NCA NOTES: REFINED VERSION

---------------------------------------------------------------------TOPIC 1: BASIC THEORIES OF LAW--------------------------------------------------------------------

[1] Legal Theory Craik: Chapter 2 pp 7-47

Background:
- Competing approaches/theories affect judicial decision making and legal outcomes, and political motives and nature / origin of the law.

[a] Positivism and Natural Law

Positivism:
o Law is nothing more than the rules and principles that actually govern or regulate society (laws are made by human beings vs created via nature);
o Insists on the separation of law and morality. Concerned with what is legally valid, not morally valid. Morality can be relative.
 Re Drummond Wren (A covenant for restriction to sell is void)
 The judge decides the case on morality and justice by extending his views beyond the statute and gives way to public policy. Void due
to offensive nature to public policy.
 Judge attempts to appeal to our moral conscience vs certainty of positive law.

Natural law theory:

o Laws adhere to certain moral truths, most often of a universal and immutable nature. Law arises from “nature” or by beliefs accepted by people; it
found some of its greatest proponents within the Catholic church.
 Re Noble and Wolf (Restrictive covenant held valid)
 Disagrees with Drummond Case. The judge said that leave the concept of public policy for the politicians.
 Judge said that he would rather stick to law, written statues, unwritten or common law. Judges cannot create the law based on what
they believe it ought to be.

[b] Feminist perspectives on law

 Feminist perspectives on law look at the extent to which women are disadvantaged by legal rules and institutions - subordinate the interests.

(i) Early formalist feminism – the “Persons” case

 Early feminism – concerned with seeking women’s formal equality to men.
 Prior to 1916, laws related to elections did not allow women to vote.
 In 1918, Parliament passed the Women’s Suffrage Act, SC 1918, c. 20, which gave every female British subject over age 21 the right to vote, as
long as she possessed the same qualifications required for men.

Edwards v. AG Canada [1930] LORD SANKEY LC:

 Question: whether the words “qualified persons” in that section include a woman, and consequently whether or women are eligible to be
summoned to and become members of the Senate of Canada.
 The BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits.
 If Parliament had intended to limit the word “persons” in s. 24 to male persons it would have by an express limitation as in ss. 41

[ii] Contemporary feminism

 20th century feminism mixes with sociological and criminology theories and evidence.

R v. Morgentaler [1988]
Facts
 Three doctors, charged with contrary to s. 251(1) [criminalizing the procurement of an abortion unless properly authorized by a physician].
 The majority of the court found the provision to offend the Charter.
 Justice Bertha Wilson, who agreed with the majority in the end result, rendered a separate opinion. Her decision is an example of a modern feminist
approach to a public law concern—note how her opinion takes a woman’s point of view, in finding that a woman should not be required to carry a
baby to term if she does not wish to. ”It is a complete denial of the woman’s constitutionally protected right under s. 7, not merely a
limitation on it.

[c] Critical Legal Studies

 CLS adherents reject that there is any kind of “natural legal order” discoverable by objective means. Descentant of legal realism:
a) that common law legal rules were neutral and objective, and
b) that the rules themselves could be determined with sufficient certainty.
 Realists maintained that all legal rules were indeterminate in the sense that any articulation of a rule was subject to multiple interpretations…. the result
would reflect the unstated public policy preferences of the judge.

R v RDS [1997] 3 SCR 484

 The police officer and the accused were the only witnesses and their accounts of the relevant events differed widely.
 Judge made statement saying that Police have been known to mislead the courts. Crown said this raised reasonable apprehension of bias. Crown
appealed to Appeal Court, new trial ordered b/c agreed reasonable apprehension bias.

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HELD (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be allowed.
 Another judge also restores the acquittal but with different reasons. He outlines that judges can never been fully impartial and objective, but they must
strive for this goal. A judges own stereotype can impact a judgment, but as long as it does not prevent a fair and just determination of the case via facts,
it is fine.
 Dissent pg 33: we shouldn’t look at discrimination, just facts and evidence.

[d] Law and Economics

 Less grounded in moral theory and more in ideas about efficiency.

 Welfare of each of the relevant parties can no longer be maximized except at the expense of other parties, a state of “Pareto optimality.”
 Central to all economic analysis is the assumption that human beings are rational actors. Rational maximizes of their welfare.

Public Law and Economic Theory

 In its pure form the economic theory of public law begins at the same place as the economic theory of private law: policy makers are assumed to act
in order to maximize political support. They are not attempting to maximize social welfare, but are motivated largely by self-interest

Bank of America Canada v Mutual Trust Co [2002] 2 SCR 601

Facts
 The difference between the two amounts was in the order of $5 million. Bank of America Canada appealed.
HELD: The appeal should be allowed and the trial judgment restored.
 An award of compound interest will prevent the respondent from profiting by its breach at the expense of the appellant.
 The award of the trial judge yields a satisfactory result with respect to both expectation damages and restitution damages.

[e] Similarities / Differences in Theories:

- Both positivism and natural law are concerned with concepts of law and justice, even if they diverge as to how the two relate to one another.
- In contrast, feminism and critical studies take issue with the liberal basis od law and its relationship to justice; attempt to establish alternative versions of
what justice might be.

Other Readings:

[1] Hill v Church of Scientology Discusses: 1) Positivism v Natural Law; 2) CLS; 3) Law and Economics
FACTS:
- Hill wanted to sue CoS for libel, wanted to file CL libel action for untrue statements
- Church argued principles of the common law ought to be interpreted, even in a purely private law action, in a manner consistent with the Charter.
Argued that this could be achieved by adopting the “actual malice” standard of liability adopted in the US.
ISSUE: Is the Charter applicable to private CL actions? And is the CL tort of defamation inconsistent with Charter s2b?

REASONING
 Private parties don't owe constitutional duties and can't found their case on Charter rights - Charter rights don't extend to non-state actions (most can
argue is that inconsistent with Charter values)
 Charter does not directly apply to the common law, unless it is the basis of some governmental action. Common law yet must be developed in line
with Charter values (Dolphin Delivery).
 “Party that is alleging CL inconsistent with Charter must prove that CL fails to comply with Charter and that when these values are balanced the CL
should be modified”
HELD:
 Even though could not make Charter claim, looked at CL action for defamation - Found that tort balanced freedom of expression & legislative
objectives underlying the law = no need to amend/alter legislation
RATIO:
 Should interpret CL with Charter values (even though can't bring action) - If CL inconsistent with Charter values and can't be justified should be
amended

ARTICLE: The Charter of Whiteness - David Tanovich, “The Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice

 The Charter to date has had very little impact on racial injustice in Canada at 656
 We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets flourishes at 657

The utility of using litigation to address racial injustice

 The absence of any racial profiling legislation, and the passing of Anti Terrorism Legislation  disproportionate impact on racialized communities.
 So, Charter litigation remains as important means of addressing fundamental injustice st 659-60
 REFORM: Legal and extra-legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigation fails. Anti-
racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racist actors.
 Successful litigation brings media attention, can raise awareness for these issues

The problem is not with the Charter but with those who argue and interpret it
 Narrow approaches and lack of judicial imagination cause problems - Courts have refused to adopt critical racial standards when brought forward eg. on
jury selection, bail -

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 R. v. Pan; R. v. Sawyer— Sawyer, who is White, was tried together with Galbraith, who is Black, on a charge of assault. Following the conviction, a juror
contacted Sawyer and told him that she had been under “undue pressure to come to a verdict and that certain racial comments were made by other members
of the jury”. The accused argued that the common law jury secrecy rule needed to be altered under section 7 of the Charter to ensure that verdicts were not
tainted by racism. The argument was rejected.

Peremptory challenges in jury selections:

 R v Lines (defence using challenge to exclude black juror in case where white police officer shooting a young black male)
 It remains unclear whether the Charter would prevent what occurred in those cases, although it has been argued that the rules of prof
conduct now ethically prevent a lawyer from using peremptory challenges in this fashion: at 669

Hostile adjudication
 Also, in a number of cases, trial judges have been or appeared hostile when asked to adjudicate a race issue.
E.g. in R v Brown, B was asked by the judge to apologize to the officer for raising racial profiling.
 The relevant instances of judicial reluctance and hostility certainly tend to confirm the theory that the composition of the judiciary and inherent
conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change

Litigator Problems:
 With respect to litigation, there has been a large-scale failure of trial lawyers to raise race once critical race standards have been established by the courts.
(eg. after R v Brown, small # of profiling cases heard) –
 Some litigators aren't seeing the issues, and some are uncomfortable raising in court - SCC has yet to deal with racial profiling, appellate lawyers not
bringing it up

Conclusion
 This refusal of judges to act and lack of race consciousness by lawyers = a direct impact on the ability of the Charter to remedy racial injustice
 The two bright spots have been race-based challenges for cause, and the recognition of the existence of racial profiling by our courts. But even in these
areas, there is still room for improvement

ARTICLE: Converging Feminist and Queer Legal Theories: Family Feuds and Family Ties
By: Elaine Craig

- Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist and statist
- Feminist theorists have rejected queer theory as being uncritically pro-sex and dangerously protective of the private sphere
- The key of this article is the claim that the activists, advocates, litigants and judges are all well served by approaching complex legal problems involving
sex, sexuality and gender with as many “methods” for pursuing and achieving justice as possible

Introduction:

- A recent decision from the Ontario Court of Justice addressing a three-parent family law dispute involving gay and lesbian litigants demonstrates why
recognition of the convergences between feminist and queer legal theories can advance both queer and feminist justice projects
- The case is C (M.A.) v K (M.)
- It involves an application by a lesbian couple seeking to have their daughter’s non-biological mother legally adopt the child without the consent of the
father (a known gay male donor and involved parent from since birth)
- The case offers a compelling example of the complex ways in which the political commitments of feminist legal theory, gay and lesbian rights scholarship
and queer legal theory, and the tensions within and between these methods of thought converge and intersect

Feminism, Queer Theory and Gay and Lesbian Studies

b: Focused on formal equality or substantive equality, dominance or power feminism, as well as sex radical feminism and cultural feminism

Gay and lesbian rights: A theoretical approach dedicated to achieving anti-discrimination protections and equality guarantees for those individuals that
identify as gay and lesbian

Queer theory: Not concerned explicitly and directly with equality

- Focuses on the manner in which heterosexuality has silently but saliently, maintained itself as a hidden yet powerfully privileged norm

Critiques of each other:

- Some queer theorists challenge feminism’s singular focus on the particular social hierarchy
- Gay and lesbian studies scholars have, at times, accused feminism of making heterosexualist assumptions
- Queer theorists have suggested that feminism has failed to adequately theorize women’s sexual pleasure
- Feminists have suggested that queer theory’s celebration of lack of sexual boundaries fails to adequately account for the sexual harms women so frequently
endure

- Moreover, the tensions between these three theories are not manifested only in their theoretical precepts… At times their political commitments are also
directly in tension
- For example, dominance feminism’s approach to the criminal regulation of pornography is directly in tension with some gay and lesbian rights scholars
more libertarian position with respect to pornography

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Three Approaches to Three Parent Families: The Case of C (M.A.) v K (M.)
- A motion by a lesbian couple in Toronto asking the Ontario Court of Justice to dispense with the consent of their daughter’s biological father to an adoption
of their daughter by the non-biological mother
- M.A.C and C.A.D. were the child’s custodial parents and primary care givers
- MAC was the child’s biological mother and CAD was child’s non-biological mother
- MK was child’s biological father who had been involved since the beginning
- When considering the possibilities of conceiving a child, MAC and CAD had rejected the option of an anonymous donor, and preferred to know the donor
and preferred a gay male
- The three parties came to an agreement: MK agreed to be the donor and was to be named on the birth certificate and to receive reasonable access, but the
applicants would be the child’s custodial parents and primary caregivers
- For the first few years, the parenting arrangement was fine. However, after a while MK wanted more time with the child and MAC/CAD pushed back
- Prior to the breakdown of this non-traditional family the three parents had discussed launching a Charter challenge in an effort to obtain a three-way
adoption

- MAC and CAD based their argument on a distinction between their family structure and what the claimants referred to as the ‘heterosexual norm’
- They argued that their social position as a lesbian couple renders their need to have CAD pronounced a legal parent more urgent than it would be for a
heterosexual couple
- They advanced a queer argument as justification for seeking the law’s protection for their nuclear, two-parent family (from their self-created former three-
parent family)
- The applicants’ examples of MKs lack of boundaries and lack of structure included exercising access with his new partner before the applicants had met him
and concern over the amount of sexual partners he had had

- Justice Cohen denied the applicants’ motion to dispense with MKs consent for the adoption and she rejected that it was in the child’s best interest to have
“one stable and secure” two-parent family.
- The three parent family in this case was not, prior to its dissolution, a sexual family.
- At its inception, it was not wholly based on sexual intimacy and the primacy of the couple
- Justice Cohen commented that “they anticipated that a third parent would be involved with their family and had to have anticipated that this parent might
disagree with, or challenge, their parenting choice.

Converging Critiques of C (M) and K (M)’s Emphasis on Biology

- Cohen places fundamental value on the idea of biology in her judgment
- A queer reading of this aspect of the case might argue that one of its internal tensions is between the Court’s refusal to privilege the “natural” nuclear family
and the Court’s emphasis on the primacy of biology
- From a queer perspective, given its critique not only on the assumption that there is a “natural” family structure but also its critique of biology itself and the
role it is given in the legal and social regulation of people, Justice Cohen’s emphasis on the biological connection between MK and the child is problematic
- She recognizes that MK and the child share something deeper than biology (a connection from MK being involved and committed since the child was born)
- A feminist legal scholar might argue that the primacy given to biology in this case fails to account for the distinctions between how, in a society based on
gender hierarchy, the power of male biology and female biology are not equal.

An Argument About (Between) Gay and Lesbian Rights

- The reasoning in this case also reveals significant tensions from a gay and lesbian rights perspective
- The most significant tension with respect to gay and lesbian rights projects in this case might be characterized as a tension between gay and lesbian rights
projects
- On the one hand, the reasoning in this case affirms the legal recognition of gay and lesbian families (eg. Has no difficulty recognizing this family structure
as the same as any other)
- Her decision could also be said to be pro-gay and lesbian rights because it gives legal recognition to the original intention of these gay and lesbian parties to
form a family
- More directly, her reasoning vindicates the rights of gay fathers

- Given these types of considerations, the decision in this case might be characterized as quite pro-gay rights.
- However, gay and lesbian rights scholars might also point to the Court’s refusal to offer the law’s protection for this lesbian nuclear family as a denial of
gay and lesbian rights

ARTICLE: The Nature of Law – Andrei Marmor

Two main interests in law:

1. We need to understand the general conditions that would render any putative norm legally valid (is it just a matter of the source of the norm, such as
enactment by a certain political institution OR does the content matter as well?
2. The normative aspect of the law: Explaining the moral legitimacy of the law

The Conditions of Legal Validity

- The main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been
labelled the “social thesis” and “separation thesis”

Social Thesis: Asserts that law is, profoundly, a social phenomenon and that the conditions of legal validity consist of social (non-normative) facts
- Early legal positivists followed Hobbes’ insight that the law is, essentially, an instrument of political sovereignty, and they maintained that the basic source
of legal validity resides in the facts constituting political sovereignty

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- Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law

- The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and
morality, that is, between the law is, and what the law should be
- It pertains only to the conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral content of the norms in question

- The Natural Law tradition has undergone a considerable refinement in the 20th century, mainly because its classical, popular version faced an obvious
objection about its core insight
- Basically, it just difficult to maintain that morally bad law is not law

- The idea that the conditions of legal validity are at least partly a matter of the moral content of the norms is articulated in a sophisticated manner by Ronald
Dworkin
- Dworkin is not a classical Natural Lawyer and he does not maintain that morally acceptable content is a precondition of a norm’s legality
- His core idea is that the very distinction between facts and values in the legal domain, between what law is and what it ought to be, is much more blurred
than Legal Positivism would have it
- The most interesting and from a Positivist perspective, most problematic, aspect of legal principles consists in their moral dimension
- According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality, principles are essentially moral in their
content
- Legal principles occupy an intermediary space between legal rules and moral principles
- Legal rules are posited by recognized institutions and their validity derives from their enacted source
- Moral principles are what they are due to their content, and their validity is purely content dependent
- Legal principles, on the other hand, gain their validity from a combination of source-based and content-based considerations
- These considerations are the facts which concern the past legal decisions which have taken place in the relevant domain
- The considerations of morals and politics concern the ways in which those past decisions can be best accounted for by the correct moral principles

- If such an account of legal principles is correct, the separation thesis can no longer be maintained (many doubt Dworkin’s theories)
- There is an alternative and more natural way to account for the distinction between rules and principles in law
- Legal norms: Can be more or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more general or vague they are, the
more they tend to have those quasi-logical features Dworkin attributes to principles

- In the 1980s, Dworkin radicalized his views about these issues, striving to ground his anti-positivist legal theory on a general theory of interpretation, and
emphasizing law’s profound interpretive nature
- Very complex theory but can be boiled down to two main points (both highly contestable)
1. Determining what the law requires in each and every particular case necessarily involves an interpretive reasoning
2. Interpretation is neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se, but rather an inseparable mixture of both

The Normativity of Law

- Throughout human history the law has been known as a coercive institution, enforcing its practical demands on its subjects by means of threats and violence
- Early Legal Positivists, such as Bentham and Austin, maintained that coercion is essential to the law, distinguishing it from other normative domains
- Legal Positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its
functions in society

- John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction
- This is a reductionist thesis about law’s normative character, maintaining that the normativity of law consists in the subject’s ability to predict the chances of
incurring punishment or evil
- Hart’s fundamental objection to Austin’s reductionist account of law’s normativity is, on his own account, ‘that the predictive interpretation obscures the
fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow… but are also deemed to be a reason
or justification for such reaction and for applying sanctions
- Although coercive measures are undoubtedly important in law, we should probably refrain from endorsing Austin’s or Kelsen’s position that providing
sanctions is law’s only function in society
- Solving recurrent and multiple coordination problems, setting standards for desirable behaviour, proclaiming symbolic expressions of communal values,
resolving disputes about facts, and such, are important functions which the law serves in our society, and have very little to do with coercion

- The extent to which law can actually guide behaviour by providing its subjects with reasons for action has been questioned by a very influential group of
legal scholars in the first half of the 20th century called Legal Realism
- The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage
in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes (an attempt to introduce social
sciences into the realm of jurisprudence)

- A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how much a theory about the
normativity of law entails important conclusions with respect to the conditions of legal validity
- The basic insight of Raz’s argument is that the law is an authoritative social institution
- According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons
which apply to them in the relevant circumstances
- Raz’s conception of legal authority provides very strong support for Exclusive Legal Positivism because it requires that the law, qua an authoritative
resolution, be identifiable on its own terms, that is, without having to rely on those same considerations which the law is there to settle
- Therefore, a norm is legally valid only if its validity does not derive from the moral or other evaluative considerations about which it is there to settle
- Notably, Raz’s theory challenges both Dworkin’s anti-positivist legal theory, and the Inclusive version of Legal Positivism
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-------------------------------------------------------- [TOPIC 2] SOURCES OF LAW-------------- Craik 39-77-------------------------

[1] Early Relations with Aboriginal Peoples

Canadian Law from history, custom and tradition

 The Royal Proclamation of 1763 provided for the imposition of English law on the new colony, which altered the common law rule that in the case of
conquest, the laws of the conquered state would prevail.
 In 1867, the colonies of British North America were joined in confederation and Canada became a self-ruling Dominion.
 The British North America Act, another imperial statute, created many of the systems of government that exist today
 Until 1949, Canadian judgments could be appealed to the Privy Council
 Finally, in 1982, with the patriation of the Constitution, through the Canada Act 1982 (UK), 1982

Law and Aboriginal Persons

 “Aboriginal peoples”: the Indians, Inuit, and Métis.
 The doctrine of reception (by which colonial laws are “received” into new territory) does not incorporate indigenous wisdom and learning.
 In formulating a colonial legal system, reception, negated most of the original inhabitants’ laws and meanings.
 The colonists did not discover Canada. Therefore, the Crown’s laws should not entirely displace indigenous law.
 This simple fact has been judicially recognized, but only relatively recently.
 Constitutionalization of aboriginal rights has restored at least some recognition of the aboriginal interests in Canadian law.

Mitchell v. MNR [2001]

 European settlement did not terminate the interests of aboriginal peoples arising from their historical occupation and use of the land.
 To the contrary, aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common
law as rights, unless
1. they were incompatible with the Crown’s assertion of sovereignty,
2. they were surrendered voluntarily via the treaty process, or
3. the government extinguished them

Delgamuukw v. British Columbia [1997]

The Content of Aboriginal Title
 I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions:
1. Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes,
which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures;
2. Those protected uses must not be irreconcilable with the nature of the group’s attachment to that land. (limitation)

Inherent Limit:
 The content of aboriginal title contains an inherent limit:
 The relationship should not be prevented from continuing into the future.
 As a result, uses of the lands that would threaten that future relationship are excluded from the content of aboriginal title.
 Eg. if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims
aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it).

The Test for the Proof of Aboriginal Title

In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria:
1. the land must have been occupied prior to sovereignty,
2. if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty
occupation, and
3. at sovereignty, that occupation must have been exclusive.

[2] Reception of European Law

[a] How colonial laws were to apply in the New World

- The laws in force depended on whether colonies were simply settled, or were conquered or ceded by indigenous peoples.
- IF CONQUERE  pre-existing laws of the indigenous sovereign remained in force, subject to modification or replacement by the Crown or
- IF SETTLE  A legal vacuum existed that must be filled; some form of law was required to govern new colonies. Common and statutory law
- So there is an important distinction between CONQUER and SETTLE (that latter of which ignores the presence of Aboriginals; it entails the automatic
reception of English law). Most of Canada was considered Settled (English Courts being the arbiters).

Cooper v. Stuart (1889) [Rule of Reception] Australia

 Rule of conquest was applied to Central Canada, and rule of settlement to everywhere else.
 Rule of reception dictated that the entire body of English law, statutory and common, was imported into the settled colony.

[b] Nature of the common and civil law

[i] Common law

(1) judges do not make the law but merely declare it; and
(2) All relevant past decisions considered as evidence of the law, and judges infer from these precedents what is the true law in a given instance.

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[ii] Civil law
- Civil law is based on established laws, normally written as broad legal principles.
- Extensively on the general principles of the rule or code. On the other hand, common law employs analogical reasoning from statute to fill in gaps.
- Quebec inherited the vastly different legal tradition of the civil law. In 1866 the laws were codified.
- At Confederation, the Civil Code of Lower Canada replaced most of the laws inherited from the Custom of Paris, but incorporated some elements of
English law as it had been applied in Lower Canada, such as the English law of trusts. The “bijuralism” remains largely intact in Canada today

[iii] The operation of common law and precedent

- Principle of stare decisis (let the decision stand) [not found in Quebec law]
- In common law systems, lawyers must pay careful attention to the rank of a court in the judicial hierarchy for two reasons:
(1) first, because a higher ranking court is not bound to follow the decision of a lower court and

What is binding?
 A general rule is given that explains the result in the instant case and will apply to at least some other cases. It is this rule, called the ratio decidendi
(reason of deciding) that is said to constitute the binding rule for purposes of precedent.
 Everything else that is said by the judge is called obiter dicta (things said by the way).

[iv] Common law and equity

- Equity is formally defined as the body of law developed by the Court of Chancery prior to that court’s dismantling—in most common law countries this
was shortly after 1873.

Guerin v Canada [1984] 2 SCR 335

 When a native band surrenders land to the Crown, a fiduciary relationship is created and the Crown has a duty to represent the best interests of the
Band in its dealings with respect to the land.

[vi] International Law

 Distinguish between treaties (contracts between states who take part in treaty) and customary international law (entrenched norms binding on all
states, except those who have repudiated them by practice)

(a) Treaties
Dualism: Canada has a dualist tradition – an international treaty has no direct effect in domestic law until domestic legislation passed to transform
or implement the law into Canadian law by an act of Parliament (if a federal matter) or provincial Legislatures (if provincial matter)

(b) Customary international law

o Once a rule becomes recognized as customary law, it is AUTOMATICALLY part of domestic law
o Can be displaced by statute

[vii] Statutory Law

 A statutory rule will supersede a judge-made rule.
Example: same sex marriages

Halpern v Canada (A-G) (2003) 64 OR (3d) 161

 The definition of marriage in Canada, for all of the nation’s 136 years, has been based on Hyde v. Hyde and Woodmansee (1866):
 “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one
woman, to the exclusion of all others.”
 The central question in this appeal is whether the exclusion of same-sex couples from this common law definition of marriage breaches ss. 2(a) or
15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”) in a manner that is not justified in a free and democratic society (s1).
In summary, we have concluded the following:
o The courts have jurisdiction to alter the common law definition of marriage; resort to constitutional amendment is not required;
o The existing common law definition of marriage violates the Couples’ equality rights on the basis of sexual orientation under s. 15(1) of
the Charter; and
o The violation of the Couples’ equality rights under s. 15(1) of the Charter cannot be justified in a free and democratic society under s. 1 of
the Charter.

CASE READINGS

Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817

FACTS:
 Mavis Baker was a Jamaican woman who lived illegally in Canada for 11 years as a domestic worker.
 During this time she gave birth to four children in Canada. she was ordered deported. She brought an application for permanent residence.
 The immigration officer rejected her application without giving reasons. She applied for judicial review of the decision.
 ISSUE: how to give effect to the unimplemented treaty [convention of rights of the child]
HELD:
 L’Heureux-Dube J: Importance of considering best interests of children indicated by Canada’s ratification of the Convention on the Rights of
the Child, an international instrument. Nevertheless, the values reflected in international human rights law may help inform the contextual
approach to statutory interpretation and judicial review.

7
  Iacobucci: I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented
international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in
accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system.
- In Baker, the Court held that the values reflected in international human rights law may help inform the contextual approach to statutory
interpretation and judicial review. After the Baker decision, trend towards treating all international law, whether custom or treaty, binding on Canada
or not, implemented or unimplemented, in the same manner – as relevant and persuasive, but not determinative.

De Guzman v Canada (Minister of Citizenship and Immigration) 2005

FACTS:
 Ms G’s application to have her sons sponsored for admission to Canada was refused under the Immigration and Refugee Protection Regulations.
 G argues that priority should be given to international instruments which prevail over any inconsistent provision in either the IRPA or the regulations
ISSUE:
 Is paragraph 117(9)(d) invalid because it renders the IRPA non-compliant with “international human rights instruments”
REASONING:
IRPA, which have been debated and approved by Parliament, are overridden by a conflicting international legal instrument does not respect the
legislative process in this country. Only express indication of such a principle by Parliament would allow such an outcome at [58]
- But the applications Judge took an overly narrow view on the value of international law
- International law can be used to interpret the Charter and it can influence the common law
- Parliament should be presumed not to legislate in derogation of international legal norms that are binding in Canada. In contrast, non binding
international norms should not be given the same interpretive weight, but should be regarded as no more than persuasive and contextual at [70]
HELD:
- I conclude that paragraph 3(3)(f) does not incorporate into Canadian law international human rights instruments to which Canada is a signatory, but
merely directs that the IRPA must be construed and applied in a manner that complies with them at [73]
- I am inclined to think that Parliament intended them to be used as persuasive and contextual factors in the interpretation and application of the IRPA,
and not as determinative.

READING: The “Bijuralism” Issue: Department of Justice, “Bijuralism and Harmonization: Genesis”

DEFINITION:
- Canadian bijuralism denotes the coexistence of two private law systems in Canada: the civil law in Quebec and the common law in the other
provinces. From this legal duality, which dates back to the Quebec Act, 1774, there is dissociation with the private law of the provinces. - Marc
Cuerrier

The formal recognition of Quebec civil laws began with the Quebec Act of 1774.
- The Quebec Act restored civil law “in matters of property and civil rights”.

This critical political development officially introduced bijuralism in Canada and informs to this day the interpretation of federal legislation. Conversely the
Quebec Act provided that common law would govern in all but private law matters; this is the basis for the mixed civil and common law nature of Quebec
law where common law and civil law apply respectively in public law matters such as administrative law, criminal law and other non-private law matters, and
in private law matters. (St Hilair)

The recognition of Quebec civil law (made up, at that time, of the Coutume de Paris but later codified in the Civil Code of Lower Canada 1866) was later
enshrined in the British North America Act of 1867. As a result, all the Provinces in Canada now have exclusive legislative authority over “matters of
property and civil rights”, in essence, private law.

Common Law Tradition

 The common law tradition can be distinguished from the civil traditional essentially by its method, that is, its rules of interpretation, the hierarchy of its
sources and its inductive reasoning.
 A fragmented law that they will discover incrementally as needed. This leads to the legal fiction that a judge does not make the law but discovers it, as a
legal vacuum is impossible

Civil Law Tradition

 The most important feature of the civil law tradition differentiating it from the common law tradition is its emphasis on the primacy of written laws. Civil
law is not judge made/recognized law, it’s codified law

Language
 One integral issue relating to Canada's bijuralism is that of "language". Translation often results in some very difficult problems for the practice of the
common law in French. The same holds true for the practice of civil law in English

Bilingual legislation
 It is perhaps trite to state that federal legislation in Canada is intended to apply consistently across the provinces and territories—that the same federal law
must apply in both Quebec and in Ontario.
 Federal legislation must not only be bilingual, but also bijural. Indeed, federal legislation must simultaneously address four different groups of
persons:
 anglophone common law lawyers; francophone common law lawyers; anglophone Quebec civilian lawyers; and francophone Quebec lawyers.
 One distinctive and often difficult feature of Canadian bijuralism is the task of rendering the common law in French and the civil law in English.
More specifically, how legislative statutes and judicial decisions of either legal tradition can be "transposed" into the language of the other. With respect to

8
the process of drafting federal legislation, it is now readily recognized that this process should not rely upon the technique of simply transposing the concepts
of one legal tradition into the corresponding functional equivalents of the other legal tradition. In many areas, a new vocabulary must be forged.

Interpreting Bilingual Legislation

 The requirement in Canada that legislation be enacted in both English and French has important implications. It means that both language versions of a
bilingual statute are original, official and authoritative expressions of the law. Neither version has the status of a copy or translation—and neither has
paramountcy over the other. This is known as the "equal authenticity rule"
 The rule of equal authenticity also requires the courts, in interpreting bilingual legislation, to extract the "highest common meaning" from the two versions
that is consistent with the context of the provision. Where there is a blatant conflict between the English and French versions, courts must examine the
legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute.
 Courts are therefore required to interpret bilingual legislation in a manner that accords with the true spirit, intent and meaning of an enactment and that
best ensures the attainment of its objectives.

Harmonization
 Our objective is legal duality, not necessarily to achieve one rule to be applied uniformly across Canada; this requires respect for the character and
uniqueness of the concepts and principles of each legal system

Convergence and Progress

 There is evidence of a certain convergence between the civil law and common law traditions in Canada. While the common law and civil law families
share common origins, these legal systems have been moving farther and farther from those origins.
 This move can be seen as the result of frequent contact with other legal systems, the growth in the number of sources of international law, the
mobility of persons, the influence of the media, the production of indigenous reference works and the growing use of legislation, even in common law
jurisdictions, to enable the law to adapt quickly to societal change.
 Another instance of this "rapprochement " of the two traditions can be discerned from the current situation where common law courts are required to
apply and interpret substantive civil law – .e.g recent tort case where Court made extensive reference and resorted to civilian authority
 Chief Justice McLachlin stated that looking to how other courts in different jurisdictions deal with this issue provides perspective both on the
nature of the problem and possible solutions.

Conclusions
 Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against anyone. It must evolve in
light of our background and needs. In the Canadian context, it seems to me that a new analysis of the situation is also needed
 It is true that things have already changed substantially. Dual law degrees. Yet no access to french books.

CASE: St-Hilaire v Canada (A-G) 2001 - (BI-JURALISM)

FACTS:
- wife knifed public servant husband, wanted pension, pleaded murder down to manslaughter and argued she therefore did not “intend” to make an
attempt on his life.
- Intention is a requirement for failing to inherit under the Quebec Civil Code
- Federal Civil Harmonization Act provides the private law of a province and federal law are complementary unless fed specifically derogates (coordinate
status).
ISSUE:
- The main issue on appeal was whether the civil law of Quebec is the suppletive law where a court must interpret and apply a federal enactment which is
silent concerning civil rights in Quebec and if so, whether the respondent was unworthy by operation of law of inheriting from her husband under
subsection 620(1) of the Civil Code of Québec.
HELD
- Majority: Code only removes inheritance for murder and manslaughter.
- Dissent: Code removes only for murder
- St-Hilaire reaffirmed the principle of complementarity of provincial private law in the interpretation of federal private law legislation.
- The Quebec Act provided that common law would govern in all but private law matters; this is the basis for the mixed civil and common law nature of
Quebec law where common law and civil law apply respectively in public law matters such as administrative law, criminal law and other non-private
law matters, and in private law matters.

CASE: Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433  Defining Appointments to the SCC

Topic: decision about who is eligible to be appointed to the three Supreme Court seats reserved for Quebec judges or lawyers.

Background: The question arose when the federal government’s appointment of Justice Marc Nadon to a vacant seat at the Supreme Court was
constitutionally challenged. To determine if his appointment was constitutional, the Supreme Court examined the wording of sections 5 and 6 of the Supreme
Court Act that sets out the qualifications for Supreme Court judges.

Facts:
- Justice Marc Nadon(“Nandon”) served as a justice in the Federal Courts for over twenty years. When Justice Morris Fish retired from the Supreme Court
in August 2013, the Conservative government chose Nadon to replace him, and he assumed his new position on October 7, 2013.
- That day, constitutional lawyer Rocco Galati officially challenged Nadon’s appointment at the Federal Court. He argued that Nadon was neither a
member of one of the superior courts of Quebec nor a current member of the Bar of Quebec as required by the Supreme Court Act and that his
appointment was therefore unconstitutional.
- To remedy the situation, Parliament amended the Supreme Court Act in the Economic Action Plan 2013 Act No. 2 so that the requirement that those
eligible for appointment be existing members of the Bar was expanded to include former members of the Bar as well as current ones.

9
- Justice Nadon’s appointment could then be considered constitutional.
- The government argued that this was the “most expeditious and most efficient way … to guarantee that federal court judges can be considered in the
process of filling upcoming Supreme Court vacancies.”
- Challengers Galati and the Quebec government, however, opposed the amendments, stating that the Supreme Court is part of Canada’s constitutional
framework and eligibility requirements cannot be amended by the government acting alone.
- The federal government then referred the case to the Supreme Court as a reference question for clarification of both the Nadon appointment and
Supreme Court appointments in general.

Decision:
- Six of the seven members of the Supreme Court responded in the negative to question 1: The Supreme Court Act requires that the three Quebec judges
chosen must either be currently sitting on the Court of Appeal or Superior Court of Quebec, or have been members of the Barreau du Québec (Quebec
Bar) for at least 10 years. The seventh member, Justice Moldaver, dissented.
- Six of the seven members of the Supreme Court agreed that Nadon, a justice of the Federal Court, was not eligible for appointment to the
Supreme Court even though he had been a past member of the Quebec bar

- The Court answered Question 2 in the affirmative, but only in part. It ruled that the government can make changes pertaining to the maintenance of the
Courts, but it cannot enact legislation that would fundamentally change the Supreme Court or its structure, as it did in clause 472 of the Economic
Action Plan 2013 Act.

- Overall, the majority of the Court ruled that to be eligible for appointment to the Supreme Court, an individual must be a current member of the Quebec
bar. The only way this eligibility criterion can be changed is through constitutional amendment.

Significance of Ruling:
- The Court’s opinion in the Supreme Court Reference denied Justice Marc Nadon's candidacy for the vacant Supreme Court seat. He returned to his
former position at the Federal Court of Appeal. But what does the ruling mean in the broader constitutional context? The Supreme Court Reference
clarifies the constitutionally-protected interests of two entities, the Supreme Court of Canada and the provinces and territories.

- First, it confirmed that substantial changes to the structure of the Supreme Court are constitutionally protected and can only be changed using the
Constitution’s amending formula. This means the independence of the Supreme Court is protected from a federal government that may try to change
the Court to suit its political interests, and that the majority of Canada’s provinces must consent to any substantive changes.

- Second, the decision upholds an important component of federalism by protecting the fundamental role of the provinces and territories in
changing aspects of the Constitution such as eligibility for appointment to the Supreme Court. Legal scholar Ian Peach suggests that the Supreme Court
Reference will come to be known as “much more than a simple decision about the validity of a particular judicial appointment… [It is an] important
milestone in the evolution of our constitutional jurisprudence.”

READING: John Borrows, “Indigenous Legal Traditions in Canada”

Introductory Context
- Canada’s founders rejected the idea of forced cultural coercion, at least as it related to the most critical challenges they encountered: French and English
juridical, cultural, religious and linguistic differences. 169
- The British North America Act of 1867 knit a nation together along federal lines to protect these differences. It enabled French and English speaking
peoples to continue their unique political, religious, cultural, linguistic and legal traditions within provincial frameworks.

Legal Pluralism in Canada

- Legal traditions are cultural phenomena. Sometimes, different traditions can operate within a single state or overlap between states.
- This is legal pluralism, “the simultaneous existence—within a single legal order— of different rules of law applying to identical situations.”
- Canada is a legal pluralistic state; civil, common and indigenous legal traditions organize dispute resolution in different way
- Some have said that indigenous peoples in North America were pre-legal. Those who take this view believe that societies only have laws if proclaimed
by some recognized power that is capable of enforcing such proclamation. (ie Austin theory of law - positivism) at 176. He argued that they were savage
and did not have abilities to organize law like europeans.
- The Supreme Court of Canada has also condemned this approach: Calder v BC [1973] SCR 313, 346

- The first treaties in North America involved indigenous laws. Long history of recognition of indigenous legal traditions by those who encountered
these societies. At 178
o Indigenous legal traditions continued to exist in Canada unless, as Chief Justice McLachlin wrote: “(1) they were incompatible with the
Crown’s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them.”:
Mitchell at 927

The Relationship of Canada’s Legal Traditions

- Indigenous legal traditions are an important source of legal guidance for Aboriginal peoples. F
- For example, the common and civil law has often been applied in Canada to separate indigenous people from their lands and environments.

Entrenching Multi-juridicalism in Canada - Bijurdicalism

- There are Numerous ways that Canada could recognize and develop indigenous legal traditions in its midst. For example,
- (1) Indigenous governments could play a greater role in recognizing structures that facilitate access to their own legal values. This could occur through
the development of indigenous Constitutions or through the application of their other culturally appropriate legal traditions
- There are strong arguments that Aboriginal governance was integral to the organization of the distinctive cultures of Aboriginal peoples throughout
Canada prior to the arrival of Europeans.
10
- In order to recognize and affirm indigenous legal traditions, the Federal Parliament should pass legislation recognizing indigenous laws on their own
terms and create mechanisms to harmonize these laws with Canada’s other legal traditions.

Conclusion THESIS
- Affirmation of indigenous legal traditions would strengthen democracy in the country by placing decision-making authority much closer to the people
within these communities.
- The proposals outlined in this paper are directed at creating laws and institutions that will find an appropriate balance between the interests of
recognizing and respecting indigenous cultural, political, economic and social integrity and the interests of society as a whole. at 222

READING: Rethinking the Relationship between International and Domestic Law (Armand de Mestral) – principle of conformity (baker)

Overview:
- Interpretations of domestic law often fail to respect the full extent of Canada’s international legal obligations.
- Moreover, Canadian courts rely on an overly restrictive understanding of what it means to implement a treaty in Canada’s domestic law
- They argue for a more generous understanding of treaty implementation according to which a ratified treaty would be considered “implemented” if, at
the time of ratification, there exists sufficient legislative and regulatory authority capable of enabling Canadian officials to comply with Canada’s treaty
obligations.
- One option is the development of a Canada Treaties Act that would provide guidance with respect to the specific requirements of treaty negotiation,
authorization, and implementation.

- This article argues that Canada has not yet struck the appropriate balance between domestic and international law.

Background:
Parliament Leaves it to the executive branch to negotiate treaties and conduct international affairs, on the assumption that the conduct of international
relations is an executive function. Courts have been left to deal with the relationship between international and domestic law without legislative
guidance or even much assistance from the executive branch.

Democratic Principle:
- Treaties are made by the executive arm of government without parliamentary direction or participation.
- But Canadian courts have been strongly influenced by the fact that treaties are made exclusively by the executive branch.
- This “dualist” approach to international law—one that conceives of international and domestic law as operating in separate domains, can be seen to be
motivated by a desire to protect Canadians from the unlicensed intrusion of international law.
- Far more treaties deserve to be recognized as “implemented” than the courts currently acknowledge.

The Current Relationship Between Domestic and International Law in Canada

- International law requires each state to respect and fulfill its international obligations, but leaves to states a large degree of latitude as to how they will
achieve this goal.

A. Customary International Law in Canada

- International customary law, unlike treaties, does not emanate from intergovernmental negotiations,
- Rather, it develops through the cumulative practice of states in accordance with what is perceived as a governing legal obligation
- Canadian jurisprudence suggests that customary international law is applicable in Canada so long as it does not conflict with existing law.
- The adoption doctrine was confirmed in early decisions such as The Ship “North” v. R. Similarly, in the Secession Reference.
- In Hape, Justice LeBel for the Court reaffirmed the rule that international customary law is part of the common law.

B. Treaty Law and Treaty Making in Canada

- Through ratification the state indicates that it is both willing and able to fulfill its obligations under the treaty

Legislative Interpretation and the Principle of Conformity

- interpretive presumption of conformity that calls on administrative officials and courts to interpret domestic law in a manner that respects Canada’s
international legal obligations.
- Baker v. Canada (Minister of Immigration):
o Nonetheless, the majority held that “the [concern for children’s best interests] reflected in international human rights law may help inform the
contextual approach to statutory interpretation and judicial review.”122

III. The Way Forward (The remainder of this article seeks to promote debate on Canada’s approach to international law)
- The U.K. Example
o The courts of the United Kingdom have also accepted a remarkable transformation of the principle of parliamentary supremacy. . This
transformation arises from the European Communities Act 1972, which provides for the enforcement and supremacy of E.U. law, both existing
and future, over the domestic law of the United Kingdom in the following terms. Ex parte Factortame Ltd.
- Canada's New Policy
o In conclusion, the Treaty-Tabling Policy, while representing a valuable codification and clarification of procedure and policy designed to
promote a degree of transparency, is a political gesture without much legal importance. (table treaty = parliament discussing treaties)

11
On Democratic Legitimacy
- Because treaties can and do give rise to such a wide range of domestic law, the democratic principle supports involving the people’s elected
representatives in the treaty-making process.
- Leaving the treaty-making process mainly in the hands of the executive disregards the contribution civil society might make to the treaty-making process
and raises suspicions that international law serves elites rather than the people.

On a Canada Treaties Act

- An important first step would be the enactment of a Canada Treaties Act that regulates the process of treaty making, implementation, and ratification at
the federal level. Such an act could set out a much greater role for Parliament and its members.

Enhanced Legal Status for Treaties under a Canada Treaties Act

- If Parliament (and eventually, mutatis mutandis, the provinces) were to adopt a Canada Treaties Act, what might be included within the act with respect
to the legal status of ratified treaties?
- One option would be to proclaim that if pre-existing law gives officials sufficient power to comply with Canada’s international obligations, then officials
must so exercise their power.

The Role of Judges and Administrative Decision Makers

- We have argued that Canadian judges and administrative decision makers should view the rule of law as embracing international as well as domestic
law, and thus that these actors are under a rule-of-law duty to take international law seriously.
- We have also shown that judges use, to varying degrees, techniques such as judicial notice of customary law and the principle of conformity to allow
international law into the domestic sphere.
-
Conclusion
- Secondly, international and domestic legal principles are so tightly intertwined today that it is a mistake to view them as residing in separate universes.
- The strict dualist principle is no longer the appropriate standard for Canada.
- The federal government has taken a valuable step forward by deciding to table treaties in the House of Commons.
- By treating international law as law, legislators, judges, and officials can demonstrate their commitment at home to the principles and values they
celebrate abroad.

READING: Enhancing the Implementation of Human Rights Treaties in Canadian Law: The Need for a National Monitoring Body -
Amissi Manirabona & Francois Crepeau

- In Canada, many international treaties have been ratified by the government. Nevertheless, similar to other countries with Westminster-style democratic
systems, those treaties have no direct effect on domestic law
- Accordingly, their explicit incorporation into national law is an essential requirement
- As a result, at a domestic level, private actors cannot base any claim on the grounds of human rights treaties that have been ratified but not implemented
through legislation
- The aim of this article is to propose the creation of a domestic body that would monitor the implementation of human rights treaties ratified by Canada
- The proposed public body would take the form of an ombudsperson, a commissioner or a parliamentary committee

Introduction
As a sovereign State, like many other Commonwealth states, the treaty-making decision power remains with the executive branch of the government in its
capacity as the unique holder of authority to represent the State in the international sphere
- According to a long-standing constitutional tradition in Canada, there is no legal obligation on the executive to secure the consent or approval of Parliament
prior to treaty ratification

- In France, like other monist states, treaties are automatically granted the force of law without the requirement of any further domestic formal recognition
- Canada’s legal system refuses to recognize treaties as being a direct source of domestic law unless they are incorporated by an act of Parliament
- The term ‘unincorporated treaties’ refers to all treaties that Canada has previously signed or ratified, but that have not yet been incorporated into domestic
law through incorporating legislation adopted by Parliament
- The incorporation of treaties provides Parliament with domestic authority ensuring that all actions and decisions of domestic institutions and officials are in
compliance

- Given the structure of the Canadian federal system, the process of incorporating treaties is somewhat complicated
- While it may appear straightforward for the executive branch of the government to initiate the enactment of a statute incorporating treaties, the process is
more complicated in cases which international treaties encroach on subject matter that falls, in whole or in part, within provincial jurisdiction
- It was held in Labour Conventions Case that, where the subject matter of a treaty is outside the federal government’s jurisdiction, legislative assent of
provincial legislatures is required
- The provinces are now, however, the only source of impediment to incorporating legislation
- It may well be the case that the federal government considers Canadian legislation to be in compliance with a given treaty and the further enactment of a
new incorporating statute would be unnecessary

- Although the domestic incorporation of treaties is a requirement, the Supreme Court of Canada has referred to some locally unincorporated human rights
treaties from time to time
- This has been done by virtue of the Doctrine of Legitimate Expectation, or by considering the values enshrined in them during the process of statutory
interpretation

12
- Canada has ratified or acceded to all of the six major core international human rights treaties, namely International Covenant on Civil and Political Rights,
International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the
Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the
Convention on the Elimination of All Forms of Discrimination against Women
- None of these have been specifically incorporated into Canadian Law.

- Part 1 of this article deals with the consequences of unincorporated human rights treaties on Canadian citizens
- Argues that Canada’s failure to incorporate human rights treaties in domestic law may result in a great cost
- Given the growing number of current and anticipated unincorporated human rights treaties in Canada, it is clear that Parliament, on its own, cannot
adequately handle the domestic incorporation of all aspects of Canada’s human rights treaty obligations
- Argues that a monitoring mechanism would aid Parliament in fostering effective incorporation of human rights treaties, as well as ensuring that Canadians
are aware of their ability to enforce their rights as granted by the ratification of human rights treaties by the Executive

Consequences of Unincorporated Human Rights Treaties of Canadian Citizens

- In 1928, the Permanent Council of International Justice held that even when international agreements do not create direct rights and obligations toward
private persons in the domestic sphere, their very object may create some rules providing for individual rights and obligations enforceable by national courts
- International human rights treaties that impose obligations on states to take domestic action can enable individuals to pursue their claims under domestic law

Unavailability of Domestic Remedies in Cases of Unincorporated Human Rights Treaties

- In the past, international law was applied only to states or international organizations created by states
- Since private actors did not have the attributes necessary to participate in the creation of treaties, they would not have been directly affected by the rights
and obligations created by them
- This view has evolved… Since the end of the 19th century, states have realized that maintaining international peace and security requires that, in certain
circumstances, private actors be directly subject to international law
- While international law had, at first, been concerned only with the violation of foreigners’ rights, international protection has been extended subsequently to
nationals suffering from domestic mistreatments
- To enforce human rights at the international level, many states have created tribunals that function to provide aggrieved individuals an opportunity to obtain
redress for injuries suffered following a breach of international obligations by a state

The Lack of Predictable Significance of Unincorporated Treaties During the Process of Statutory Interpretation
- There is no consensus, either in judicial practice or among scholars, about the real role and effect of unincorporated treaties during the process of statutory
interpretation
- Doctrine of Presumption of Conformity: The rule holds that Canadian domestic law should be construed to conform to Canada’s international obligations
(obligations stemming from both incorporated and unincorporated)

Three stages of Doctrine of Presumption of Conformity:

1. Time before the Supreme Court’s decision in Baker.
- During this period, the principle requiring that Canadian law be interpreted in conformity with Canada’s
international obligations was not largely contested (even though not uniformly applied)
2. Began with Baker.
- Rather than elaborating and explaining the real scope of this Doctrine, Baker confused it further
3. Post-Baker era:
- Further case law developed and even now there is uncertainty about the importance and function
of this doctrine

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 ------------------------------------------------TOPIC 3: COMMON LAW METHOD----------------------------------------------------------

Overview:
• Precedent and Stare Decisis
• History of the Common Law
• Equity

ARTICLE: Precedent Unbound? Contemporary Approaches to Precedent in Canada

- Debra Parkes

- While the notion that Canadian appellate judges slavishly adhere to outdated precedent in a manner contrary to ‘common justice and the general reason of
mankind’ does not accurately describe the current reality, there remains a lively and important debate about the functions, values and limits of abiding by
things decided in common law systems

Principles Underlying Stare Decisis and the Conventions of Precedent

- Rigid adherence to precedent, particularly in the face of changing values and social realities – not to mention new information that may cast doubt on the
correctness or workability of an earlier decision – does little to foster confidence in the judicial system
- The entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are
inconsistent with the evolving interpretation of various Charter rights
- As things have developed in Canada, the concept of “binding precedent” is limited to the vertical convention (lower courts are bound by upper courts)
- The concept of stare decisis is used more broadly to apply to decisions of higher courts (the vertical convention) and to previous decisions in the same court,
albeit often differently constituted (horizontal convention)
- In the latter case, decisions are not strictly binding, but should be followed unless there are compelling reasons to overrule them
- Finally, the concept of “persuasive authority” refers to all decisions of courts outside the direct hierarchy of the instant court

Vertical Convention of Precedent

- By virtue of the vertical convention, all appellate courts, superior courts, federal courts and provincial courts must follow decisions of the Supreme Court of
Canada
- They must also follow the pre-1949 decisions of the Privy Council that have not been subsequently overruled by the Supreme Court
- Since PC was final appeal court before 1949, pre-1949 PC decisions operate on the horizontal convention of precedent because the SC is now the final court
of appeal, with the power to overrule its own decisions AND those of the PC

Binding Obiter Dicta?

- A significant limitation on the vertical convention of precedent is the reality that courts are only bound to follow “what was actually decided” in the earlier
case (the ratio decidendi, but not obiter dicta)
- The line between these is not always easy to draw
- R v Sellars brought about the Sellars Principle to confuse matters where Chouinard J stated that even obiter by the SC is binding
- Revisiting this issue in the Henry case, Binnie J for the majority said that Chouinard never said such a thing
- In Henry, the Supreme Court unanimously rejected the notion that the Sellars principle had ripened into a rule of law to the effect that “whatever was said in
a majority judgment of the Supreme Court of Canada was binding, no matter how incidental to the main point of the case or how far it was removed from the
facts

“Per incuriam” Decisions of a Higher Court?

- While on the English Court of Appeal, Lord Denning famously attempted to get around the vertical convention of precedent by declaring that the relevant
House of Lords decision was per incuriam (a decision given in ignorance or forgetfulness of some inconsistent authority binding on the court concerned)….
Denning was strongly criticized by HoL for doing this
- In Davis v Johnson, Lord Diplock called Denning a one man crusader trying to get rid of precedent and affirmed that the CoA was bound by stare decisis
(even ones that they may think are per incuriam)
- This principle of binding effect has transcended into Canadian jurisdiction

Anticipatory Overruling
- Is there any place for a lower court bound by precedent being firmly of the view that the higher court will overrule its own precedent when given the
chance?
- Marvco Color Research v Harris dealt with the non est factum issue in contract law
- Both lower courts were of the view that the precedent which came from the House of Lords (and had subsequently been overturned) was wrong, but they
applied the law anyway
- Supreme Court in Canada ended up overruling the law as anticipated

Horizontal Convention of Precedent

- A classic case of a court overruling itself is the US Supreme Court decision in Brown v Board of Education, which overruled the separate but equal doctrine
from Plessy v Ferguson and held that racially segregated schools violated the Equal Protection guarantee in the US Constitution
- The US Supreme Court has generally been more willing to overrule itself than other high courts in common law
- In particular, HoL strictly maintained the horizontal convention of precedent until 1966, refusing to recognize its own power to overrule its decisions and
leaving it to Parliament to correct any decisions believed to be unjust or unworkable

14
- Some key tensions arise when considering whether it is appropriate to overrule a precedent as Lord Gardiner L.C. stated in the above case
- On the one hand, there is the quest for certainty and predictability, which is seen as particularly important in private law matters where parties have relied on
a particular statement of the law in ordering their affairs
- Underlying the HoL previous position against overruling was the notion that once a matter has been determined, it should be left to the democratically
elected legislature to change it
- However, on the other hand, Lord Gardiner acknowledges that strict adherence to precedent can lead to injustice
- A recent decision of the Privy Council in Lewis v AG of Jamaica (2001) reveals that there are still those who maintain the view that a final court of appeal’s
own precedent should be followed, even when that court believes the precedent to be wrongly decided
- Even those who maintain a strict view of the horizontal convention in final courts of appeal generally recognize the power to distinguish or refuse to follow
a precedent where factual circumstances or legal principles have changed since it was decided

- Bruce Harris has reviewed the trend in final common law courts of appear toward a greater willingness to overrule their own precedents
- He argues forcefully for the reversal of the presumption that wrong precedents should be overruled “unless their retention can be justified in the
circumstances by overriding stare decisis values
- The court should weigh the consequences of perpetuating a wrong precedent against the values, when examined in context, of observing stare decisis
- He puts forward 8 considerations relevant to a decision to overrule or defer:
1. Whether the precedent can be distinguished based on changing facts or law
2. Whether the precedent was reached per incuriam
3. Whether precedent has proved unworkable
4. Whether any reasons have been advanced on appeal which were not considered in the earlier case
5. Whether the later court now views the precedent to be wrong
6. Whether the values underlying error correction or “doing justice” outweigh the values advanced by stare decisis
7. Whether the perceived error or injustice is likely to be swiftly corrected by the legislature
8. Whether fundamental principles of human and civil rights are involved

Supreme Court of Canada

- Beginning in the late 1970s and early 1980s, the Supreme Court of Canada demonstrated a willingness to overturn its own (or pre 1949 PC) precedents
where, in the words of Dickson J, “compelling reasons existed”

Provincial appellate courts

- The ability of these intermediate courts to overrule their own precedents has been treated different from the federal court’s abilities
- The strictest approach to this power is that set out by the English Court of Appeal in Young v Bristol Aeroplane in 1944.
- Lord Greene M.R. on behalf of the court, held that, subject to three exceptions, the CoA was bound by its own precedents:
1. When faced with a previous conflicting decision of the CoA it could choose which to follow
2. When a previous decision has been impliedly overruled by a subsequent HoL decision
3. When a decision of the CoA wsa given per incuriam

- Until quite recently, most provincial appellate courts in Canada did not consider themselves bound by horizontal stare decisis in a manner similar to the
English CoA
- Ontario CoA was the exception, having taken the view, at least in civil matters, that it ought not to overrule its own decisions, even those thought to be
wrong

Trial Courts
- With respect to horizontal convention of precedent at the trial level, the dominant approach is that, while not strictly binding, applicable decisions of the
same court should be followed as a matter of judicial comity, unless certain circumstances exist
- A leading decision is Re Hansard Spruce Mills, in which Wilson J of the BC Supreme Court went on to say that a judge should only decline to follow a
decision of the same court if:
1. Subsequent decisions have affected the validity of the previous decision
2. It is demonstrated that some binding precedent or relevant statute was not considered (per incuriam decision)
3. The judgment was not considered

Conclusion
- On one hand, we have the Supreme Court of Canada taking a stricter view that some would like to the vertical convention of precedent, particularly the
precedential value of ‘authoritative obiter’ from that court
- A more flexible, functional approach to precedent arguably discourages a kind of formalistic reasoning that may result if judges are not permitted to
consider the merits of a particular rule, as well as a tendency to ‘find another way around’ a problematic precedent, rather than to address it
- Stability, consistency, and protection of reliance interests are all important institutional values promoted by the doctrine of stare decisis
- Recent appellate decisions signal a shift toward a greater focus on exactly how those values play out on the facts before the court, rather than in an abstract
sense
- Such a principled and functional approach is welcome

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ARTICLE: Precedent by Roger Shiner

 Precedent is one of the main classical or traditional institutional sources of law.

 Reasoning from precedent can be contrasted with particularistic decision-making; In particularistic decision-making, the decision is transparent to
the background normative principles relevant to the decision. The decision is simply a matter of applying the principles to the special facts of the
particular case.
 Reasoning from precedent is an instance of so-called case-by-case reasoning. In case-by-case reasoning, `the process of argument is not a chain of
demonstrative reasoning.
 Treating precedent as a source of law is, with good reason, held to be a distinguishing characteristic of the common law, and this discussion is
primarily about the common law.
 Stare decisis is a normative practice, doctrine about how courts should reason, not one about how they do reason. Understanding how precedent
functions as a source of law is a matter of understanding these norms.

Discussion:

i) Norms of the institutional practice:

 The central normative distinction in precedent is that between `binding’ and `persuasive’ precedent. If an existing case is for a court a binding
precedent, then the decision in the precedent case is dispositive for the decision in the instant case. If an existing case is for a court a persuasive
precedent, then the decision in the precedent case has some, maybe even considerable, weight for the decision in the instant case, but it is not as
such dispositive.
 A distinction should be drawn between vertical and horizontal bindingness. Vertical bindingness is something it only makes sense to speak of in
relation to an institutional hierarchy of courts. Courts higher in the hierarchy establish by their decisions precedents for courts lower in the
hierarchy.
ii) The bindingness of precedent.
 The chief device for managing issues of relevance in the area of common law precedent is the notion of the ratio decidendi of a case, literally the
`principle of the decision’.
 Different theories have been propounded as to what underwrites the modality of necessity in binding precedent.
 A view about the bindingness of precedent would be that, though not illusory, it is felt or subjective only, simply a matter of judicial `comity’ – a
matter of deference or respect, not of right or duty.
iii) The justification of precedent.
 The need for justification seems to flow from the following observation.Stare decisis requires that courts conform their decisions to decisions
reached by previous courts, and sometimes those previous decisions will have been unjust. Stare decisis, that is, sometimes requires courts to reach
unjust decisions. Stare decisis thus characterized seems paradoxical — how can it be a morally justified requirement to do the morally wrong thing?
This line of argument is question-begging.

ARTICLE: Classical Common Law Jurisprudence (Part 1) by Gerald Postema

- While the notion that Canadian appellate judges slavishly adhere to outdated precedent in a manner contrary to ‘common justice and the general reason of
mankind’ does not

A Introduction

We will learn that it was important to common law jurists to distinguish sharply between traditional natural law and natural reason and the
‘artificial reason’ of the common law. The second part of this article opens with an extended analysis of the notion of law’s ‘artificial reason’.
This will lead to a consideration of the role and nature of precedent in classical common law theory, and finally to a discussion of the
normative foundations of law as conceived by common law jurists. Natural law ideas will appear here again, but this time dressed in
distinctive common law robes

Historical Roots Of English Common Law

Classical common law jurisprudence was articulated by reflective but politically engaged jurists in the 17th century. They were lawyers,
judges, royal counsellors and parliamentarians, not philosophers or scholars; they were legal practitioners. Common law was understood
throughout its history to be the law and customs common to the whole kingdom of England, that is, to all free men in the realm, administered
by a centralized court system with nationwide competence.

Common law emerged from this increasingly centralized system of institutions of justice. It was ‘common’ in two important respects. First, it
was national law, absorbing and replacing the regional law structures of the pre-conquest period. Secondly, it claimed and
exercised with increasing effectiveness monopoly jurisdiction over a very wide range of legal matters at the expense of the many other local
and transnational courts.

While the King occasionally sat in his capacity as judge, the task was largely left to officials whose only job was to hear and decide litigation.
Hence, with centralization also came an increasingly specialized professional cadre of judges and lawyers which was able to develop over
time its own traditions and independence. The common law in its infancy was dependent on local custom.

16
The nature of this emerging common custom is a matter of some debate among legal historians, but there is substantial agreement on two
primary characteristics:
a) it began largely as procedural, concerning manner and mode of proof, leaving substantive standards to the judgment of the community
represented by the jury, and only over a long period did substantive rules and principles work their way into the body of law; and
b) while ‘case law’ was from the beginning the mode of existence of the common law, this did not rest on a firm doctrine of binding
precedent but rather the law was understood as a matter of the ‘common erudition’ of a unified and learned profession.

Common law was unwritten law approved and authorized by the royal courts in their use of it to decide particular cases. No single recorded
case was regarded as formally binding, but rather as evidence of the way law worked and how it was practised. It was the
general practice of the courts, not the specific decisions or reasoning in a given case or line of cases, that established the propositions of law.
These records taught students modes and contexts of argument rather than settled rules and criteria by which to authenticate them.

Another example lies in the role of the jury in common law. Early in their development, the royal courts found it useful to appeal to the good
judgment of peers of the accused or of the disputing parties. They were asked to judge the appropriateness of the disputed behaviour
according to local norms. From this practice emerged perhaps the most distinctive institution of the common law system, the jury.

The emergence of a professional lawyer class gave further definition to this feature of common law. Early common law required litigants to
tell their stories to the court. But, since the language of the court after the Norman invasion was often foreign and formal, a professional class
of counters, ‘story-tellers’, emerged to translate naïve narratives into the language of the court.

The Common Law Conception Of Law: An Overview

Classical common law judges did not regard themselves as ‘making’ law, and, as we have seen, they did not subscribe to an explicit doctrine
of stare decisis. They treated decisions of past courts with respect, of course, but they would have found it odd to regard these decisions as
discrete instances of law making. The orthodox lawyer’s view in the 17th century was that the common law of England was found primarily
in three places: judicial decisions, Acts of Parliament, and local custom.

Common law rules were the product of a common practice of deliberative reasoning; hence, the usage in question was never merely
predictable patterns of behaviour in a community, but was always seen as ‘reasonable usage’—usage observed and confirmed in a public
process of reasoning in which practical problems of daily social life were addressed. The categories of custom and reason gave shape and
structure to the common lawyers’ conception of law. In their eyes, these two notions were complementary, mutually qualifying and mutually
enhancing.

Common Law As Custom Of The Realm: For the common law of England is nothing else but the common custom of the realm.  Sir John
Davies

Disagreements tended to arise around three important matters: a) the alleged immemorial nature of common law, b) the relation of common
law to customs of the people, and c) the normative force of common law custom. Common law writers took a variety of positions with respect
to each of these matters, but their views tended to arrange themselves roughly around one of two different centres.

(a) The Coke–Davies Position

Coke, Davies and others put the notion of immemorial usage at the centre of their conception of common law. Common law was practised
and evidenced in the decisions of courts and the behaviour of people, according to Davies, but never explicitly made.

Secondly, Coke, Davies and others insisted that common law was immemorial, that is to say, ancient and unchanged usage. But this forces to
the foreground the question that has to this point lurked only at the margins of the Coke–Davies position: whose custom is this common law?
Already in the 14th century and increasingly thereafter, it was immediately apparent to the casual observer that much of common law was a
specialized, increasingly technical body of doctrine, rules and customs. Most English people were wholly ignorant of many of the rules of
their law.

The Hale–Selden Position

Selden and Hale set Hedley’s solution to the problem of the scope of common law’s customary foundations in a theoretical context at once
more sophisticated, more sceptical and more moderate. They rejected the view that it had survived unchanged from ancient times. Common
law, he argued, was not an unchanging, ancient deposit, but constantly evolving. Over a long period of such creative adjustments to changing
circumstances, each community tailored the original natural imperatives of human social existence to its own needs and conditions.

Secondly, Selden and Hale rejected the idea that all common law was, throughout its existence, strictly a matter of rules implicit in the usage
of the people.

Hale held that the process of incorporation and accommodation—incorporation of individual rules and doctrines into the body of the law, and
accommodation of the law into the lives of the people subject to it— was first of all not the work of an invisible hand, but the unique
responsibility and product of a disciplined judiciary, one intimately familiar through long experience
17
with ‘the texture of human affairs’, trained to exercise the special kind of prudence and deliberative judgment Coke liked to call the ‘artificial
reason’ of the law

Common Law As Common Reason

Common law jurisprudence was built on two complementary and interdependent notions: custom and reason. Hale argued. Hence, if law
was to do its necessary work, it required judges who could draw on the fund of accumulated collective experience recorded in the common
law.

Thus, although natural law may have been regarded as the foundation of common law, it played little or no role in the ordinary work of
lawyers and judges. . In such cases, the tendency of the common lawyer was not to consult universal moral sources,119 as a natural lawyer
might do, but rather to look longer, harder and deeper into the accumulated fund of experience and example provided by the
common law.

The overriding aim is not to find the result dictated by abstract principles of natural law, but to solve the practical problem and keep ‘the law
consonant to itself’, and for this the ‘experience and observation’ of common law judges provide a more reliable basis of judgment than ‘the
aery speculations and notions and consequences and deductions from certain preconceived systems of … philosophers’.

ARTICLE “Why Fiduciary Law is Equitable’, 2013 - by: Henry E. Smith,

Overview:
Fiduciary law is both celebrated as unbound by rules and deplored as unprincipled. Moralists see in fiduciary law a fixed and mandatory system, even as legal
economists and contractarians have cast fiduciary law as the ultimate set of defaults to fill in incomplete contracts.

This chapter argues that a functional theory of equity – of equity as a safety valve aimed at countering opportunism – captures the character of fiduciary law.
Fiduciary relationships, in which someone undertakes to act on another’s behalf by using discretion, carry more than the usual potential for
opportunism. Like equity but in a more sweeping and often more categorical way, fiduciary law sets the presumption against the fiduciary when certain
proxies are triggered.

Like equity generally, fiduciary law features a constrained residuum of open-endedness to deal with new and creative ways of being opportunistic. The
theory of equity as targeting potential opportunism unifies the best aspects of traditional and modern theories of fiduciary law, and helps explain why
fiduciary law has become so disparate and contested after the fusion of law and equity.

Cut off from the special rationales of equity, fiduciary law itself threatens to become too expansive or too narrow and hidebound – like equity generally.
Finally, the functional theory of equity as anti-opportunism helps explain the similarity of fiduciary law to another much misunderstood area of private law –
unjust enrichment – and the relation between the two.

1. Equity as Anti-Opportunism

Fiduciary law, like the rest of equity, tackles a serious problem of potential opportunism. The development of equity and the trust help explain their
preoccupation with opportunism and their characteristic morally infused ex post strategies of countering opportunism.

The equity courts emerged in the fourteenth century out of the dispute resolution activities of the chancellor on the king’s behalf. The chancellor was the
keeper of the king’s conscience and equity courts were known as courts of conscience. Equity bore a close relation to natural law and natural justice, and
moral norms infused all of its work. On either the wide or narrow view of equity, not every situation can be anticipated by those framing the law, and so we
need an individualized ex post approach. The strategic aspect of opportunism calls for individual tailoring.

The Problem of Opportunism

I have previously argued that the theme of equity as a decision-making mode is the fight against opportunism. As we will see, the proxies for triggering the
potential for equitable intervention are keyed to fraud, accident, and confidence. Oliver Williamson defines opportunism as “self-interest seeking with
guile,” but for our purposes this is too broad and too narrow.

Elsewhere I have defined opportunism as “behavior that is undesirable but that cannot be cost-effectively captured – defined, detected, and deterred – by
explicit ex ante rulemaking. . . . It often consists of behavior that is technically legal but is done with a view to securing unintended benefits from the system,
and these benefits are usually smaller than the costs they impose on others.”

The Place of Fiduciary Law in Equity

Generically, equity is a safety valve for opportunism, which in a generalized setting is exceptional. Fiduciary law presents a more systematic problem of
potential opportunism that calls for more than a mere safety valve. Here the entrusting and vulnerability that give rise to the danger of misbehavior are
inherent in the relationship.

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2. The Structure of Fiduciary Law

As we have seen, fiduciary law was historically at the heart of equity, and historic equity partook to a great extent of the equitable decision-making mode in
the service of countering opportunism. In this Part, I show that equity as anti-opportunism helps explain and justify fiduciary law. Trusts and trust-like
relationships present great dangers of opportunism that call for a broader and more stringent version of equity.

The Equitable Contours of Fiduciary Law

Like the rest of equity, fiduciary law uses principles like substance over form in order to counter opportunism. The main difference between fiduciary law and
general equity is that the proxies in fiduciary law are even more prophylactic than those in equity generally. One need not show there is an actual injury,
which takes the form of declaring that gains belong to the beneficiary because it was the beneficiary’s means that were used. In the core area of trusts, self-
dealing or conflict of interest on the part of the fiduciary makes the transaction in question voidable and makes available disgorgement remedies; no showing
of fraud or even harm in a narrow sense to the beneficiary is required.

The duty of loyalty is closely tied to the danger of opportunism, while at the same time sweeping broadly. Conflicts of interest in general lead to a
presumption against the fiduciary, and often per se liability.

Fiduciary Proxies and Presumptions

Status based relationships: Whole categories of relationships have been deemed to be similar enough to the trustee-beneficiary relationship to warrant
fiduciary treatment. Fact based relationships: The facts in question usually relate to one party’s vulnerability and the discretion wielded by the candidate for
fiduciary.

Other Equitable Features of Fiduciary Law

Courts in fiduciary case look to “community or industry standards.” Equity has also long has a role in enforcing community and industry custom.

Notable features of fiduciary law follow from this equitable set of proxies and presumptions. Note that because of the nature of the opportunism problem,
fiduciary law is “gappy” in the sense that the proxies for opportunism are overinclusive. This leads to the characteristic flavor of fiduciary law as not being
based on actual harm.

Finally, the equitable theory points to stringent remedies. Violations of fiduciary duties can lead to disgorgement of gains, the imposition of a constructive
trust, or the payment of supracompensatory damages. Tailoring in the rules should be expected to be paired with tailored remedies, and vice versa.

Conclusion

Seeing fiduciary law as an extreme example of equity as anti-opportunism allows us to situate fiduciary law within private law. It suggests some new
perspectives on the age-old question of how contractarian fiduciary law is (and should be), and it draws out the similarities in fiduciary law to unjust
enrichment

Overall, seeing fiduciary law as a core of equitable anti-opportunism helps explain how and why fiduciary law is a hybrid of status- and fact-based
approaches. Like equity, fiduciary law is moral but not unboundedly so. Like equity, anti-opportunism lies between open-ended fix-it contextualism and
principled formalism, but like equity this relationship has been obscured since the fusion of law and equity.

Fiduciary law is and has always been at the heart of equity. The equity courts got their start in dealing with opportunists like faithless proto-trustees. Fiduciary
law employs especially broad proxies and stiff presumptions because the problem of opportunism is especially acute and some stock situations call for
prophylactic rules. Bringing fiduciary law back to its equitable roots promises to allow it to be a hybrid of broader rules and more tailored standards so as to
navigate between unconstrained contextualism and rigid formalism. Fiduciary law is central to the role that equity plays in suppressing opportunism.

ARTICLE “Precedent”, 2011: Frederick Schauer

Overview:

This article examines the main philosophical and jurisprudential issues involved with the concept of precedent and its role in legal reasoning and legal
decision-making. Among the themes covered are the fundamental idea of a past decision being a reason just because of its existence, the distinction between
precedential and analogical reasoning, the issues involved in determining which past decisions are precedents for which current ones, the relation between
precedent and rules, and the normative and institutional design questions of when a system of precedential constraint is desirable and when it is not.

Introduction:

Legal systems, and especially common-law legal systems, claim to place special weight in their decision making on the constraints of precedent. It is the very
“pastness” of previous decisions, and not necessarily the current decision maker’s view of the correctness of those previous decisions, that gives the previous
decisions their authority. Why this is so, and, more importantly, what it means for it to be so, is the principal topic of this chapter.

Precedent: the basic idea

Precedent is centrally about the (not necessarily conclusive) obligation of a decision maker to make the same decision that has been made on a previous
occasion about the same or similar matters.

19
It is important to distinguish two different dimensions of precedent:
1. One, which we can label vertical precedent, describes the obligation of a court to follow the decision made by a court above it in the judicial
hierarchy on the same question, even if that question has arisen in a different case.
2. To be contrasted with this sense of vertical precedent is horizontal precedent, conventionally referred to as stare decisis (typically translated as
“stand by what has been decided”). Understood horizontally, the obligation of a court is not the obligation to obey a decision from above, but is
instead the obligation to follow a decision by the same court (although not necessarily by the same judges) on a previous occasion.
a. The obligation to follow precedent in its horizontal dimension is, in essence, about treating a prior decision as if it came from above, even
if it did not, and is accordingly about following an earlier decision solely because it came earlier.

It is the source or status of a precedent that gives it its authority – that provides the reason for a decision – rather than the content of the precedent or the
content or persuasiveness of the reasoning it incorporates. It is still important to note that the content-independent reasons supplied by a precedent need not be
conclusive. A decision maker in the instant case who accepts the obligations of precedent, and thus accepts that precedents supply content-independent
reasons for decisions, may nevertheless believe that other reasons – legal, moral or prudential, for example – may outweigh the reasons supplied by the
content-independent status of the precedent.

On identifying precedents

Obviously no previous decision from a potential precedent case will be totally identical in all respects to the instant case. Still, on numerous occasions those
and related differences will be patently inconsequential. In answering such questions, it is tempting to say that the holding of the precedent case applies only
to similar cases, but such a conclusion is merely preliminary, for then the inquiry simply moves to the question of just how we determine similarity/difference
Because of the fruitlessness of any inquiry into whether things “really” are or are not similar, the traditional answer to the question of similarity for purposes
of determining what is a precedent has turned to the question of trying to determine the ratio decidendi of the precedent case (Marshall 1997). That is, the
question to be asked, so it is said, is just why did the precedent court decide the case the way it did? And thus the traditional answer to the question of what
is a precedent is that subsequent cases falling within the ratio decidendi – or rationale – of the precedent case are controlled by that case

The value – if any – of precedential constraint

Once we understand that a system of precedent requires legal decision makers – especially judges – to reach decisions with which they disagree just because
some other judge or court has done so previously, the virtues of precedent become more elusive. This may not be the case, of course, with vertical precedent.
Lower courts may be obliged to follow the lead of higher courts even in the face of disagreement for the same reason that we expect privates to obey the
orders of sergeants and sergeants to obey the orders of lieutenants.

With respect to horizontal precedent – stare decisis – however, the matter is not so simple. It may well be common to expect privates, workers and citizens to
obey orders from above, but we do not typically expect privates, workers, or citizens to behave as their similarly situated predecessors have behaved in the
face of belief that their predecessors were mistaken. And thus in the normal course of things, a principle of stare decisis is, at best, the exception rather than
the rule, and accordingly it is hardly obvious why the law appears to place a special burden on legal decision makers to make what they perceive to be the
same mistakes that their predecessors have made.

Jeremy Bentham described the constraints of stare decisis as “acting without reason, to the declared exclusion of reason, and thereby in opposition to rea-son”
(Bentham 1983). Many have noted the peculiar nature of horizontal precedent, and the counterintuitive idea that decision makers should follow what they
believe to be the mistaken decisions of predecessors who are no higher than they are in the legal hierarchy.

Yet although the constraints of horizontal precedent have been prominently excoriated for generations, so too have they been defended. Even more prominent
still than the just-quoted denigrations is Justice Louis Brandeis’s observation in Burnet v. Coronado Oil & Gas. Co. ((1932) 285 US 393, 406) in 1932 that “in
most matters it is more important that [the question] be settled than that it be settled right.”

Thus, the principal virtues of stare decisis are all located in the vicinity of the related ideas of stability, reliance and predictability.

And if – a big “if” – we believe, as most common-law systems have apparently believed for a very long time, that stability for stability’s sake is more
important in the legal system than in other decision-making domains, we can understand why the seemingly peculiar idea of horizontal precedent, an idea that
is by no means widespread across all decision-making domains, is especially concentrated in law.

It is important to note that one of the most common arguments for a system of horizontal precedent turns out to have less purchase than many people have
commonly thought. This is the value of “treating like cases alike,” and it has been promoted since Aristotle. The problem with this principle, however, as
many theorists have noted (Hart 1994: 157–63; Schauer 2003: 199–207; Winston 1974), is that we cannot tell what case is like any other case without having
some principle that determines similarity and difference.

Precedent and legal realism

This chapter is not the appropriate one to describe or analyze Legal Realism in any depth, so a brief and superficial description will have to suffice. But the
important idea is that Legal Realism, with its roots in Holmes and various late-nineteenth-century European perspectives, is a challenge to the claim that
legal rules and legal reasoning are important causes of judicial decisions.

In the view of exemplary Legal Realists, judges behave like lawyers with clients rather than as arbiters who made their decisions only after hearing all of the
facts and consulting all of the law. That is, just as the lawyer’s position is initially determined by the wishes of her client, so did the Realists believe that, at
least in the hard cases that wind up in appellate courts, a judge would first determine how she wanted the case to come out, and would only then marshal legal
authorities to support a result reached on grounds other than what might have been dictated by the authorities.

20
For the Realists, therefore, precedents served as ex post rationalizations for decisions reached on other grounds, rather than serving as genuine causes of or
constraints on judicial decisions. The Legal Realist view of precedent – that precedents are neither causal nor constraining, but largely justificatory – is thus
an empirical claim, and one that is grounded on the observation that it is often possible to locate a precedent supporting whatever result a judge might
otherwise want to reach, coupled with the further observation that even individual judicial decisions are suscept-ible to such a broad range of interpretations
and descriptions that they exercised little, if any, genuine constraint.

The nature of precedential obligation is assuredly a philosophical and jurisprudential topic, as is the analysis and evaluation of the arguments that might
normatively support such an obligation, but the existence – or not – of belief in such an obligation, and the extent to which actual judges and other legal
decision makers behave and decide in accordance with such a belief even if the belief exists, is in the final analysis an empirical question whose answer is
likely to vary across jurisdictions, across time, across courts and even across individual judges.

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 -----------------------------------TOPIC 4: FUNDAMENTAL PRINCIPLES OF THE CANADIAN LEGAL SYSTEM----------------------------
Craik: Chapter 3, pp 79-124

Background
 Public law concerns the relationship between the state and civil society
 Private persons may only create legal rights and duties b/w each other, and only on the basis of consent.
 The starting point in assessing the legitimacy of state action (and its adherence to “the rule of law”) is the Constitution
 The Constitution establishes a foundation for the rule of law in 2 ways:
o It establishes who can make the ordinary law of the land, and also spells out any limits on the content of the ordinary law. (federalism)
o It establishes the governing relationships between the institutions or branches of the state that perform the functions needed.

Six principles derived from Canada’s constitutional history and structure that explain the shape and operation of public law in Canada are as follows:

1. Rule of law—All exercises of legitimate public power must have a source in law, and every state official or agency is subject to constraint of the
law.
2. Constitutional supremacy—Law that is inconsistent with the Constitution is of no force or effect.
3. Separation of powers—The legislature, the executive, and the judiciary—and each branch carries out its functions in a distinct manner.
4. Parliamentary supremacy—Subject to the Constitution, the legislative branch may enact any ordinary statute law and delegate.
5. Federalism—Legislative sovereignty in Canada is divided between a national legislature, or Parliament, and provincial legislatures.
6. Judicial independence—The judicial branch of the state must have a sufficient degree of institutional independence from the legislative.

Preliminary point: what comprises the Constitution of Canada?

Section 52 CA, 1982
- Primacy of Constitution of Canada

The two principal sources of unwritten constitutional norms are what are known as:
 “constitutional conventions” and
 “unwritten principles of the Constitution.”

Constitutional Conventions
 Constitution Act 1867 sought to effect “a Constitution similar in Principle to that of the UK,” (preamble) Canada inherited these conventions.

Key case: Re Resolution to amend the Constitution (the Patriation Reference) [1981] 1 SCR 753. HELD:
1.Conventions come into existence on the basis of three factors:
a. a practice or agreement developed by political actors;
b. a recognition by political actors that they are bound to follow the convention; and
c. the existence of a normative reason—that is, a purpose—for the convention. (In the Patriation Reference itself, the majority located a
normative reason for a convention of “substantial provincial agreement” in the federal nature of Canadian democracy.)
2. Although part of the Constitution, conventions are not “law,” and as such cannot be enforced by the courts. They acquire and retain their binding force
by agreement, and ultimately in the realm of politics. However, courts may recognize a convention.

FACTS:
- The References in question were prompted by the opposition of eight provinces to a proposed Resolution
- The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick.

The nature of constitutional conventions

 But many Canadians would perhaps be surprised to learn that important parts of the constitution of Canada, with which they are the most familiar
because they are directly involved when they exercise their right to vote at federal and provincial elections, are nowhere to be found in the law of the
constitution.
 Being based on custom and precedent, constitutional conventions are usually unwritten rules.
 They are not enforceable by the courts: One reason for this situation is that, unlike common law rules, conventions are not judge-made rules.

Requirements for establishing a convention

We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule;
and thirdly, is there a reason for the rule?

HELD: agreement of provinces constitutionally required for passing of Resolution.

 Courts found that there was 22 previous instances (precedent) of amendments to constitution which had provincial approvals by affected provinces.
ALSO, prime ministers in past acted on basis that provincial agreement was necessary.
 It is sufficient for the Court to decide that at least a substantial measure of provincial consent is required
 The reason for the rule is the federal principle. Canada is a federal union.

Unwritten Principles
 In the Secession Reference, the Supreme Court of Canada based its ruling on “unwritten principles” of the Constitution, and in so doing
distinguished principles from conventions.
 Distinction: Unwritten Principles = force at law /vs\ Unwritten Conventions = no force.
 For this reason alone, unwritten principles are crucial to understanding the legal constraints under which public power is exercised.
Reference re Secession of Quebec [1998] 2 SCR 217
22
  The Constitution also "embraces unwritten, as well as written rules", as we observed in the Provincial Jdges Reference
 A written constitution promotes legal certainty and predictability
 However, [i]n the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the
premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text".
 Patriation ref  Underlying constitutional principles may give rise to substantive legal obligations (have "full legal force")

Significance:
o Supreme court effectively expanded judicial authority in the constitutional sphere. Courts agree that unwritten principles cannot
override written law, only can be used to FILL THE GAPS.

[a] The principle of the Rule of law

 Secession Reference at – constitutional supremacy of rule of law –The rule of law principle requires that all government action must comply with the
law, including the Constitution.”

Executive government only have power to act to the degree that they have been granted by ordinary law: This has two quite practical implications:
1. government actors may always be questioned about the (statutory) source of their actions—and must always answer;
2. the exercise of government authority is always subject to review by the judiciary

Roncarelli v Duplessis [1959]: where it was held that even a fully discretionary power is subject to the rule of law
FACTS:
 The director of the province’s liquor commission, acting under the express direction of Premier Maurice Duplessis, revoked the licence of a Montreal
restaurateur who had posted bail for several hundred Jehovah’s Witnesses. Cancels permits “at its discretion.”
ANALYSIS and RULING:
 No legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious
or irrelevant, regardless of the nature or purpose of the statute.
 It was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as
it was intended to do, the destruction of his economic life as a restaurant keeper within the province. Further, he was not able to appeal the matter. This
is a disintegration of the rule of law as a fundamental postulate of our con-stitutional structure.

This was considered in: British Columbia v Imperial Tobacco Canada [does not have to be prospective, can be retrospective]
FACTS:
 In 2000, the BC legislature enacted the Tobacco Damages and Health Care Costs Recovery Act, creating a civil cause of action for the BC government
against tobacco manufacturers with respect to health care costs. This act created cases even if in past: retrospective effect.
ANALYSIS:
This Court has described the rule of law as embracing three principles.
1. The law is supreme over officials of the government as well as private individuals (i.e. the law applies equally)
2. Rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of
normative order (i.e. must be positive laws)
3. Requires that the relationship between the state and the individual be regulated by law
 Except for criminal law, the retrospectively and retroactivity of which is limited by s. 11(g) of the Charter, there is no requirement of legislative
Prospectivity embodied in the rule of law or in any provision of our Constitution
 It might also be observed that developments in the common law have always had retroactive and retrospective effect.

[2] The principle of Constitutional Supremacy

 The Secession Reference (Quebec) confirmed that with s 52(1) of the CA, the Canadian system of government operates under a principle of
constitutional supremacy.

The doctrine of constitutional supremacy has certain necessary implications that speak to other aspects of public law:
(1) Hierarchy of law:
 To state that the Constitution is Canada’s supreme law implies a hierarchy of law. Constitution > CL – Dolphin Delivery]
(2) Adjudication:
 Our system accepts that constitutional interpretation cannot be performed by the same body that enacts law: requires judicial.
(3) Counter-majoritarianism:
(4) Amendment by super-majority required – via constitution instrument.

[3] The principle of the Separation of Powers

- Doctrine refers to the division of governmental functions between the legislative, executive and judicial branches of the state
- Making of law (legislature); the implementing of law (executive) and the interpreting and applying of law (judiciary)
- In Canada, there is no strict separation.
Nevertheless, the distinction between the legislature, executive and judiciary is important to Canadian law. It serves two principal purposes:
- a functional purpose of identifying the institutional homes and a normative purpose of providing general boundaries for the operation of each.

23
 It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to
determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter (Operation
Dismantle) or other constitutional norms (Air Canada).

 Courts possess a narrow power to review and intervene on matters of foreign policy (prerogative) to ensure constitutionality of executive action.
Judicial review of the exercise of prerogative power remains sensitive to the fact that the executive branch is responsible for its own decisions, and are in
a better place to make such decisions.

Legislative Power

- Legislative branch is divided between Federal legislature (Parliament) [House of Commons, Appointed Senate] AND the elected legislatures in each
province. Both levels derive power from constitution.

[a] Parliamentary Supremacy Principle:

 Canada’s federal and provincial legislatures were understood to be the sole sovereign holders of state authority, subject to authority being divided
between them along the lines set out in ss 91 and 92 of the Constitution Act, 1867.
 With the Constitution Act, 1982, Canada adopted both a Charter of Rights and Freedoms and an express declaration of constitutional supremacy (which
put new limits on the lawmaking ability of either level of legislature). Thus, the concept of parliamentary supremacy was
 Most of the executive’s authority derives from delegation under statutes enacted by the legislature.

Babcock v Canada (Attorney General) [2002] [example how court approaches parliamentary sov in Canada constitutional law]
FACTS:
 The applicants sought to invoke unwritten principles such as the rule of law to support an argument that disclosure should be required despite the clear
statutory statement to the contrary. The court found that parliamentary sovereignty decided the issue. Issue of confidentiality..
REASONING:
 This absolute language goes beyond the common law approach of balancing the public interest in protecting confidentiality and disclosure on judicial
review. Once information has been validly certified, the common law no longer applies to that information.
 It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or
interfere with the relationship between the courts and the other branches of government.

[b] The Principle of Federalism

 Dividing legislative power between a federal government and regional governments, each being assigned respective spheres of jurisdiction
 Federalism is an unwritten principle of the Canadian Constitution (see Reference re Secession of Quebec); the SCC in that case described this principle
as a means of recognizing regional cultural diversity at the founding of Canada, particularly w/ respect to the distinct nature of Quebec as predominantly
a French-speaking society
 Ss 91 and ss.92 set out lists of enumerated federal and provincial powers respectively.

KEY CASE: REFERENCE RE SECESSION OF QUEBEC

 Our federal system shows that political power is shared by two orders of government: federal and provincial. Each assigned respective spheres or
jurisdiction by the Const Act 1867.
 Repatriation Reference: federalism is dominant principle of Canadian constitutional law. With enactment of charter, it is obviously less so now.
 The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities.
 Federal structure facilitates democractic participation by distributing power to government most suited to deal with diversity (federal).

The Executive Power

 Executive includes all minsitries of government and their employees (at both levels of legislature).
 Two features of the relationship b/w executives and legislature:
1. The executive derives any power it has solely from the laws or statutes passed by the legislature.
2. The executive, by constitutional convention, is responsible to the legislature – this is the essential the meaning of “responsible government”

Judicial Power

The Supreme Court of Canada has identified the “core jurisdiction” of superior courts as encompassing two crucial public law powers:
(1) the jurisdiction to rule on the constitutional validity of all ordinary laws in Canada; and
(2) the jurisdiction to supervise the activities of executive government and other statutorily delegated actors to ensure that they act within their statutory
authority.
The former role represents the superior courts’ “constitutional law” jurisdiction; the latter role represents its “administrative law” jurisdiction (review).

The Principle of Judicial Independence

 Judicial independence ensures judges, as arbiters of disputes, are at a complete liberty to decide individual cases on their merits without interference
 Also preserves the separation of powers b/w the branches of our democracy by depoliticizing the relationship between the judiciary and the others.
 “the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely … members of the judiciary should
exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of
24
 political debate, and which do not relate to the proper administration of justice”: see Re Remuneration of Judges (the “Provincial Judges Reference”)
[1997] 3 SCR 3, at [140].

KEY CASES

Reference re Secession of Quebec at [35]-[48] and [49]-[82]

MAIN POINTS:
- Talks about confederation, federal-provincial division of powers, evolution from colony to fully independent state (history).
- The following discussion addresses the four foundational constitutional principles that are most germane for resolution of this Reference: federalism,
democracy, constitutionalism and the rule of law, and respect for minority rights.
- The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.

Given the existence of these underlying constitutional principles, what use may the Court make of them?
 In the Provincial Judges Reference we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A
written constitution promotes legal certainty and predictability.
 However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate
certain constitutional principles by reference to preamble "invites the courts to turn those principles into the premises of a constitutional argument
that culminates in the filling of gaps in the express terms of the constitutional text".
 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations
Federalism:
 The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities
 This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. Democracy
Democracy:
 In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. These
legislatures, we have said, are "at the core of the system of representative government"
Constitutionalism and the Rule of Law
 Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that
all government action must comply with the law, including the Constitution.

Singh v Canada (Attorney General) [2000] 3 FC 185 at [13]-[44]

FACTS:
- The appellants filed complaints with the RCMP Public Complaints Commission alleging misconduct by the RCMP in the treatment of demonstrators
during the (APEC) Conference in Vancouver…
- Two successive Clerks of the Privy Council filed certificates under Canada Evidence Act, subsection 39(1) certifying that information contained in
certain documents constituted confidences of the Queen's Privy Council for Canada. Section 39 = documents shall not be disclosed if the public interest
warrants a refusal to disclose.
- The appellants commenced an action seeking a declaration that section 39 is unconstitutional and inconsistent with the "fundamental and organizing
principles of the Constitution".
HELD:
 Both before and after 1982 our system was and is one of parliamentary sovereignty exercisable within the limits of a written constitution.
 [Re Parliamentary sovereignty] It is the prerogative of a sovereign Parliament to make its intention known as to the role the courts are to play in
interpreting, applying and enforcing its statutes.
 Prima facie, then, this appears to be an intra vires measure by Parliament to define privileges of the federal Executive in the furtherance of the well-
established and well-accepted principles of Cabinet secrecy.

Separation of powers
 The appellants argue that there is a doctrine of separation of powers which prevents Parliament from giving judicial functions to the Executive.
 There are many other examples of the mixing of functions among the various branches of government, the most obvious being the statutory power of the
Supreme Court of Canada to give advisory opinions.
 In the present context it is difficult to see how, even on the basis of the separation of powers CAN be seen to be a violation of the DOCTRINE.
Independence of the judiciary
 Essentially their [the appellants] position is that any limitation on the jurisdiction of judicial bodies, precluding them in certain instances from engaging
in the review of government decisions, is a violation of a constitutionally guaranteed independence of the judiciary.
 The Trial Judge, correctly I believe, held that this did not constitute an interference with independence.
 This is not to say that there is no role for the courts in relation to the issuance of certificates under section 39 of the Canada Evidence Act.

Reference re Remuneration of Judges of the Provincial Court of PEI [1997] 3 SCR 3

COMMENT: Although this case was settled using s 11(d), the Court went on to recognize the general principle of judicial independence as an unwritten
ISSUE: whether / how guarantee s11(d) Charter restricts the manner by which provincial governments can reduce salaries of provincial court judges.
REASONING:
 Judicial independence is valued because it serves important societal goals — it is a means to secure those goals. Goal: perception that justice served.
 Judicial independence is at root an unwritten constitutional principle.
 To some extent, the gaps in the scope of protection provided by ss. 96-100 are offset by the application of s. 11(d), which applies to a range of tribunals
and courts, including provincial courts.
 In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial
independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867.

 What I do propose, however, is that financial security has both an individual and an institutional or collective dimension.
25
 o First, as a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an
overall economic measure or directed at provincial court judges as a class.
o However, any changes to or freezes require prior recourse to a special process to avoid interference through economic manipulation.
 Second, judiciary cannot engage in negotiations with the executive or the legislature - would be at odds with judicial independence.
 Third, public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be
perceived as susceptible to political pressure through economic manipulation, as is witnessed in many countries.

As long as those institutions meet the three cardinal requirements of independence, effectiveness, and objectivity, s. 11(d) will be complied with.
 First and foremost, these commissions must be independent…
o The members of these bodies must have some kind of security of tenure.
o What s. 11(d) requires instead is that the appointments not be entirely controlled by any one of the branches of government
 In addition to being independent, the salary commissions must be objective. [174]
 Finally, and most importantly, the commission must also be effective.

LA FOREST J. (dissenting in part) --

 Deeply concerned that the Court is entering into a debate on this issue without the benefit of substantial argument.
 I am all the more troubled since the question involves the proper relationship between the political branches of government and the judicial branch,
an issue on which judges can hardly be seen to be indifferent, especially as it concerns their own remuneration.
 In such circumstances, it is absolutely critical for the Court to tread carefully and avoid making far-reaching conclusions that are not nec.

 The Effect of the Preamble to the Constitution Act, 1867

 I take issue, view that the preamble to the Constitution Act, 1867 is a source of constitutional limitations on the power of legislatures to
interfere with judicial independence.
 By expressing a desire to have a Constitution “similar in Principle to that of the United Kingdom”, the framers of the Constitution Act, 1867
did not give courts the power to strike down legislation violating the principle of judicial independence.
 The framers did, however, entrench the fundamental components of judicial independence set out in the Act of Settlement - violations could
be struck down by the courts. This was accomplished, however, by ss. 99-100 of the Constitution Act, 1867, not the preamble.

 A more general answer to the question lies in the nature of the power of judicial review. The ability to nullify the laws of democratically elected
representatives derives its legitimacy from a super-legislative source: the text of the Constitution.
 Judicial review, therefore, is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument.
 In this sense, it is akin to statutory interpretation.
 Our Constitution expressly contemplates both the power of judicial review (in s. 52 of the Constitution Act, 1982) and guarantees of judicial
independence (in ss. 96-100 of the Constitution Act, 1867 and s. 11(d) of the Charter).
 The express provisions of the Constitution are not, as the Chief Justice contends, “elaborations of the underlying, unwritten, and organizing
principles found in the preamble to the Constitution Act, 1867” (para. 107).
 On the contrary, they are the Constitution. To assert otherwise is to subvert the democratic foundation of judicial review.

26
------------------TOPIC 5: BASIC ARCHITECTURE AND WORKINGS OF THE CANADIAN LEGAL SYSTEM------------------ Chapters 4 – 8

Overview
- The nature and function of judicial review.
- The basic approaches to statutory interpretation.
- Relationship between branches of government: judicial review; constraints on power of each branch
(1) Executive Branch: structure; powers (e.g. delegated legislation); introduction to nature and role of administrative tribunals
(2) Legislative Branch: structure and operation of Parliament; legislative process; formation of statute versus regulations; ethics and accountability
(3) Judicial Branch: Canadian court systems; appointment of judges; judicial independence

* LEGISLATIVE BRANCH * – Parliament and the Legislative process ----------- (CHAPTER 4)

Structure and operation of Parliament

 Parliament consists of “the Queen, an Upper House styled the Senate, and the House of Commons”: s 17 Constitution Act, 1867

[1] The Monarch and Governor General

 Queen is Canada’s official head of state. The governor general, in practice, exercises many of the Queen’s powers: see s 10 CA, 1867

Selecting the Monarch - Determined in the UK according to rules of heredity, most notably the famous Act of Settlement of 1701.

[2] The Senate

 Canada has an unelected upper chambers of the federal legislature; the Constitution expressly anticipates the appointment of senators by the governor
general (see s 24 of the Constitution Act 1867)

 The governor general follows the advice of the PM, as required by constitutional convention.
 Two cases attempted to dispute this process, but failed (see Brown v Alberta, where it was held that the appellant didn’t raise a legal issue; and Samson
v A-G, where it was held that the Court cannot fetter the governor general’s discretion and also that the GG’s power is purely political)

Representation by Population - Controversy

 Section 22 of the Constitution Act, 1867 partitions Canada into four “divisions,” entitled to equal representation in the Senate. These divisions are
Ontario, Quebec, the Maritime provinces, and the Western provinces.
 When contrasted with the population of each province, produces striking imbalances.
 Correcting this problem would require an amendment to the Constitution Act, 1867 that, under the applicable constitutional amendment formula,
would require approval by the federal Parliament and at least seven provinces that collectively have at least 50 percent of pop.

[3] House of Commons

 Members of the House of Commons are elected. Governed by the Canada Elections Act 2000.
 After an election, the party with the most elected representatives usually becomes the governing party.
 The leader of this party becomes the PM and chooses people to head the various government departments. 2nd largest no of MPS “Opposition”.
 All the elected candidates have a seat in the House of Commons, where they vote on Bills

[4] Bringing the constituent elements of Parliament together – page 176 Craik
1. Summoning, 2. Proroguing, 3. Dissolving

(a) Summoning: the calling of Parliament.

 s38 of the Const Act, 1867 empowers the governor general [to] summon and call together the House of Commons.
 By constitutional convention, the governor general calls Parliament to session on the advice of the prime minister.

(b) Prorogation:
 Once summoned, a given Parliament is generally divided into several sessions, separated by a prorogation.
 A prorogation is the prerogative of the governor general, acting on the advice of the PM.
 Prorogation ends a session, but does not dissolve Parliament; PM and Ministers remain in office.

Example: Harper prorogation / misuse of governor general powers?

 The opposition parties proposed something of an ad hoc coalition and combined to table a motion of non-confidence in the government.
 Prime Minister Harper postponed voting on the measure for a week and then subsequently asked the governor general to prorogue Parliament,
 In the end, however, the governor general agreed to prorogue Parliament and, by the time Parliament returned nearly eight weeks later, the
opposition coalition had collapsed, removing the immediate threat to the Conservative government. Debate whether governor general had acted
properly in granting the prorogation request, with some observers concluding that she had not, while others suggested that she had.

(c) Dissolution
 The Constitution Act, 1867 (s 5), and the Charter (s 4(1)) limit the duration of a Commons to 5 years, except in times
 This dissolution prompts a new electoral cycle, governed by the Canada Elections Act.
 There are, however, instances where a prime minister might be forced by constitutional convention to seek a dissolution from the governor general
at a time not of his or her choosing. Ie a no confidence vote.

Special Committee on the Reform of the House of Commons, Report (– Craik at 180).
27
  In both the British and Canadian experience, if a government that lost a vote of in the House on a matter of confidence faces the choice of
resigning or asking for dissolution. Other matters they may remain in office.
 Three types of votes of no confidence:
1. Explicitly worded votes of confidence
2. Lost votes on central issues to government policy but are not made clear they are votes on confidence.
3. Items not at the heart of government policy (the majority of the bills).

[5] Key actors in parliament

1. Political parties, 2. The speaker [elected by other members], 3. Parliamentary committees [standing, legislative, special]
 Standing committees— Appointed for life of Parliament on matters of on going concern. Usually parallel agencies..
 Legislative committees— Examine bills in detail, report on bill with or without amendments, Special committees—Specific matters, =

[6] Parliamentary procedure/law making

(A) Source of Parliamentary Law

 “Parliamentary law”— i.e. the rules determining parliamentary procedure, flows from an array of sources including statute, Constitution, etc

1. Constitutional and legislative basis: parliamentary privilege [reflects/enforces separation of powers b/w P/L and C’s]
o The starting point to understanding parliamentary law is the Constitution.
o “Parliamentary privileges” are those rights necessary to ensure that legislatures can perform their functions, free from interference.
o “Privilege,” in this context, often means “the legal exemption from some duty, burden.

Canada (House of Commons) v Vaid [2005] Binnie J.

 The former Speaker of the House of Commons accused of constructively dismissing his chauffeur, Vaid, amount to workplace discrimination.
 Privilege attaches to the House’s relations with some of its employees, but not on broadest possible coverage without leading any evidence to justify
such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all.

2. Standing orders
 Courts have specifically held that Canada’s legislatures has the power to administer law relating to its internal procedure, as well as to
determine the content of such things as Standing Orders on Procedure, without any intervention from the courts.

(B) Parliamentary Law Making

[I] Scope of law making jurisdiction

 Parliamentary supremacy means that Parliament is the source of all power jurisdiction “to make or unmake any law”
 In Canada, there is no full federal parliamentary supremacy. Constrained via constitution (federalism) and Charter of Rights (limitations).

Further, even if Parliament is tricked into passing a law by the executive, that alone is insufficient for a court to strike it down; such an issue is
not justiciable (see Turner v Canada).

[II] Ethics in law making

 Parliament may be sovereign, but individual parliamentarians are not
 Margaret Young, Conflict-of-Interest Rules for Federal Legislators Law and Government Division (2003)
 Disclosure requires that legislators reveal their assets publicly so personal interests becomes public.
 Avoidance rules: requires legislators to remove themselves of interests or relationships that may impair their judgment
 Types of interests: Investments; debts; corporate positions; outside employment; lobbying; government contracts and activities;

[III] Parliament’s Law-Making Procedure (BILL TO LAW)

 Parliament is free to determine its own procedure and pass laws as it pleases within its constitutional zone of jurisdiction;
 Mainly governed by rules of procedure of each chamber of Parliament, e.g. Standing Orders of the House of Commons
 There are 2 types of bills: public (centered on public policy) and private (relates to matters of a particular interest/benefit to a person/persons). The
legislative process for each is a bit different
Public Bills: ‘public policy’ Private Bills: ‘matters relating to individuals’
 Two types: govt public bills introduced and sponsored by a Minister and private  A bill designed to exempt an individual or group of individuals from the application
Members’ public bills sponsored by a private Member. of the law is a private bill.
 Goes through 9 stages, the second reading being the most important stage (it is then  They are introduced by means of a petition signed by the interested parties and
that the principle and object of the bill are debated/accepted/rejected; three types of presented in the House by a Member who has agreed to sponsor it
amendments may be proposed at this stage)  Notice of private bills must be posted in the lobbies of the Parliament buildings
The 9 stages are: before consideration in a committee, but the procedures for hearing witnesses
(1) Notice, Member given leave of House to intro Bill and proposing amendments in committee are otherwise virtually identical for
(2) Bill read first time + printed public and private bills.
(3) Bill read second time [most important, here principle of bill debated only.  However, when an amendment that might harm parties concerned is moved to
Clauses not looked at in detail] a private bill, adequate notice must be given, and both the promoters of the
(4) Bill referred to committee bill and those opposed to it may be represented by counsel.
(5) Report stage: Considered and reported back to House
(6) House concurs in the bill at report stage;
(7) Bill read third time and passed by House;
(8) Goes through same stages in the Senate.
(9) Receives Royal Assent (must pass through both Houses)

28
* EXECUTIVE * Authority Exercise (Chapter 5 Craik):

Background:
 The executive branch refers to institutions in government that are responsible for implementing and enforcing laws.
 Administrative law requirement: government officials exercise their powers in furtherance of public, not private, interests.
 The democratic legitimacy of administrative decisions is derived from the close relationship between admin officials and the legislature.

The Executive Branch Defined:

[1] The Crown
 Section 9 of the CA states: “The Executive Government and Authority of and over Canada is hereby declared to continue and vested in Queen”
 The entire authority of the executive branch is vested in the monarchy. “The Crown”, is a reference to the executive itself.
 The Crown is the formal legal entity of the government and, like other entities possessing a legal personality, the Crown is the bearer of both legal rights
and legal obligations
 “Cabinet” is the collective decision-making committee comprising the prime minister (or premier) and his or her ministers. However, the 1867 Act
never actually mentions “Cabinet.” (only Queens Privy Council)
 Under s. 11 of the 1867 Act, the Privy Council is a body to “aid and advise in the Government of Canada.”
 The Privy Council is not technically the same thing as the federal Cabinet. The governor general swears in privy councillors for life.

[2] The Prime Minister and the Cabinet

 Ministers and the Prime Minister together comprise the cabinet. A minister is not automatically a Cabinet member. The q of who obtains a seat at the
Cabinet table is a political matter for the PM to decide.
 The Cabinet is “in most matters the supreme executive authority” (Hogg).
 It is the Cabinet that determines the legislative agenda of the government in Parliament and it is the Cabinet and its ministers that are responsible for the
administration of the individual departments of the government
 The separation of the executive branch from the legislative branch is not absolute, as follows:
o In a system of responsible government, Cabinet members are drawn from the legislative branch, almost always the House of Commons for the
federal Cabinet. Ministers may hold office pending election to the Commons or while a senator, but all ministers are expected to also be
members of the legislature.

[3] The Public Service

 The employees of the various ministries of the government, often referred to as civil servants, are also part of executive
 Civil servants are politically neutral and as such continue their employment regardless of which government is in.
 Three principles that structure the relationship between the civil service and political officials within the government:
1) Ministerial responsibility requires that the presiding minister be held politically accountable decisions by civil servants.
2) Political neutrality requires that civil servants carry out their responsibilities loyally to the government in power without regard for the civil
servant’s own political views.
3) Public service anonymity, which follows as a consequence of the first two principles, provides that bureaucrats should be held accountable
to their political overseers, but are not answerable to Parliament

Fraser v Canada (Public Service Staff Relations Board) [1985] - Servants Must be Loyal to their Government
HELD: lack of loyalty to Government which were inconsistent with his duties as a civil servant (in the publics eye).
 Knowledge is one, fairness another, integrity a third.Is a general rule, federal public servants should be loyal to their employer, the
Government of Canada. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was
inconsistent with his duties as an employee of G.
o
[4] Independent Administrative Agencies
 An administrative body is the product of the legislative instrument that creates it
 Reasons for Independent Admin Bodies:
o The legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from
considerations of political expediency.
o In other, often economic matters, insulation from political forces
o Also, particular kind of expertise might be needed

Ocean Port Hotel Ltd v British Columbia (LCBO) [2001] [“admin tribunals may be seen as spanning divide b/w exec and judicial branch”]
ISSUE: W degree of independence required of members sitting on admin tribunals empowered to impose penalties.
REASONING:
 It is the legislature or Parliament that determines the degree of independence required of tribunal members.
 If silent on matter – court assumes to comport with principles of natural justice…
 In such circumstances, administrative tribunals may be bound by the requirement of an independent and impartial decision maker
 ** Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose
of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as
spanning the constitutional divide between the executive and judicial branches of government. **
HELD:
 However, I can find no basis upon which to extend the constitutional guarantee of judicial independence that animated the Provincial Court
Judges Reference to the Liquor Appeal Board. The Board is not a court, nor does it approach the constitutional role of the courts. It is first and
foremost a licensing body. The suspension complained of was an incident of the Board’s licensing function

29
 The issue of the degree of independence required of admin tribunals as a general proposition was revisited in Bell Canada

Bell Canada v Canadian Telephone Employees Association [2003]

FACTS:
 A decision of the Canadian Human Rights Tribunal was challenged on the basis of the lack of independence of the tribunal
REASONING:
 Some administrative tribunals are closer to the executive end of the spectrum: their primary purpose is to develop, or supervise the implementation
of, particular government policies. Such tribunals may require little by way of procedural protections.
 Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of
hearing. Tribunals at this end of the spectrum may possess court-like powers and procedures. These powers may bring with them stringent
requirements of procedural fairness, including a higher requirement of independence

 The main function of the Canadian Human Rights Tribunal is adjudicative. It has many of the powers of a court
 The Tribunal, though not bound to the highest standard of independence by the unwritten principle of adjudicative independence, must act
impartially and meet a relatively high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights.
HELD:
 The overlapping of functions in the Commission plays an important role. It does not result in a lack of impartiality, but rather helps to ensure
that the Tribunal applies the Act in the manner that is most likely to fulfill the Act’s ultimate purpose.

[5] Crown corporations

 The principle justification for the creation of Crown corporations is that where there is a strong commercial aspect to the governmental service, it may
require that decisions be made free from political influences that may unduly interfere with commercial objectives.

[6] Enforcement bodies: police and prosecutors

 The executive branch of government is required to enforce policies that have the force of law. The enforcement duties fall primarily on the police and to
prosecutors. Policing functions are the responsibility of both provincial and federal govt’s.
 In common law, police and prosecutors have been distinguished from other civil servants in that in their enforcement duties they are not subject to
political oversight in the sense that they must exercise their powers without direction from political officials.

R v Campbell [1999] [nature of the relationship between the police and the Crown.]
FACTS:
 Police engineered a “reverse sting” operation by arranging the sale of narcotics to the accused and then charging them with conspiracy to traffic.
Had the police engaged in a serious breach of the law?
REASONING: Binnie J
 A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public office
initially defined by the common law and subsequently set out in various statutes.
HELD:
 Appeal allowed in part, a new trial is ordered limited to the issue of whether a stay of proceedings should be granted for abuse of process.

Shell Canada Products Ltd v Vancouver (City), [1994

FACTS: Shell motioned to quash Vancouver City resolution directing staff not to conduct business with Shell Canada as long as they continued to do
business in South Africa claiming it was beyond the power of the municipality to make. Vancouver claimed was for the good for city.
HELD: In the majority decision in Shell v Vancouver, Sopinka J was less willing to see the purposes of municipal government in such broad terms,
preferring instead to see municipal purposes as having to relate more directly to matters within the boundaries of the local areas
 Whereas McLachlin J was inclined to see the municipalities as a distinct form of administrative decision-maker in light of its democratic
structure, Sopinka J was more circumspect about deferring to democratic entities.

SOURCE OF EXECUTIVE POWER

All executive power (except the limited authority existing in the CA, 1867 or by virtue of constitutional convention) flows from the royal prerogative and
statutory delegation. Prerogative or Statutory powers.

[A] Prerogative powers

 Prerogative powers: powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown.
 Prerogative powers are residual
 DEBATE: over who in the executive can exercise prerogative powers and whether they can be subject to judicial oversight.

Black v Chretien (2001)

FACTS:
 Involving a decision by the prime minister to recommend against the conferral of a foreign honour on a Canadian citizen, Conrad Black.
REASONING:
 The prerogative is a branch of the common law because decisions of courts determine both its existence and its extent
 As members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the Crown prerogative.
 Once a court established the existence and scope of a prerogative power, it could not review how that power was exercised.
HELD: dismissed

30
[B] Statutory Powers
 There are few restraints on the legislature’s ability to delegate powers to administrative bodies.
 However, the legislature cannot in law delegate powers that exceed the legislature’s own powers.
 Delegation power of Legislatures is wide (parliamentary sovereignty), but the powers delegated must conform to the Constitution, and another rule
which says that no delegate can be authorized to exercise absolute discretion (Ronceralli)
 Delegation must not amount to a complete abdication (handing over) of legislative authority.

Re Gray (1918), 57 SCR 150

FACTS:
 Delegation provided that the Governor in Council shall have power to do and authorize such acts and things and to make orders as he may by
reason of real or apprehensioned war, deem necessary or advisible for security, defence, peace, order and welfare of Canada.
HELD:
 Rejected argument that the delegation amounted to an unconstitutional abdication of legislative powers to the executive
 Parliament cannot delegate off its functions, but it can within limits delegate powers to the executive government.

Parliament cannot delegate to provincial legislatures, and vice versa (i.e. inter-delegation) (the basis of this principle is that an inter-delegation
would upset the constitutional division of powers contained in ss 91 and 92 of the Constitution Act, 1867)

Yet, there may be an indirect Inter-provincial delegation: PEI Potato Marketing Board v Willis [1952]

Limits on the Exercise of Delegated Authority

 Delegated authority must be exercised within the confines of the delegation itself
 Consequently, any act done outside the boundaries of the statutory grant is unlawful—that is, it is ultra vires.
 One important qualification to the rule against subdelegation, alluded to above, is that matters that are “merely administrative” may lawfully be
subdelegated.

Nature and Function of Delegated Powers: Major types of decisions commonly made by admin decision makers:

[a] Rule making (ie delegated legislation)

 Administrative rule making isn’t restricted to this form. Regulation-making power is often delegated to other bodies, other than Cabinet.
 Delegated legislation is considered inferior to statutes; a conflict between a statute and delegated legislation is always resolved in favour
 Benefits of delegated forms of legislation relate mainly to the relative flexibility of regulations. Cost, time consuming, expertise.

[b] Dispute Resolution

 It is common for administrative agencies to be created in order to hear and decide specific kinds of disputes

[c] Benefit or obligation determination

 The most prevalent group of administrative decision makers are those empowered to determine whether a person will be granted a particular public
benefit (eg a welfare entitlement) or will be subject to a tax or other obligation, or will be assessed a penalty
 Obligation determinations may raise different issues; these decisions are usually initiated by the imposing agency, leaving an affected person to take
affirmative steps to protect his/her interests, if s/he feels aggrieved
 The desire for fairness is often in conflict with the need for administrative efficiency - in many cases, benefit and obligation determinations need to occur
on a very large scale given the high number of applications involved, eg refugee determinations.

[e] Enforcement decisions

 EG: police/prosecutors and some administrative officials whose enabling statutes confers investigatory / diciplenary powers.

31
THE COURTS AND THE JUDICIARY: CHAPTER 6 --------------------------------------------------------------------------------------------------

[1] Structure of the Canadian Court system

Constitutional Framework of the Judiciary

 Starting point in understanding the Canadian court system is the Constitution Act 1867

. 92(14) of the 1867 Act gives exclusive power to the provincial legislatures with respect to:
o The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts,
both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

 And yet s. 96 provides that “[t]he Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province … .”
 Therefore: provincial governments create s. 96 courts, but it is the federal government that appoints the judges to these “superior” courts and
pays their salaries.
o This peculiar arrangement—reflects efforts by the framers of the 1867 Act to maintain federal control over a key source of patronage.
 The provinces, meanwhile, appoint and pay the salaries of the judges of the “provincial” courts—that is, courts that are not superior courts
 A question is this: in what circumstances may the provinces create these “provincial” courts that are not s. 96 courts?
[Provinces cannot pass legislation creating tribunal, appoint members and confer jurisdiction of superior courts]

Re Residential Tenancies Act, [1981] [encroaching on federal governments s96 powers via quasi juridical body]
 Section 96 has thus come to be regarded as limiting provincial competence to make appointments to a tribunal exercising s. 96 judicial powers
and therefore as implicitly limiting provincial competence to endow a provincial tribunal with such powers.

Three-part test determining whether creating such tribunal would erode s96 power:
(1) Consider whether the powers exercised by the provincial tribunal were under the “exclusive jurisdiction” of a s. 96 court
(2) Is power to be exercised in judicial manner [legal vs policy grounds]
(3) Consider whether the “institutional setting” itself is fundamentally judicial.

[2] Overview of the Canadian Court System

First level: provincial/territorial courts Second level: provincial/territorial superior courts (s 96 courts) Third level: courts of appeal
The highest level: the supreme court of Canada

[a] Judicial appointments

 Issues with US approach
o One problem is that election campaigns require financing. Who is most likely to contribute to such campaigns?
o When lawyers make financial contributions to a person who is “running for judge,” do they expect favoured treatment in the courtroom if
the judge is successful?

[b] Provincial judicial appointment process

 Canadian judges are selected by the executive branch, often following a short-listing process involving an advisory committee.

[c] Federal appointments

 s 96 courts, Federal court and tax court are appointed by the governor in council (i.e. the Cabinet) (and the process is overseen by the Office of the
Commissioner for Federal Judicial Affairs), and the Supreme Court of Canada justices are simply appointed by the governor in council

Criticisms
 Political influence on the selection process. Concern for patronage appointments (i.e. allegations have been made that appointments are tainted by
political considerations and candidates have contributed to political parties are appointed)
 Too much discretion in the hands of the gov – e.g. minister has power to appoint from the “recommend” and “highly recommend list” (big lists =
room for abuse of discretion) (“the basic concern”)… Candidates should be assessed simply as “recommended” or “not recommended.”

[d] Supreme Court appointments

 Appointment processes described above don’t apply to SCC (SCC judges normally appointed by governor in council)
 Yet, in the post –Charter era, the court’s decisions will have a great effect on public policy. It is argued that the SCC is “legislating”. As a result,
calls for change to the federal appointment process.
 Some suggest “democratizing” the process, eg Prof Morton: “There is no reason to continue with a system in which a party that receives only 40%
of the votes makes 100% of the appointments to our country’s highest court.”

[2] Judicial Independence [notion that courts are at arms length from other branches of gov]
 It requires that the judiciary be left free to act without improper “interference from any other entity” - British Columbia v Imperial Tobacco

[a] Sources and scope

 JI is richly a constitutional concept; e.g. sections 96 to 100 of the Constitutional Act, 1867 provide for the appointment, security of tenure and
remuneration of federally appointed judges
 JI’s source is also in unwritten constitutional principles, which extends to ALL courts, not just superior 

32
 Reference re Remuneration of Judges of the Provincial Court of PEI [1997] of Lamer CJ and L’Heureux-Dubé,
ISSUE:
 Whether and how the guarantee of judicial independence in s. 11(d) of the Charter restricts the manner by and the extent to which provincial
governments and legislatures can reduce the salaries of provincial court judges. Home is constitutional or unwritten principle?
HELD:
 In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial
independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution.

[b] Assessing Independence

Mackin v New Brunswick

“The general test for the presence or absence of independence consists in asking whether a reasonable person who is fully informed of all the
circumstances would consider that a particular court enjoyed the necessary independent status”

[c] Dimensions and Core Characteristics

Provincial Judges Reference, [1997] 3 SCR 3 at [118] Three characteristics: (1) security of tenure; (2) financial security; and (3) Admin
independence.
 2 dimension of judicial independence: individual independence of a judge; and institutional independence of the court or tribunal.
[i] Security of tenure
 Individual security of tenure means that judges may not be dismissed by the executive before the age of retirement except breaches of “good
behaviour”, which have been interpreted to include misconduct or disability.
 Institutional security of tenure means that, before a judge may be removed for cause, “there must be a judicial inquiry to establish that such cause
exists, at which the judge affected must be afforded the opportunity to be heard” Re Therin
 Superior court judges are removable only by a joint address of the House of Commons and the Senate, CA1867:

[ii] Financial Security

 Financial security relates to the pay judges receive for performing their job – and protects against an “unscrupulous government” that “could utilize its
authority to set judges salaries as a vehicle to influence the course and outcome of adjudication”:

Provincial Judges Reference per Lamer CJ

o Changes to or freezes in judicial remuneration require prior recourse to a special process, which is independent, effective, and objective, for
determining judicial remuneration, to avoid the possibility of, or the appearance of, political interference through economic manip.
o Three Requirements Test:
a. First and foremost, these commissions must be independent, effective, objective and governed by special process…
b. Not permissible for judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature
c. There must be a minimum threshold for lowering remuneration.

[iii] Administrative Independence

 Admin independence requires that courts themselves have control over the administrative decisions “that bear directly an immediately on the
exercise of the judicial function” such as “assignment of judges, sittings of the court, and court lists - Prov Judges Reference at [117]

33
 ---------------------------------------------------STATUTORY INTERPRETATION: CHAPTER 7 ---------------------------------------------------

 The courts are charged with ensuring that the executive does not stray beyond the scope of their powers. In this manner, the courts serve as the
legislature’s foot soldiers, preventing the executive from usurping power not accorded to it by the legislative branch.

[1] Sources of Interpretation rules

1. Interpretation Acts, 2. Interpretation rules in Acts and Regulations, 3. Common law rules

 Mischief rule: Heydons Case (1584) – interpretation to minimize mischief for which the common law did not provide and advance the remedy
 “plain meaning rule” – regardless of absurdity, court is to stick to literal meaning of text so far as it is clear. Sussex Peerage case [(1844).
 “golden rule” – Permits courts to depart from ordinary meaning of text to avoid absurd results. Grey v Pearson

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament:

Driedger’s principle “the modern principle” has been relied on in innumerable decisions by courts as the preferred approach to interpretation

Table 1 Issues Arising in Statutory Interpretation

Type of problem Type of argument in response
Ambiguous, vague, or incomplete text Disputed meaning
Evolving context Static versus dynamic interpretation
Overinclusive text Non-application
Underinclusive text Incorrigible gap in legislative scheme, or supplement with common law rule or remedy
Contradictory or incoherent text Corrigible mistake
Overlapping provisions No conflict: Overlap versus exhaustive code Conflict: Paramountcy rule

[a] Rules about meaning

(1) Ordinary meaning rule. Ordinary meaning is the meaning that spontaneously comes to the mind of a competent reader upon reading a legislative
text. This is presumed (but rebuttable) to be the meaning intended by Parliament.

(2) Technical meaning rule. It is presumed that legislatures use words in their popular, nontechnical sense. However, when legislation deals with a
specialized subject, a specialized understanding is preferred over ordinary usage. Ex Re Witts and Attorney General for British Columbia (1982)
Craik 375.

(3) Original meaning rule. In static interpretation, the text is applied as it would have been when the legislation was first enacted. In dynamic
interpretation, the text is applied in light of circumstances and assumptions existing at the time of application . (4)(5) – other notes.

[b] Presumptions relied on to analyze meaning

 Straightforward expression. The legislature chooses the clearest, simplest, and most direct way of stating its meaning.
 Uniform expression. The legislature uses the same words and techniques to express the same meaning. No tautology/no redundancy

[c] Maxims of Interpretation:

 Implied exclusion (expressio unius est exclusio alterius). If something is not mentioned in circumstances where one would expect it to be
mentioned, it is impliedly excluded.
 Associated words (noscitur a sociis). The meaning of a word / phrase is affected by the other words with which it is linked in a sentence.
 Limited class (ejusdem generis). When a list of things that all belong to an identifiable class is followed by a more general term, the general term
may be read down to include only other things within the identifiable class.
 The legislature would have said “x.” A legitimate basis for rejecting a proposed interpretation is to point out that had the legislature intended the
proposed interpretation, it would have framed the legislation in a different way.

R v Daoust [2004] illustrates reliance on the ordinary meaning rule, the associated words rule, and the no tautology

[d] Purpose and Scheme Analysis

 Legislative purpose. Interpreters must always try to determine the purposes of legislation and, in so far as the text permits, adopt an interpretation
that promotes or is at least consistent with those purposes.
Vague language = more discretion on tribunal or court, greater importance on purpose.

 Interpretation acts. The Interpretation Act of every Canadian jurisdiction includes a provision that directs interpreters to give every enactment
“such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”

[e] Mistakes and Gaps in the Legislative Scheme

 Corrigible mistakes. Although the legislature is presumed not to make mistakes, the presumption is rebutted by persuasive evidence that the text
does not accurately reflect the rule the legislature intended to enact.

 Incorrigible gaps. The courts almost always deny jurisdiction to cure a gap in a legislative scheme or to otherwise cure underinclusive provisions
by making them apply to facts outside the ambit of the language of the text. Amounts to “reading in”

 Supplementing legislation by reliance on common law (or the Civil Code). Court can rely on supplemental sources of law

34
 R v Chartrand [1994] Craik at 283 – accused invited child to get in car – drove 3 kms – abduction – s 281 CC
Reasoning:
 In the case, s. 281, given its legislative history, its purpose, the context in which it was enacted and, most particularly, the absence of the word
"unlawfully" (illégalement) in the French text of s. 281, it is my view that the word "unlawfully" in the English text of s. 281 was carried over from
the 1892 legislation under less "modern drafting styles" and the word is "surplusage, merely indicating the existence of general defences”
 L’Heureux-Dubé J relies on both a disputed word argument (“unlawfully” in s. 281 means without lawful excuse) and a corrigible mistake
argument (retaining “unlawfully” in the English text was a mere oversight—a mistake).

[f] Presumptions of Legislative Intent

 Legislation that interferes with individual rights or freedoms is considered “penal” and attracts a “strict” construction. Legislation that cures mischief
or confers benefits is considered “remedial” and attracts a “liberal” construction.

It is fair to say that most modern courts are prepared to adopt a:

 strict construction of criminal law; laws that expropriate private property; exceptions to established legal principles;
 liberal construction of quasi-constitutional legislation such as human rights codes; of social welfare legislation.

[g] Avoiding Absurdity

The following are some of the forms of absurdity that the legislature is presumed to avoid:

[h] Relation to other Legislation and other Sources of Law

Constitutional law It is presumed that legislatures intend to enact constitutionally valid law and in particular to
comply with any limitations on their jurisdiction set out in the various Constitution Acts.

International law It is presumed that legislatures intend to comply with international law, both customary /conventional.
Regulations, Related legislation, Common law

[i] Extrinsic Aids

Legislative source Consists of agreements that the legislation in question is intended to implement or of legislation
Legislative history Consists of material formally brought to the attention of the legislature during the legislative process.
Expert opinion Consists of precedent, administrative opinion, and scholarly legal publications, as well as expert testimony.

R v McIntosh [1995] 1 SCR 686 TEXTUALISM v INTENTIONALISM

 Sound equipment given to neighbour to repair – neighbour would not give back – struggle ensued – stabbed neighbour – argued self-defence
 Section 34(2) – self-defence where accused is the initial aggressor – “without having provoked the assault” missing from s 34(2)
  textualist – Lamer CJ (it’s plain, it’s not there, so it’s available to initial aggressors) vs
  intentionalist – McLachlin J – dissent (mistake that it’s not there, because of s 35, it should be read in).

Textualism:
 Textualism is built on the proposition that the only reliable indicator of legislative intention is the meaning of the legislative text
 Therefore, to the extent this meaning is discernable, it should be the sole admissible evidence of legislative intent.
 The second pillar of textualism is the rule of law. – Lamer CJ explains this.

Intentionalism
 Like textualism, this theory makes the legislature's intention the primary touchstone of interpretation.
 Rely on any evidence of legislative intent so long as it meets a threshold test of relevance and reliability. [McLachlin J. dissenting McIntosh]
 Thus in McIntosh, McLachlin J. argues that the Court should correct an error in the legislative text to bring it in line with the evident intention of
the legislature. This intention was gleaned from reading the text but also from studying the legislative history and evolution of the provision.

This is the key difference  Textualists keep their eyes on the text and refuse to look at anything that might contradict the literal meaning.
Intentionalists go looking for trouble. They don't always find it, of course, the extra-textual evidence of legislative intent supports literal meaning

35
----------------------------------CONSTRAINTS ON LEGISLATIVE AND ADMIN ACTION: Chapter 8: ------------------------------------

[1] The role of constitutional judicial review in a democratic society

Justification for constitutional judicial review

 A Constitution is made up of principles that are so fundamental and established; as a result, the legislature must be consistent with it:
 And it’s the province of the judiciary to say what the law is, and even the Constitution requires interpretation: Marbury v Madison 5 US

[2] Limitations of judicial review

 Issue of justiciability: the idea of a sense of lack of fitness of submitting questions to a judicial or quasi judicial determination (see Operation
Dismantle v The Queen [1985] 1 SCR 441)

Operation Dismantle v The Queen [1985 - Dickson J

FACTS:
 Challenge under s. 7 on permitting the testing of the cruise missile by the United States of America in Canadian territory.
REASONING:
 I have concluded that the causal link between the actions of the Canadian government, and the alleged violation of appellants' rights under the
Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action.
 Thus, no duty is imposed on the Canadian government by s. 7 of the Charter to refrain from permitting the testing of the cruise missile.
Non‑ Justiciability WILSON J (concurring in result only):
 These kinds of issues are to be treated as non‑ justiciable not simply because of evidentiary difficulties but because they involve moral and
political considerations which it is not within the province of the courts to assess.
 live warheads‑ ‑ I think that might well raise different considerations.

[3] The Issue of Enforcement

 The practical reality is that courts normally have to rely on the executive and legislative governments for the enforcement of their decisions.

Doucet‑ Boudreau v Nova Scotia (Minister of Education), [2003] [Issue: did the courts go outside their role? ]
 The trial judge had ordered the government of Nova Scotia to use its “best efforts” to build a French-language school or schools to comply
with its duties under the minority language rights provision in s. 23 of the Charter. Required periodic reports on its progress.
Reasoning:
 Did the Nova Scotia Supreme Court have the authority to retain jurisdiction to hear reports?
 Purposive interpretation means that remedies provisions must be interpreted in a way that provides “a full, effective and meaningful remedy
for Charter violations”
 The order in this case was in no way inconsistent with the judicial function. Hearing evidence and supervising cross-examinations on
progress reports about the construction of schools are not beyond the normal capacities of courts.
DISSENT: LEBEL AND DESCHAMPS JJ (dissenting)
(1) will breach the separation of powers principle. (2) By acting after exhausting its jurisdiction, it will breach the finality doctrine.

Re Manitoba Language Rights, [1985] [Temporary Validity]

HELD: The Constitution will not suffer a province without laws.
 Thus the Constitution requires that temporary validity and force and effect be given to the current Acts of the Manitoba Legislature from the
date of this judgment, and that rights, obligations and other effects which have arisen under these laws and the repealed and spent laws of the
Province prior to the date of this judgment, which are not saved by the de facto or some other doctrine, are deemed temporarily to have been
and continue to be effective and beyond challenge.
 It is only in this way that legal chaos can be avoided and the rule of law preserved.

[4] The Issue of Legitimacy of Courts

 Most criticisms of constitutional judicial review can be reduced to two core complaints.
a. The argument is that the courts have expanded their proper role of interpreting the Constitution
b. Approach taken by the courts to particular rights, rights that may protect unpopular elements of society, (protection for gays and lesbians)
o A question lies at the heart of both these complaints: when deciding, how much deference should courts show elected officials?

Vriend v. Alberta [1998] 1 SCR 493

 Alberta legislature’s failure to include sexual orientation as a prohibited ground of discrimination in the Alberta Individual Rights Protection Act
violated the appellants’ right to equality as protected by s. 15 of the Charter and that this action was not justified under s. 1.
 The majority also concluded that the appropriate remedy for this violation was to “read in” sexual orientation
HELD: Corey
 We should recall that it was the deliberate choice of our provincial and federal legislatures in adopting the Charter to assign an interpretive role to
the courts and to command them under s. 52 to declare unconstitutional legislation invalid. [built in deference]
 Dialogue: The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the
passing of new legislation (or even overarching laws under s. 33 of the Charter).
 This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.

36
 These comments deserve further elaboration on two points: (1) built-in deference, and (2) the “dialogue” model.
(1) Built-in deference:
 First, as we have suggested elsewhere, the Canadian Constitution does preserve a huge swath of parliamentary sovereignty.
 As Iacobucci J puts it in Vriend:
o Because of section 1, rights are not absolute. Further, s 33 preserves a large measure of parliamentary supremacy, though the political
price exacted for explicitly overriding constitutionally protected rights has been sufficiently high.

(2) The “dialogue” model:

 Second, the Vriend decision invokes a sort of “dialogue” between courts and legislatures.
 This “dialogue” was described by retired Supreme Court justice Bertha Wilson in an article entitled “We Didn’t Volunteer”:
Did the legislature discharge its responsibility to comply with the Charter when it passed this legislation? If the answer is yes, there is no
problem. If the answer is no, then the courts are obliged to strike down the legislation, though in so doing they must identify its vitiating
aspects as clearly as possible so that the legislature will be in a position to correct them.
 Prof Morton dismisses the concept of dialogue:

 Respecting Democratic Roles of Judges - Remarks of the Right Honourable Beverley McLachlin, PC - November 2004
 The judicial role is to resolve disputes and decide legal questions which others bring before the courts.
 It is not for judges to set the agendas for social change. The role of judges is to support the rule of law.

 Courts are argued to overstep their boundaries, we find that the claim can be understood in 4 different ways.
1. First, judges should never go against the will of elected representatives.
o This suggests that the choices of Parliament and legislative assemblies should never be undone.

2. Second, judges are pursuing a particular political agenda, allowing political views to determine the outcome.
o The law is the mechanism by which our society regulates itself.

3. Third, judges should apply the law, not make the law, or rewrite the law.

4. Fourth, judges are making decisions that should be made by elected representatives, who alone possess the necessary legitimacy for law-
making and the institutional competence to weigh all the political policy factors. …. but not deciding is not an option.

Unwritten Principles: Problematic?

The existence of unwritten, but legally enforceable, constitutional principles creates an additional layer of complexity in the debate concerning the
appropriate role of the courts in constitutional adjudication.
 When invalidates law based on unwritten principles, some argue that is unjustifiably creating for itself a mandate to interfere with the democracy
 Recourse to unwritten constitutional principles has achieved creative solutions to constitutional dilemmas when written text bad (Secession Que)

Reference re Remuneration of Judges of the Provincial Court of PEI [1997] LA FOREST J. (dissenting in part) --
 A more general answer to the question lies in the nature of the power of judicial review. The ability to nullify the laws of democratically elected
representatives derives its legitimacy from a super-legislative source: the text of the Constitution.
 This foundational document (in Canada, a series of documents) expresses the desire of the people to limit the power of legislatures in certain
specified ways.
 Judicial review, therefore, is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument.
 In this sense, it is akin to statutory interpretation. In each case, the court’s role is to divine the intent or purpose of the text as it has been
expressed by the people through the mechanism of the democratic process.

[5] Judicial Review of Administrative Action (vs legislative action)

 Judicial review of executive or administrative action raises somewhat different questions about institutional relationships than does judicial review
of legislative action.
 In practice, however, these relationships [between courts and administrative decn-makers] are influenced significantly by two bodies of common
law rules, one of which deals with (a) fair administrative procedure and the other of which concerns judicial (b) review of the substance of
administrative decisions.

[a] Controlling procedures – duty to be fair (fair procedure)

 Administrative decision-makers are generally required by the common law to act fairly toward those persons affected by their decisions. In this
context, the duty to be fair refers to the procedures adopted by the decision-maker.

Natural Justice – Historically:

o Historically, the requirements of procedural fairness, at that time referred to as the “rules of natural justice,” were found to apply only
to decision-makers carrying out a “judicial or quasi-judicial function,” (determining the legal rights of a person) but excluded cases where
decision-makers were determining matters of policy.
o As a consequence of these difficulties, common law courts developed a more flexible approach to the procedural obligations of
decision-makers under the rubric of the duty to be fair.
o The essence of the content of the rules of natural justice was captured by these two maxims: audi alteram partem—the right of a person
to know and answer the case against him or her—and nemo judex in sua causa—requiring that a person not be the judge in his or her own
cause (that is, that an administrative decision-maker not be biased).

37
 Baker v Canada (Minister of Citizenship and Immigration), [1999] - L’HEUREUX-DUBÉ J [jamacian woman deport, no hear]
REASONING: Procedural fairness
 Procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made
and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and
evidence fully and have them considered by the decision-maker.
 Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty:
(1) nature of the decision being made and the process followed in making it.
(2) nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”
(3) importance of the decision to the individual or individuals affected.
(4) legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in
given circumstances.
(5) choices of procedure made by the agency itself,  I should note that this list of factors is not exhaustive.

REASONING: Participatory Rights

 Determination of the type of participatory rights the duty of procedural fairness requires in the circumstances.
(1) H & C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the
consideration of multiple factors.
(2) On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court
(3) This is a decision that in practice has exceptional importance to the lives of those with an interest in its result -- the claimant and his
or her close family members -- and this leads to the content of the duty of fairness being more extensive.
 Rather, the circumstances require a full and fair consideration of the issues,

REASONING: The Provision of Reasons  reasons given via access to the notes
REASONING: Reasonable Apprehension of Bias
 Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker.
 In my opinion, the well-informed member of the community would perceive bias (TEST) when reading Officer Lorenz’s comments.

[b] Review of Substance of Administrative Decisions (Substantive Judicial Review)

 Idea that all administrative decisions should be subject to review using one of two “standards of review.” Dunsmuir v New Brunswick, [2008]
o The stricter standard of review is called “correctness” and the more deferential standard of review is called “reasonableness.”

Dunsmuir v New Brunswick, [2008] 1 SCR 190 - McLachlin CJ

FACTS:
o The Dunsmuir case concerned a court clerk whose “at pleasure” appointment was terminated by the Department of Justice Tribunal. Grievance.
o Supreme Court offered three different sets of reasons for coming to this conclusion.

Two Standards of Review - (1) Defining the Concepts of Reasonableness and Correctness
(1) Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.
But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes.
 The notion of deference “is rooted in part in a respect for governmental decisions to create admin bodies with delegated powers”

(2) Standard of correctness.

 When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will
rather undertake its own analysis of the question. From the outset, the court must ask whether the tribunal’s decision was correct.

Determining the Appropriate Standard of Review

 A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness
test applied:
 A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.
 Special administrative regime in which the decision maker has special expertise (labour relations for instance).
 Nature of the question of law.

BINNIE J. — [119] BELIEVES THE CURRENT PROCESS SHOULD BE SIMPLIFIED IMPROVED

A Broader Reappraisal
 Standard of review of any administrative outcome on grounds of substance is not correctness but reasonableness (“contextually” applied).

DESCHAMPS J. — [158] BELIEVES THE CURRENT PROCESS SHOULD BE SIMPLIFIED IMPROVED

 Decisions on questions of fact always attract deference.
 Questions of law, by contrast, require more thorough scrutiny when deference is evaluated.

NB: Irony – in a case where SC attempts to clarify standards of review in JR, 6 JJ say reasonableness standard applies (1 of those JJ says
reasonableness should always be presumed to apply), while another 3 say correctness standard applies.

38
Canadian Human Rights Commission) v Canada (Attorney General), [2011] 3 SCR 471
 HR Tribunal may order a person who has engaged in a discriminatory practice contrary to the Canadian HRA, to compensate wages and expenses.
ISSUE:
o Did they error in awarding portion of the victim’s legal costs.
 Since Dunsmuir and its emphasis on the deference owed to administrative tribunals, we must discuss whether all decisions on questions of law
rendered by the Tribunal and similar bodies should be swept under the standard of correctness.
 On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as a whole and
outside the adjudicator’s specialized area of expertise, must still be reviewed on a standard of correctness, in order to safeguard a basic
consistency in the fundamental legal order of our country.

 The inquiry of what costs were incurred by the complainant as a result of a discriminatory practice is inextricably intertwined with the
Tribunal’s mandate and expertise to make factual findings relating to discrimination. As an administrative body that makes such factual findings on a
routine basis, the Tribunal is well positioned to consider questions relating to appropriate compensation under s. 53(2).
 Subjecting costs to a correctness review would represent a departure from Dunsmuir.

Reasonableness of the Decision

In Dunsmuir, the majority of this Court described reasonableness as

 Concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

HELD/ REASONING – “COSTS” Not included – unreasonable to include based on context.

 It is significant, in our view, that the phrase “that the person compensate the …. the reference to expenses is preceded by specific, but different,
wording.
 Tribunal makes the repetition of the term “expenses” redundant and fails to explain why the term is linked to the particular types of compensation
described in each of those paragraphs. This interpretation therefore violates the legislative presumption against tautology.

Purpose
 In our view, the text, context and purpose of the legislation clearly show that there is no authority in the Tribunal to award legal costs and that
there is no other reasonable interpretation of the relevant provisions.

39
 --------------------------TOPIC 5: RELATIONSHIP OF ABORIGINAL PEOPLES TO THE CANADIAN STATE-----------------------

[1] Section 91(24) of The Constitution Act, 1867 (U.K.), & Section 35 of The Constitution Act, 1982,
o Indeed, s. 91(24) was the only reference to Aboriginal peoples in the Canadian Constitution until s. 35(1) of the Constitution Act, 1982 came into force,
recognizing and affirming the aboriginal and treaty rights of Aboriginal peoples in Canada.
o In the words of Charlotte Bell, s. 35(1) “was profoundly important in strengthening and protecting the rights of Aboriginal peoples in Canada and
demanded a new model for the relationship be- tween governments and Aboriginal peoples.”

91(24) of the Constitution Act, 1867, “Parliament with exclusive legislative authority over “Indians, and lands reserved for the Indians.”

[2] Articles : Senwung Luk entitled “Not So Many Hats: The Crown’s Fiduciary Obligations to Aboriginal Communities since Guerin” (2013).

Introduction:

Guerin v The Queen is perhaps the most influential decision in Aboriginal law in the modern history of the Court. It enshrined the relationship between the
crown and Aboriginals as a fiducial relationship. Recent cases of Osoyoos Indian Band v Oliver, Wewaykeum Indian Band v Canada and Ermineskin Indian
Band v Caanda have provided important guidance on the subject of fiduciary obligations to aboriginals.

Wewaykum stands for the idea that the Crown wears many hats: meaning that even while the Crown is wearing the hat of its role as a fiduciary for Aboriginal
interests, it is presumed that the Crown’s other heads are wearing other hats, which represent the interests of the other parts of Canadian society.

This essay argues that paying close attention to the factual bases of the major fiducial obligations cases suggests that there is a constant core to the crowns
fiduciary obligations and the Crown in fact does not wear so many hats. It is argued that even though the courts have been subscribing new set of obligations
on the Crown to consult with Aboriginals (non fiduciary obligation), the core conept of the Crowns fiduciary relationship has remained since Guerin. The
core concept of the crowns fiduciary obligations is the discretion the crown has over the property interests of Aboriginals.

Case law since Guerin has presented a common core concept, the idea that the Crown has a special role in mediating the relationship between Aboriginal and
settler communities, especially in terms of land and resources. Crown has given itself considerable discretion by making itself the exclusive representative of
Aboriginals; as such, this brings the concomitant obligations to exercise that discretion in the best interests of the beneficiaries.

Case law demonstrates that this duty often conflicts with the public interest, another obligation the Crown embodies. This tension has existed since Guerin.

Reserve lands and Surrender Procedure:

The Proclamation established that the only legal way for Aboriginals to enter into real estate transaction with the colonists was by making a treaty. The
Proclamation made all private sales of land, that is, sales which did not involve the Crown as a mediator, between Indians and colonists illegal. Therefore they
set up an exclusive regime for real estate transactions in which the Crown become the sole agent of a monopoly.

This system of surrenders and land sales has survived largely intact to the present day in its application to lands on reserves. The Indian Act specifically
legislates these concepts and is therefore an important aspect to the evolution of the doctrine of Crown fiduciary. As such, the Crown is the exclusive agent
through whom Aboriginals must go in order to transact business with relation to their reserve lands. A ‘public meeting’ or assembly requirement is embodies
in the Act as well.

R v Guerin:
The case involved the people of the Musqueam Reserve, outside of Vancouver. They claims the area of the reserve as part of their traditional territory. At the
same time, the Shaughnessy heights Golf Club become interested in the lands of the reserve. The Musqueam were willing to enter into some kind of deal. The
band eventually consented to the surrender. The crown, now empowered to deal with the surrendered land, entered into a lease with the gold club, yet did not
include many of the promises made to the Musqueam people during consultation.

The conduct of the Crown did not sit well with the Court, who unanimously held against the Crown. Subsequently, the SSC was divided over the body of law
to apply to the situation. 4/8 judges applied the law of the fiduciary, citing the Proclamation and surrender rights as evidence. Three judges used the law of the
Trust without resorting to fiduciary law to determine the case. And one judge used the law of Agency to come to the same decision. Regardless of the
method, they unanimously came to the decision.

Blueberry River – Developing the Guerin Reasons:

In Blueberry River, the Band had entered into a treaty with the Crown in 1916 which promised them a reserve. Two subsequent surrenders of land were at
issue in the case. Oil and gas were later discovered on the land. The SCC agreed that the Crown breached its fiduciary obligation to the Band by selling the
entire interest in the land to third parties rather than reserving the land for mineral interests as per the initial agreement. They held that the Crown had a duty
to ensure the Band had consented to the surrender and also to evaluate the surrender to ensure that it is not an exploitative transaction.

Osoyoos a Crown as a Fiduciary Meets the Crown as Guardian of the Public Interest
The next two cases in which the SCC address the crowns obligation were Osoyoos and Wewaykum. The distinction between public law and private law
duties intersected as the court came to the decision. Guerin’s logic was applied in Osoyoos, but Wewaykum has sometimes been thought to be a retrenchment
of Guerin, a view that is challenged in this essay. The way the Court analyzes the difference between the Crowns public law duties and the Crowns private
law duties turns on factual distinctions.

40
 In Osoyoo, the federal Crown retroactively validated the expropriation of land, using the power it holds by virtue of s25 of the Indian Act. Issue was whether
the Band retained interest in the taken land and would therefore be entitled to tax the owner of the land. The court held in favor of the Band by interpreting
s35 of the Indian Act and held the fiduciary obligation includes the duty to interpret its statutory power to expropriate reserve lands. The Guerin vision of the
Crown as a fiduciary for the property of Aboriginals was faced with the conception challenge. It would be rare for a fiduciary to appropriate property of a
beneficiary to himself without the beneficiaries consent, but the Crowns powers allowed for this very occurrence. The court acknowledged that the Crown
holds many roles. The court developed two stage analysis. In the first stage, when the Crown is determining whether an expropriation is necessary, the
Crowns public law role is clear and no fiduciary obligation exists. At the second stage, the Guerin vision of the Crown as a private law guardian of Aboriginal
interests applies in full force.

Erminsekin: New Challenges:

The dominant question in this case was whether the Crown breached its fiduciary obligations to the Erminsekin Nation in how it handled the Band’s oil and
gas royalty funds. The band was afforded a reserve by treaty and subsequently oil and gas was found on the land. The crown obtained a surrender and the
crown agreed to manage the oil and gas royalties for them and later mismanaged them. The SCC denied the petition of the Bands that the monies were
mismanaged. It was held that the Crown had a fiduciary relationship yet the Crown acted in accordance with legislation and therefore cannot be said to be
breaching its duty.

While Ermineskin may have lightened the Crowns fiduciary obligation, it clarified and strengthened the same obligations with relation to interests that are
protected by s35(1). It affirmed the core of the Crowns obligation to safeguard the lands and resources of the Aboriginal community. It is argued that the
relationship between statutory obligations and the Crown’s fiduciary duty impacted the case law. It is argued that statute is at the hands of the settlor
community, as statutes are made by legislatress, constituted through the settler community. Therefore the conflict is between settler interests and indigenous
interests. As such, this case leads to the understanding that when the two conflict, statutory obligations weaken fiduciary obligations.

Public Interest and the Crowns Fiduciary Obligations

We turn to the larger question of what interests the Crowns fiduciary obligations may be protecting and why they might override the Crowns other
obligations. The role of the courts is to ensure the Crown is upholding its obligations. This paper argues that throughout the development of this case law, the
Crowns obligations toward the land interests of Aboriginals have remained consistently impregnable in the face of assaults from appeal to the public interest.

Ermineskin and Weakum demonstrate exceptions to the level of stringency of fiduciary obligations on the Crown that were set out in Guerin. In Ermineskin,
the court held that any statute that contradicts the fiduciary obligation would if those obligations were to protect an interest protected by s35(1), be invalid to
the extent that they contradicted those obligations. As such, an expropriation statute would be invalid insofar as it permits the Crown to expropriate lands to
which an Aboriginal community is entitled by virtue of s35(1).

Conclusion:

The fiduciary obligations of the Crown originate in historic bargains made between the Crown and Aboriginal communities near the beginning of British
colonization of Canada. They established a regime for managing the sharing of lands between Aboriginals and settlers in a way which became known as a
fiduciary in Guerin. This complicated the situation where other obligations contradicted this purpose.

Ermineskin seems to establish the proposition that where fiduciary obligations are protecting Aboriginal interests that arise out of rights protected by s25(1)
they will trump statutory obligations duly made by the legislature. This affirms Guerin line of cases that have given consistent recognition to the importance
of fiduciary obligations. This essay argues that the exceptions to the Guerin standard may be tightly confined. The fiduciary concept is only judicial
recognition of an idea and a relationship that remains crucial for the peaceful and just development of Canadian society, and one that the courts have done
well in articulating in the case law since Guerin.

[3] Article: “Highlights from the Report of the Royal Commission on Aboriginal Peoples”

After some 500 years of a relationship that has swung from partnership to domination, from mutual respect and co-operation to paternalism and
attempted assimilation, Canada must now work out fair and lasting terms of coexistence with Aboriginal people.

Stage 1- Aboriginals inhabited the Americas, developed along separate paths in ignorance of Europeans.

Stage 2 - Cautious co-operation and discovery was the theme of this period. Aboriginals in charge of own affairs
- Co-operation was formalized in two important ways: (1) treaties; (2) the Royal Proclamation of 1763

(a) Treaties:
- Treaties were a way for Europeans and Ab’s to recognizing each others sovereignty and mutual respect
- British authorities appeared to recognize the nationhood of Aboriginal peoples and their equality as nations. Yet – also demonstrated monarch.
-
(b) Royal proclamation:
- The Royal Proclamation of 1763 was a defining document in the relationship, summarized the rules that were to govern British dealings with
Aboriginal people - especially in relation to the key question of land.
- Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians". Aboriginal lands were to
be acquired only by fair dealing: treaty, or purchase by the Crown.
- It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement.

Stage 3: Respect gives way to domination

- These documents offered protection to the aboriginals, which lead to domination.
- Confederation in 1867, a new partnership b/w English and French, which was negotiated w/out Aboriginal nations
- BNA Act, young Canada’s new constitution, which made “Indians and Lands reserved for the Indians” subject for government regulation
41
- But the representatives of the Crown had come to see the treaties merely as a tool for clearing Aboriginal people off desirable land.

Stage 4: Renewal and renegotiation

- A dozen years of intense political struggle by Aboriginal people, including appeals to the Queen and the British Parliament, produced an historic
breakthrough: "Existing Aboriginal and treaty rights" were recognized in the Constitution Act, 1982.

The way forward

- The policies of the past have failed to bring peace and harmony to the relationship between Aboriginal peoples and other Canadians. Equally, they have
failed to bring contentment or prosperity to Aboriginal people.
- But governments have so far refused to recognize the continuity of Aboriginal nations and the need to permit their decolonization at last.
- Governments continue to block Aboriginal nations from assuming the broad powers of governance that would permit them to fashion their own
institutions and work out their own solutions to social, economic and political problems. It is this refusal that effectively blocks the way forward.
- We propose 4 PRINCIPLES as the basis for a renewed relationship: recognition, respect, sharing and responsibility
- We propose that new treaties be the mechanism for turning principles into practice

Self government
- The right is inherent in Aboriginal people and their nationhood – this is internationally accepted.
- We hold that Aboriginal governments are one of three orders of government in Canada - federal, provincial/territorial, and Aboriginal.
- To have self-government, they need to establish larger communities, develop human resources

Redistributing lands and resources

- Aboriginal land, in relation to the size of Canada, is small. It was steadily whittled away after original allocation.
- Some Aboriginal nations have gone to court to force governments to recognize their rights to land and resources, and some have been successful. A
series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues.
- The law of Aboriginal title establishes three things:
1. Aboriginals have rights of occupancy of portions of Canada that exceed their current land base. (history/living since time immemorial.
2. Agreements between the Crown and an Aboriginal nation to be worked out before non-Aboriginals can occupy that nation's lands.
3. The Crown of Canada is the guardian of Aboriginal title to their traditional lands and is obliged to support and protect their interests.

- But the courts are a cumbersome, costly and sometimes insensitive way to solve the human issues that underlie land and resource claims.
- The existing land claims settlement process is deeply flawed: It assumes that no Aboriginal rights apply on Crown land unless Aboriginal nations can
prove otherwise.
- A new process for negotiating the fair distribution of lands and resources is long overdue. The Commission proposes that this be handled as part of
a new treaty process.

Economic development
- Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go with
dependence, and free of the debilitating effects of poverty. Economic self-reliance will let them thrive as individuals and as nations and make their new
governments a success
- Several factors will make revitalization of Aboriginal economies a big challenge: dependence on government for funds; inequality; variability (in that
aboriginal communities are located all over the country

Treaties: the mechanism for change

- As complex as the project appears, it can be done. The central mechanism of change is the treaty.
- We propose that the treaty relationship be restored and used from now on as the basis of the partnership
- Implementation of treaty terms and promises was problematic from the start. As time passed and the balance of power between Aboriginal and non-
Aboriginal people shifted, governments were able to ignore terms and promises that no longer suited them
- To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation.
- The main objectives of a new treaty-making process would be to establish the full jurisdiction of those nations as part of an Aboriginal order of
government ; expand the land and resource base under their control

The relationship restructured

- Let us review them briefly:
(1) The federal government should begin the cycle of renewal with an act of national intention - a new Royal
Proclamation (We propose a new Royal Proclamation, stating Canada's commitment to principles of mutual recognition, respect, responsibility and
sharing in the relationship between original peoples and those who came later)
(2) Parliament should enact companion legislation to give these intentions form and meaning and provide the legal
instruments needed to implement them.
(3) The federal government should provide a forum for negotiating a Canada-wide framework agreement to lay the ground rules for processes to
establish the new relationship
(4) Aboriginal nations should begin their rebuilding processes
(5) All governments should prepare to enter into the new treaty process.
(6) Governments should take interim steps, as proposed by this Commission, to redistribute lands
and resources.
(7) Aboriginal and non-Aboriginal governments should co-operate to stimulate economic development

42
TOPIC 5 (a) : Aboriginal Rights
R v Sparrow [the Sparrow Test]
Main Points:
1. The word existing in s 35 means that s 35 only protects unextinguished aboriginal rights and treaties;
2. The words “recognized and affirmed” in s 35 mean that aboriginal rights/treaties are constitutionally protected, but are not absolute rights, and may
be infringed if the test of “justified interference” is met;
3. Sets out the test of justified interference)
FACTS:
o The appellant, a member of the Musqueam Indian Band, was charged under s. 61(1) of the Fisheries Act of the offence of fishing with a drift net
longer than that permitted by the terms of the Band's Indian food fishing licence.
o He has defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the
Band's licence is inconsistent with s. 35(1) of the Constitution Act, 1982 and therefore invalid
ISSUE: Whether the respondent was exercising an “aboriginal right” within the meaning of s 35(1)
REASONING:
The word “existing” in s 35
o What is the status of aboriginal or treaty rights that had been extinguished or regulated before 1982?
o The word "existing" makes it clear that the rights to which s. 35(1) applies are those that were in existence, or unextinguished, when the
Constitution Act, 1982 came into effect. This means that extinguished rights are not revived by the Constitution Act, 1982. A right that has been
validly extinguished before 1982 is not protected by s 35
o Also, the phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time. Those rights are "affirmed in a
contemporary form rather than in their primeval simplicity and vigour

The “aboriginal right”

o Sparrow fishing in ancient tribal territory where his ancestors had fished from time immemorial is not contested
o He argues that restriction and regulation has the effect of extinguishing any aboriginal right to fish. But this argument confuses regulation with
extinguishment.
o Prior to 1982 when this provision was enacted, the only way extinguishment could have occurred is with a clear and plain intention by Parliament;
there is nothing in the Fisheries Act that demonstrates this. The onus of proving intention to extinguish rested on the Crown.
o We have no doubt that the Indians have an existing aboriginal right to fish in the relevant area.

“Recognized and affirmed”

o We now turn to the impact of s. 35(1) of the Constitution Act, 1982 on the regulatory power of Parliament.
o Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. It also affords aboriginal peoples
constitutional protection against provincial legislative power.
o In our opinion, Guerin, together with R. v. Taylor and Williams, ground a general guiding principle for s. 35(1).
o That is, the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal people.
o The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on
legislative power. The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right
protected under s. 35(1).
o In short, s 35(1) is a constitutional guarantee of aboriginal and treaty rights. However, the guarantee isn’t absolute, and the s 35 rights are
subject to regulation by federal laws, provided that the laws meet a standard of justification.

Section 35(1) and Justified Interferences

o The Sparrow test [justification test] first seeks to define whether or not a right has been infringed upon. A government activity might infringe
upon a right if it:
1. Imposes undue hardship on the First Nation;
2. Is considered by the court to be unreasonable;
3. Prevents the right-holder from exercising that right

o The Sparrow test then outlines what might justify an infringement upon an Aboriginal right. An infringement might be justified if:
1. The infringement serves a “valid legislative objective.” The court suggested a valid legislative objective would be conservation of natural
resources, in which First Nations interest would come second only to that; [legitimate?]
2. “There has been as little infringement as possible in order to effect the desired result;”
3. Fair compensation was provided, and,
4. Aboriginal groups were consulted, or, “at the least… informed.”

HELD: application of sparrow test:

o Insufficient evidence – ordered new trial.
o The appellant would bear the burden of showing that the net length restriction constituted a prima facie infringement of the collective aboriginal
right to fish for food.
o If an infringement were found, the onus would shift to the Crown which would have to demonstrate that the regulation is justifiable. To that end,
the Crown would have to show that there is no underlying unconstitutional objective such as shifting more of the resource to a user group that ranks
below the Musqueam. Further, it would have to show that the regulation sought to be imposed is required to accomplish the needed limitation.

R v Van der Peet

Main Point:
o The Court articulated the legal test to be used to identify an “existing aboriginal right” within the meaning of s 35.
o Established the Van der Peet Test, or the “Integral to a Distinctive Culture Test,” which determines how an Aboriginal right is to be defined.

43
FACTS:
o Van der Peet was charged under s. 61(1) of the Fisheries Act, R.S.C. 1970, c. F-14, with the offence of selling fish caught under the authority of an
Indian food fish licence, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248. The charges arose out of the sale
by the appellant of 10 salmon to non aboriginals.
o Argues selling the fish she was exercising an existing aboriginal right to sell fish & violate s. 35(1) of the CA 1985
ISSUE: How are the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined?
REASONING:
o Although equal in importance and significance to the rights enshrined in the Charter, aboriginal rights must be viewed differently from Charter
rights because they are rights held only by aboriginal members of Canadian society.
o The way to accomplish this task is, as was noted at the outset, through a purposive approach to s. 35(1).
o  This purposive approach must be guided by the general principle that s 35(1) should be given a generous and liberal interpretation in favour
of aboriginal peoples, which arises from the nature of the relationship b/w the Crown and aboriginals (i.e. fiduciary one)
o A purposive analysis of s 35(1) results in the following conclusions: the aboriginal rights recognized and affirmed by s. 35(1) are best
understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the
land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with
the assertion of Crown sovereignty over Canadian territory. The content of aboriginal rights must be directed at fulfilling both of these
purposes; the next section of the judgment [30]-[31]

Test for identifying aboriginal rights in s 35(1):

- The following test should be employed: “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to
the distinctive culture of the aboriginal group claiming the right”
(1) Courts must identify precisely what it is that is being claimed
(2) Must satisfy the “integral” test: The claimant must demonstrate that the practice, custom or tradition was a central and significant part
of the society's distinctive culture prior to contact. Note that this test requires the practice to be distinctive, not distinct. Distinct means
unique.
(3) The practices, customs and traditions must have continuity with those that existed prior to contact
(4) Claims to aboriginal rights must be adjudicated on a specific rather than general basis: the existence of an aboriginal right will depend entirely on
the practices, customs and traditions of the particular aboriginal community claiming the right.
HELD:
- While fishing constitutes an Aboriginal right, the sale of such fish does not.
- Despite Stót:lō peoples’ traditional practice of engaging in complex trade and barter relationships with other First Nations, the Court ruled that trade in
salmon did not amount to an Aboriginal right
- The appellant has failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:lo society which
existed prior to contact.
- The exchange of fish took place, but was not a central, significant or defining feature of Sto:lo society.
- Failed to demonstrate that the exchange of salmon for money or other goods by the Sto:lo is an aboriginal right recognized and affirmed under s. 35(1)
of the Constitution Act, 1982.

R v Sappier; R v Gray
Main Point:
- Even though a practice may have been undertaken for survival purposes, it can still be considered integral to an Aboriginal community’s distinctive
culture
FACTS:
- Charged w/ unlawful possession or cutting of Crown timber. In defence, they say they possess an aboriginal and treaty right to harvest timber for
personal use.
ISSUE: Whether a right to harvest timber existed pre-contact for the relevant aboriginal peoples
REASONING:
The Aboriginal right claim
- In order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal
group claiming the right: R. v. Van der Peet.
- The respondents rely on the pre-contact practice of harvesting timber in order to establish their aboriginal right.
- Section 35 of the Constitution Act, 1982 seeks to provide a constitutional framework for the protection of the distinctive cultures of aboriginal peoples
-  The goal for courts is, therefore, to determine how the claimed right relates to the pre-contact culture or way of life of an aboriginal society. Second,
it is also necessary to identify the pre-contact practice upon which the claim is founded in order to consider how it might have evolved to its present-day
form

STEP 1 (CHARACTERIZATION): In the present cases, the relevant practice for the purposes of the Van der Peet test is harvesting wood. The
record shows that wood was used to fulfil the communities’ domestic needs for such things as shelter, transportation, tools and fuel. I would therefore
characterize the respondents’ claim as a right to harvest wood for domestic uses as a member of the aboriginal community.

STEP 2 (The INTEGRAL to a DISTINCTIVE CULTURE TEST): Evidence established that the wood was critically important to the Maliseet and
Mi’Kmaq people pre-contact. Further, even though the practice may have been undertaken for survival purposes, it can still be considered
integral to an Aboriginal community’s distinctive culture (THIS IS THE PRINCIPAL ISSUE ON THIS APPEAL).
- Continuity: Although the nature of the practice which founds the aboriginal right claim must be considered in the context of the pre-contact
distinctive culture of the particular aboriginal community, the nature of the right must be determined in light of present-day circumstances;
“logical evolution means the same sort of activity, carried on in the modern economy by modern means.” So, the right to harvest wood for
the construction of temporary shelters must be allowed to evolve into a right to harvest wood by modern means to be used in the construction of
a modern dwelling. Any other conclusion would freeze the right in its pre-contact form. [48]
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HELD:
- Crown accepted rights were infringed and could not be justified: [54]-[55]

R v Powley
Main Point:
- For Metis claimants of aboriginal rights, the focus on European contact had to be moved forward to the time of effective European control;
- Courts lays down 3 indicia of “Metis people”)
FACTS:
- P charged with unlawfully hunting moose; P argues that, as Metis, they have an aboriginal right to hunt for food in the Sault Ste Marie area
ISSUE:
- Whether members of the Métis community in and around Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under s. 35
REASONING:
- We uphold the basic elements of the Van der Peet test and apply these to the respondents’ claim. However, we modify certain elements of the pre-
contact test to reflect the distinctive history and post-contact ethnogenesis of the Métis, and the resulting differences between Indian claims and Métis
claims.
-  The pre-contact test is inadequate to capture the range of Metis customs, practices or traditions that are entitled to protection, since Metis
cultures by definition post-date European contact

First, the court set out the indicia to determine whether a claimant meets the definition of Metis people:
o Self-identification
o Ancestral connection
o Community acceptance
- In this case, there is no reason to overturn the TJ’s findings that P is member of Metis community that arose and still exists in and around Sault Ste.
Marie [35]
-  The relevant time frame?. The focus should be on the period after a particular Métis community arose and before it came under the effective
control of European laws and customs (THE PRE-CONTROL TEST)

The Van der Peet test

- STEP 1 (Characterization of the right): Here, the right being claimed can therefore be characterized as the right to hunt for food in the environs of
Sault Ste. Marie. [19]
- STEP 2 (Integral test): The practice of subsistence hunting and fishing was a constant in the Métis community, even though the availability of
particular species might have waxed and waned. The evidence indicates that subsistence hunting was an important aspect of Métis life and a defining
feature of their special relationship to the land. Evidence supports the trial judge’s finding that hunting for food was integral to the Métis way of life at
Sault Ste. Marie in the period just prior to 1850 (which meets the modified time frame test).
- Continuity: Hunting for food was an important feature of the Sault Ste. Marie Métis community, and the practice has been continuous to the
present. [45]

Infringement of right
- Ontario currently does not recognize any Métis right to hunt for food. This lack of recognition, and the consequent application of the challenged
provisions to the Powleys, infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the Sault Ste. Marie
Métis community [47]

Is the infringement justified?

- The main justification advanced by the appellant is that of conservation. Although conservation is clearly a very important concern, we agree with the
trial judge that the record here does not support this justification. [48]
- If the moose population in this part of Ontario were under threat, and there was no evidence that it is, the Métis would still be entitled to a priority
allocation to satisfy their subsistence needs in accordance with the criteria set out in R. v. Sparrow
HELD:
- Legislation is invalid (of no force and effect wrt the respondents (Metis))

Haida Nation v BC

Main Points:
- This case deals with the situation where aboriginal interests are in the process of being proved:
- (1) The duty to consult and accommodate is rooted in the honour of the Crown;
- (2) The duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates
conduct that might adversely affect it; that is, knowledge of a credible, but unproven claim, triggers the duty;
- (3) The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the
seriousness of the potentially adverse effect upon the right or title claimed;
- (4) When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation;
- (5) Third parties do not owe such a duty;
- (6) The provincial and federal government are subject to the duty; (6) There is no duty for the governments to agree)

FACTS:
- The government holds legal title to the land. Exercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land
(which is subject to a land title claim by the Haida people).
ISSUE:

45
- Is the government required to consult with Haida people about decisions to harvest the forests and to accommodate their concerns about what if any
forest in Block 6 should be harvested before they have proven their title to land? [6]
REASONING:
Source of duty to consult and accommodate
- Duty grounded in honour of the Crown: in all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and
the implementation of treaties, the Crown must act honourably
- Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims. Underlying this
duty is s 35 of the Constitution, which implies a duty to consult and, if appropriate, accommodate
- Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims
with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights
embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be
determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While
this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests [25]

When the duty to consult and accommodate arises

- The answer, once again, lies in the honour of the Crown.
- The Crown isn’t rendered impotent – it may continue to manage the resource in question pending claims resolution; but depending on the
circumstances, the honour of the Crown may require it to consult and reasonably accommodate Aboriginal interests [27]
- Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate.

The scope and content of the duty to consult and accommodate

- In general terms, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed
- There is no duty to agree; rather, the commitment is to a meaningful process of consultation [42]
- At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases,
the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice.
- When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation (i.e. this may require taking steps
to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim)

Taku River v BC
Main Point:
- Example of how the duty to consult is fulfilled, and reinforces the principle set out in Haida that meaningful consultation doesn’t require agreement
- First case to apply principles set out in Haida (accommodation / consultation)
FACTS:
- A mining company applied to the BC government for permission to reopen an old mine in an area that was subject of an unresolved land claim by the
TRTFN people. This application triggered a statutory environmental assessment process, which ended with the approval of the application to reopen the
mine.
- Through the environmental assessment process, the TRTFN’s concerns with the road proposal became apparent.
ISSUE: Duty to consult and of accommodation
REASONING:
- In Haida Nation v. British Columbia this Court has confirmed the existence of the Crown’s duty to consult and, where indicated, to accommodate
Aboriginal peoples prior to proof of rights or title claims.
- The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and
contemplates conduct that might adversely affect them
- It was apparent that the decision could adversely affect the TRTFN’s asserted rights and title.
- The scope of the duty to consult is “proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and
to the seriousness of the potentially adverse effect upon the right or title claimed” [29]
- There is sufficient evidence to conclude that the TRTFN have prima facie Aboriginal rights and title over the area.
HELD:
- The Crown fulfilled its duty to consult and accommodate. The process of granting project approval to Redfern took three and a half years, and was
conducted largely under the Environmental Assessment Act. Members of the TRTFN were invited to participate in the Project Committee to coordinate
review
- Crown fulfilled duty, they were not under duty to reach an agreement.

Rio Tinto Alcan Inc v Carrier Sekani Tribal Council [2010] 2 SCR 650
The duty of consultation relates to decisions today that will affect rights today. Unless the decision can be shown to produce a different impact on
rights, then there is no further duty.

FACTSL: Agreement has to be approved under the statute, commission has authority to review k’s entered into and to refuse approval for various reasons,
including, going against the public interest. Claim of first nation is that the original dam was in violation of their abor title and abor rights, so any subsequent
decisions affecting the use of electricity from that dam should be subject to consultation under the haida nation principle

HELD: SCC agrees w/ BC utilities commission that there was no duty of consultation here. Perhaps in theory before the dam was built there should have
been consultation (but at this time, consult duty hadn’t arisen yet), but now, this duty would be somewhat like compensation, but there isn’t an ongoing duty
of consultation w/ respect to decisions made long ago.
- SCC says that the commission can determine the question of whether the crown was under a duty and if so, then whether it complies. Determines
this by following Martin: commission has power to make determinations of law, this is a question of law, is a constitutional law question. All of
this is reviewed on correctness basis b/c it’s a const question/juris question. Commission said there was no duty of consultation and the ct agreed

46
IN RELATION TO ADMINISTRATIVE LAW: (Extra Marks)
So how to review the exercise of its power? Here decided there was no duty of consultation at all. Whether or not the commission has the authority
to engage in the question at all is a jurisdictional one, std of correctness. The decision of whether on the facts of the case, the tribunal needed to
inquire is a question of mixed law and fact, tf at this stage, the std shifts to reasonableness (so in bc this means patent unreasonableness). Interesting
conclusion that reasonableness is the std b/c this is described as a const question. But the application of the principle to the facts is to be reviewed
on a reasonableness std. tf this is an eg that just b/c there is a const element to the exercise of the power, doesn’t mean we automatically go to the
concl that the std is correctness. (Had discussion on this in reln to Lalonde)

47
TOPIC: Aboriginal Title
Delgamuukw v BC
Main Point:
- The leading case on Aboriginal title and shows how to prove it
FACTS:
- In 1984, 35 Gitxsan and 13 Wet’suwet’en Hereditary Chiefs instituted proceedings against the Province of British Columbia. They claimed, both
individually and on behalf of their respective Houses, ownership (unextinguished Aboriginal title) and resulting jurisdiction (entitlement to govern by
Aboriginal laws) over separate portions of territory in northwest British Columbia totalling 58,000 square kilometres
ISSUE: The nature and scope of the constitutional protection afforded by s. 35(1) to common law aboriginal title.
REASONING:

Content of aboriginal title/how it’s protected by s 35(1)/requirements for proof

General points re Title
- The parties disagree over whether the appellants have established aboriginal title to the disputed area. However, since those factual issues require a
new trial, we cannot resolve that dispute in this appeal. But factual issues aside, the parties also have a more fundamental disagreement over the
content of aboriginal title itself, and its reception into the Constitution by s. 35(1). In order to give guidance to the judge at the new trial, it is to this
issue that I will now turn. [109]
- Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights.
- Unique dimensions of aboriginal title: Aboriginal title is a sui generis interest in land. The idea that aboriginal title is sui generis is the unifying
principle underlying the various dimensions of that title.
- One dimension is INALIENABILITY (lands can’t be transferred sold or surrendered to anyone other than the Crown).
- Another dimension of aboriginal title is its SOURCE (it’s source, although thought to be in the Royal Proclamation, 1763, arises from the prior
occupation of Canada by aboriginal peoples; what makes aboriginal title sui generis is that it arises from possession before the assertion of British
sovereignty.
- A further dimension of aboriginal title is the fact that it is held COMMUNALLY (aboriginal title cannot be held by individual aboriginal persons)
[113]-[115]

Content
- I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses
the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal
practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable
with the nature of the group’s attachment to that land [117]

Aboriginal title under s 35(1)

- Aboriginal title at common law is protected in its full form by s. 35(1). [133]

Proof of aboriginal title

- Aboriginal title is different than aboriginal rights (which are defined in terms of activities). Aboriginal title is a right to the land itself.
- In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria

(i) The land must have been occupied prior to sovereignty. (If present occupation is relied on as proof of occupation pre-sovereignty, there
must be a continuity between present and pre-sovereignty occupation)

(ii) At sovereignty, that occupation must have been exclusive.

Infringement of aboriginal title: the test of justification

- The aboriginal rights recognized and affirmed by s. 35(1), including aboriginal title, are not absolute.
- Those rights may be infringed, both by the federal (e.g., Sparrow) and provincial (e.g., Côté) governments. However, s. 35(1) requires that those
infringements satisfy the test of justification.
o The general principles governing justification laid down in Sparrow operate with respect to infringements of aboriginal title (I.e.
Ask, first, whether the infringement is in furtherance of a legislative objective that is compelling and substantial; and, second, an
assessment must be made of whether the infringement is consistent with the special fiduciary relationship between the Crown and
aboriginal peoples – the fiduciary duty principle has been interpreted in terms of the idea of priority, namely that aboriginal demands
should be placed first; but this does not demand that aboriginal rights always be given priority. Other contexts permit that the fiduciary
duty be articulated in other ways, such as: whether there has been as little infringement as possible in order to effect the desired result;
whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted
with respect to the conservation measures being implemented)

HELD: Remit case back to trial. The province had no authority to extinguish aboriginal rights either under the Constitution Act, 1867 or by virtue of s. 88 of
the Indian Act.

CASE: Tsilhqot’in Nation v. British Columbia, 2014;

Overview: The conclusion of a 30-year legal dispute, now represents the latest and most comprehensive statement of the law of Aboriginal title in Canada. It
is also the first successful Aboriginal title claim. By recognizing and affirming the Tsilqot’in Nation’s title to over 1700 square kilometres of territory, the
SCC has given full effect to the words of section 35 of the Constitution Act, 1982.

48
Facts:
 The Tsilhqot’in Nation commenced an action in British Columbia claiming, among other things, Aboriginal title to a large tract of land representing
approximately 5% of its traditional territory.
 The people of the Tsilhqot’in Nation lived in mountain villages. Within their traditional territory they hunted, trapped and collected roots and herbs.
Approximately 200 Tsilhqot’in Nation members still live in the area.
 After 339 days of trial over five years, and having heard voluminous evidence from Tsilhqot’in Nation elders, historians and other experts, the trial
judge found that Aboriginal title was proven for 190,000 hectares. The trial judge ruled, however, that because the action was pleaded as an “all or
nothing” proposition and Aboriginal title was not established over the entire claim area, the court could not make a declaration of Aboriginal title.
 The British Court of Appeal overruled the trial judge by finding that the action was pleaded sufficiently to permit the court to declare Aboriginal
title to less than the full area claimed.
 Unlike the trial judge, however, the appeal court found that Aboriginal title had not been established.
 The Supreme Court of Canada disagreed.

The test for Aboriginal Title

 The Supreme Court of Canada affirmed the test for Aboriginal title as set out in Delgamuukw v British Columbia which requires an Aboriginal
group to show the land was exclusively occupied prior to sovereignty. In applying the test, a court:
… must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law
concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.
 This is an important change from the Court of Appeal decision which held that an Aboriginal group must demonstrate that its ancestors intensively
used a definite tract of land with reasonably defined boundaries at the time of European sovereignty.
 Significantly, the Court reiterated a critical direction from the Haida Nation case, once again stating that governments are under a positive duty to
negotiate in good faith to resolve claims to ancestral lands.

Powers of Aboriginal Title Holders

o As recognized holders of Aboriginal title, the Tsilhqot’in Nation now has the right to decide how Aboriginal title lands will be used; the right of
enjoyment and occupancy of the land; the right to possess the land and the right to the economic benefits of the land. The unanimous Court
specifically set out that this is not merely a right to first refusal but the right to proactively control and manage the land.
o The Supreme Court found that while Aboriginal title confers ownership rights similar to fee simple, there are limits to the right.
 Firstly, the title lands may only be alienated to the Crown.
 Secondly, as title is a collective right held for both the present and future generations, the land cannot be used in a way that would
substantially deprive future generations of the benefits that flow from the land.

Role of Crown in respect of Aboriginal Title Lands

 The Court held that once Aboriginal title is established by a court declaration or agreement, the Crown must seek the consent of the title-holding
Aboriginal group before approving developments on their land.
 Absent consent, development of title land cannot proceed unless the Crown satisfies the demanding test for justifying infringement of Aboriginal
title.

 The test for justification requires the government to show:

1. that it discharged its duty to consult and accommodate;

2. that its actions were backed by a compelling and substantial objective; and
3. that the governmental action is consistent with the Crown’s fiduciary obligation to the Aboriginal group.

 Before Aboriginal title is established in the courts or recognized by the Crown, the Crown must consult with any Aboriginal groups that assert title
to the land about the proposed land uses, and if appropriate, accommodate those groups. The level of consultation and accommodation required in
each case will continue to be determined on the standard set out by the Court in Haida Nation. However, once title is established, the Crown action
will be judged on the higher fiduciary standard of justified infringement. Once title is proven, it may be necessary to revisit past Crown decisions to
determine if the Crown has met this higher fiduciary duty.

Application of provincial laws to Aboriginal Title lands

 The Court found that British Columbia laws of general application may apply to Aboriginal title lands, as long as any infringements are justified
under the Sparrow test. In other words, Aboriginal groups can no longer challenge provincial laws on the basis of s. 91(24) of the Constitution Act,
1867, or the doctrine of interjurisdictional immunity.

Significance:
 The SCC has now cautioned the Crown twice (in Haida Nation and Tsilhqot’in Nation) that it is not enough to simply consult and accommodate
about unresolved land claims. The Crown has a positive legal duty to actively take steps to implement the direction in Tsilhqot’in Nation about
Aboriginal title and resolve outstanding claims through negotiations.
 While further implications will arise in the future, it is fair to say the Tsilhqot’in have won a major victory in the rights of First Nations to protect,
enjoy, and control their traditional lands.

49
READING: BC Treaty Commission, “Why treaties in the modern age”
- When the early Europeans first began to settle in the eastern part of North America, Britain recognized that those people who were living there had title
to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty
- In most of the treaties, aboriginal people gave up their title in exchange for land reserves and for the right to hunt and fish on the land they’d given up
- In BC, after the Douglas Treaties between 1850 – 1854, no more treaties were made until after confederation; in 1899, Treaty 8 was signed.
- Over the decades, aboriginal people protested demanding treaties to be signed. The demand intensified, culminating in the formation of the Allied
Tribes of BC in 1916 to work for treaties. In response, Ottawa amended the Indian Act in 1927 to make it illegal to raise funds to pursue land claims
(which was lifted only in 1951)
- So treaties should have been made but they weren’t. Isn’t it simply too late to revisit this?
- Under s 35 of the Constitution Act 1982, aboriginal rights and treaty rights are recognized and affirmed, so rights exist whether a treaty exists or not.
But a treaty makes things more certain.

The Evolution of Aboriginal Title

- Calder decision recognizes aboriginal title (1973). The decision was a legal turning point. The recognition of aboriginal title in Calder as a legal
right was sufficient to cause the federal government to establish a land claims process; but BC refused to participate.
- Still, the question remained: had aboriginal title been extinguished before BC joined Confederation or not?

Three court decisions since Cadler address this question:

1. In Sparrow, the Court took the same approach as in Calder, who said that unless legislation had evinced a “clear and plain intention” to extinguish
aboriginal rights, it did not have that effect. However, this case dealt with particular aboriginal rights, not rights in land.
2. But in Delgamuukw, the SCC confirmed that aboriginal title exists in BC. Not jus the right to hunt, fish and gather.
3. Morever, the Marshall and Bernard decision sets limits on aboriginal title.
- In the case, the Court unanimously dismissed the claim to both treaty and aboriginal rights.
- It found that although the treaty protected the Mi’kmaq rights to sell certain products, this right did not extend to commercial logging.
- The Court said that while rights are not frozen in time, the protected right must be a logical evolution of the activity carried on at the time of
treaty-making. Treaties protect traditional activities expressed in a modern way and in a modern context; new and different activities are not
protected. The Court adopted strict proof of aboriginal title.
- The Court further stated that aboriginal title would require evidence of exclusive and regular use of land for hunting, fishing or
resource exploitation. Seasonal hunting and fishing in a particular area amounted to hunting or fishing rights only, not aboriginal title.

 What do these legal decisions mean?

- The courts have confirmed that aboriginal title still exists in BC, but they have not indicated where it exists. To resolve this situation, the
governments and First Nations have two options: either negotiate land, resource, governance and jurisdiction issues through a treaty process or go to
court and have aboriginal rights/title decided on a case to case basis
- The Haida Nation and Tlingit First Nation cases provide guidelines for the negotiation and definition of aboriginal title in BC.
- In Mikisew, the SCC extended the Crown’s obligation to consult and accommodate aboriginal interest (established in Haida and Taku) to include
existing treaty rights.

 All of these landmark judgments together confirm that:

1. Aboriginal rights exist in law
2. Aboriginal rights are distinct from the rights of other Canadians
3. They include aboriginal title, which is a unique communally held property right
4. Aboriginal rights take priority over the rights of others, subject only to the needs of conservation
5. The scope of aboriginal title and rights depend on specific facts relating to the aboriginal group and its historical relationship with the land
6. The legal and constitutional statute of aboriginal peoples derives not from their race but from the fact that they are descendants of the peoples and
governing societies that were resident in North America long before settlers arrived
7. Aboriginal rights and title cannot be extinguished by simple legislation because they are protected by the Constitution Act, 1982
8. Government has a duty to consult and possible accommodate aboriginal interest even where title has not been proven
9. Government has continuing duty to consult, and perhaps accommodate, where treaty rights might be adversely affected

50
TOPIC: Aboriginal Treaties
R v Marshall; R v Bernard
Main Point: This case provides significant guidance in attempting to succeed a claim for Aboriginal title.

FACTS:
- M and B were convicted of offences related to the selling/possession of timber
- The Mi’kmaq peoples of Nova Scotia and New Brunswick claimed the right to log on Crown lands for commercial purposes based on their treaty rights
and Aboriginal title.
- The Court dismissed their claim
ISSUE:
- Whether the Mi’kmak people in NS and NB have the right to log on Crown lands for commercial purposes pursuant to either treaty or Aboriginal title –
truck house clauses
REASONING:

Aboriginal treaty right: the test

- The cases raise issue of scope of treaty right.
- Crown argues that scope of treaty right is to be determined by what trading activities were in the contemplation of the parties at the time the
treaties were made. This is correct
- But treaty rights are not frozen in time. Modern peoples do traditional things in modern ways. “The question is whether the modern trading
activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made” [25]
- Thus, the question is whether the commercial logging here at issue is the logical evolution of a traditional Mi’kmaq trade activity [25]

Test applied
- In each case, the trial judge concluded that the evidence did not support a treaty right to commercial logging [31]
- In Marshall, Curran Prov. Ct. J. found no direct evidence of any trade in forest products at the time the treaties were made. In Bernard, Lordon Prov. Ct.
J. made similar findings on similar evidence. [32]-[33]
- I conclude that the evidence supports the trial judges’ conclusion that the commercial logging that formed the basis of the charges against the
respondents was not the logical evolution of traditional Mi’kmaq trading activity protected by the treaties of 1760-61 [35]

Aboriginal title
- The respondents also claim they hold aboriginal title to the lands they logged
- The common law theory underlying recognition of aboriginal title holds that an aboriginal group which occupied land at the time of European
sovereignty and never ceded or otherwise lost its right to that land, continues to enjoy title to it
- In summary, exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title. Typically, this is established by
showing regular occupancy or use of definite tracts of land for hunting, fishing or exploiting resources: Delgamuukw

- The ultimate goal is to translate the pre-sovereignty aboriginal right to a modern common law right. This must be approached with sensitivity to the
aboriginal perspective as well as fidelity to the common law concepts involved. [70]

MAIN SUMMARY: This case provides significant guidance in attempting to succeed a claim for Aboriginal title. In what some may consider a daunting
test, a claimant must establish evidence of “sufficiently regular and exclusive use” of the land in question by demonstrating an “intention and capacity to
retain exclusive control”. Moreover, a court must be satisfied that the evidence demonstrates a pre-sovereignty Aboriginal practice with respect to occupancy
that “corresponds to the core concepts of the (modern) legal right being claimed.”

HELD: Court concludes that there is no ground to interfere w/ the trial judges finding that no title existed [106]

Summary [110]
I have read the reasons of the Chief Justice (trail). While I am in agreement with the ultimate disposition, I have concerns about various parts of them.
Briefly, the protected treaty right includes not only a right to trade but also a corresponding right of access to resources for the purpose of engaging in trading
activities. On the facts of the cases on appeal, however, the parties to the treaties did not contemplate that the forest resources to which the Mi’kmaq had a
right of access would be used to engage in logging activities. On the issue of aboriginal title, I take the view that given the nature of land use by aboriginal
peoples — and in particular the nomadic nature of that use by many First Nations — in the course of their history, the approach adopted by the majority is too
narrowly focused on common law concepts relating to property interests.

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