administrative law deals with the right of the superior courts to review the legality of actions allegedly taken by delegates pursuant to statutory authority - a great deal of attention should be focused on the precise limits of the statutory power being exercised The Narrow and Wide Meanings of Jurisdiction - the broad sense means the power to do every aspect of an intra vires action - the narrow sense means the power to commence work or embark on a particular type of activity - virtually all grounds for judicial review of administrative action depend on an attack on some aspect of the delegates jurisdiction to do the particular activity in question - privative clauses purport to insulate the delegates action from judicial review o however these do not protect decisions taken outside of the delegates jurisdiction o such decisions are ultra vires and therefore void Problems in Determining the Ambit of Jurisdiction - the purpose is to determine the intention of the legislature in creating the particular power in its entire context - in most cases the particular objection to the delegates behaviour is not dealt with specifically by the authorizing statute o i.e. questions as to specific aspects of the procedure to be adopted by the delegate in reaching his decision or prior to taking action - the concept of discretion sometimes compounds the difficulty in determining the precise ambit of the delegates jurisdiction o the discretionary nature of the delegates power may have the effect of widening its jurisdiction and thereby reducing the ambit for judicial review on the basis of jurisdictional error Common Law Jerome Frank, Law and the Modern Mind

the process of judging begins with a conclusion more or less vaguely formed o a man ordinarily starts with a conclusion and afterwards tries to find premises which will substantiate it o if he cannot find proper arguments to link up his conclusions with premises, he will reject the conclusion and find another traditional descriptions of the judicial judging process does not admit such backward-working explanations o it is assumed that the judge looks at the evidence and comes to a conclusion, not the other way around if the law consists of the decisions of judges, and if those decisions are based on hunches, than the way in which the judge gets his hunches is the key to the judicial process o a judges hunches make the law a judges sympathies and antipathies are likely to be active with respect to the persons of the witnesses, the attorneys and the parties to the suit the peculiar traits, disposition, biases and habits of the particular judge will often determine what he decides to be the law the factors that likely impact judges decisions are: o education (both general and legal) o family and personal associations o wealth and social position o legal and political experience o political affiliations and opinions o intellectual and temperamental traits

Karl Llewellyn, The Bramble Bush - precedent consists of an official doing over again under similar circumstances substantially what has been done by him or his predecessor before - both inertia and convenience speak for building further on what has already been built - when something is repeated, it eventually becomes seen as the right thing to do o it becomes seen as ethically or morally right - however, society changes and the law must change to fit society David Kairys, The Politics of Law: A Progressive Critique - the doctrine of stare decisis embodies the notion of judicial subservience to prior decisions or precedents - however, in actual practice precedent is not always uniformly followed o if a court does not want to follow a precedent they find some difference that will allow them to distinguish the precedent from the current case - the meaning of the precedents in a new case may be unclear - the Supreme Court is never bound by precedent - legal norms are broadly and vaguely stated o a wide variety of interpretations, distinctions and justifications are available - stare decisis does not lead to any particular results in a specific case

judicidal decisions ultimately depend on judgments based on values and priorities that vary with particular judges and are the result of a composite of social, political, institutional, experiential and persona factors

Statutory Interpretation John Willis, Statute Interpretation in a Nutshell Judicial Technique of Interpretation - the court always asks three questions o what is the meaning of the words when read alone? Ordinary meaning o What is the meaning of the words when red together with the rest of the words in the Act? context o What is the meaning of the se words when read against the background of that part of human conduct with which the act deals? Subject matter - The problem which a court may be trying to solve is a gap left by the legislature o It may be to ascertain the precise significance of provisions which appear to be badly worded or even inconsistent when applied to the facts of the instant case o It may be to determine what limitations, if any, should be put on the general words - When interpreting the words via their literal meanings, dictionaries are used o The first recourse is to statutory dictionaries, the interpretation section of the Act it is construing, and the Interpretation Act o Then the courts go to standard English dictionaries It looks up common speech meaning (unless it is a legal or business term which requires interpretation - When interpreting the words in context (the meaning of the words when read together with the rest of the words of the Act), courts perceive that words take colour from their surroundings - When interpreting words in terms of subject matter, courts ask what the meaning is against the background of that part of human conduct with which the Act is dealing o In the case of words with double meanings, or words bearing complex connotations, the background is naturally of decisive importance o The background colours and controls the words whose meaning is ordinarily single and precise - If after using these three methods of interpretation the court is still undecided as to the meaning of the statute, it will conclude its opinion in either one of two ways o It will consider the object of the Act under the mischief rule o It will apply to the ambiguous expression one of the presumptions or canons of fictitious legislative intent

The Judicial Approach to All Statutes - the law recognizes three main approaches to all statutes o the literal rule o the golden rule o the mischief rule - the literal rule directs that the precise words used are plain and unambiguous o we are bound to construe them in their ordinary sense, even though it leads to an absurdity or a manifest injustice o the argument for the use of this rule is that it provides consistent and certain results o however, this is questionable since even simple words can have ambiguous meanings - the golden rule directs that the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument o this is in most respects identical to the literal rule o it rejects all consideration of the social policy behind the Act - the mischief rule directs that for the sure and true interpretation of statutes in general, four things are to be discerned and considered o what was the common law before the making of the Act? o What was the mischief and defect for which the common law did not provide? o What remedy the parliament had resolved and appointed to cure the disease of the Commonwealth o The true reason for the remedy - Under the mischief rule the job of judges is to construe the statute in such a way so as to suppress the mischief and advance the remedy according to the true intent of the maker of the Act James L. Weis, Jurisprudence by Websters: The Role of the Dictionary in Legal Thought - the problem with using common English dictionaries when attempting to interpret statutes is that it does not take into account the legislative intent o the common everyday meaning might not be what the legislature intended - courts are tempted to used dictionaries to resolve ambiguities because it leads to an easy answer to difficult questions - judges should admit that dictionaries provide possible meanings, not certain resolutions - dictionaries do not give definitive meanings, it provides possible meanings from which the reader must choose o if the reader is not able to make an informed decision based solely on the dictionary, then the reader must investigate further before making a choice - dictionaries often do not provide definitions, but synonyms which refer to different senses of a word

Ruth Sullivan, Statutory Interpretation in a New Nutshell - contemporary jurists have a broader understanding (than Willis did in Statutory Interpretation in a Nutshell of law and the means by which legal disputes are resolved o they think of law as not only rules (which are binding) but principles (which are not binding) there are also values, assumptions and practices that contribute to the evolving legal tradition o contemporary jurists think of statutory interpretation as being a principle governed rather than a rule governed activity - the modern principle of statutory interpretation is o the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament o in every case, interpreters must explore all aspects of interpretation - the analyses that must be carried out are o textual analysis o purposive analysis o scheme analysis o policy analysis o consequential analysis - in textual analysis the interpreter focuses on the language of the legislative text and the conventions of legislative drafting o the task is to show how a particular meaning emerges from reading the words to be interpreted in their immediate context and the more extended literary context of the Act and any other related legislation o the most fundamental rule of legislative drafting is ordinary language use ordinary meaning rule: the meaning that spontaneously comes to the mind of a competent reader technical meaning rule: when legislation deals with a special subject that people governed by the legislation would understand in a special way, the specialized understanding is preferred over ordinary usage plausible meaning rule: if the ordinary meaning is rejected to give effect to the actual or presumed intent of the legislature, the meaning adopted must be one the words are capable of bearing o conventions relied on in analyzing legislative texts: straightforward expression: the legislature chooses the clearest, simplest and most direct way of stating meaning uniform expression: the legislature uses the same words and techniques to express the same meaning and different words and techniques to express different meaning no tautology: there are no superfluous words in legislation; every feature of the text has an identifiable role in the legislative scheme

internal coherence: all the provisions of a legislative text fit together logically and work together to achieve the purposes of the legislature o standard interpretation rules: implied exclusion (expression unius est exclusion alterius): if something is not mentioned in circumstances where one would expected to be mentioned, it is excluded by implication associated words (noscitur a socilis): the meaning of a word is affected by the other words to which it is linked in a sentence limited class (ejusdem generic): when general language follows a series of more specific term, the class of things referred to by the general language may be read to refer to a narrower class of things to which the specific terms all belong in purposive analysis the interpreter identifies the objects that the legislature wanted to achieve in enacting its legislation o the mischief it wished to cure in scheme analysis, the interpreter explores how the legislation is intended to operate so as to bring about the desired goals textual, purposive and scheme analyses are often assisted by extrinsic aids o legislative sources conventions, treaties or model legislation o legislative history statements formally brought to the attention of the legislature during the legislative process o legislative evolution successive amendments and reenactments a provision has undergone o expert opinion precedent, administrative opinion and scholarly legal publications, as well as expert testimony in policy analysis, the interpreter considers the values, principles and concerns the legislature presumed to respect when it enacts legislation (i.e. strict construction of penal legislation, etc.) in consequential analysis, the interpreter predicts and evaluates the consequences of adopting a particular interpretation o consequences that are good are presumed to have been intended o consequences which are absurd or unacceptable are presumed to not have been intended types of arguments o corrigible mistake argument: the interpreter claims that the provision in question contains a drafting mistake which must be corrected o disputed meaning argument: the interpreter claims that, properly interpreted, the provision in question has a certain meaning

o non-application argument: the interpreter identifies a reason not to apply a provision to the facts, even though given its ordinary meaning it would apply o incorrigible gap argument: the interpreter claims that the legislation as drafted cannot apply to the facts, even though given its purpose it should apply the court has no jurisdiction to fill a gap in a legislative scheme or enlarge the scope of legislation o supplementation argument: the interpreter concedes that the legislation as drafted does not apply, but claims that the common law applies so as to supplement the under-inclusive legislation o exhaustive code argument: the interpreter concedes that there are two or more provisions which apply to the same facts, but claims that one of them was meant to apply exhaustively to the exclusion of the others o paramouncy argument: the interpreter claims that overlapping provisions are in conflict and one is paramount to the others David Mullan, Delegated Legislation in Administrative Law - delegated legislation in the form of regulations, municipal by-laws or rules/policies issued by tribunals is a major source of law and a major instrument of governance in Canada - it is quantitatively more pervasive than primary legislation - The King Henry VIII clause o Subordinate legislation that conflicts with or overrides the terms of primary legislation is authorized - Primary legislators devote their attention to the matters of principle, leaving subordinate legislation to put the flesh on Acts - Subordinate legislation provides a forum for the working out of and change to matters of detail - There is very little legislative scrutiny over delegated legislation o The Statutory Instruments Act does contain a weak form of examination - Judicial review of delegated legislation ensures that the statutory authority crating the subordinate legislation acts within the limits of the jurisdiction that has been conferred on them - Subordinate legislation is also bound by the Constitution (including the Charter) Re: Gray - two weeks before the federal election in December 1917, the government of PM Robert Borden passed an order-in-council pursuant to the Military Services Act, providing farmers and farm labourers with the right to seek an exemption from military service from a tribunal, thereby neutralizing their opposition to conscription and lessening the tension caused by the conscription crisis - the horrific casualty rates experienced by Canadian forces in early 1918 forced the government to renege on its policy of agricultural exemptions o the order-in-council provided that Cabinet may direct young unmarried men to report to duty and any exemption theretofore granted to any man

of any such named age or year of birth shall cease from and after noon upon the day which he is so to report, and no claim for exemption shall be entertained after the issue to him of such an order George Edwin Gray, a farmer who had been granted an agricultural exemption was ordered to report for duty He refused and was taken into military custody to be tried for disobedience He brought an application for habeas corpus (to be released from custody) on the grounds that the orders-in-council were invalid as they conflicted with the exemption granted to him pursuant to the Military Services Act One of the issues before the Supreme Court was whether Parliament could delegate to the Cabinet the power to pass legislation which conflicted with rights obtained pursuant to legislation The Supreme Court upheld the validity of the orders-in council and confirmed the legality of Grays detention

Ontario Public School Boards Assn. v. Ontario - this case was a challenge to omnibus legislation passed by the Ontario Government called the Fewer School Boards Act - the Act included provisions for the transition from 129 to 72 district school boards and gave the power to the Cabinet to pass regulations inconsistent with the terms of the Act itself (a King Henry VIII clause) - the power of a King Henry VIII clause is suspect because it confers on the government unprotected authority to arbitrarily override legislation - the constitutionality of such clauses was upheld in Re: Grey (1918) - KHVIII clauses are sometimes necessary if they are needed for some urgent immediate action to protect an explicitly defined public interest o In this case there may be a need for such a clause to protect French language schools throughout the province Constitutional Interpretation Reference re: Meaning of the Word Persons In Section 24 of the BNA Act, 1867 - the office of Senator was a new office first created by the BNA Act o no one apart from the enactments of the statute has an inherent common law right of holding that office, and the right of anyone to hold the office must be found within the statute - by common law of England, women were under a legal incapacity to hold public to the fact - women are not eligible for appointment by the Governor General to the Senate of Canada under s.24 of the BNA Act because they are not qualified persons within the meaning of the section Edwards v. A.G. Canada - s. 24 of the BNA Act provides that the Governor General will appoint qualified persons to the senate

the question in this appeal is whether the term qualified persons includes women the word persons is ambiguous in meaning and its original meaning obviously applies to both genders o however, when the legislators passed the bill, they probably intended that it only apply to men at the time, women were incapable of holding public office the term qualified is referred to in s.41 o the people listed as disqualified are those who are members of the House of Assembly or the Legislative Assembly o this section shows a distinction between persons and males males over age 21 may vote o if persons excluded females it would only have been necessary to say that every person over 21 could vote

International Law Irit Weiser, Undressing the Window: Treating International Human Rights Law Meaningfully in the Canadian Commonwealth System: - law (both domestic and international) is the result of a continuing dialogue among societys many participants o governments, professional organizations, advocacy groups, individuals, courts, etc. - law is not simply the imposition of authority by legislatures and police - both government and non-governmental forums declare the general norms of international law and interpretations of those norms in particular circumstances Treaty Ratification as an Executive Act - treaty making is an executive act derived from Royal Prerogative o parliamentary approval is not legally required - some other countries with Westminster-style governments have taken steps to involve parliaments in treaty-making - Quebecs National Assembly also requires approval of any important international commitment the Quebec Government intends to make within the constitutional jurisdiction of Quebec The Labour Conventions Case and Federalism - while the federal executive is alone empowered to enter into international treaties, it has no power to implement them in areas of provincial jurisdiction - in the Labour Conventions case, the federal government sought to implement by legislation various International Labour Organization conventions o however, the Privy Council determined that the federal government could not do this due to the separation of powers under the federal system Treaties Are Not Self-Executing - international treaty alone cannot form the basis of an action in domestic courts

o the treaty must first be incorporated or integrated into domestic statute the federal government does not always incorporate all treaties into legislation so as to ensure their implementation o sometimes human rights treaties concern matters of provincial jurisdiction and they cannot enact statutes in that regard o full or substantial incorporation of all treaties would likely create a large, overlapping and burdensome extra body of law with which individuals would have to comply o globally drafted treaties may not be consistent with Canadian drafting techniques in the human rights field, existing laws may already conform to the treaty obligations, therefore no new implementing legislation is necessary standard practice demands that government officials thoroughly assess the scope and content of a treatys provisions and identify the extent of the treatys concurrence with domestic laws and practice o ultimately federal officials submit this assessment to the Cabinet o the assessment remains an internal document, so non-governmental actors including courts face difficulties in trying to identify the international obligations underlying domestic law

The Role of the Charter - the Courts must always uphold the Charter o while the Charter often exceeds international obligations, this is not always the case s. 93 of the Constitution Act, 1867, grants the provinces exclusive jurisdiction over education laws for Ontario, this means that Roman Catholic schools receive public funding this was challenged under the Charter, but was deemed unassailable since it is a part of the 1867 constitution when the matter was brought before the United Nations Human Rights Committee, it was found to be unconstitutional The Impact of International Treaties on Domestic Courts - there has been a steady growth of the invocation of international law by judges, parties and interveners in legislation Legislation Passed In Furtherance Of or To Implement an International Treaty - when a law is found to go against international obligations, the courts try wherever possible to find an interpretation of the domestic law consistent with the international obligation Legislation That Implicates Unincorporated Treaties - there is a potential for international norms to inform domestic law - this informing is variable, either benign or meaningful Judicial Independence

Patrick Monahan, Judicial Power and the Canadian Constitution - there is no mention of the Supreme Court of Canada in the Constitution Act, 1867 - at the time of Confederation, the system of courts that had existed in each of the former colonies was continued by virtue of s.129 of the Constitution Act, 1867 - appeals from these courts could be taken to the Judicial Committee of the Privy Council in England - the creation of the Supreme Court was contemplated by s.101 of the C.A. 1867 which granted Parliament legislative authority to provide for the creation of a General Court of Appeal for Canada o pursuant to this authority, Parliament enacted the Supreme Court Act in 1875, creating the supreme court o however the Privy Council remained the ultimate court of appeal - appeals to the Privy Council were abolished in 1949 by ordinary statute - the Supreme Court Act provides that members of the Court are to be appointed by the federal Governor in Council, or Cabinet - there are currently nine judges of the Court o the Supreme Court Act provides that three of them must be from Quebec there is no other legal requirement respecting regional composition, although the practice has generally been to appoint three judges from Ontario, two from the four western provinces and one from Atlantic Canada o in order to be eligible for appointment, individuals must be judges of a superior court of a province, or be lawyers who have been members of the bar of a province for at least ten years o there is no requirement of consultation with the provinces, or for approval by Parliament, before an appointment by Cabinet to the Court the Minister of Justice does receive non-binding advice from committees composed of judges, lawyers and laypeople how the advice is used, as well as the process leading to the ultimate appointment by the government remain confidential the secretive nature of the appointment progress has been a frequent target of criticism, and a number of proposals have called for greater provincial or public input into the process - until 1975 most of the appeals heard by the Supreme Court were there as of right, which meant that the Court had relatively little choice over what cases it heard o however, amendments to the Supreme Court Act abolished most appeals as of right and required the vast majority of litigants to obtain leave or permission from the court to have their appeal heard o the test generally applied by the Court is whether a case raises a question of public importance sufficient to warrant a decision it is relatively difficult to obtain leave to appeal from the Supreme Court the court generally grants leave in only 12 to 15% of the 500 applications it receives each year

constitutional tend to receive the most attention, but they only account for less than 1/5 of the Courts workload the largest category of cases before the Supreme Court involve non-constitutional criminal law matters the supreme Court also provides advisory opinions on questions referred to it by the federal governments o these references are not strictly binding in law, but have always been treated as binding by the governments the Supreme Court Act is not explicitly identified as part of the definition of the Constitution of Canada pursuant to s.52 of the Constitution Act, 1982 before Confederation, in each of the colonies there had been three levels of court, with the highest level being a superior court with jurisdiction throughout the province on any subject matter o the superior court consisted of a trial division and an appellate division o below the superior courts were county or restrict courts, with jurisdiction limited by subject matter and by territory o below the county or district courts were inferior courts staffed by magistrates with jurisdiction over minor criminal or civil matters o these courts were all continued by virtue of s.129 of the Constitution Act, 1867, and responsibility of their organization and maintenance were granted to the provinces under s. 92(14) of the Act o however, the ability to appoint judges to superior, district and county courts was granted to the governor general (effectively the federal Cabinet) pursuant to s.96 of the Act there was no requirement of consultation with or approval by the provinces this is significant since provincial courts have authority over interpretation and application of all provincial laws thus, the federal government is given the power to select the persons who have ultimate authority over the manner in which provincial laws are to be applied section 101 of the Constitution Act 1867 gave Parliament power to establish additional courts for the better Administration of the Laws of Canada o pursuant to this section Parliament established the Exchequer Court of Canada in 1875 o the jurisdiction covered suits against the Crown in right of Canada, as well as suits in relation to patents, copyright and admirality law o given the limited jurisdiction of the Exchequer Court, most litigation remained with provincial courts the Exchequer Court was abolished and replaced by the Federal Court of Canada in 1971 o the Federal Courts jurisdiction was larger than that of the Exchequer Court it included the right to review decisions or officials or tribunals exercising delegated power under federal statute

o the Federal Court also has concurrent jurisdiction along with provincial superior courts over proceedings against the Crown in right of Canada o it consists of a trial division and an appellate division o judges are required to reside in Ottawa, although the court holds regular hearings in a number of cities across the country o the Supreme Court has held that s.101 of the C.A. 1867 limits the ability of Parliament to confer jurisdiction on the Federal Court the Supreme Court has held that the reference to laws of Canada means that only matters governed by an applicable and existing federal law, whether under statute or regulation or common law can be heard by the court thus, an action for breach of contract was held to be beyond the jurisdiction of the Federal Court, despite the fact that the subject matter was within federal legislative jurisdiction due to the matter being governed by the contract law of the particular province the Court has held that laws of Canada does not include the Constitution Acts within the meaning of s.101 since they were not enacted by Parliament Independence of the Judiciary and the Rule of Law - it is sometimes said that the doctrine of separation of powers under which there is strict separation between executive, legislature and judiciary is not recognized in the Canadian Constitution o this is true in the sense that Canadian constitutional law does not separate executive from legislative functions, however Canadian law does recognize a separation of the judiciary o the judiciary has constitutional status as a separate and independent branch of government o its constitutional status and independence are protected by ss. 96 and 100 of the Constitution Act 1867, guaranteeing judicial tenure and salaries - an independent judiciary is necessary in any society committed to the rule of law - the rule of law requires that government must be conducted according to the law, including the constitution - because the government will often be a party to litigation, it has long been recognized that judges can only uphold the rule of law if they are independent of the government and other agencies of the state o only an independent judiciary can render decisions that might be unfavourable to a sitting government - the principle of judicial independence has two aspects: o judges must be autonomous and independent of the other branches of government, particularly the executive o judges must be immune from the normal legal consequences of their actions while performing their judicial functions

the separation of the judiciary from the other branches of government was secured in England in the Act of Settlement 1700 o this Act provided that judges would hold office during good behaviour o it also provided that judicial salaries would be ascertained and established this latter guarantee was subsequently interpreted to mean that judicial salaries could not be reduced once a judge assumed office, on the theory that the state should not be able to exert direct influence on the judiciary by threatening to reduce their salaries o the Act of Settlement also established that judges could be removed only on a motion passed by both the House of Commons and the House of Lords, rather than a simple order or decision of the government the guarantees of judicial tenure were incorporated into sections 96 to 100 of the Constitution Act, 1867 o section 99 provides that judges of superior courts of the provinces shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons o under the federal Judges Act, complaints brought against judges are referred to the Canadian Judicial Council, which is composed of the chief justice of Canada and the chief justices of all the superior courts the judicial council must investigate and report on the complaint before any action can be taken to remove a judge no superior court judge has ever been removed pursuant to section 99, when it appeared that resolutions seeking their dismissal were likely to be passed o section 100 protects judicial salaries of judges in superior, district and county courts this section requires that judicial salaries be set by federal statute, as opposed to mere regulation or other legal instrument judges of provincial superior, district and county courts are also insulated from the provincial governments, since the provinces have no role in the payment of their salaries the use of the phrase fixed and provided has been interpreted as incorporating the British rule to the effect that the salaries of sitting judges cannot be lowered once they have been appointed to office the immunity of judges from legal liability for actions taken while performing their duty is part of the common law o a judge is immunity in tort for any act done within their jurisdiction o the Crown was also immune at common law from suits that arise from anything a judge has done in the course of their duties in the reference Re: Remuneration of Judges, the Supreme Court held that the unwritten principle of judicial independence had been incorporated into the Constitution of Canada through the preamble to the Constitution Act, 1867 administrative independence is also an aspect of judicial independence

some form of institutional independence may be required in the case of justices of the peace or members of quasi-judicial administrative tribunals with authority to make binding decisions affecting the rights of individuals

Judicial Review Constitutionally Guaranteed - judicial review is the process whereby the courts determine whether the exercise of public bodies of powers conferred on them by statute or common law is in accordance with law o where public bodies exceed the powers conferred to them, the decisions are said to be invalid or ultra vires and will be quashed by the courts - two kinds of arguments can be raised by a person seeking to argue that a public body has exceeded its powers o constitutional judicial review the statute that purported to authorize the public bodys actions is inconsistent with the Constitution of Canada since such a statute is invalid, the public body had no legal authority to act in the manner it did o non-constitutional (or administrative) judicial review even assuming the relevant statute was validly enacted, the public body exceeded the powers conferred by the statute - the guarantee of access to the courts for purposes of testing the constitutional validity of statutes or the actions of public bodies was reinforced by the Constitution Act, 1982 o the preamble to the Act refers to the constitutional status of rule of law o the maintenance of rule of law would be impossible of unconstitutional actions by legislatures or governments could not be challenged in the courts o judicial review is also guaranteed in s.52 of the Constitution Act - judicial review is also guaranteed in cases where it is alleged that a person exercising delegated power under a statute has exceeded the limits of that power o it has become increasingly common for legislatures to attempt to limit the ability of courts to review decisions of tribunals or other persons exercising power sunder statute through what are known as privative clauses in Crevier v. Quebec (A.G.) the Supreme Court held that such clauses could not prevent superior courts from reviewing a provincially appointed tribunals decision so as to ensure that the tribunal stayed within the limits of its jurisdiction as defined by statute to allow a provincially appointed tribunal to determine the limits of its own jurisdiction would turn the tribunal into a section 96 court Katrina Wyman, The Independence of Administrative Tribunals

the thesis of Katrina Wymans article is that the constitutionally protected judicial independence developed by the Supreme Court should not be extended to administrative tribunals over the past decade the Supreme Court has constitutionally entrenched a more pronounced separation between the judiciary one hand and the executive and legislature on the other

Adjudicative Independence - the core principle of judicial independence is that no outsider should interfere or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decision. Security of Tenure - Superior Court judges enjoy the highest level of constitutional protection o Under s. 99 of the C.A. 1867, they hold office during good behaviour and are removable only by the Governor General upon an address of the Senate and the House of Commons - As a result of the Courts judgment in Valente, no provincial court judge exercising criminal jurisdiction may be removed for any reason other than cause related to the capacity to perform judicial functions o Moreover, removal is only permissible after a judicial inquiry at which the judge affected is given a full opportunity to be heard o However, unlike superior court judges the case need not go through the House of Commons for removal Financial Security - before the Provincial Judges Reference there were only two constitutional guarantees of financial security: o the right to a salary established by law, and a negative right against improper interference against judicial salaries o the executive and legislative branches had complete constitutional control over the level of remuneration and the process by which it was established - the Provincial Judges Reference requires that governments go through a compensation commission process before adjusting judicial remuneration, either upward or downward Administrative Independence - the independence that the judiciary enjoys in decision-making is supplemented by a freedom in matters of administration bearing directly on the exercise of the judicial function - in Valente, the court narrowly defined the matters falling under the principle: o assignment of judges, sittings of the court and court lists o related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out these functions

Administrative Tribunal Independence - concerned with securing the independence of individual tribunal members, not with making tribunals themselves separate from the executive and legislative branches (as Judicial Independence does) - the courts sometimes interfere in the decision-making processes of tribunals - there are a variety of statutory and informal mechanisms through which the executive and legislative branches may influence administrative decision-makers - court judges have security of tenure for life, but members of tribunals often only serve for a pre-determined set of time (sometimes on a part-time basis, sometimes at pleasure) o courts have recently stated that members of administrative tribunals should have security of tenure in the form of fixed-term appointments during good behaviour Bell Canada v. Canadian Telephone Employees Association - the Canadian Human Rights Tribunal - one of the complaints is that the commission can bind the tribunal - the chair of the tribunal has the ability to extend tribunal members tenure - the question that arises is whether tribunals have the same judicial independence that courts do - the SCC judges did not like Bells litigiousness in this case o their complaints were not about the merits of the case o they seek judicial intervention on technical matters (they went to the appeals court 3 times, then all the way to the SCC) - independence vs. impartiality o independence is a way of looking at the tribunal in an objective sense to see if the institution as a whole is independent of the executive o impartiality is an examination of how the courts act in relation to the parties before it not on an institutional level o these two concepts although - the functions of a tribunal o all administrative bodies can be mapped on a continuum from those which resemble an executive body (implement policy) to the other side of the continuum which are quasi-judicial o in this case, the Human Rights Tribunal is specifically set up to adjudicate disputes, very much like a court - the tribunal had a mandate to eliminate discrimination from the federal realm o this is the purpose of the enabling legislation o therefore the tribunals powers might be limited in order to further that goal o to further this goal, the commission can give the tribunal guidelines this is different than a court; legislation cannot give judges guidelines - Bell had 4 main complaints

o The guidelines from the commission fettered the tribunal in administering the act The SCC dismissed this point The guidelines are meant to further the goal of the Act As long as the guidelines are general (not to a specific case) and published publicly, then they do not fetter the tribunal too much o The tribunal is more likely to favour the commissions judgments than those of the other party (i.e. themselves, Bell) The commission is a part of the process; they hire lawyers who appear in front of the tribunal The SCC decided that this was not drastically different from government lawyers who appear in front of courts advocating the position of the government regulatory capture if you hear someones voice advocating the same position over and over, you begin to think in terms of that persons position o the same body formulates the guidelines, also investigates the claims, and also prosecutes the claims o the overlapping functions allows the commission to manipulate the outcome of the hearing overall, the SCC said that the expectations of tribunals are not the same things we expect from the judiciary in terms of independence, etc.

Reforming the Judicial Appointment Process William Johnson, Ensuring Supreme Confidence in Judicial Appointments - Chief Justice Beverley McLachlin remarked that few principles of our justice system are more poorly understood than judicial independence, yet few principles are more important o Without judicial independence justice cannot be impartial o Judges might be swayed by positions taken by the governing party, or side unfairly with the prosecution - Without an independent judiciary we could not have the protection of rights or the rule of law - Without rights or the rule of law we cannot have democracy - Some people have called for a more public U.S. congressional-style hearings regarding judicial appointments o Tighter controls for judicial appointments are advocated by people who complain that activist judges are legislating from the bench - The Canadian Bar Association asserts that U.S. style public hearings would seriously threaten the independence of the Supreme Court o The virtual inquisition into candidates private affairs would discourage the best judges from applying to the Supreme Court

The McKelvey Committee in 1985 concluded that the appointment system in place then was not designed to select the best potential judges o The more evident weaknesses flowed from patronage appointments

Jacob S. Ziegel, Merit Selection and the Democratization of Appointments to the Supreme Court of Canada. - two alternative recommendations are presented to address the shortcomings of the existing system of appointments o the establishment of a nominating committee that would present the Prime Minister with a short list of candidates to fill vacancies as they arise o the introduction of a parliamentary confirmation procedure for candidates presented by the Prime Minister for appointment to the Supreme Court Rights - our system was built on the philosophy of liberal thought (liberal democracy) o conservativism is still a liberal ideal (liberal, not Liberal) - the features of all liberal societies: o a market economy o political democracy o the rule of law o preservation of liberty from the encroachment of others - classical liberalism was at its peak in the 19th century o the idea of rights comes from this classical liberal tradition - 6 elements of liberalism o liberty people are by nature free you are under no obligations unless you choose to enter an obligation state power must be justified o negative liberty an elaboration on the idea of liberty freedom is defined as the absence of constraint imposed by the state freedom from people imposing things on us the state is not under any obligation to give any positive assistance to people; it is there to prevent interference by others on us the main proponent of negative liberty was J.S. Mill encroachments on our liberty is only permissible to prevent harm to others o positive liberty sometimes the state may have more than just an interest in protecting harm; there may be times when the state should do things proactively to protect liberty freedom to do things

we are autonomous, but the state must help individuals in reaching their autonomy i.e. compulsory education o this violates the principle of negative liberty, but works with positive liberty because education increases peoples autonomy (therefore the state can legitimately interfere) o individualism the liberty of the individual is at the centre of freedom the feeling of an organic whole (as in tribal communities) is the opposite focus than individualism individual rights lay at the heart of our rights-based documents o equality equality has an individual context and also a group context when it first began as a theory (in the 18th century) it stated that we should all have equal liberty man is by nature born free what is equality? What are the different types of equality? Formal equality We all have equality of opportunity; the state should not put any obstacles to equal enjoyment Substantive equality Do not look at the face of the rule, look at the effect o Is the consequence of the rule unfair, even though on its face it seems fair? o Rights Humans have natural rights to life, liberty and property These are natural rights; they were not of human design In the 19th century, theory changed so that rights did not come from nature, but they are human constructs with come from law It is the state that grants us rights A reaction to fascism was that we came to believe that we cannot depend on the state to grant us (and control) our rights o There must be inalienable human rights Rights are not absolute, they inevitably conflict with each other o One right is going to have to triumph with the other

Aboriginal and Treaty Rights Aboriginal Rights - under international law, you can only gain sovereignty over a land by conquering or having the land ceded to you by the natives o neither of these really occurred when the Europeans came to Canada

important dates o 1763 Royal Proclamation o 1973 Calder v. BC (AG) o 1984 Guerin v. R. found that the Crown has a fiduciary duty towards natives this creates a duty to act honourably towards the Aboriginals statistical indicators o the life expectancy of first-nations people is 30% lower o suicide rate is higher o higher infant mortality rate o incarceration rates are 6 times the national average for aboriginal peoples in some places they represent 40% of the prison population even though their representation in the general population are much lower o lower educational achievement o 90% of Aboriginal people are at or below the poverty line

Patrick Monahan, Aboriginal Peoples and the Canadian Constitution Rights Existing at Common Law - although recognizing the ultimate sovereignty of the Crown, British law did not negate or deny the legal rights of Aboriginal peoples to continue in occupation of their traditional lands and hunting grounds - the Royal Proclamation of George III established a form of civil government applicable to the British colonies expressly reserved to Aboriginal peoples such Parts of Our Dominions and Territories, as not having been ceded or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds - inn1888, the Privy Council in St. Catherines Milling case stated that Aboriginal peoples continued to have a possessory right, or a right of continued occupancy, in their traditional lands - in 1973, the Supreme Court in Calder v. B.C. expressed that Aboriginal title was a legal right derived from Aboriginal peoples historic occupation and possession of their tribal lands, rather as the result of the Royal Proclamation o as such, the Aboriginal interest arose through the operation of the common law and did not depend on treaty, executive order or legislative enactment - in Guerin v. R., Dickson J. stated that the aboriginal title is a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown o the Crown has a fiduciary obligation, such that the Crown is obliged to deal with surrendered land in the best interest of the Aboriginal people concerned o the fiduciary relationship demands the utmost loyalty on the part of the Crown to the Aboriginal interest Treaty Rights

whereas Aboriginal rights flow from the historic use and occupation of land by Aboriginal peoples, Treaty rights are those contained in official agreements between the Crown and Aboriginal peoples a treaty is characterized by the intention to create legal relations, the presence of mutually binding obligations and a certain measure of solemnity the Supreme Court has indicated that in deciding whether a particular document constitutes a treaty, it is necessary to take a large and liberal approach, based on whether the Aboriginal peoples would have believed that the document was intended to create legally binding relations with the Crown o treaties are to be liberally construed and any ambiguities in the terms of the document are to be construed in favour of the Aboriginal peoples concerned

Constitutional Status of Aboriginal Rights prior to 1982 - prior to 1982 the doctrine of parliamentary sovereignty applied to Aboriginal rights, which meant that such rights could be limited or extinguished through legislation enacted by the appropriate legislative body - section 91(24) gave the Parliament of Canada the authority to enact laws in relation to Indians and Lands reserved for Indians - provinces could also legislate in subject areas which affected Indians Constitutional Status of Aboriginal Rights since 1982 - the constitutional status and rights of Aboriginal peoples in Canada were fundamentally altered by the enactment of s.35 of the Constitution Act, 1982 o s. 35(1) provides: the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. o Section 35 is outside of the Charter of Rights and Freedoms, and therefore is not subject to section 1 limitations, or to the notwithstanding clause o Rights guaranteed by s.35 are binding on private parties and not just on legislatures and governments - The Sparrow Test: o In Sparrow, the Supreme Court developed a four part test for the application of s.35(1) of the Act A claimant must demonstrate that he/she was acting pursuant to a right protected by s.35 Per Van der Peet, this part of the test has two sections o identify precisely the nature of the claim being made o determine whether it is based on a practice, custom, or tradition integral to the distinctive culture of the Aboriginal people claiming the right (prior to the arrival of Europeans) It must be determined whether the right in question was an existing right, which in Sparrow was defined as a right that had not been extinguished by Parliament prior to 1982

It must be determined whether there has been an infringement on the prohibited Aboriginal right It must be determined whether the infringement was justified S. 25 of the Charter provides the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any Aboriginal, Treaty or other rights or freedoms that pertain to the Aboriginal Peoples of Canada

Equality Rights: Common Law, Statutes, Policy and the Constitution 3 Phases of Human Rights in Canada - Post War o Canada adopted a modified version of the UN Declaration of Human Rights The right to housing The right to vote etc The Rights were enacted under separate Acts Fairness in Accommodation Act Fairness in Employment Act o Human Rights Commissions Recognized that human rights violations are not just between the victim and abuser; they lower us all - 1970s 1990s o the expansion of defined categories sexual orientation, etc. o not necessarily intentional discrimination rules that are on their face neutral, and are discriminatory in their effect, would be found to violate human rights o acknowledgement and awareness acknowledgement that no rights are absolute Section 1 of the Charter Acknowledgement of the place of human rights in public policy - post 1995 o there are still some rights in the UN Declaration that we have not adopted the right to work the right to a standard of living Christie v. York Corporation - this case involved a black man who was refused service at a bar on the basis that the bar had a new policy of not serving negroes - the man sued for humiliation - according to Rinfret J.: o the general principle of Quebec law is that of complete freedom of commerce; any merchant is free to deal as he may choose with any individual member of the public

o the only restriction to this general principle would be the existence of a specific law, or if use of the principle was contrary to good morals or public order o the bars refusal to serve black people was not a violation of any law, and under the principle of freedom of commerce, a business way choose to not deal with whomever they wish Re Drummond Wren - the Workers Educational Association had purchased a lot, intending to build a house on it and then raffle it off for fund-raising purposes - the land was restricted by a covenant pronouncing that it was not to be sold to Jews or persons of objectionable nationality - the WEA applied to have the covenant declared invalid - one of the grounds argued that it was racially restrictive and void against public policy; another was that it violated the provisions of the Racial Discrimination Act - Mackay J.: o The covenant is void because it is offensive to public policy o This is reinforced by the official acceptance of international policies and declarations frowning on the type of discrimination which the covenant would seem to perpetuate Re: Noble and Wolf - in 1933 a property developer included a restrictive covenant in the deeds of individual cottage lots being laid out in the Beach OPines on the shores of lake Huron o each covenant required that the lots may not be sold, transferred, leased or rented in any manner to jewish or black people, and only white people could use the property - 15 years later, Mrs. Noble, a widow whose husband had owned one of the lots wanted to sell the property - the only offer came from Bernard Wolf, who was jewish, which Mrs. Noble accepted - the restrictive covenant was then discovered, and Noble and Wolf sought to have it declared invalid on the basis of Drummond Wren - Schroeder, J. held that the covenant is valid and enforceable, and dismissed the motion - The SCC overturned the decision, and declared all such covenants invalid The Charter of Rights and Freedoms Patrick Monahan, The Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, consists of sections 1 to 34. The Charter is included within the definition of the Constitution of Canada set out in s. 52 of the 1982 Act it is part of the supreme law of Canada;

Charter is separate from the guarantees of Aboriginal rights set out in s. 35 of the Constitution Act, 1982.

The Enactment of Charter (p. 388) 1948, the UN adopted the Universal Declaration of Human Rights and over the years human rights protection was incorporated in many international covenants and domestic constitutions of many countries 1960, Canadian Bill of Rights and human rights codes at the provincial and federal level o Could not be applied to matters in provincial jurisdiction o Could be amended by ordinary federal statute (was not constitutionally entrenched) o Was interpreted extremely narrowly by judiciary 1968, Pierre Trudeau attempted to obtain the support of provinces for enactment of the entrenched charter of rights that would be constitutionally binding on both levels of government o May 1971, drafting of Canadian Constitutional Charter (Victoria Charter) Guarantees for political and language rights, approved in principle by premiers of ten provinces; later eight approved but Quebec and Saskatchewan were unwilling to proceed o May 1980, Quebec referendum; Trudeau promised renewed federalism in return for a vote against sovereignty associations; When federalprovincial negotiations failed, Trudeau introduced a parliamentary resolution, which included proposal for a carter of rights o 1980-1982 fierce political debate over the proposed charter: On one side: governments and ministers the charter would transfer undue power from elected politicians to unelected and unaccountable judges (premier Allan Blakeney of Saskatchewan his social and democratic principles and belief that the state was a positive instrument in achieving social justice and equality. He was troubled by American experience with Bill of Rights, when US Supreme Court rolled back many socially progressive statutes. He was prepared to accept charter only with notwithstanding clause) the charter would undermine the doctrine of parliamentary sovereignty and the role of the Monarchy in Canada (Manitoba premier Sterling Lyon) the charter would undermine the autonomy of provinces (Albertas premier Peter Lougheed) As a result the draft charter offered limited protection of individual rights subject to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government

On the other side: interest groups and legal activist Campaign to remedy a seriously flawed document No concern about potential increase in judicial powers seen as a matter that can be dealt with through appropriate drafting of the charter itself; the primary focus on strengthening the rights guarantees so that the courts would give real meaning and substance to the charter

In general: o The charter is seen by many as an instrument of nation-building o As bridging the regional and provincial particularism o Common reference point for all Canadians; symbolic expression to the idea that Canadians enjoy a collective political identity o Trudeau claimed that the goal of the charter was to strengthen national unity by basing sovereignty of the Canadian people on a set of values common to all, and in particular on the notion of equality among all Canadians The experience with Charter shows: o The courts have adopted a much more robust interpretation of the Charter (the success rate is about 33%) o The courts have ensured that the Charter operates as a meaningful and substantive limitation on the authority of governments and legislatures o The courts avoided many of the potential pitfalls: Steered clear of debates about social and economic policy, deferring to legislatures assessment of the best balance between competing claims for scares resources Balanced and measured approach to the interpretation of the Charters guarantees of minority language and educational rights (to avoid criticism as to stifling provincial autonomy) o The courts were most active and vigilant in enforcing Charter rights in the areas of criminal law and procedure (sections 7 to 14 of the Charter) o The courts tended toward interpretation of the Charter that permits governments to substitute alternative policies or laws in cases where a particular statute is ruled invalid.

The Application of Charter (p. 392) S. 32 provides that it applies to the Parliament and government of Canada and legislatures and governments of the provinces Supreme Court held that the Charter does not apply to purely private activity (Dolphin Delivery) o Criticism as to exclusion of private parties from Charter scrutiny and arguments that courts should be seen as part of government; on this basis when a private party seeks the intervention of the court, even in the resolution of a purely private dispute, the issuance of a court order gives a

public or governmental quality to the relationship or transaction such that the Charter should apply o Counter-argument: Such activity vastly increases the power of judiciary, since courts would be required to create a set of judge-made rules to ensure that private dealings between individuals were consistent with requirements of the Charter. It will significantly constrain the jurisdiction of the legislature, since the judicial code of constitutional conduct would take precedence over the ordinary statute; the constitutional amendment will be required to amend these judge-made rules. In contrast, Aboriginal rights protected by s. 35 of the Constitution Act, 1982, are binding on private parties as well as governments Governmental control test: o Whether the government has exercised sufficient control over an entity such that the entity could be considered part of the apparatus of government o In other words, Government includes, in addition to entire executive branch, including ministers, civil servants, and regulatory agencies appointed by government, other bodies which are constituted through statute and exercise governmental power, as well as entities which might not be part of the government in a formal sense but which are subject to sufficient control by government to fall within apparatus of government (community colleges, which are subject to significant ministerial or governmental control Even when an entity is not part of the government in accordance with the test, certain of its activities may be undertaken on behalf of the government or in order to implement a specific governmental policy: o Eldridge hospitals delivering medical services in accordance with a provincial statutory scheme failed to provide sign language interpretation for deaf persons. La Forest J.: ..hospitals operated within the context of a comprehensive social program for the delivery of medically necessary services, with hospitals being the vehicles the legislature has chosen to deliver this program. The decision to provide sign language interpretation was not a matter of internal hospital management but an expression of government policy. Modification of control test: o The ability of government to control the delivery of the program as a whole, as opposed to whether the government actually controls the particular body or entity that has made the impugned decision, such that the decision is attributed to government itself. The Charter can apply to bodies created by statute in one of two ways:

o The underlying statute itself (that created the body) contains a provision that violates the Charter any such provision will be invalid, of no force and effect in accordance with s. 52 of the 1982 Act o Even though the statute itself may not offend the Charter, the decisions or actions of the statutory body may be subject to Charter scrutiny because the statutory body: is exercising a governmental power; is implementing a specific governmental policy Note (business corporations even though created under a statute, govern relations between private parties are not subject to Charter scrutiny) Guarantee of and Limitations on Rights: Section 1 (p. 395) S. 1 provides that the rights contained in it are guaranteed but also that these guaranteed rights are subject only to such reasonable limits prescribed by laws can be demonstrably justified in a free and democratic society Charter analysis will proceed in two stages: o It must be determined whether the impugned law or government action limits or violates a substantive right protected by the Charter; o It must be determined whether this limitation or violation can be justified under s. 1 Chief Justice Dicksons ultimate analysis test: o The courts should be guided by the underlying values and principles essential to a free and democratic society in determining whether limitations on rights were permissible under s. 1. These essential underlying principles included: Respect for the inherent dignity of the human person Commitment to social justice and equality Accommodation of a wide variety of beliefs Respect for cultural and group identity Faith in social and political institutions which enhance the participation of individuals and groups in society o Problems with this test: While powerful, these are extremely general and contested political concepts They provide relatively weak guidance for courts in close cases on the margins The promotion of values, such as democracy or social justice is generally thought to be a matter for the legislature the Court would have been criticized that it was functioning as a second-tier legislature Establishes an extremely high hurdle for governments to overcome if thy were to successfully uphold limitations on rights under s. 1. Chief Justice Dicksons four part test (in Oakes)(p.396):

o Assessment of the legislative objective underlying a law Only an objective that is pressing and substantial in a free and democratic society would qualify to justify limiting a constitutionally protected right Example: Big M case (observance of the Christian tradition is not a pressing and substantial objective cannot be justified under s. 1) o Form of proportionality test: o The measures adopted must be carefully designed to achieve the objective of the law: The law should logically further the objectives the legislator had in mind in enacting the measure o The law must impair rights as little as possible: Comparison of the impugned measure with other available alternatives, in order to assess whether the government could have achieved its objectives with a less significant impact on rights and freedoms (minimal impairment test are there alternative measures to accomplish an objective) Issues: taken literally is a very demanding requirement. In practice courts usually water down the strict requirement they see if there was a reasonable choice between competing priorities and if government picked the least restrictive one. o There must be a proportionality between the effects of the measure and the objective which has been identified as being of sufficient importance: A consideration of whether the benefits that are achieved form the law outweigh the impact on rights associated with it. The impugned measure will be upheld under s. 1 only if it satisfies all four stages of the framework The minimum impairment branch of the proportionality test is primarily concerned with the degree of fit between an objective and the means chosen to implement the objective; it calls into question only the means chosen to achieve a particular legislative objective, without the impugning the validity of the underlying objective itself the main test used by the Court The Court seems to be inconsistent in applying the four-tier test the reason being very difficult and value-laden assessments of complicated social and economic legislation A contextual approach to Charter interpretation a particular right or freedom may have a different value depending on the context and it is necessary to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspect of any values in competition with it. The Override (p. 399) Section 33 of the Charter permits either Parliament or the provincial legislature to declare that a statute shall operate notwithstanding s. 2 or 7 to 15 of the Charter Notwithstanding clause is valid for 5 years. After that can be re-enacted

S. 33 can not be utilized retroactively Advantages of the override: o Subjects fundamental questions to a wide public discussion o Serves as a check on judicial power to ensure that legislature can trump an exceptional judicial decision that imposes inappropriate costs on the community Criticism: o It is most likely to be used in an oppressive manner, to impose very serious burdens on unpopular minorities

Substantive Charter Rights (p. 400) six categories Fundamental Freedoms - S. 2 of the Charter o Freedom of conscience and religion Big M Drug Mart (struck down the federal Lords Day Act) the purposive approach to Charter rights interpretation the underlying purpose of the Charter right should be ascertained by reference to the larger objects of the Charter as a whole generous rather than legalistic (Dickson C.J.) o Freedom of expression and the press o Freedom of peaceful assembly o Freedom of association Democratic Rights ss. 3 to 5 o The right to vote in federal and provincial elections o Require elections every 5 years o Require that Parliament and provincial legislature sit at least once each year Mobility Rights s. 6 o The right to enter, remain in and leave Canada o Citizens and permanent residents can move to and take up residence in any province and pursue the gaining of a livelihood there (subject to limitations, laws of general application in a province) o S. 6 has had very limited impact on the extent to which provincial laws impose barriers to the interprovincial movement of people, goods or services Legal Rights ss. 7 to 14 o S. 7 right to life, liberty and security of the person and the right not to be deprived thereof.. o S.8 to 14 rights in the criminal law process o The most frequently litigated Charter provisions

Equality Rights ss. 15 to 28 o Carefully drafted so as to signal that narrow interpretation of equality that had been applied in relation to the Canadian Bill of Rights were not to be followed under the Charter o Equality is a comparative concept o It involves a consideration of legislative distinctions that impose burdens or disadvantages on various categories of groups of persons o The main question is whether the making of such distinctions can be justified o things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness (Aristotel) o Andrews v. Law Society of British Columbia McIntyre J. made it clear that: s. 15 required a consideration of the substantive fairness of legislation, as opposed to the purely formal question of whether a law was being applied equally in accordance with its terms only laws which imposed burdens or disadvantages based on grounds that were expressly enumerated in s. 15, or on grounds analogous to those enumerated, could give rise to a s. 15 claim the law must be discriminatory (did not explain what discrimination was) o Law v. Canada: Where legislation provides differential treatment for individuals or groups, that differential treatment must be justified by reference to relevant or appropriate differences between those individuals and others Criticism: Unduly complicated framework and involves application of highly abstract and indeterminate concept as human dignity o Simpler approach: Any law which imposes a burden based on an enumerated or analogous ground violates s. 15, thereby immediately requiring the government to justify the law under s. 1.

Language Rights s. 16 to 23 o French and English are official languages of Canada and of the province of New Brunswick, and both languages have equality of status in legislative and governmental institutions o Minority language educational rights Language rights guarantees have received very limited consideration by the court

Peter Hogg and Allison Bushell, The Charter Dialogue Between Courts and Legislatures The Legitimacy of Judicial Review (408) The view that the Charter is a bad thing : o Under the Charter, judges who are neither elected nor accountable for their actions, are vested with the power to strike down laws that have been made by duly elected representatives of the people o The constitution is coached in a very broad and vague language o Judges have a great deal of discretion in interpreting the law of the constitution, and the process of interpretation inevitably remakes the constitution into the likeness favoured by the judges o We are under the constitution, but constitution is what the judges say it is famous American aphorism The Concept of Dialogue Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue How Dialogue Works When the Court strikes down a law, it frequently offers a suggestion as to how the law could be modified to solve the constitutional problem The Charter can act as a catalyst for a two-way exchange between the judiciary and legislature on the topic of human rights and freedoms, but it rarely raises an absolute barrier to the wishes of the democratic institutions The Four Features that Facilitate Dialogue (411) S. 33, notwithstanding clause o Allows the competent legislature to re-enact the original law without interference from the courts S. 1, which allows reasonable limits on guaranteed Charter rights o The reviewing court will explain why the s. 1 standard is not met, which will involve explaining the less restrictive alternative law that would have satisfied the s. 1 standard The qualified rights in s. 7, 8, 9 and 12, which allow for action that satisfies standards of fairness and reasonableness o By their own terms they admit of the possibility of corrective legislative action after a judicial decision has struck down a law for breach of one of the rights The guarantee of equality rights, which can be satisfied through a variety of remedial measures

o o o

Where a law is declared to be unconstitutional for a violation of s. 15(1), the problem is that the law is underinclusive A judicial decision under s. 15(1) does force the legislature to accommodate the individual or group that has been excluded. There are different ways to do this: To extend the benefit To eliminate the benefit Legislature generally chooses to extend underinclusive laws (policy choice - if objective is important it will justify the added expense or admin. burden)

Three Situations Where Dialogue is Precluded (416) Where s. 1 does not apply o (e.g. Quebec School Boards case) Where the objective of the law is unconstitutional o R. v. Big M Drug Mart Ltd. struck down the federal Lords Day o Somerville v. Canada limitation of third-party election expenditures is unconstitutional Where a judicial decision holds that a law has objectionable objectives, the only possible way to overcome the decision is to use the notwithstanding clause Where political forces preclude legislative action o R. v. Morgentaler the restriction on abortion in the Crim. Code struck down as unduly depriving pregnant women of liberty and security of the person, c/s 7 of the Charter o The abortion issue is so explosive that it eludes democratic consensus

Conclusion The decisions of the Court almost always leave room for a legislative response, and they usually get a legislative response Judicial review is not a veto over the politics of the nation, but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole. F.L. Morton, Dialogue or Monologue? A Reply to Hogg and Thornton
The Charter is a very dangerous development The view that judges run on their own course, infusing the text with their own preferences Critics like Morton are defenders of the notwithstanding clause Should be much narrower interpretation (close to Bill of Rights). The relationship between courts and legislature is a monologue: Obeying orders in not a dialogue

o o o

Hogg and Bushel admitted in their article that dialogue theory has its limitations but in majority of cases they do follow the dialogue theory Morton argues that we do not have enough data to prove either way further research is necessary When the legislation does disagree with the Courts decision and enacts either the same or some variation of the statute declared unconstitutional by the court what is going to happen Is the Court going to listen to the legislation and is it going to change its previous ruling? Theres some evidence that courts do listen to legislature when they insist on certain things: in 1996 the parliament adopted the dissenting opinion according to the majority rule the access to the information about sexual assaults was too easy when this rule went to the Supreme Court in the Mills case Court upheld its ruling the Court has no monopoly in solving important issues the Court should listen to the legislation; some find this development troubling undermining of the courts right of judicial review in entrenched human rights issues; Self induced intoxication issue: if the accused is so intoxicated that no subjective mens rea could be established no liability; the issue is if the Court will upheld the decision or strike down the legislation that changed that ruling, that the self-induced intoxication is sufficient for charge in the offence. How far does the dialogue theory go?

The means/ends distinction sounds fine in theory but breaks down in practice o Politics is as much about means as about ends; o Means/ends discussion is a charade (Morgentaler case - abortion) the focus on means hides disagreement about ends

Inertia that accumulates around the new psq (policy status quo) o Theres very little the government wants to do to step in and change a new status quo that was created by the Courts decision o An abortion case is an example (as well as the marriage rights for the same-sex couples) about how difficult it is to displace the new psq created by the Court o This objection is one of the reasons courts are using suspended declarations they give legislature a chance to create a new psq it is very difficult to defend the suspended declarations this is one of the defences It took away a possibility for the government to do nothing to ignore the issue. [counter argument : it is not clear why this is not good]

Vriend v. Alberta
Vriend was dismissed from his position on the sexual orientation grounds. Sexual orientation was not listed as a prohibited ground (he could not initiate the complaint). He went to the court. Conflicting claims between the freedom of religion and protection of equality rights. The result now discrimination on a sexual orientation ground is acceptable for complaints. A challenge to the legislation (the Charter does not apply to governments actions, if the challenge is based on the division of powers, you have to resolve this issue first; the Charter cannot directly apply to the issues outside of its jurisdiction) The Charter can apply to the inaction (underinclusiveness of law)

The issue of remedies: (makes the Charter controversial) The remedies go beyond advice courts may re-write laws, declare laws invalid very controversial issue Monitoring executive complaints controversial issue The Court rejects the argument about usurping the legislative powers: Iacobucci J. The Charters new mandate was created by the elected representatives; the result of lengthy discussions, etc. new mandate as a result of the democratic process [Counter-argument a lot of processes happened behind the closed doors by executives a referendum would have helped] Charter is a new social contract; the court did not ask for this responsibility; it was given to the court by the elected representatives Courts are independent from the rest of the branches; the courts institutional position made the legislature assign courts with the mandate [Counter-argument: it is not that easy to separate the state power from judiciary thats why the issue of legitimacy of courts interpretation of the Charter exists Newfoundland case: same idea courts are referees empowered by elected representatives to deal with human rights issues and to separate human rights issues from the The dialog theory mutual accountability between courts and legislation Importance of the protection of minority rights in a majoritarian society. Remedy: To read in a prohibition of discrimination on sexual ground is the only available remedy and appropriate in the case (they try to be very cautious about this remedy they know they will be criticized for taking on the legislatures role) o They cannot declare the law invalid nobody will have protection of the Act nobody wants to destroy such an important legislation o Reading down is not available When we talk about not having an important statute at all or having one amended by the Court the latter is a better choice.

Andrew Petter, Twenty Years of Charter Justification: From Liberal Legalism to Dubious Dialogue
An analysis of the strategies courts used to justify their review We should be at ease about how we go about Charter interpretation Two errors in the way the Charter is interpreted: o Liberal legalism The courts are impartial arbiters That approach broke down (p. 441); judges were often issuing multiple judgments on the same issue interpretation Some of the key elements of the charter interpretation limits also broke down because they were out of the sync with the modern developments o Post realist dialogue theory Emerged in place liberal legalism The theory is normatively agnostic He would like to see the judicial review more confined and narrower Deficiency:

 Undermining judicial legitimacy Understate the impact of the judicial decision on the legislative process (p. 444)