TOPIC 1: BASIC THEORIES OF LAW Positivism and Natural Law Both legal positivism and natural law are descriptive theories, in that they are principally concerned with identifying what law is, as opposed to what the law ou!t to be. Both are concerned with concepts of law and justice, even if they diverge as to how the two relate to one another. Both are largely based on Western, liberal ideas about law and society. Legal positivism reflects the belief that law is nothing more than the rules and principles that actually govern or regulate society (laws are made by human beings); insists on separation between law and morality; focuses on describing laws without reference to justnesslegitimacyfairness. justnesslegitimacyfairness. Legal positivism is only concerned concerned with what what is legally valid, not what is morally vali d. !he common slogan of legal positivists is "the e#istence of a law is one thing; it $s merit or demerit is another%.( i.e &a'is had a legal system used for evil and British had a legal system used for good; both were legally valid). ee, e.g, Noble and Wolf , and note how judge appeals to the *+!-&! of positivism, and the lac/ of certainty of relying on public policy and morality &atural law theory is aspirational, in that laws are only those rules which adhere to certain moral truths, most often of a universal and immutable nature; i.e. law$s legal authority depends upon an e#ternal moral standard that holds across all societies. ee Drummond Wren, Wren, (land not to be sold t o 0ews) and note how judge appeals to our moral conscience
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F"minist P"rs#"$tiv"s on Law: $riti$al l"al t!"or% RES< ' E(&ALIT) normative theory, see/ing to describe how e#isting laws fail to achieve an e#ternal objective. 1eminist perspective on law reflects a criti2ue of li beralism as a political ideology; laws that e#isted from 34th century did not normally respond to the needs of women and even aided in their oppression. 1eminism ta/es issue with the liberal basis of law and its relationship to justice, and attempts to establish establish a different vision of of what justice might be *arly formalist feminism attempted to replace laws that f avoured men w more gender neutral laws ontemporary feminism consists of different sects with different beliefs. -t$s a comple# movement, relying on various disciplines such as criminology and sociology 5 generally feminism 6 legal system is paternalistic and male7centred. !he subject of abortion provides a good forum to e#amine how feminist theory may translate into practice (see Morganteler : -n this case on the constitutionality of the abortion restrictions, the majority found them unconstitutional on procedural grounds. 0ustice Wilson, however, wrote a concurring opinion opinion focusing on much much more "feminist% topics, topics, such as rights in a wider social social conte#t, the female e#perience, and far far more emotional issues) 5 s. 4 offended
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Criti$al L"al Studi"s: $riti$al l"al t!"or% * +CLS, Li/e some forms of feminism, critical l egal studies is a radical alternative to established legal theories; rejects that there is any /ind of natural legal order discoverable by objective means. L is a direct attac/ on traditional legal theory, scholarship and education. !he L movement can be very theory7driven and densely philosophical. L, li/e the feminist perspective, ta/es issue with the liberal basis of law and its relationship to justice, and attempts to establish a different vision of what justice might be !he liberal belief that law should be certain and natural is, for L scholars, illusory. Law reproduces the oppressive characteristic characteristic of contemporary Western societies 8 stages governing the application of L ideas9 3) Hegemonic con sciousness 9 Western laws are maintained by a system of beliefs that have their foundation in a l iberal, mar/et driven economy, which reflect interests of a dominant class (*lite class beliefs) :) Reificatio n9 !he beliefs that maintain Western laws are presented as essential and objective, and the laws that prop up this belief system necessary follow suit, becoming e2ually incontrovertible 8) Denial: Laws and legal thin/ing aid in the denial of real truths •
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ee R v R.D.S (bias test): test): ompare how the judges in this case dealt with the issue of race with the judges inRe inRe Drummond Wren and Wren and Re Noble and Wolf
Law and E$onomi$s RES< ' EFFICIENC) Law and economics theories loo/ at law differently, less grounded in moral theory and more in ideas about efficiency (as opposed to feminism, which deals with producing e2uality); law and economics scholars have applied economic analysis to e#plain various areas of law. !he traditional law and economics approach economics approach applies economics methodology methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient. !he economic theory of regulation, or ublic choice theory , applies basic economic theory in an attempt to understand ublic understand ublic olicy icy . -t •
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legislators) act in order to ma#imi'e political support; they are not necessarily attempting to ma#imi'e social welfare and are motivated by self interest. ee Duncan !state v "addeley (!his (!his case dealt with the issue of how to calculate damages for an estate arising out of a negligence action for wrongful death. hould future earnings be included or not While the court did not do any e#plicit calculations or economic reasoning, there was a clear subte#t that the judge had to consider the wider social7economic implications of allowing for recovery of future earnings or not); "hadauria v "oard of #overnors (public choice theory behind the ourt of ppeals decision; the ourt recognised, on public policy grounds, a new "tort of discrimination%. But, at the upreme ourt level, this idea was rejected this idea of a new "economic tort%
< &ote9 =ne of the themes in public law is to show how common law has been displaced by policy formation (in the form of legislation) as the primary means of social regulation. number of important 2uestions lie at the heart of this analysis9 What, in economic terms, is the problem that a legal rule or structure is attempting to resolve What effect does this rule have on society Why do we have th e laws that we have hould we have different laws
CASES
Hill v Church of Scientology FACTS: >ill is a prosecutor in !oronto suing the hurch of cientology as a private individual. >ill brought a common law libel action based on allegedly false statements the church made about him. common law tort -s the common law tort of defamation inconsistent with the ISS&E9 -s the harter applicable to a private action based on a common harter (s. :b) REASONIN?rivate parties owe each other no constitutional duties and cannot found their cause of action upon a harter right. !he party challenging the common law cannot allege that the common law violates a harter right because, 2uite simply, harter rights do not e#tend in the absence of state action. !he most that the litigant can do is argue that the common law is inconsistent with harter values. values. /T!" #art% w!o is all"in t!at t!" $ommon law is in$onsist"nt wit! t!" C!art"r s!ould 0"ar t!" onus o #rovin 0ot! t!at t!" $ommon law ails to $om#l% wit! C!art"r valu"s and t!at2 w!"n t!"s" valu"s ar" 0alan$"d2 t!at t!" $ommon law s!ould 0" modii"d.3 o, it is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with the harter values but also that its provisions cannot be justified. HEL4: *ven though private parties owe each other no constitutional duties and cannot found a cause of action upon a harter right, ourt concluded that the common law tort of defamation reflected an appropriate balance between freedom of e#pression values and the legislative objectives underlying the law. !herefore, no need to amendalter the legislation. legislation. RATIO: *ven though harter doesn$t apply directly to this action, ommon law should be interpreted with reference to harter values (as per obiter in Dolhin Dolhin). ). -f common law is inconsistent with harter values, and not justifiable, the common common law should be modified. •
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Societe de l’assurance automobile du Quebec v Cyr FACTS: ?ursuant to s. @:A of the >ighway afety ode (>), !he ocit de lCassurance automobile du Dubec (D) entered into a contract with the entre de vrification mcani2ue de Eontral (FEE) to carry out the mechanical inspection of road vehicles. ccording to this contract, yr, an employee of FEE, was designated as an accredited mechanic for the purpose of the DCs vehicle inspection program. >owever, following notices of breach for failure to apply the appropriate standards during certain inspections, inspections, yrCs accreditation was revo/ed by D. yr and FEE fil ed a motion for judicial review of the decision to revo/e the accreditation, claiming that it had not been rendered in a manner consistent with the ct respecting administrative justice (0). !he uperior ourt concluded that the actions of the D in sending the notices of breach and subse2uent subse2uent revocation of accreditation were an e#ercise of contractual rights and dismissed the application. !he majority of the ourt of ppeal set aside the decision, holding that yr had the right to procedural fairness and that the e#istence of a contract could not be used by the D to avoid the obligations codified by s. @ of the 0. ISS&ES: Whether a gov$t body can avoid public law duties when delegating its functions by contract or other agreement REASONINyr is entitled to procedural fairness under s. @ 0, as his designation as an accredited mechanic mechanic for the purposes of the DCs mechanical inspection program constitutes an administrative authori'ation. yr cannot be considered a party to the contract, because under this contract, FEE is the mandatary of the D, not yr. Gelegations of government power are authori'ations. -n delegating to yr the power to conduct vehicle inspections, the D was granting him the authori'ation to act on its behalf. Eoreover, the authori'ation in the present case is specifically provided for in s. @:A of the >. !he legislative origin of the authori'ation further confirms its administrative nature. onse2uently, s. @ of the 0 and its procedural re2uirements are applicable to the present matter because (3) the revocation of yrCs designation is a Hdecision concerning a permit or licence or other authori'ation of li/e natureH, and (:) yr is a Hciti'enH as contemplated by the 0. &ot all acts
HEL49 ppeal dismissed between the applicability of public and private law. !he dissent held that the parties are bound bound by CO55ENT: !his case distinguishes between contract, since the D chose to use a contract to appoint the persons authori'ed to conduct the mechanical inspection ARTICLES
David Tanovich, “The Charter of Whiteness: Tenty!five years of "aintaining #acial $n%ustice in the Canadian Criminal &ustice System' -ntroduction +eflecting on the :@th anniversary of the harter, much will be written about the impact it has had on those living on the margin. >as the harter given any hope to boriginal and raciali'ed communities !here$s reason to be optimistic about the possibilities for future reform, the harter to date has had very little impact on racial injustice in anada We continue to incarcerate boriginals and frican at alarming rates, racial profiling at borders and streets flourishes !he utility of using liti gation to address racial injustice uccessful litigation brings with it considerable attention 5 media, community organi'ations etc 5 and can help raise public consciousness, consciousness, stimulate academic research and political action. nd one of the most important political responses could be the collection of data which will reveal the e#tent and scope of racial injustice bsence of any racial profiling legislation, and the passing of nti !errorism Legislation, and the onservative riminal ode amendments, amendments, all of this has had a disproportionate impact on raciali'ed communities. o, harter litigation remains as important means of addressing fundamental injustice "While - place considerable reliance on harter litigation to address racial injustice, there is no 2uestion that other legal and e#tra7legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigation fails. nti7racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti7racist actors etc are all e#amples of strategies that can wor/ together with litigation% T!" #ro0l"m is not wit! t!" C!art"r 0ut wit! t!os" w!o aru" and int"r#r"t it Narrow aroaches to aroaches to judicial review and l ac/ of judicial imagination have played a role in limiting the impact of harter litigation on racial injustice. -n a number of /ey cases addressing issues such as bail (because blac/s are more li/ely to be detained), jury selection (because blac/s are less li/ely to be found on juries), the use of peremptory challenges and racial profiling, courts have refused to adopt critical race standards or arguments when they were advanced. ee, e.g.9 R. v. $an% R. v. Sawyer I awyer, who is White, was tried together with Jalbraith, who is Blac/, on a charge of assault. 1ollowing the conviction, a juror contacted awyer 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%. !he accused argued that the common law jury secrecy rule needed to be altered under section 4 of the harter to ensure that verdicts were not tainted by racism. !he argument was rejected. lso, in a number of cases, trial judges have been or appeared host ile when ile when as/ed to adjudicate adjudicate a race issue. issue. *.g. in R v "rown, "rown, B was as/ed by the judge to apologi'e to the officer for raising racial profiling. ometimes, hostility can be implied from the reasoning employed by the ourt to dismiss the argument. !he 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 With respect to litigation, there has been a large7scale failure of trial lawyers to raise race once critical race standards have been established by the courts. Why are trial lawyers not raising race when it is appropriate to do so *.g. small number of racial profiling cases litigated following the + v Brown decision. +ace is not being raised because some lawyers are not seeing the issue, while others are uncomfortable engaging in race tal/ before courts ppellate lawyers often fail to raise the issue of race on appeal. !he has yet to deal with the racial profiling issue. nd they face the hurdle of not having a record from which to wor/ (i.e race issues may not be raised at the trial level) •
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!he role of law is to provide rules to coordinate reciprocal behaviour amongst various members of a social order, in order to avoid conflicts or detrimental effects amongst these members. law is an attempt to formulate a norm with the use of abstract wording, that governs the broadest area of life possible -t is the ill7defined notion of international law that is called to face the challenge of a menacing disorder spreading spreading over the emerging international community !he : categories of public international K private international law are most li/ely to fulfil this function in the emerging international community Pu0li$ int"rnational law, or the "law of the nations%, is defined as the system of law governing the relations between states. Privat" int"rnational law, or the "conflict of laws%, is a system co7ordinating the different laws f rom different countries, and it responds to the 2uestion of applicability of foreign or domestic law within domestic courts -n the present ti me, comple# interactions between states and private individuals occurs, and harmony between public and private international law cannot be confirmed anymore !he decline of state sovereignty and the increasing insufficiency of a pure #ositivist t!"or% of law t o e#plain phenomena on the legal plane, are two e#amples of how global change has shattered the fundaments of doctrinal thin/ing on which the classical doctrine was built L*JL E=+L L"al #luralism and l"al #ol%$"ntri$it% in int"rnational law T!" world $ommunit% o toda% is orm"d 0% a r"at num0"r o div"rs" so$i"ti"s6 "a$! #oliti$al so$i"t% !as its own law w!i$! is 0as"d on its own traditional r"liious2 $ultural or so$ial valu"s T!" irst st"#s in t!" r"$onition o t!" div"rsit% o t!" world $ommunit% ar" ound in t!" t"rms o l"al #luralism and l"al #ol%$"ntri$it%2 r"#udiatin 0ot! t!" #r"sum#tion o t!" sol" "7ist"n$" o on" total l"al ord"r and a sinl" valu" a##roa$! to law. onsidering the very nature and rationale of public and private international law 7 both d"alin with interactions amongst amongst these various societies, whether organised as states, peoples, groups or individuals, that together form the world community 7 different legal traditions must be iv"n their "8ual and due place in the international legal order, !his can be achieved by emphasising the continuity in the evolution of law; an evolution that has constantly been influenced by the e#change of many different cultures.
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onclusion !his refusal of judges to act and lac/ of race consciousness by lawyers are having a direct impact on the ability of the harter to remedy racial injustice !he two bright spots have been race7based challenges for cause, and the recognition of the e#istence of racial profiling by our courts. But even in these areas, there is still room for improvement •
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#ostam &osef (euirth, “$nternational )a and the *ublic+*rivate )a Distinction' Bac/ground
T!" $riti$al #oint: t"nd"n$i"s in $ont"m#orar% law !he second half of the :A th century has faced dynamic development in human society, and driven by the t!"or% o l"al #ositivism law was not spared from this development and underwent, and is undergoing, significant changes Law has reached a critical point which is cause for hope and concern 5 the critical point i s understood as two parallel yet mutually antagnostic trends. !he evolution of technology has affected the evolution of law 5 law has rapidly evolved, but the 2uestion is whether it has progressed or regressed Law !as #ror"ss"d E9TERNALL) * almost "v"r% a$tion in dail% li" is su0"$t to law +i.". 0road s$o#" o a##li$ation,. From an INTERNAL #oint o vi"w2 as ar as t!" F&NCTION OF LAW WITH RESPECT TO ;&STICE is $on$"rn"d +t!us in$ludin moralit%2 #r"di$ta0ilit% and $ontinuit%,2 t!" issu" is l"ss $l"ar. T!" !u" 8uantit% o norms "na$t"d iv"s ris" to $on$"rn. A law is an att"m#t to ormulat" a norm wit! t!" us" o a0stra$t wordin2 t!at ov"rns t!" 0road"st ar"a o li" #ossi0l". Aristotl" #oint"d out t!at "v"r% law is laid down in "n"ral t"rms2 w!il" t!"r" ar" mat"rs a0out w!i$! it is im#ossi0l" to s#"a< a0out in "n"ral t"rms. But t!" d""$t li"s not in t!" law2 0ut in t!" natur" o t!" su0"$t matt"r. B"$aus" o t!is law a##ar"ntl% in!"r"nt in law2 t!" $!all"n" in t!" n"ar utur" is to "7amin" t!" traditional #"r$"#tion o t!" t!"or% und"rl%in law. T!is law2 and various o##osit" t"nd"n$i"s in t!" "volution o law2 $all or n"w t!"or"ti$al a##roa$!"s to t!" law r"ulatin t!" #r"s"nt world ord"r. From a #ra$ti$al #"rs#"$tiv"2 it $alls or a sim#l"r "n"ral t!"or%2 allowin or a ra#id ori"ntation 0ut also a ust a##li$ation o t!" !=G ?=-!-F-E 6 L*JL E=+L vast vari"t% o norms.
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A Law or t!" World o Toda% T!" #r"s"nt $!all"n" is to ind a l"al notion t!at a$"s t!" $!all"n"s o t!" n"w r"aliti"s t!at a lo0al #oliti$al world ord"r !as $r"at"d. Su$! a notion would not onl% !av" to $ov"r t!" di"r"nt $at"ori"s o law2 0ut also it would !av" to m""t t!" im#li$ations o an imm"ns" $ultural div"rsit% o l"al s%st"ms $r"at"d 0% a lar" num0"r o stat"s -n this process of adaptation, the preliminary step is to bring about the desired change by redefining e#isting notions, or by creating new notions used in legal discourse Sin$" $odii$ation * t!" #ro$"ss w!"r"0% l"al id"as 0"$om" #ositiv" law * is ta
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!his seems to be an outdated concept, not fit f or responding to new realities Muthor then lists numerous notions related to international lawN
synthetic search for a suitable notion9 When contemplating the variety of notions that e#ist for the law of today, it is hard to ma/e a choice. *ach notion has appeared in a different time and conte#t, but they all appear to overlap !he essay will use the term i nternational law, because its covers broadest range of these conte#ts. -nstead of trying to change the term itself the focus will be on a change of its understanding and scope of application T!" 4%namism o Pu0li$=Privat" 4i$!otom% ?ublic international law f oundations !he evolution of public international law reveals the strong influences that theories e#ercise on the shape of law and its institutions; on the other hand, the theories themselves are shaped by influences stemming from the factual developments occurring in this world !his becomes obvious when one considers the two main theories competing in international law9 natural law and #ositiv" law, t!" irst t! "m#!asisin moral standards and t!" latt"r a mor" #ra$ti$al a##roa$!. W!il" a naturalist vi"w dominat"d t!" 1> and 1?t! $"nturi"s2 t!" #ositivist vi"w ain"d im#ortan$" t!rou!out t!" 1@t! $"ntur%. Sin$" WW II2 t!" naturalist and #ositivist vi"ws $an 0" said to $o"7ist in #arall"l. T!" atro$iti"s $ommitt"d 0% t!" Nai ov"rnm"nt t!at $ulminat"d in World War && r"viv"d t!" #o#ularit% o natural law. Sin$" t!"n2 t!" naturalist and #ositivist vi"w $an 0" said to $o"7ist in #arall"l ?rinciple sources of international law9 (i) international conventions establishing rules e#pressly recognised by contesting states (corresponds more with positivist thought) (ii) international custom (e.g. treaties which lac/ universal binding force) (corresponds with naturalist thought)9 !he universally binding force of custom is e#pressed in the concept of ius cogens, i.e. peremptory norms, which is based upon an "acceptance of fundamental and superior values within the system and ins some respects is a/in to the notion of public order%. further e#pression of the naturalist character e#pressed by custom is found in the concept of obligations erga omnes. With full awareness of the major importance of the distinction between customary and treaty law
TOPIC : SO&RCES OF LAW
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?rivate international law 3 : 8 onflict of laws in its widest sense deals with 8 subjects9 jurisdiction, choice of law and recognition of foreign judgments !he body of rules called private international law fulfills a coordinating function between legal orders of different states, in search for a greater decisional harmony 1rom a theoretical perspective, the historical development of private international law was dominated by : major ideas • •
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Gisadvantages9 when one considers democratic participation in the international law ma/ing process, the adaption of international norms to domestic particular circumstances, the ade2uate fulfillment of the respective international obligations, possible conflicts between international and other nations norms
Law and A0oriinals -t is important for a legal system to recogni'e that anada was populated by aboriginal people prior to its coloni'ation by the *uropean empires boriginals$ cultural, political, economic and legal systemsrights not protected after coloni'ation But in 3PQ:, with the patriation of the onstitution, aboriginal rights were constitutionally entrenched in s 8@ of the onstitution ct, 3PQ: ( protects the boriginals) ases such as Mitchell v &anada and Delgamuu'w v "& interpreted s 8@ CanadaDs Common and Civil Law Traditions a #ece-tion of .uro-ean la: anada law remains a l argely *uropean inheritance. British concepts of "reception% determined how anada$s common law and statute law was received 0ust as the aboriginal legal systems, the British had special rules of incorporation that defined how non7British law would apply in their colonies. -f a location was con2uered, the local laws would continue to apply, modified only as far as was necessary to integrate them into the -mperial legal system. 1or those territories that were simply coloni'ed, the ommon law, as it stood at the time of first settlement, was imported (&ooer v. Stewart ) o there is an important distinction between =&DO*+ and *!!L* (that latter of which ignores the presence of boriginals; it entails the automatic reception of *nglish law) Eost of anada considered "settled%, so entire body of *nglish law was imported to the settled colonies !he courts were the arbiters of settlement dates •
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b (ature of the Common and Civil la: ommon law9 ommon law is an *nglish invention. -t is judge7made law, developed through the common law courts (as opposed to the ourt of hancery). : fundamental ideas permeate common law theory9 +1, 0udges don$t ma/e the law but merely declare it ; +, all the relevant past decisions are considered as evidence of the law, K judges infer from precedents what is the true law in a given instance ivil law 9 Duebec inherited civil law. ivil law is based on established laws, written as broad legal principles. !he difference between civil and common law lies more in t heir different methodological approaches as opposed to codification per se. -n civil law countries, legislation is seen as the primary source of law. 0udgements normally rely on the provisions of codes and statutes. 0udicial reasoning is based e#tensively on the general principles of the rule or code. ommon law methodology, even where statutory sources of law are present, employs analogical reasoning from statutory provisions to fill in gaps. !he "bijuralism% remains largely intact in anada today •
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?rivate (*L1) and public law (!!*) !he classical distinction is that public law governs the relations between the state and its nationals, while private law governs their relations amongst themselves. •
!he implementation of international law !he way a state approaches this depends on whether the state practice is influenced by the monist or dualist concept !he reception and implementation of the international norm in the national realm is necessary because a state, the traditional subject of international law, can in some cases only achieve compliance w international obligations by assuring that the behaviour of its nationals is in conformity w international obligations entered by the same state Customar% int"rnational law and tr"ati"s: 4istinuis! 0"tw""n t!"s" two main sour$"s o int"rnational law. Int"rnational $ustomar% law is considered to be part of municipal law if incorporated. !he incorporation can be made on the basis of a relevant constitutional provision or by judicial practice. -ncorporation doesn$t automatically give such law higher standing within the national legal order. later national law is capable of nullifying the obligation set forth Tr"ati"s9 !he way treaties are transferred into the national legal system not only depends on the constitution but also the character of the treaty. !he =&!-!O!-=& determines the process from the beginning of negotiations until the final administration of a negotiated treaty within a national legislation. 1rom a constitutional point of view, the implementation of a treaty can ta/e place through a special or general transformation. pecial 6 international norm must be adopted by legislationregulation; general 6 declared part of municipal law without any special legislation. !reaties can either be self7e#ecuting or non7self e#ecuting, the former re2uires implementation by way of statute. dvantagesdisadvantages of direct applicability of international laws in a municipal court9 dvantages9 the increase for the effectiveness of int$l law, a better fulfillment of relevant treaty obligations etc. • •
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c The /-eration of Common )a and *recedent !he principle of stare decisis is the formal term to describe how the $ommon law r"li"s on #r"$"d"nt ?recedent in law helps in categori'ation; precedent economi'es on information and minimi'es idiosyncratic conclusions, and serves, therefore, a number of purposes dvantages and disadvantages of precedent9 o dvantages benefits 9 (i) ids in the stability and coherence of the law, ma/ing it more predictable (ii) ?rovides fairness in decision ma/ing; (iii) ?romotes efficiency and eliminates sources of error (i.e. judicial bias); (iv) 1ulfills a symbolic role by recogni'ing the relationship between courts and the legislature; (v) ?rovides some certainty (liberty to decide each case as you thin/ right without any regard to principles laid down in previous cases would result in uncertainty of law); (vi) ?ossibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (e.g. discuss how feminists enjoy this aspect of the doctrine, without which the laws today relating to females in society might be primitive) Gisadvant agesprobl ems 9 • •
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(iii) lowness in growth (the system depends on litigation for rules to emerge); (iv) *asy to distinguish (Jive case e#ample); (v) lso some intellectual uncertainty (as the law is in constant evolution)
d Common )a and .0uity ommon law has a variety of internal meanings according to conte#t; for instance, common law must sometimes be distinguished from e2uity. Re De (aurier: &hildren)s interest *2uity$s original function was to provide a corrective to the perceived harshness of the common law. Law as a body of rules is by its nature concerned with generalities 5 groupsclasses of personsevents, rather than individuals and discrete happenings. !herefore, law sometimes fails to achieve ade2uate justice in particular case +ules of e2uity are now applied concurrently in all superior courts, with e2uity prevailing in cases of conflict •
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e $nternational )a Gistinguish between domestic and international law •
-nternational law (*S*O!-F* ET* !>** LW) Gistinguish between tr"ati"s (contracts between states who ta/e part in treaty) and $ustomar% int"rnational law (entrenched norms binding on all states, e#cept those who have repudiated them by practice) -nternational law as a part of anadian law >ow does domestic law interact with international law !he answer depends on the source of international law9 treaty or customary law +a, Tr"ati"s Gualism9 anada has a dualist tradition 5 an international treaty has no direct effect in domestic law until domestic legislation passed to implement the law into anadian law by an act of ?arliament (if a federal matter) or provincial Legislatures (if a provincial matter) !here are advantages, disadvantages and uncertainties with the dualist mode of reception (e.g. implementation issue 5 no clear rules on when a treaty has been implemented into anadian law; in this conte#t, the "a'er approach seems to be unsatisfactory, which states that for a treaty to be considered implemented, it must be done so e#plicitly in t he relevant statute 5 see the " * Hesitant !mbrace% article below for a criti2ue of "a'er and this approach in general; further, the Suresh approach appears to not be satisfactory either, which suggests that you can use unimplemented treaties to aid interpretation of legislation) •
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+0, Customar% int"rnational law =nce a rule becomes recogni'ed as customary law, it is O!=E!-LL part of domestic law 0ut $an 0" dis#la$"d 0% statut" !here are also some concerns related to incorporating customary international law into domestic law But the has been unclear on the statutes of customary international law in anadian domestic law !he following are two cases on the application of international law in anadian domestic law9
!o conclude that the terms of the -+?, which have been debated and approved by ?arliament, are overridden by a conflicting international legal instrument does not respect the legislative process in this country. =nly e+ress indication of such a principle by ?arliament would allow such an outcome But the applications 0udge too/ an overly narrow view on the value of international law -nternational law can be used to interret the harter and it can influence the common law -n "a'er , ourt endorsed the use of int$l law to interpret a statutory provision as re2uiring immigration officers t o give great weight to the best interests of any affected children when e#ercising discretion, *F*& -1 &=! -E?L*E*&!*G 1urther, Brunnees and !roope in a >esistant *mbrace argue that courts have not always made it clear how influential international law should be in the interpretation of domestic legislation. ometimes it is treated as merely persuasive, while at other times it is presumed to be determinative, unless the statutory te#t is irremediably inconsistent with international law. -n an attempt to bring greater clarity to the analysis in the evolving domestic jurisprudence, the authors suggest that ?arliament should be presumed not to legislate in derogation of international legal norms that are binding in anada. -n contrast, non binding international norms should not be given the same interpretive weight, but should be regarded as no more than persuasive and conte#tual HEL4: - conclude that paragraph 8(8)(f) does not incorporate into anadian law international human rights instruments to which anada is a signatory, but merely directs that the -+? must be construed and applied in a manner that complies with them •
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T!" ollowin is an arti$l" on issu"s $on$"rnin t!" a##li$ation o int"rnational law in Canadian $ourts:
1runnee, &utta 5 Ste-hen Too-e, “6 Hesitant .mbrace: 1a2er and the 6--lication of $nternational )a in Canadian Courts' •
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1a2er v Canada L$>eureu#7Gube9 -mportance of considering best interests of children indicated by anada$s ratification of the onvention on the +ights of the hild, an international instrument. -nternational treaties and conventions are not part of anadian law unless they have been •
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implemented by statute. !he onvention has not been implemented by ?arliament, and therefore its provisions have no direct affect on anadian law. &evertheless, the values reflected in international human rights law may help inform the conte#tual approach to statutory interpretation and judicial review. Lacobucci9 -t is a matter of well7settled law that an international convention ratified by the e#ecutive branch of government is of no force or effect within the anadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation. - do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the conte#tual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the ourt$s jurisprudence concerning the status of international law within t he domestic legal system.
De 3u4man v Canada FACTS: Es J$s application to have her sons sponsored for admission to anada was refused under the -mmigration and +efugee ?rotection +egulations. Es J argued, inter alia, that the relevant provision is invalid. =ne ground was that it is inconsistent with international human rights instruments to which anada is a signatory, and which protect the right of families to live together and the best interests of children. J argues that priority should be given to international instruments which prevail over any inconsistent provision in either t he -+? or the regulations d invalid bc it renders the -+? non7compliant with "international >+ instruments to which anada is signatory
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!oday, ourts appear to recogni'e the relevance of international norms whether or not they have been implemented through anadian legislation, and whether or not they are binding on anada In Ba<"r2 t!" Court !"ld t!at t!" valu"s r"l"$t"d in int"rnational !uman ri!ts law ma% !"l# inorm t!" $ont"7tual a##roa$! to statutor% int"r#r"tation and udi$ial r"vi"w Canadian $ourts ar" ra##lin mor" wit! t!" /#ra$ti$al a##li$ation3 o int"rnational law anadian courts, however, are still inclined to avoid deciding cases on the basis of international law9 and the avoidance strategy is subtle 5 even when they invo/e international law, anadian courts generally do not give international norms concrete legal effect in individual case At"r t!" Ba<"r d"$ision2 t!"r" a##"ars to 0" a tr"nd towards tr"atin all int"rnational law2 w!"t!"r $ustom or tr"at%2 0indin on Canada or not2 im#l"m"nt"d or unim#l"m"nt"d2 in t!" sam" mann"r * as r"l"vant and #"rsuasiv"2 0ut not d"t"rminativ" +t!is $om"s im#li$itl% rom t!" d"$ision2 not "7#li$itl%, !he point is the and other courts have confused, rather then clarified the domestic impact of international law 0ob for academics and judiciary to attac/ international law 2uestions in a more principled manner. ame with courts T!" SCC in Ba<"r and in Sur"s! said t!at t!" r"l"vant intDl instrum"nt was not im#l"m"nt"d in Canada +0ut w" t!in< itDs arua0l" t!at t!"r" is im#li"d im#l"m"ntation 0"$aus" o t!" C!art"r and its #rot"$tions, W" aru" t!at its not "nou! to tr"at ALL normativ" t!r"ads as #ot"ntiall% #"rsuasiv"2 0ut not mandator% * ov"r tim"2 t!is a##roa$! ris
-mplemented !reaties -n anada, the e#ecutive controls both the signature and ratification of international treaties. -f t!" tr"at% is in or$" and Canada !as ratii"d it2 t!" tr"at% is 0indin on Canada as a matter of international law; but this does not answer the 2uestion of whether the treaty is effective within the anadian domestic legal system -nternational treaties are not directly applicable in anada but re2uire transformation. anadian courts struggle not only t o determine when international norms re2uire implementation through legislation but also to determine whether such implementation has actually occurred. lso, they wrestle with the implications of the common law principle that H?arliament is not presumed to legislate in breach of a treaty or in a manner inconsistent with the comity of nations and the established rules of international law.H4U -n the case law, it remains unclear when this principle comes into play and how it relates to the implementation re2uirement. o while the power to enter into an agreement rests with the federal e#ecutive, transformation generally re2uires legislation that enacts treaty •
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-t is unclear what constitutes implementation, and there are potentially many ways this can be done in a statute. Least common practice is "inferred implementation% W!"n a tr"at% is "7#li$itl% transorm"d into Canadian law2 its #rovisions s!ould 0" d"t"rminativ" in t!" int"r#r"tation o dom"sti$ l"islation When the purpose of a statute is to implement an international treaty, the ourt must adopt an interpretation consistent with anada$s obligations under the treaty. court must rely on the treaty to interpret the statute and on the international rules of treaty interpretation to interpret the treaty and resolve any te#tual ambiguities , ""$tiv"l% "8uatin Canadian $ourts !av" t"nd"d towards a narrow $onstru$tion o t!" im#l"m"ntation r"8uir"m"nt im#l"m"ntation wit! statutor% im#l"m"ntation But sur"l% t!"r" $an 0" im#li$it im#l"m"ntation2 ".. 0% wa% o t!" C!art"r. In A!ani2 it was stat"d t!at a0s"nt im#l"m"ntin l"islation2 int"rnational law !as no ""$t !raditionally, however, anadian law did not categorically re2uire statutory implementation
Onimplemented treaties W!at is t!" l"al ""$t o su$! tr"ati"s W" su0mit t!at a tr"at% t!at is 0indin on Canada2 w!il" not dir"$tl% a##li$a0l" in Canada2 is non"t!"l"ss su0"$t to t!" #r"sum#tion o l"islativ" int"nt to A$t $onsist"ntl% wit! CanadaDs int"rnational o0liations. =n this presumption, it applies to all of anada$s international obligations, whether treaty based or rooted in customary international law !his leads to the inference that courts should ma/e every effort to interpret G& law so as t o conform to anada$s international obligations &nortunat"l%2 C4N $as" law !asnDt ta<"n a $onsist"nt a##roa$! to t!" #r"sum#tion o $onormit% w= intDl law. 1irst , there i s an uncertainty of the effect of that presumption in the conte#t of harter interpretation. !he tends to draw upon int$l norms merely to inform its interpretation of the harter. -n the harter conte#t, a wea/er version of the presumption of conformity has emerged. econdly , the case law since "a'er is unclear on whether the presumption applies e2ually to anada$s international obligations and non7 binding international norms T!" am0iuous stat" o t!" $as"law in t!is r"ard is r"l"$t"d in t!" CourtDs d"$ision in Ba<"r. On" o t!" #rin$i#l" $ausaliti"s o t!is la$< o $larit% is $ustomar% int"rnational law. T!" $"ntral rulin in Ba<"r was t!at "v"n t!ou! Canada !ad n"v"r "7#li$itl% transorm"d its o0liations und"r t!" Conv"ntion o t!" Ri!ts o t!" C!ild into dom"sti$ law2 t!" immiration oi$ial was 0ound to $onsid"r t!" /valu"s3 "7#r"ss"d in t!at Conv"ntion w!"n "7"r$isin dis$r"tion. T!"r"or"2 t!" Conv"ntionDs "m#!asis u#on /t!" 0"st int"r"sts o t!" $!ild3 s!ould !av" w"i!"d !"avil% in $onsid"rin 5s Ba<"rDs a##li$ation . (BT*+ +OL-&J) >ow did majority arrive at the conclusion "that the values reflected in int$l human rights law may help inform the conte#tual approach to statutory interpretation and judicial review Eore specifically, how the majority conceived of this principle in relation to the traditional presumption of statutory conformity with international obligations. -t would seem that the primary 2uestion for the majority with respect to the relevant international instrument was how to give effect to the unimplemented treaty. !!" maorit% too< t!" narrow vi"w on t!" 8u"stion o im#l"m"ntation and o0s"rv"d t!at2 a0s"nt w. et the "values% reflected in the im#l"m"ntation 0% Parliam"nt2 itDs #rovisions !av" no 4IRECT a##li$ation in Canadian la onvention could shape statutory interpretation. In our vi"w t!" maorit% "rr"d or r"asons: +1, While the provisions in that instrument were not directly applicable -& anadian law, they were binding =& anada and therefore relevant to statutory interpretation through the presumption of conformity (from the standpoint of this presumption, the ourt wouldn$t have had to distinguish between the provisions and "values%, and could have used both). !he ourt simply failed to adopt the presumption which they should have, based on the very 2uote which they relied to cite authority for the presumption; it would have been clearer for them to just have used the presumption in arriving at the conclusion; +, By avoiding the presumption, the interpretation of the international instrumental ta/en was overly narrow Ba<"r r"sults in 8u"stions: +1, How s!ould $ourts a##roa$! int"rnational tr"at% norms t!at ar" 0indin on Canada2 0ut a0s"nt im#l"m"ntation2 not dir"$tl% a##li$a0l" in Canada +, How s!ould t!"% a##roa$! norms t!at do not 0ind Canada 0ut r"l"$t im#ortant int"rnational valu"s +BAER (&ESTIONS, Som" !av" su"st"d to inor" t!" riid distin$tion 0"tw""n 0indin and non 0indin. 4oin so ris
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non0indin int"rnational norms in t!is mann"r2 $ourts mov" awa% rom t!"ir dut% to striv" or an int"r#r"tation t!at is $onsist"nt wit! CanadaDs int"rnational o0liati ons. Bindin int"rnational norms ar" not onl% #"rsuasiv"2 t!"% ar" o0liator%. I w" ail to u#!old our o0liations2 w" und"rmin" r"s#"$t or law int"rnationall% M&ote9 binding 6 ratified; implemented 6 implemented by statuteN ustomary international law !he e#istence of a binding rule of custom is proven with reference to two distinct, but interrelated, elements9 state practice and opinio juris. !he proper application of customary international law has emerged in a series of cases after "a'er as a major 2uestion for the upreme ourt. !o what e#tent can international customary law inform domestic legal processes !he best view appears to be that customary law can operate directly within the anadian legal system We hope that the intended to suggest that t he precautionary principle can inform statutory interpretation even if it should not yet have become customary international law. -f this reading is correct the ourt would have confirmed a principle that it alluded to in "a'er 9 in appropriate cases, international norms that are not legally binding on anada may inform statutory interpretation and judicial review nother case after Sraytech that the commented on customary international law was in Suresh. 0us cogens norms are a particularly compelling form of customary international law.
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ummary ustomary int$l law (a peremptory norm of customary int$l law which emerges by general consensus of the int$l community)9 should be directly applicable (it is a part of G& law). ourts should strive t o interpret statutes and common law to be consistent with obligations under customary law. >owever, the approach of G& courts to customary int$l law is unclear. !here is no une2uivocal statement on whether custom is part of anadian law or not. -f anything, there are some indications that our courts may be retreating from custom. !he decisions in Sraytech and uresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in anada. !he two decisions permit the inference that custom merely helps inform a conte#tual approach to statutory interpretation, furnishing a potentially relevant and persuasive source for this power, but nothing more. -nternational treaty law9 treaty that has been e#plicitly implemented by statute is part of our domestic law and should be determinative in the interpretation of G& law. When harter issues arise, G& legislatures retain control over domestic law. !he presumption of conformity is to be applied only where possible, and can be rebutted by an e#plicit l egislative ct. -nt$l law that is &=! binding9 finally, there is an array of international normative statements that may not be legally binding on anada, but anada may find relevant to the interpretation of a domestic statute. *.g. might encounter non7binding parts of a treaty (preamble); international treaties to which anada is not a party etc (=1! LW) !hese norms should be treated as potentially relevant and persuasive for the interpretation of domestic law •
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onclusion anadian courts are becoming international courts, as t he boundaries between nations becomes more blurred •
The “1i%uralism' $ssue De-artment of &ustice, “1i%uralism and Harmoni4ation: 3enesi s' "Bijuralism% signifies the co7e#istence of the *nglish common law K 1rench civil law traditions, within a country organi'ed along federal lines •
ommon Law !radition !he $ommon law tradition can be distinguished from the civil traditional essentially by its method, that is, i ts rules of interpretation, the hierarchy of its sources and its inductive reasoning. !he principle characteristic of the common law is this inductive process, which consists of generali'ing from common points between distinct cases and then establishing legal categories with vague foundations and fle#ible limits !o practitioners, the common law means that they have access to a fragmented law that they will discover incrementally as needed. !his leads to the legal fiction that a judge does not ma/e the law but discovers it, as a legal vacuum is impossible
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ivil Law !radition (written law) !he most important feature of the $ivil law tradition differentiating it from the common law tradition is its emphasis on the primacyo writt"n laws. ivil law is not judge maderecogni'ed law, it$s codified law nother defining characteristic of the civilian tradition is it s conceptualism as the civil law tradition is characteri'ed by its emphasis on abstract concepts. What follows from this is the use of a deductive approach to legal reasoning is used, proceeding from the general to the •
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Language =ne integral issue relating to anadaCs bijuralism is t hat of HlanguageH. - stress that language plays a crucial role i n the evolution of law. !he sources of common law were established in the *nglish language. !ranslation often results in some very difficult problems for the practice of the common law in 1rench. !he same holds true for the practice of civil law in *nglish !he suitability of judges educated in the common law tradition hearing cases involving civil l aw issues has been the subject of some debate in Duebec K has even led to some opinion favouring a distinct for Duebec or a separate civil law division within the e#isting =ne 2uestion that often arises is whether the common law system is intimately lin/ed to the nglo7a#on mentality and language -s the system of values of 1rancophones inconsistent with the common law tradition -n this regard, - cannot emphasi'e enough that my e#perience has taught me that 1rench is not the e#clusive linguistic vehicle for the e#pression of the civil law tradition nor is *nglish the e#clusive vehicle for the e#pression of the common law. - highly doubt that there is any mystical connection between the 1rench language and the civil law tradition and the *nglish language and the common law tradition. • •
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Bilingual legislation -t is perhaps trite to state that federal legislation in anada is intended to apply consistently across the provinces and territoriesIthat the same federal law must apply in both Duebec and in =ntario. While this may be the ultimate goal of federal legislation, in practice this goal is not easily attained, since federal legislation must be drafted in the *nglish and 1rench languages and in a manner which is compatible with two legal systems. 1ederal legislation must not only be bilingual, but also bijural. -ndeed, federal legislation must simultaneously address four different groups of persons9 •
3. anglophone common law lawyers; :. francophone common law lawyers; 8. anglophone Duebec civilian lawyers; and V. francophone Duebec civilian lawyers. •
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-t is crucial that these four legal audiences in anada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or t erritory =ne distinctive and difficult feature of G& bijuralism is the tas/ of rendering the common law in 1rench and the civil law in *nglish. Eore specifically, how legislative statutes and judicial decisions of either legal tradition can be HtransposedH into the language of the other. With respect to the process of drafting federal legislation, it is now readily recogni'ed that this process shouldnt rely upon the techni2ue of simply transposing the concepts of one legal tradition into the corresponding functional e2uivalents of the other. -n many areas, a new vocabulary must be forged.
-nterpreting Bilingual Legislation !he re2uirement in anada that legislation be enacted in both *nglish and 1rench has important implications6 both language versions of a bilingual statute are original, official and authoritative e#pressions of the law. &either version has the status of a copy or translationIand neither has paramountcy. !his is /nown as the H "8ual aut!"nti$it% rul"G !he rule of e2ual authenticity also re2uires the courts, in interpreting bilingual legislation, to e#tract the Hhighest common meaningH from the two versions that is consistent with the conte#t of the provision. Where there is a blatant conflict between the *nglish and 1rench versions, courts must e#amine the legislative history of the two linguistic versions of the provision, loo/ing also to the purpose and object of the statute. =ne must therefore go further than mere verbal comparisons, loo/ing to the highest common meaning of the two versions ourts are therefore re2uired 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. •
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>armoni'ation !he interaction of law emanating from the federal and provincial levels and t he potential conflicts between them and possible harmoni'ation is a comple# issue =ver the years, pursuant to the division of powers under the &onstitution *ct, -/ , ?arliament has enacted a considerable number of laws aimed at regulating private law issues. ertain public law statutes, when applied in Duebec, re2uire that recourse be had to the&ivil &ode of 0uebec to identify the precise nature of the juridical act in 2uestion. onse2uently, there are several areas of law found in federal statutory enactments which re2uire harmoni'ation with Duebec private law, e#pressed primarily in the 0uebec &ivil &ode s such, civil law is called upon to fill the gaps left by the federal law While civil law and common law complement the private law provisions of federal legislation, at the same time, federal legislation should not •
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onvergence and ?rogress !here is evidence of a convergence between the civil law and common law traditions in anada. While common law and civil law share common origins, t!"s" l"al s%st"ms !av" 0""n mov"d art!"r and art!"r rom t!os" oriins. !his move can be seen as the result of r"8u"nt $onta$t wit! ot!"r l"al s%st"ms, t!" rowt! in t!" num0"r o sour$"s o int"rnational law2 t!" mo0ilit% o #"rsons2 t!" inlu"n$" o t!" m"dia2 t!" #rodu$tion o indi"nous r""r"n$" wor
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onclusions =ur legal system must now incorporate the shared values of society as a whole, without e#cluding or discriminating against anyone. -t must evolve in light of our bac/ground and needs. -n the anadian conte#t, it seems to me that a new analysis of the situation is also needed !hings have already changed substantially. !he codification of the law is increasingly e#tensive in both systems. !here are more new sources of substantive law, including int$l law and native law. !ranslation, language training for judges K jurists, and e#changes between law schools are far more common. !here$s widespread access to criminal justice in 1rench at the trial level throughout the country. ome universities offer a double law degree; others have organi'ed 3 year wor/ terms for students studying the other system. ?=L0 is doing important wor/ !he negative side is that 1rench7language boo/s, articles and cases from Duebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories. - have also noticed that the bilingualism of many young Duebec jurists is insufficient to give them f ull access to *nglish7language legal sources. =n the flip7side, if 1rench is not understood in most of *nglish anada, how can we be e#pected to ma/e use of the insights it offers in resolving legal disputes •
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St!Hilaire v Canada 76!3 FACTS: !he respondent as/ed the !reasury Board to pay her, in her capacity as a surviving spouse and as heir of her husbandCs succession, the allowances prescribed in the ct. !he !reasury Board refused to pay anything on the basis of a public policy rule that no one may profit from his own crime. !he respondent then applied to the 1ederal ourt, !rial Givision for a declaratory judgment that would recogni'e her right to the benefits provided by the ct. llowing the application, Blais 0. ruled that the applicable law was the law of successions defined in the &ivil &ode of 0u1bec and that under that law there is no unworthiness to inherit by operation of law unless there is an intention to commit the alleged crime and that the offence of manslaughter falls outside this rule. ISS&E9 !he main issue on appeal was whether the civil law of Duebec is the suppletive law where a court must interpret and apply a federal enactment which is silent concerning civil rights in Duebec and if so, whether the respondent was unworthy by operation of law of inheriting from her husband under subsection U:A(3) of the &ivil &ode of 0u1bec. REASONIN-: Decary 2* 3dissenting in art4: What is the applicable law9 the civil law of Duebec or the common law Onless indicated otherwise, no document other than the ivil ode shall serve as ordinary law, in private law, in the federal legislation applicable to Duebec. Whenever a federal statute that is to be applied to Duebec resorts to a private law concept without defining it, and the 5nterretation *ct is silent, or the federal statute does not fully occupy the possible field of private law jurisdiction in 2uestion, it is the ivil ode that supplies the necessary conceptual support for an intelligent application of that statute -n Duebec it is tr ite law that the Hordinary lawH of the province is constituted by the &ivil &ode of 0u1bec and the &ode of &ivil $rocedure !here are a number of situations in which the civil law is re2uired to assume what might be called a passive role. uch situations include every instance where, in furtherance of its own purposes, a federal statute assigns certain effects to juridical acts or facts governed by the ivil ode. Eore fre2uent, however, are situations in which the civil law plays an active role by applying directly to complement federal private law statutes, just as it does with regard to provincial statutes of the same type. Eost of the time these laws do not contain all that is necessary for their application. -n one way or another, they are almost always incomplete. !hey employ civil law concepts without defining • •
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W!at2 in m% vi"w2 s!ould d"t"rmin" w!"t!"r or not it is n"$"ssar% to r"sort to t!" #rivat" law +in (u"0"$2 t!" $ivil law, is not t!" #u0li$ or #rivat" natur" o t!" "d"ral "na$tm"nt at issu" 0ut t!" a$t2 8uit" sim#l%2 t!atthe federal enactment in a given case must be a--lied to situations +relationshi-s that it has not defined 5 that cannot be defined other than in terms of the -ersons affected8 -t is also worth remembering the complementary nature of federal and civil law9 all of the 1ederal statutes created do not create an independent legal system. Because these cts derogate from or add to the 6us commune of each province, they are supplemented by the relevant provincial law, which is used to interpret them and to apply them. !here is, therefore, a $om#l"m"ntar% r"lations!i# between federal legislation and the 6us commune of the provinces I do not t!in< t!"r" $an 0" an% dou0t t!at t!is #art o t!" A$t2 w!i$! r""rs to Gsu$$"ssionG wit!out d"inin it2 s!ould 0" int"r#r"t"d in (u"0"$ in li!t o t!" $ivil law. T!" answ"r is not so o0vious w!"n it $om"s to d"inin t!" ri!ts o t!" Gsurvivin s#ous"G. T!is "7#r"ssion2 as I said "arli"r2 is d"in"d in t!" A$t and urt!"rmor" do"s not $orr"s#ond to an% $on$"#t t!at is d"in"d in t!" Civil Code of Qu9bec. T!" A$t a##"ars2 -rima facie2 to $onstitut" a $om#l"t" $od" in t!is r"ard. But is t!is r"all% t!" $as" W!at w" ar" loo
(etourneau 2*: !he 1ederal ourt of ppeal has on many occasions recogni'ed that Duebec civil law compliments federal law where the latter is silent. -t has also endeavored to harmoni'e the effects of federal statutes in order to avoid possible ine2uities as a result of disparities while ac/nowledging a right to be different where harmoni'ation proves impossible. !he unworthiness to inherit under subsection U:A(3) of t he &ivil &ode of 0u1bec attaches to the person convicted of ma/ing an attempt on the life of the deceased. !he wording of this article creates serious difficulties since there is no offence in anadian criminal law of ma/ing an attempt on the life of the deceased. But ubsection U:A(3) of the &ivil &ode of 0u1bec does not e#clude from its purview all cases of manslaughter. Where, as here, a person commits aggravated assault or inflicts serious bodily harm li/ely t o cause death, /nowing that death may result but being indifferent as to whether or not it results, that person is by operation of law unworthy of inheriting from his victim >eld that respondent was dis2ualified •
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Des6ardin 2*: !o determine the meaning of the words Hsurviving spouseH and HsuccessionH when the federal statute in 2uestion, the $ublic Service Suerannuation *ct , is silent, it is necessary to refer to the &ivil &ode of 0u1bec and not the common law. !he &ivil &ode of 0u1bec is the foundation not only of all other Duebec laws, but also of the relevant provisions of the ct in 2uestion. !he first paragraph of article U:A of the ode, which states that Ha person convicted of ma/ing an attempt on the life of the deceasedH is unworthy of inheriting by operation of law, does not rule out the applicability thereto of some cases of manslaughter, let alone the manslaughter committed by the respondent ince the respondent was Hconvicted of ma/ing an attempt on the life of the deceasedH, she was unworthy by operation of law of inheriting from her husband under that provision and could not receive t he surviving spouseCs annuity. •
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HEL49 ppeal allowed Conv"ntion +&NWRITTEN A-REE5ENTS 5A4E B) POLITICIANS, onstitutional conventions are a species of unwritten constitutional norms. !he British onstitution was understood to include certain conventions that govern the wor/ings and interaction of the branches of the state. Because the 3QU4 sought to effect "a onstitution •
#e: #esolution to amend Constitution: FACTS: !he +eferences in 2uestion were prompted by the opposition of eight provinces to a proposed +esolution, published on =ctober :, 3PQA. !he proposed +esolution contained an address to be presented to !he Dueen in r ight of the Onited Tingdom and a statute, to which was appended another statute providing for the patriation of the ".N.*. *ct, with an amending procedure, and a &harter of R78. !he proposed +esolution carried the approval of only two provinces, =ntario K &ew Brunswic/. !he opposition of the others, save as/atchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was re2uired for the address to be forwarded to >er Eajesty with the appended statutes. !he proposed +esolution was adopted by the >of and by the enate on pril :8 and :V, 3PQ3. ISS&ES: ll parties agreed t hat proposed amended constitution would affect provincial rights and powers. : issues9 +1, -s agreement of provinces $onstitutionall% +l"all%, r"8uir"d +, -s there a $onstitutional $onv"ntion REASONIN-: -ssue 3 9 Eajority of 49: 7 "Legally% provincial consent was not re2uired. -ssue :9 onstitutional convention, U98 majority found an e#isting convention that a "substantial measure of provincial consent% is re2uired. +e9 provincial consent there was precedent. ince 3P8A all amendments affecting the provinces were passed with provincial consent 5 there were no e#ceptions. ?recedent indicated intent to have consent. +eason confirms anada$s federal principle. 1. /L"al Issu"3 >: T!" 5aorit% +C; Las
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HEL4: onvention needs "substantial measure of provincial consent% wasnCt supported by precedent 5 arguably re2uired unanimous consent. But, here, Q provinces opposed the amendments it did not matter. -nsufficient provincial support.
TOPIC : Fundam"ntal Prin$i#l"s o t!" Canadian L"al S%st"m Bac/ground ?ublic law concerns the relationship between the state and civil society ?rivate persons may only create legal rights and duties bw each other, and only with consent. -n comparison, the state holds all authoritative power (the state may impose its dictates on persons without their individual consent) society governed by the rule of law, state may not act arbitrarily. !he state must act lawfully in accordance with law !he starting point in assessing the legitimacy of state action is the onstitution !he onstitution establishes the foundational law through which the rule of law can occur. econd, it establishes the respective relationships between the institutions or branches of the state that perform the functions necessary to operationali'e law in society • •
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+ule of law *veryone, including the powerful state, must act in accordance with the law +ule of law is similar, but broader than the concept of constitutionalism, which re2uires that all government action comply with the onstitution; rule of law is a rere9uisite to the constitutionalism +ule of law means that laws must meet certain 2ualitative standards, but being prospective and being general in character are not • •
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ee Roncarelli v Dulessis , where it was held that even a fully discretionary power is subject to the rule of law ee "& v 5merial obacco &anada, where manufacturers of tobacco claimed that legislation enacted which favoured B government in many respects violated principle of rule of law. ourt described rule of law in 8 principles9 (3) !he law is supreme over govCt officials and private individuals (i.e. the law applies to everyone e2ually) (:) +ule of law re2uires 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) (8) +e2uires that the relationship between the state and the individual be regulated by law
Onwritten constitutional principles Reference re Secession of 0uebec case confirmed that the onstitution contains unwritten principles !hese unwritten principles are important to understanding the legal constraints under which public power is e#ercised by the G& state; they help interpret the onstitution; &G,, they have the f orce of law and serve to impose OB!&!-F* limits on the powers of government "!hese principles are important because problems or situations may arise which hare not e#pressly dealt with by the te#t of the onstitution. -n order to endure time, a constitution must contain a comprehensive set of principles which are capable of providing an e#haustive definition for our system of government%9 Reference re Secession of 0uebec • •
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onstitutional conventions J+**E*&! W>-> LW. B*G =& O!=E K ?+**G*&! onstitutional conventions are another species of unwritten constitutional norms9 they represent accepted understandings of how organs of the government operate. !hey have particular importance with respect t o the wor/ings of the rown and e#ecutive government !hey were inherited from the British constitutional structure see $atriation Reference case which defined what a convention is and recogni'ed a convention of "substantial provincial agreement%
!he principle of federalism Gividing legislative power between federal govCt and regional govCts, each assigned respective spheres of jurisdiction 1ederalism is an unwritten principle of the anadian onstitution (see Reference re Secession of 0uebec); the in that case described this principle as a means of recogni'ing regional cultural diversity at the founding of anada, particularly w respect to the distinct nature of Duebec as predominantly a 1rench7spea/ing society
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!he e#ecutive power !he e#ecutive derives any power it has solely from the laws or statutes passed by the legislature. !hat is, the e#ecutive must locate any authority it has to act in anadian society from a statutory source !he e#ecutive, by constitutional convention, is responsible to the legislature 5 which is essentially the meaning of "responsible government% in the parliamentary tradition
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0udicial independence 0udicial independence is an elemental constitutional doctrine, closely tied to the separation of powers 0I ensures that judges, as arbiters of disputes, are at a complete liberty to decide individual cases on their merits without interference 0udicial independence also preserves the separation of powers bw the three branches of our democracy by depolitici'ing the relationship between the judiciary and the other two branches
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onstitutional supremacy &=! *&1=+*BL* B =O+! With s @:(3) 3PQ:, the anadian system of government now operates under a principle of constitutional supremacy !he essence of constitutionalism in anada is that all government action must comply with the onstitution With the adoption of the harter, the anadian system of government was transformed to a significant e#tent from a system of ?arliamentary supremacy to one of constitutional supremacy !he doctrine of const$l supremacy carries with it necessary implications that spea/ to other aspects of public law9 (3) >ierarchy of law9 !o state that the onstitution is anada$s supreme law implies a hierarchy of law (:) djudication9 =ur system accepts that constitutional interpretation cannot be performed by the same body that enacts the ordinary law (i.e. the legislature). =ur system re2uires that the legislature will be chec/ed by the judiciary with the authority to interpret and apply the onstitution (8) ounter7majoritarianism9 -n a system of constitutional supremacy, the power to interpret and enforce the onstitution against majority preferences must be present (V) mendment by super7majority re2uired • • •
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!he eparation of powers doctrine and parliamentary supremacy (=?) BB=T !he o? doctrine refers to the division of governmental functions between the legislative, e#ecutive and judicial branches of the state *ach branch is defined by its relationship to l aw9 the ma/ing of law (l egislature); the implementing of law (e#ecutive) and the interpreting and applying the law (judiciary) 8 3 : -n anada, there is no strict separation. !he parliamentary tradition adopted by anada$s founders gives pre7eminence to the legislative branch, to which the e#ecutive is made subordinate. lso, the parliamentary system contemplates an overlapping of personnel between the legislature and the e#ecutive. !he ?E and members of their abinet (the e#ecutive council "advising% the head of state) are elected members of legislature. Onli/e in the O. &evertheless, the distinction between the legislature, e#ecutive and judiciary is important to anadian law. -t serves two principal purposes9 +1, a functional purpose of identifying the institutional homes of the three major forms of public power and +, a normative purpose of providing general boundaries for the operation of each institution Legislative power and arliamentary suremacy 9 eparated between the federal (the ?arliament) and provincial legislatures. !he principle of parliamentary supremacy is that anada$s federal and provincial legislatures are understood to be the sole sovereign holders of state authority, subject to authority being divided between them along the lines set out i n ss P3 and P: of the 3QU4. But with the onstitution ct 3PQ:, anada adopted both a harter of +ights and 1reedoms and an e#press declaration of constitutional • •
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#eference re Secession of Quebec
+R"$oni"s and "7#lains t!" im#ortan$" o M unwritt"n $onstitutional #rin$i#l"s,
&ature of unwritten principles9 !hese principles inform and sustain the constitutional te#t9 they are the vital unstated assumptions upon which the te#t is based. !he following discussion addresses the four foundational constitutional principles that are most germane for resolution of this +eference9 federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. !hese defining principles function in symbiosis. &o single principle can be defined in isolation from the others, nor does any one principle trump or e#clude the operation of another. Ose of unwritten principles9 !he principles assist in the interpretation of the te#t and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. *2ually important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our onstitution as a Hliving treeH, to invo/e the famous description in !dwards v. *ttorney;#eneral for &anada !he effect of the preamble to the &* -/ was to incorporate certain constitutional principles by reference, a point made earlier in8raser v. $ublic Service Staff Relations "oard . -n the $rovincial 2udges Reference, we determined that the preamble Hinvites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in t he e#press terms of the constitutional te#tH 3.1ederalism9 anada is a federal state in which political power is shared by two orders of government9 the federal government on the one hand, and the provinces on the other. *ach is assigned respective spheres of jurisdiction by the &*, -/. -n interpreting our onstitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. !his underlying principle of federalism, then, has e#ercised a role of considerable importance in the interpretation of the written provisions of our onstitution. -n the $atriation Reference, we confirmed that the principle of federalism runs through the political and legal systems of anada. !he principle of federalism recogni'es the diversity of the component parts of onfederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction
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!he principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. !he federal structure adopted at onfederation enabled 1rench7spea/ing anadians to form a numerical majority in the province of Duebec, and so e#ercise the considerable provincial powers conferred by the onstitution ct, 3QU4 in such a way as to promote their language and culture. -t also made provision for certain guaranteed representation within the federal ?arliament itself :.Gemocracy9 !he principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration today. !he democracy principle can best be understood as a baseline against which the framers of our onstitution, and subse2uently, our elected representatives under it, have always operated. -t is for this reason that the principle was not e#plicitly identified in the te#t of the &onstitution *ct, -/ itself Gemocracy is commonly understood as being a political system of majority rule. Gemocracy encompasses a number of values, including9
-n institutional terms, democracy means that each of the provincial legislatures and the federal ?arliament is elected by popular franchise. -n individual terms, the right to vote in elections to the >o and t he provincial legislatures, and to be candidates in those elections, is guaranteed to H*very citi'en of anadaH by virtue of s. 8 of the &harter . !he relationship between democracy and federalism means, for e#9 that in anada there may be diff erent and e2ually legitimate majorities in different provinces and territories and at the federal level. &o majority is moreless HlegitimateH than the others as an e#pression of democratic opinion, although, the conse2uences will vary with t he subject matter. et democracy in any real sense of the word cannot e#ist without the rule of law. -t is the law that creates the framewor/ within which the Hsovereign willH is to be ascertained and implemented. !o be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation onstitutionalism and the +ule of Law9 !he Crule of lawC is a highly te#tured e#pression, importing many things which are beyond the need of these reasons to e#plore but conveying, for e#ample, a sense of ord"rlin"ss2 o su0"$tion to
Singh v Canada +E7#lains som" o t!" undam"ntal #rin$i#l"s dis$uss"d a0ov", ?arliamentary sovereignty9 -t is the prerogative of a sovereign ?arliament to ma/e its intention /nown as to the role the courts are to play in interpreting, applying and enforcing its statutes. While the courts must determine the meaning of statutory provisions, they do so in the name of see/ing out the intention or sovereign will of ?arliament, however purposively, conte#tually or policy7oriented may be the interpretative methods used to attribute such meaning. Beforeafter 3PQ: our system wasis one of parliamentary sovereignty e#ercisable within the limits of a written constitution $rima facie, then, this appears to be an intra vires measure by ?arliament to define privileges of the federal *#ecutive in the furtherance of the well7established and well7accepted principles of abinet secrecy. -n the absence of some clear and compelling constitutional imperative to the contrary the legislation is valid and effective eparation of powers 9 !he appellants argue that doctrine of separation of powers prevents ?arliament from giving judicial functions to the *#ecutive. !hey characteri'e the issuance of a section 8P certificate by the ler/ of the ?rivy ouncil as judicial in nature because it involves a determination of whether a court should have access to certain evidence -n anada (unli/e the OOT) there are many other e#amples of the mi#ing of functions among the various branches of government, the most obvious being the statutory power of the to give advisory opinions, a function not countenanced in systems of true separation of powers such as O. !he G& onstitution does not insist on a strict separation of powers. -n the0uebec Secession Reference ourt unanimously confirmed its right to perform this function9 Moreover, the &DN &onstitution does not insist on a strict So$. $arliament 7 the rovincial legislatures may roerly confer other legal functions on the courts, and may confer certain 6udicial functions on bodies that are not courts. he e+cetion to this rule relates only to s. < courts. hus, even though the rendering of advisory oinions is 9uite clearly done outside the framewor' of adversarial litigation, and such oinions are traditionally obtained by the e+ecutive from the law officers of the &rown, there is no constitutional bar to this &ourt=s receit of 6urisdiction to underta'e such an advisory role
-t is not surprising that the ourt reached this conclusion, as it was there engaged in a celebrated e#ercise of advising the *#ecutive, answering several hypothetical 2uestions posed by the Jovernor in ouncil in the absence of any real Hcase or controversyH in the legal sense (the criterion in the O.. for the e#ercise of judicial power). strict o? in anada -n the present conte#t it is difficult to see how, even on the basis of the o?, the refusal of one branch of the *#ec, the ? =ffice, to give to another branch of the *#ec, the +E? ?ublic omplaints ommission, both governed by the laws of ?arliament, access to certain abinet information, can be seen to be a violation of the separation of powers. 0ust as there are fundamental policy reasons of a 2uasi7constitutional nature as to why legislators should have full control of their procedures and judges shouldnCt have to reveal the processes by which they reach a given decision, so the *#ecutive (with the guidance of an ct of ?arliament) should be able t o identify those documents generated in its
+ule of law9 !he elements of rule of law include9 that the law is supreme over the acts of both government and private persons (Hon" law or allH); that an actual order of positive laws be created and maintained to preserve Hnormative orderH; and that Hthe e#ercise of all public power must find its ultimate source in the legal ruleH. "!he relationship between the state and the individual must be regulated by lawH. -n this case, the rule of law cannot be ta/en to invalidate a statute which has the effect of allowing representatives of the rown to identify certain documents as beyond disclosure9 that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reasons based on const$l principles such as responsible government, have been treated differently from private documents in a commercial law suit. -ndependence of the judiciary9 ppellants$ position is essentially 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 constitutionally guaranteed independence of the judiciary. !he !rial 0udge (correctly) held that this did not constitute an interference with independence as measured by the now well7 established rules in >alente v. he 0ueen. s. 8P in no way interferes with the security of tenure, the financial security, or the administrative independence of judges as dealt wit h in that case
#eference re #umuneration of &udges of the *rov Court of *.$ FACTS: ertain statutes created by provincial govCts interfered with judicial independence of provincial courts; although invalidated, those invalidations didn$t cure all of the unconstitutional effects of the relevant provisions. !he upshot of this judgment is that every person found guilty by a provincial court in one of the relevant provinces while the unconstitutional laws were being applied has suffered a breach of their s. 33(d) rights ("right to be heard by an independent and impartial tribunal%). !he provinces have re2uested declarations that these decisions cannot be reopened (i.e. they remain valid) REASONIN-: =ne effect to those legislative provisions that had undermined the financial security of provincial court judges was to render those tribunals dependent. !he retroactive annulment of the salary reductions does not change the fact that that provincial court judges were not independent during the period of time when those reductions were imposed on them 4OCTRINE OF NECESSITI)9 But there is no need to ma/e those declarations. ?ast decisions cannot be reopened. -n fact, t!"r" is a do$trin" t!at r"$oni"s t!at in som" situations it is 0"tt"r to !av" a nonim#artial and ind"#"nd"nt ud" to non" at all* t!" do$trin" o n"$"ssit%. !he doctrine of necessity finds its sour$" in t!" rul" o law9 t!" do$trin" o n"$"ssit% is a##li"d to #r"v"nt a ailur" o usti$". !here are 8ualii$ations to t!" rul"9 3. !he rule will not apply in circumstances where its application would involve positive and substantial injustice; :. When the rule does apply, it only applies to the e#tent that necessity justifies Li/e res judicata, the doctrine of necessity recogni'es the importance of finality and continuity in the administration of justice. >owever, these doctrines should be applied rarely, and with great circumspection, as both preserve the effects of an unconstitutional law
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#ef re $nde-endence and $m-artiality of &udges of the *rov8 Court of *.$ +Id"ntii"s udi$ial ind"#"nd"n$" as st"mmin rom an unwritt"n $onstitutional #rin$i#l"2 and d"tail"d dis$ussion o /inan$ial s"$urit% at t!" institutional l"v"l 3,
FACTS: statute decreased provincial court justices$ salaries bc of a provincial deficit. oncern that this eroded judicial independence guaranteed under s 33(3)(d) of harter. ISS&E: ppeal raises a range of issues relating to the independence of provincial courts, but are united by two interrelated issues9 1. W!"t!"r and !ow t!" uarant"" o udi$ial ind"#"nd"n$" in s. 11+d , o t!" Canadian Charter of #ights 5 reedoms r"stri$ts t!" mann"r 0% and t!" "7t"nt to w!i$! #rovin$ial ovts and l"islatur"s $an r"du$" t!" salari"s o #rovin$ial $ourt ud"s6 . W!"t!"r t!" $onstitutional !om" o udi$ial ind"#"nd"n$" li"s in t!" "7#r"ss #rovisions o t!" CA 1?K> to 1@?2 or "7t"rior to t!" s"$tions o t!os" do$um"nts REASONIN-: "ac'ground Litigation has ensued between two primary organs of our constitutional system I t!" "7"$utiv" and t!" udi$iar% I which both serve important and interdependent roles in the administration of justice. !he aspect of judicial independence which is engaged by the impugned reductions in salary 7 inan$ial s"$urit% 7 has only been dealt with in any depth by >alente v. he 0ueen. But only individual inan$ial s"$urit% was considered. Finan$ial s"$urit% must be understood as merely an as#"$t o udi$ial ind"#"nd"n$", which is not an end in itself. ;udi$ial ind"#"nd"n$" is valu"d 0=$ it s"rv"s im#ortant so$i"tal oals it is a m"ans to s"$ur" t!os" oals. •
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udi$ial ind"#"nd"n$" i s t!" maint"nan$" o t!" rul" o la w, on" as#"$t o w!i$! is t!" $onstitutional #rin$i#l" t!at t!" "7"r$is" o all #u0li$ #ow"r must ind its ultimat" sour$" in a l"al rul". -tCs with these broader objectives in mind that these reasons and the appeal must be understood. he ?nwritten "asis of 2udicial 5ndeendence ;udi$ial ind"#"nd"n$" is at root an unwritt"n $onstitutional #rin$i#l". lthough several sections of the onstitution guarantee things such as financial security (e.g. s 33(d) of the harter)), these don$t provide an e#press code for the protection of 0 I for all types of courts T!"r" ar" s"rious limitations wit! t!" vi"w t!at "7#r"ss #rovisions o t!" Constitution $om#ris" an "7!austiv" and d"initiv" $od" or t!" #rot"$tion o udi$ial ind"#"nd"n$". 3. !he first and most serious problem is that the range of courts whose independence is protected by the written provisions of the onstitution contains large gaps. S"$tions @K1, for e#, onl% #rot"$t t!" ind"#"nd"n$" o ud"s o t!" su#"rior2 distri$t2 and $ount% $ourts2 and even then, not in a uniform or consistent manner. !hus, while ss. PU and3AA protect the core jurisdiction and the financial security, respectively, of all 8 types of courts (superior, district, and county) s. PP, on its terms, only protects the security of tenure of superior court judges. Eoreover, ss. @K1 do"snDt a##l% to #rovin$iall% a##oint in"rior $ourts2 i.". #rovin$ial $ourts. :. S. 11+d, is limit"d as w"ll +onl% a##li"s to 0odi"s w!i$! "7"r$is" urisdi$tion ov"r o"n$"s,.o, the independence of provincial courts adjudicating in family law matters, for e#, would not be constitutionally protected. T!" Pr"am0l" has been us"d as a r""r"n$" #oint to ill t!" a#s in t!" Constitution. *# where the ourt has inferred a basic rule of G& constitutional law despite the silence of the const$l te#t is the doctrine of paramountcy. lso, preamble recogni'es and affirms that we are governed by a ?arliamentary democracy. =ne implication of the preamble$s recognition and affirmation of ?arliamentary democracy is the constitutionali'ation of legislative privileges for provincial legislatures, and most li/ely, for ?arliament as well. !hese privileges are necessary to ensure legislatures can perform their functions, free from rownourt interference T!"s" "7am#l"s I the doctrines of full faith and credit and paramountcy, the remedial innovation of suspended declarations of invalidity, the recognition of the constitutional status of the privileges of provincial legislatures, the vesting of the power to regulate political speech within federal jurisdiction, and the inferral of implied limits on legislative sovereignty with respect to political speech Iillustrat" t!" s#"$ial l"al ""$t o t!" #r"am0l". !he preamble identifies the organi'ing principles of the &* -/ , and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the e#press terms of the constitutional te#t T!" sam" a##roa$! a##li"s to t!" #rot"$tion o udi$ial ind"#"nd"n$"
Section 3d4 of the &harter 8 $!ara$t"risti$s of judicial independence9 s"$urit% o t"nur"2 inan$ial s"$urit% J administrativ" ind"#"nd"n$". And t!"r" ar" dim"nsions o udi$ial ind"#"nd"n$": 1. individual +i.". o t!" ud", and :. institutional=$oll"$tiv" +i.". o t!" $ourt or tri0unal o w!i$! t!at ud" is a m"m0"r,.!he conceptual distinction between the core characteristics K the dimensions of 0I suggests that it may be possible for a core characteristic to have both an individual and an institutional or collective dimension 1inancial security has both an individual and institutional dimension reasonable person test employed to determine whether there is judicial independence under s 33(d) 5nstitutional 5ndeendence T!" institutional ind"#"nd"n$" o t!" $ourts "m"r"s rom t!" loi$ o "d"ralism2 w!i$! r"8uir"s an im#artial ar0it"r to s"ttl" urisdi$tional dis#ut"s 0"tw"" n t!" "d"ral and #rovin$ial ord"rs o ov"rnm"nt. But t!" institutional ind"#"nd"n$" o t!" udi$iar% r"l"$ts a d""#"r $ommitm"nt to t!" s"#aration o #ow"rs 0"tw""n and amonst t!" l"islativ"2 "7"$utiv"2 and udi$ial orans o ov"rnm"nt !he point - want to ma/e first is that t!" institutional rol" d"mand"d o t!" udi$iar% und"r our Constitution is a rol" w!i$! w" now "7#"$t o #rovin$ial $ourt ud"s &ote that the increased role of provincial courts in enforcing the provisions and protecting the values of the onstitution is in part a function of a legislative policy of granting greater jurisdiction to these courts. =ften, legislation of this nature denies litigants the choice of whether they must appear before a provincial court or a superior court. !he constitutional response to the shifting jurisdictional boundaries of the courts is to guarantee that certain fundamental aspects of judicial independence be enjoyed not only by superior courts but by provincial courts as well
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+1, ;udi$ial salari"s $an 0" r"du$"d2 so lon as "$onomi$ mani#ulation o$$urs t!rou! an ind"#"nd"nt 0od%2 $om0in"d wit! a udi$ial $om#"nsation $ommission +0"tw"" n t!" udi$iar% and ot!"r 0ran$!"s o ov"rnm"nt, t!at would d"#oliti$i" t!" #ro$" ss: !he commissions must be independent. !he salary commissions must be objective. 1inally, the commission must also be effective. While not binding, these reviews should be ta/en seriously
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(as they are indelibly political; they would +, No n"otiations on udi$ial r"mun"ration 0=w t!" udi$iar% and t!" "7"$utiv"=l"islatur" undermine public confidence in the impartiality of the independence of the judiciary; also, a conflict of interest would arise, as the rown is almost always a party to a criminal prosecution) +, ;udi$ial salari"s ma% not all 0"low a minimum l"v"l (the onstitution protects judicial salaries from falling below an acceptable minimum level. !he reason it does is f or financial security to protect the judiciary from political interference through economic manipulation, and to thereby ensure public confidence in the administration of justice. -f salaries are too low, there is always the danger, however speculative, that members of the judiciary could be tempted to adjudicate cases in a particular way in order to secure a higher salary from the e#ecutive or the legislature or to receive benefits from one of the litigants)
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&ollective 8inancial Security T!" a$"ts o $oll"$tiv" inan$ial s"$urit% all low rom t!" im#"rativ" t!at t!" r"lations!i# 0"tw""n t!" udi$iar% and ot!"r 0ran$!"s o ov" rnm"nt 0" d"#oliti$i"d. Mremove from political activity or influenceN
!hese different components of the institutional financial security of the courts in here, in my view, is a fundamental principle of the anadian onstitution9 t!" s"#aration o #ow"rs. !he institutional independence of the courts i s ine#tricably bound up with the separation of powers, because in ord"r to uarant"" t!at t!" $ourts $an #rot"$t t!" Constitution2 t!"% must 0" #rot"$t"d 0% a s"t o o0"$tiv" uarant""s aainst intrusions 0% t!" "7"$utiv" and l"islativ" 0ran$!"s o ov"rnm"nt. !he s"#aration o #ow"rs re2uires at the least, that some functions must be e#clusively reserved to particular bodies. -ssue here is the character of the relationships between the legislature and the e#ecutive on the one hand, and the judiciary on the other. T!"s" r"lations!i#s s!ould 0" d"#oliti$i"d: t!" l"islatur" and "7"$utiv" $annot2 and $annot a##"ar to2 "7"rt #oliti$al #r"ssur" on t!" udi$iar%2 and $onv"rs"l%2 t!at m"m0"rs o t!" udi$iar% s!ould "7"r$is" r"s"rv" in s#"a
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*lication of (egal $rinciles !he faulted the governments of PEI and Al0"rta for neither consulting salary commissions nor having such bodies to begin with. !herefore, the actions of t hese governments breached section 33(d) of the harter of +ights. 5anito0a did have a salary commission, but its actions were unconstitutional because the provincial gov$t didn$t use it . ince these considerations were made using section 33(d), the ourt considered whether violations of these rights could be justified under section 3 of the harter of +ights, as is normal procedure. ection 3 typically re2uires a valid government reason for violating rights, and in this case ?rince *dward -sland and lbertaCs actions failed the section 3 test because they did not e#plain why they did not have salary commissions. Li/ewise, Eanitoba did not e#plain why they did not use their salary commission
CO55ENT: lthough this case was settled using s 33(d), the ourt went on to recogni'e the general principle of 0 I as an unwri tten rul e
TOPIC M: Basi$ Ar$!it"$tur" o t!" Canadian L"al S%st"m
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?arliament consists of the Dueen, an Opper >ouse styled enate, and >ouse of ommons9 s /, &onstitution *ct T!" 5onar$! and -ov"rnor -"n"ral: o Dueen is essentially anada$s head of state. Jovernor Jeneral, in practice, e#ercises Dueen$s powers o G& head of state is not elected; their identity depends (in the case of Eonarch) on birth, and (in the case of JJ) on appointment. o election of Eonarch is discriminatory, and has been challenged with harter, see e.g., @)Donohue v he 0ueen, which decided that anada cannot unilaterally change succession rules o !he monarch appoints the JJ. But the monarch does so on the GF-* of ?E (a constitutional convention) T!" S"nat": upper chambers of t he federal legislature; the onstitution e#pressly anticipates the appointment of senators o anada has an unelected by the governor general (see s :V of the onstitution ct 3QU4) o -n e#ercising that power, the JJ follows the advice of the ?E, as re2uired by constitutional convention. o : cases attempted to dispute this process, but failed (see "rown v *lberta, where it was held that the appellant didn$t raise legal issue; and Samson v *;#, where it was held that the ourt cannot fetter the JJ$s discretion) Hous" o Commons9 o Eembers of the >ouse of ommons are elected o *ach riding elects 3 member to the house (the current number of districts, K thus members of ?arliament, is 8AQ) o anada$s electoral system is referred to as a "single7member plurality% or "first7past7the7post% system. fter an election, the party with the most elected representatives usually becomes the governing party. o !he leader of this party becomes the ?E, and chooses people to head the various government Gepartments o ll the elected candidates have a seat in the >ouse of ommons, where they vote on Bills o Ontil recently, the anada *lections ct re2uired a registered party to run candidates in at least @A electoral districts. !his rule was struc/ down by the S&& in 8igueroa v &anada s. 8 o+K1 purpose 6 vote Brinin t!" $onstitu"nt "l"m"nts o Parliam"nt to"t!"r: 3. Summoning9 the calling of ?arliament. :. $rorogation9 once summoned, a given ?arliament is generally divided into several sessions, separated by a prorogation. prorogation is the prerogative of the governor general, acting on the advice of the ?E. ection @ of the harter provides that there shall be a sitting of ?arliament and of each legislature at least once every 3: months (i.e. ?arliament cannot be entirely sidelined) 8. Dissolution 9 the dissolution of ?arliament prompts a new electoral cycle, governed by the anada *lections ct. 3QU4 (s @) K harter (s V(3)) limit the duration of a ommons to @ years, e#cept in times of war or insurrection. (&ote9 ?E must resign or see/ parliamentary dissolution after a no confidence vote, as a constitutional convention)
Tey actors in parliament +a, ?olitical parties +0, !he spea/er +$, ?arliamentary committees
?arliamentary procedurelaw ma/ing +a, Sour$" o #arliam"ntar% law ?arliamentary law9 rules determining arliamentary rocedure, flows from various sources i.e. statute, onstitution, etc (3) onstitution and statute9 !o understand parliamentary law start at the onstitution. !he G& onstitution incorporates British parliamentary traditions via the preamble to the 3QU4. !hat ct spea/s of ?arliament possessing parliamentary "privileges%, as does ?arliament of anada ct ?arliamentary privileges (the important part in this section) are those rights necessary to ensure that legislatures can perform their functions, free from interference by the rown and the courts. "?rivilege% in this conte#t usually means legal e#emption from some duty, burden etc to which others are subject. ee &anada v >aid for an outline of the scope of parliamentary privilege; in this case, the dismissing of a chauffeur was not considered part of parliamentary immunity) >+ employment
+0, Parliam"ntar% law ma
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*thics in law ma/ing (focussing on conflicts of interest) ?arliament may be sovereign, but individual parliamentarians are not !hus, although the discussion up to this point suggests that no prudential constraints e#ist on ?arliament other than those found in the onstitution, it must be noted that, for e#, a parliamentarian induced by the prospect of financial gain to vote in one way or another in performing his or her law ma/ing functions is subject to sanction in a number of ways *thics rules e#ist both in statutory law and in the internal procedural rules governing each hose of ?arliament • •
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?arliament$s law7ma/ing procedure (bill to law) ?arliament is free to determine its own procedure K pass laws as it pleases within its constitutional jurisdiction; so what rules does it follow Eainly governed by rules of procedure of each chamber of ?arliament, e.g. tanding =rders of the >ouse of ommons !here are : types of bills9 public (centred on public policy) and private (relates to matters of a particular interestbenefit to a personpersons). !he legislative process for each is a bit different
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(3) ?ublic bills9 o Joes through P stages, the second reading being the most important stage (it i s then that the principle and object of the bill are debatedacceptedrejected; three types of amendments may be proposed at this stage) o bill becomes law when it receives Ro%al Ass"nt. 1or +oyal ssent to be given, the bill has to be passed in the same form by both >ouses (i.e. the enate and >ouse of ommons).
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(:) ?rivate bills o bill designed to e#empt an individual or group of individuals from the application of the law is a private bill. ?rivate bills are subject to special rules in both >ouses of ?arliament, however, most private bills originate in the enate where the fees and charges imposed on the promoter are less o !hey are introduced by means of a petition signed by interested parties K presented in >ouse by a Eember who agrees to sponsor it
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M&=!*9 !he idea of privilege reflects and enforces the separation of powers, specifically the separation between ?arliamentlegislatures and courtsN
(:) tanding orders9 anada$s legislatures can administer that part of a statute relating to its internal procedure, as well as to determine the contents of such things as tanding =rders on ?rocedure, without court intervention. •
T!" E7"$utiv" Bran$! +C!a#t"r Q o Crai<, !he e#ecutive branch refers to institutions in government that are responsible for implementing and enforcing laws, whether those laws 5 created by both the legislature or judiciary 4EFINITION Gespite the absence of a rigid separation of powers doctrine in anada, it is still useful to spea/ about a distinct e#ecutive branch of gov$t clear set of legal principles governing the boundaries of e#ecutive powers and manner by which e#ecutive powers are to be e#ercised has been developed (namely administrative law) •
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t the heart of administrative law is a re2uirement that government officials e#ercise their powers in f urtherance of public, not private, interests. similar e#pectation underlies the e#ercise of legislative powers, but in the case of legislators, public preferences are made /now, and the creation of public policy is legitimi'ed through democratic processes. dministrative actors, however, are generally not elected -n cases where administrative officials e#ercise narrow powers carefully defined through legislation, the democratic legitimacy of administrative decisions is derived from the close relationship between admin officials and the legislature. !o a large degree, the legal rules that have developed in admin law have arisen so as to constrain the e#ercise of administrative discretion in ways that respect the intentions of the legislative branch and promote outcomes that ta/e into account the public interest
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!he rise of the administrative state in anada Jrowth of gov$t leads to ad hoc growth of e#ecutive branch (not planned) =ne of the implications of this transformation s a more attenuated lin/ between decision ma/ers and elected officials • •
!he e#ecutive branch defined a. !he rown9 o !he entire authority of the e#ecutive branch is v"st"d in t!" monar$!%. !hus, the rown is the formal legal entity of the government, and the rown is the bearer of both legal rights and obligations o !his is entrenched in s P of the onstitution ct 3QU4 o -dentification of the gov$t with the rown spea/s only to the formal legal status of the e#ecutive. !he governor general is to e#ercise all powers and authorities lawfully belonging to the monarch in respect of anada o But in a system of responsible government, the rown$s representative is not as potent as these provisions imply. +emember, the Dueen appoints the JJ and lieutenant governors to act as her representatives, although by constitutional convention the Dueen ma/es these appointments on the advice of the ?E, who the Dueen must f ollow; in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to e#ercise their powers with the advice of the abinet of t heir respective government b. !he ?rime Einister and the abinet o 5inist"rs and the #rim" minist"r together comprise the ministry (which is used interchangeably with the word cabinet). -t is the prime minister who presides over the abinet o !he abinet is in most matters the supreme e#ecutive authority9 -t is the abinet that determines the legislative agenda of the gov$t in ?arliament and it is the abinet and its ministers that are responsible for the administration of the individual departments of the gov$t o !he separation of the e#ecutive branch from the legislative branch is not absolute. !he constitutional convention of "responsible government% lies at the foundation of G& governance. Onder a system of responsible gov$t, the ministry is accountable to the legislative branch both collectively and individually. ollective responsibility re2uires that the ministry maintain the confidence of the ?arliament. -ndividual ministerial responsibility re2uires that each minister be answerable in ?arliament for the activities of his or her department o -n addition to abinet duties, abinet ministers have administrative duties for departments under their charge
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!he #ur#os" of creating rown corporations is that they may be useful where there is a strong commercial aspect to the ov"rnm"ntal s"rvi$", which may re2uire d"$isions to 0" mad" r"" rom #oliti$al inlu"n$"sthat may unduly interfere with the commercial objectives. dditionally, the commercial nature of some activities may be illsuit"d to ov"rnm"nt d"#artm"ntal stru$tur"s
f. Eunicipalities o Eunicipalities, which are created under provincial legislation, deliver a wide range of public services, such as the provision of road, sewer and water services o Onli/e other forms of independent administrative bodies, municipalities are governed by elected officials K e#ercise broadfull powers Shell &anada: Eunicipal authority only 5 geographical location !ast Aor': -nferior state government e. *nforcement bodies9 ?olice and ?rosecutors o !he e#ecutive branch of gov$t, in addition to being responsible for the implementation of gov$t policy, is re2uired to enforce those policies that have the force of law. *nforcement duties fall primarily on the police and prosecutors o !here is a tension bw accountability and independence in the conte#t of enforcement (i.e. free from political oversight, yet they have to be held accountable) &ambell: +E? action protected ources of e#ecutive power ll e#ecutive power flows from the royal prerogative and statutory delegation9 $rerogative powers9 o ?rerogative powers are those e#ercisable by the rown that don$t arise from a statutory grant of power to rown o !hese powers can be overridden by statute o !here has been debate over who can e#ercise these powers, and when they may be subject to judicial oversight. "lac' v &hretien says that such powers are subject to judicial oversight in certain circumstances, although in that case, the issue was non justiciable
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Statutory powers9 !he majority of e#ecutive powers originate from a delegation of authority by the legislature by statute o Gelegation power of Legislatures is wide (parliamentary sovereignty), but the powers delegated must conform to the onstitution, and another rule which says that no delegate can be authori'ed to e#ercise absolute discretion (Ronceralli v Dulesis 4 o Legislatures can delegate power to e#ecs, but can$t abdicate their power (Re #ray 9 delegation of war time powers) o ?arliament cannot delegate to provincial legislatures, and vice versa (i.e. inter delegation) (the basis of this principle is that an inter7 delegation would upset the constitutional division of powers contained in ss P3 and P: of the onstitution ct, 3QU4), although there can be indirect inter7delegation (namely where the inter7delegation was to an administrative body) ($!5 $otato Mar'eting "oard v Willis ). o
d. -ndependent dministrative gencies o s a matter of e#press constitutional recognition, the formal e#ecutive bodies are limited to the JJ and lieutenant governors, the federal and provincial abinets, and the system of governmental departments and ministries that are overseen by individual ministers o >owever, e#ec functions are also carried out by various bodies that have a measure of independence from the gov$t, for various reasons (e.g. legislature may determine that certain decisions are best made on a principled basis and therefore should be insulated from considerations of political e#pediency R particular e#pertise may be needed) o -ndependent admin bodies appear in a broad range of forms depending on their function o n administrative body is the product of the legislative i nstrument that creates it o s a constitutional matter, adjudicative admin bodies do not have to be independent, although there may be circumstances which re2uire their independence. o @cean $ort Hotel case draws the distinction bw independence re2uired by courts K those by admin bodies that are adjudicative. -t$s ?arliamentlegislatures that determines by statute the independence re2uired by admin bodies
&ature and function of delegated powers Gelegated authority has been granted in virtually every area of public policy. Gespite that there is now a de7emphasis on functional distinctions in order to determine administrative actors$ duties functionsresponsibilities, it helps to review the major types of decisions commonly made by admin decision ma/ers9 (3) +ule ma/ing (i.e. delegated legislation) Msubordinate to legislationN o Eost pervasive form of admin rule ma/ing is the regulation ma/ing power that is delegated to the abinet through the governor in council; but admin rule ma/ing isn$t restricted to t his form o !he legal effect of delegated legislation is determined by the parent legislation o Benefits of delegated forms of legislation relate mainly to the relative fle;ibility o r"ulations. !he statutor% #ro$"ss is much more cumbersome and time consuming than the process for enacting regulations; &G regulations are suited where rules re2uire readjustment (impossible for legislators to /now in advance the range of circumstances that will re2uire speciali'ed rules); &G e#pertise &G it is impossible for legislators to /now in advance the range of circumstances that will r e2uire speciali'ed rules o !here are concerns as well though (i.e. lac/ of same scrutiny legislation is enacted with) o ee the "Jovernment of anada, Juide to Ea/ing 1ederal cts and +egulations%, p. :48 of t he boo/ for more (:) Gispute resolution Mcabinet cannot enact without noticeN o -t is common for administrative agencies to be created in order to hear and decide specific /inds of disputes o !here are some advantages (public participation; timee#pense; don$t have to follow rigid laws always K can rely heavily on policy etc)
e. rown corporations
(8) Benefit or obligation determination
c. !he ?ublic ervice o !he employees of ministries of the government, often referred to as civil servants, are also part of e#ecutive o !hey are distinct from ministers, however, in that they are politically neutral o ivil servants must be loyal to t he government they represent (8raser v &anada)
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lso, obligation determinations may raise different issues; these decisions usually initiated by the imposing agency, leaving an affected person to ta/e affirmative steps to protect interest o !he desire for fairness is often in conflict with the need for administrative efficiency in t hese situations o
(V) *nforcement decisions *.g. by policeprosecutors and some administrative officials whose enabling statutes confers investigatory powers BBCN@!: !ach of these functions may overla, as shown by the &anadian Human Rights &ommission e+amle
<<&ote, also, the federal courts, speciali'ed federal courts (e.g. the ta# court of anada and military courts) 0udicial appointments re the right people appointed as judges !here has been controversy surrounding judicial appointment, especially at the federal level (i.e. appointment of superior court judges) -n anada, judges are selected by e#ec branch, following a short7listing procedure involving an advisory committee
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?rovincial appointments9 Basic model is built on an advisory committee made up of a mi#ture of members from t he legal community and laypersons, which ma/es recommendations to the provincial attorney general
Limits on the e#ercise of delegated authority While the constraints on the ability of the legislative branch to delegate authority are minimal, once authority is delegated, the law imposes a rigorous set of limitations on the e#ercise of power !he principle is that delegated authority must be e#ercised win the boundaries of the statutory grant of power !he determination of the legality of the e#ercise of administrative authority is the function of the courts. !he supervisory role of the courts raises comple# issues concerning the conditions under which the judicial branch should interfere with decisions ta/en by t he e#ecutive branch (see chapter Q) Msource of power 6 statutory delegationN (3) &ontrolling 2urisdiction: Substantive ?ltra >ires o an only e#ercise the powers granted by the enabling statute 5 limited o annot sub7delegate duties (with some e#ceptions 5 i.e. matters that are merely admin may be subdelegated)
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1ederal (non7upreme ourt) appointments)9 s PU courts, 1ederal court and ta# court are appointed by the governor in council (i.e. the abinet) (and the process is overseen by the =ffice of the ommissioner for 1ederal 0udicial ffairs), and the upreme ourt of anada justices are simply appointed by the governor in council
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a. @verview =ffice of ommissioner for 1ederal 0udicial ffairs oversees the federal judicial appointment for s PU courts -ndependent judicial advisory committees constitute the heart of the appointments process 1ederal appointments are made by the governor general, acting on the advice of the federal abinet. recommendation is made to abinet by the Einister of 0ustice; that recommendation is made from amongst the names which have been previously reported by the committees to the Einister !he recommendation for appointment as a judge is made to abinet by the minister of justice, who has been advised by the judicial advisory committee • • •
(:) &ontrolling rocedures: he duty t o be fair o Guty to be fair refers t o the procedures adopted by the decision ma/er o dmin decisionma/ers are generally re2uired by common law to act fairly toward those affected by the decisions o !he duty to be fair is no longer confined to judicial2uasi judicial decisions o ee Enight v 5ndian Head School and "a'er (8) &ontrollingdiscretion9 bad faith, improper purposes and irrelevant considerations o !here are benefits of admin decision ma/ers having broad discretion. >owever, there are also concerns o -f admin decision ma/er e#ercises discretion in +1, bad faith; or +, ta/es into account irrelevant considerations or +, ignores mandatory considerations, then their decision may be overturned bias o !hese are jurisdictional errors o !he standard of review of these decisions is important9 an imp consideration in determining whether an admin decisionma/er has improperly e#ercised their discretion will be the amount of deference a reviewing court gives an admin decision o ee "a'er e#cerpt ( considered the proper approach to the judicial review of discretionary decisions and the re2uirements of administrative decision ma/ers who e#ercise discretionary powers) Mofficer$s dismissal of /id$s interest 6 "unreasonable% Courts and t!" ;udi$iar% +C!a#t"r K o Crai<,
ourt system onstitutional framewor/9 tarting point in understanding the anadian court system is the onstitution ct 3QU4 1ed government created the , 1ederal ourt1ederal ppeal ourt, K !a# ourt, as authori'ed by the onstitution ?rovinces create s @K su#"rior $ourts 1ed government appoints and pays the salaries of provincial suerior court judges ?rovinces appoint and pay the salaries of rovincial court judges ?rovinces cannot pass legislation creating a tribunal, appoint members and then confer on the tribunal the jurisdiction of superior courts. Re Residential enancies *ct developed a #art t"st in ord"r to d"t"rmin" w!"t!"r $r"atin su$! a tri0unal would "rod" t!" s @K #ow"r. !his is because superior courts are a fundamental institution protected by our onstitution through the interpretation of s PU. !he provinces, or federal ?arliament, cannot enact legislation to encroach on their core jurisdiction
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=verview of the court system 3) 3st level is t he provincialterritorial courts, which every province has e#cept &unavut (there is no territorial courtImatters that are normally heard at that level are heard by t he &unavut ourt of 0ustice, which is a superior court) :) :nd level is provincialterritorial superior courts (s PU courts) (e#cept for &unavut, where the &unavut ourt of 0ustice deals with both territorial and superior court matters)
b. &riticisms Duestions have r"main"d a0out #oliti$al inlu"n$" on t!" s"l"$tion #ro$"ss . oncern for patronage appointments (i.e. allegations have been made that appointments are tainted by political considerations and that candidates who have contributed to political parties are appointed) Too mu$! dis$r"tion in t!" !ands o t!" government 5 e.g. minister has power to appoint from the "recommend% and "highly recommend list% (big lists 6 room for abuse of discretion) ("the basic concern%) &o transparency or accountability alls for change have been made (one suggestion is to have interviews) •
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upreme ourt appointments ppointment processes described above do not apply to ( judges appointed by governor in council) et, in the post 5harter era, the court$s decisions will have a great effect on public policy. -t is argued that the is "legislating%. s a result, calls for change to the federal appointment process have been especially persistent in relation to appointments to the 0udicial independence 0udicial ind. is the notion that judges are at arm$s length from the other branches of government 0udicial ind. consists essentially in the freedom to render decisions based solely on the r e2uir$ts of law and justice. -t re2uires that the judiciary be left free to act wout improper interference from any other entity 5 i.e. that the e#ecutive and the legislative branches don$t impinge on the essential authority and function of the court • • •
ources and scope 0- is richly a constitutional concept; e.g. ss PU73AA of , 3QU4 provide for the appointment, security of tenure and remuneration of federally appointed judges M&ote9 these provisions only apply to superior courtsN =ther than those provisions, s 11+d, im#os"s a r"8uir"m"nt or udi$ial ind"#"nd"n$" -t$s source is also in unwritten constitutional principles (Reference re Remuneration of 2udges of the $rovincial &ourt of $!5) 0udicial independence, as an unwritten constitutional principle, e#tends to LL courts, not just superior courts (see Reference re Remuneration of 2udges of the $rovincial &ourt of $!5)
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ssessing independence M!* !N >ow is independence measured !he test to assess whether there is judicial independence is an objective, r"asona0l" #"rsons t"st2 +e2uires actual independence and a reasonable perception of independence on the part of a reasonable and well informed person -ndependence includes both a re2uirement of actual independence, and also conditions sufficient to give rise to a reasonable perception of independence on the part of a reasonable and well7informed person
(3) Onder the banner of constitutional supremacy, courts have usurped power that is properly the domain of ?arliament and the provincial legislatures. rgument is that courts have e#panded their proper role of interpreting the onstitution and have thereby unduly shrun/ the 'one of parliament supremacy.
+1, S"$urit% o t"nur": !his has both institutional and independent Individual s"$urit% of tenure means that judges may not be dismissed until the age of retirement e#cept breaches of "good behaviour%, which have been interpreted to include misconduct or disability. Institutional s"$urit% of tenure means that, before a judge may be removed for cause, there must be a judicial in2uiry to establish that such cause e#ists, at which the judge affected must be afforded the opportunity to be heard !hus judge can only be removed from office for reason relating to their capacity to perform their judicial duties. !he 0udges ct establishes the anadian 0udicial ouncil as the body responsible for investigating complaints about the conduct of federally appointed judges. -f the ouncil concludes that removal of a judge is warranted, it ma/es a report to the minister of justice, who may introduce a motion before ?arliament. !he actual authority to recommend removal of a judge is found in s K@+, o t!" &udges 6ct • •
=n one side, the concern is that sometimes 0+ is illegitimate, because it is anti7democractic, in that unelected officials (judges) are overruling elected representatives (legislators). lso, they read in concepts to laws which amounts to changing the law in itself (e.g. reading in 0 I principle in the onstitution by reference to preamble, in Reference re Remuneration of 2udges of $!5, was critici'ed in dissenting opinion of La 1orest 0) o !he other side is that it was the will of the people that enacted the onstitution (including the harter) and administrative tribunals. nd it is the ourt$s job to oversee adherence to these laws. 0udicial review is not anti7democratic, therefore. 1urther, there is a lot of built in deference to the legislature (see s 3, s 88). lso note the dialogue model which some say occurs between the judiciary and legislature (which preserves a proper separation of power). 1urther, there is no clear line bw applying, interpreting and ma/ing the law as critics appear to thin/. o
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(:) oncern about the substantive approach courts have ta/en to particular rights, rights that may be unpopular elements of society
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+, Finan$ial s"$urit% 1inancial security relates to the pay judges receive for performing their job 5 and protects against an unscrupulous government that could utili'e its authority to set judges salaries as a vehicle to influence the course and outcome of adjudication -t has both an individual and institutional dimension. -nstitutional financial security has 8 re2uirements +1, changes to remuneration re2uire prior recourse to a special process, governed by an independent, effective and objective body who ma/es a recommendation of salary +, &ot permissible for judiciary to engage in negotiations over remuneration with the e#ecutive or representatives of the legislature; +, +eductions to judicial remuneration cannot ta/e those salaries below a basic minimum level of remuneration that is re2uired for the office of a judge (see Reference re Remuneration of 2udges of the $rovincial &ourt of $!5). •
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+, Administrativ" ind"#"nd"n$" dmin independence re2uires that courts themselves have control over the administrative decisions that bear directly on the e#ercise of the judicial function ee &anada v obiass ( concluded that at least the appearance of independence was transgressed) •
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Constraints on L"islativ" and Administrativ" A$tion +C!a#t"r ? o Crai<, !his part e#plores the role that the judiciary plays in constraining legislative and administrativee#ecutive action
!he role of constitutional judicial review in a democratic society 0ustification for constitutional judicial review onstitution, designed by the will of the people, made up of principles that are so fundamental and established, and so the legislative acts must be consistent with it nd it$s the province of the judiciary to say what the law is (those who apply rules to cases must interpret that rule), and even the onstitution re2uires interpretation
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M core 2uestion lies at the heart of both of these complaints9 in rendering constitutional decisions, how much deference should courts show elected officialsN
Gifferent sorts of judicial review (specifically constitutional litigation) of legislative action Farious types of approaches courts use to address different types of constitutional challenges to legislation9 Onwritten onstitutional principles anadian courts have been willing to a limited e#tent to recogni'e underlying constitutional principles that can be given f ull legal effect (e.g. Reference re Secession of 0uebec% Reference re Remuneration of $rovincial &ourt 2udges) !he onstitution ct, 3QU4 -n terms of their potential to generate litigation, the most important features of the onstitution ct 3QU4 are the provisions of ss @1*@Q that distribute legislative power between the federal and provincial levels of government !he anadian harter of +ights and 1reedoms !he other type of constitutional litigation arises from the harter !wo aspects9 +1, ?rocess of defining the substantive right protected by the relevant provision of the harter; +, +elationship between the substantive rights and the justification of limits on those rights under s 3 0udicial review of administrative action 0+ of e#ecutive or administrative action raises some different 2uestions about institutional relationships than does 0+ of legislative action !here is some overlap, at least to the e#tent that judges will normally want to respect the choice of democratically elected legislatures to allocate decision7ma/ing authority to institutions other than courts. =n the other hand, the judicial invalidation of particular administrative acts on non7constitutional grounds often does not preclude the decision ma/er from repeating his or her actions, this time in compliance w the standards set out in the statute delegating power or common law procedural fairness s anadian courts have become more sophisticated in their approach to judicial review, they have become more willing to ta/e into account a number of other factors in determining the nature of their institutional relationship with administrative decision ma/ers. !hese factors have become part of the standard of review analysis that has become the first step a court must ta/e when reviewing an administrative decision !he basic 2uestion addressed by the standard review analysis is how deferential should t he courts be to e#ecutive branch interpretations of the mandate accorded to them by statutes
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Limitations of judicial review Issu" o usti$ia0ilit%: the idea of a sense of lac/ of fit ness of submitting 2uestions to a judicial or 2uasi judicial determination (see @eration Dismantle v he 0ueen) Issu" o "nor$"m"nt: although the onstitution is supreme and the judiciary is relied on to interpret and invalidate legislation that is inconsistent with it, the practical reality is that courts normally have to rely on the e#ecutive and legislative branches of government for the enforcement of their decisions. -n Doucet "oudreau v NS, the issue of court usurping e#ecutive function arose (where the court ordered the government of &ova cotia to use its best efforts to build a 1rench Language school to comply with its duties under the harter (minority language rights). ?eriodic reports on its progress were also ordered M>ow close is t his to the judiciary usurping the role of the e#ecutiveN
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related issue is how courts address the sometimes sweeping disregard by the legislature of constitutional rules. ee Reference re (anguage Rights under s :8 of Eanitoba ct9 Falidity of s :8 was struc/ down V times, without legislative response. -t was the ourt$s duty to ensure the language rights in the constitution are protected. !o conform with rule of law, ourt decided on a drastic remedy9 allowing the invalid acts to remain law until statutes were translated. •
Issu" o l"itima$%: more prominent concern is that judges have to interpret vague statements in the onstitution; when judges give concrete shape to vague ideas set out in the harter for e#ample, and then invalidate laws that do not conform to t heir interpretation of these
TOPIC Q: R"lations!i# o A0oriinal P"o#l"s to t!" Canadian Stat" Arti$l"s
/5ar% C Hurl"%2 /The Cron’s fiduciary relationshi- + 6boriginal -eo-les3: boriginal peoples have always had a uni2ue legal and constitutional position. (i) 1irst there was the Ro%al Pro$lamation o 1>K, which reserved to the rown the e#clusive right to negotiate cessions of boriginal title (ii) !hen came subsection @1+M, o t!" Constitution 6ct, <=>? rant"d t!" "d"ral Parliam"nt l"islativ" aut!orit% ov"r /Indians2 and Lands R"s"rv"d or t!" Indians.% (iii) 1inally, section 8@ of the&onstitution *ct , <-F recogni'es and affirms "e#isting aboriginal and treaty rights% of anada$s boriginal peoples, defined as including the "-ndian, -nuit and Etis peoples 0udicial interpretation "idu$iar% r"lations!i#% is one in which someone in a position of trust has "rights and powers which he is bound to e#ercise for the benefit% of another. !he has adapted these largely private law concepts to the conte#t of rown7boriginal relations •
the fiduciary relationship is rooted in the concept of boriginal t itle, coupled with the re2uirement, outlined above, that the boriginal interest in land may be alienated only via surrender to the rown; o this re2uirement, which places the rown between the boriginal group and third parties to prevent e#ploitation, gives the rown discretion to decide the boriginal interest, and transforms its obligation into a fiduciary one so as to regulate rown conduct when dealing with the land for the boriginal group; o in the uni2ue rown7boriginal relationship, the fiduciary obligation owed by the rown is sui generis (3 of a /ind) !he scope of the relationship was e#tended in + v Sarrow , which was the ourt$s irst s Q d"$ision9 o "Jeneral guiding principle% for s. Q is that "the Jov$t has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. !he relationship bw the Jov$t and aboriginals is trust7li/e, rather than adversarial, and contemporary recognition K affirmation of aboriginal rights must be defined in light of this historic relationship%; o H!he honour of the rown is at sta/e in dealings with aboriginal peoples. !he special trust relationship K responsibility of the gov$t vis7Z7 vis aboriginals must be the first consideration in determining whether the MinfringingN legislation or action in 2uestion can be justified%; o "!Nhe justificatory standard to be met may place a heavy burden on the rown,% while in2uiries such as whether the infringement has been minimal, whether fair compensation has been available, and whether the affected boriginal group has been consulted may also be included in the justification test. o ee also R v *dams, Delgamuu'w v "& etc which e#panded on the duty. But then see Weway'um 5ndian "and v &anada which set out some limitations of the fiduciary duty (e.g. t hat the fiduciary duty "does not e#ist at large)
-ronically, the transformation from respectful coe#istence to domination by non7boriginal laws and institutions began with the main instruments of the partnership9 the treaties and the Royal $roclamation of /G !hen came onfederation in 3QU4, a partnership bw *nglish K 8rench, which was negotiated wout *boriginal nations hen came the "N* *ct , young anada$s new constitution, which made "-ndians and Lands reserved for the -ndians% subject for government regulation
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*#tra7judicial considerations !he federal government identifies : principal categories of fiduciary obligations for government managers to ta/e into account9 +1, -u"rin t%#" obligations arise in situations where the rown has a duty to act in the interests of an boriginal group and has discretionary power in the matter (for e#ample, in connection with the surrender of reserve land). +, S#arrowt%#" obligations arise when the rown must respect constitutionally protected boriginal or treaty rights and justify interferences with those rights
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ommentary !he foregoing overview suggests that the rown$s fiduciary relationship with and ensuing obligations toward boriginal peoples have implications for the development and conduct of gov$t policy in matters that engage boriginal interests. -mportant 2uestions related to implementation of the rown7boriginal fiduciary relationship remain. !he application of decisions confirming the fiduciary relationship has yet to be fully defined in a number of conte#ts, for e#, land claim and self7government negotiations. imilarly, the standard(s) for government conduct that will uphold "the honour of the rown% in various situations re2uire clarification
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/Hi!li!ts rom t!" R"#ort o t!" Ro%al Commission on A0oriinal P"o#l"s3 tage 39 eparate worlds boriginals inhabited the mericas
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tage :9 &ation7to7nation relations autious co7operation was the theme of this period. boriginals in charge of own affairs o7operation was formali'ed in two important ways9 +1, treaties; +, the +oyal ?roclamation of 34U8 • •
(a) !reaties9 o o
!reaties were a way for *uropeans and b$s to recogni'ing each others sovereignty and mutual respect b$s later found out that the treaties were used different to what they e#pected
(b) +oyal proclamation9 !he Royal $roclamation of /G was a defining document in the relationship between boriginal K non7boriginal in merica. !he proclamation summari'ed the rules that were to govern British dealings with boriginal people 7 especially in relation to the /ey 2uestion of land. boriginal people were not to be Hmol"st"d or distur0"dH on their lands o !ransactions involving boriginal land were to be negotiated properly between the rown and Hassemblies of -ndiansH. boriginal lands were to be ac2uired only by fair dealing9 treaty, or purchase by the rown. o !he proclamation portrays -ndian nations as autonomous political entities, living under the protection of the rown but retaining their own internal political authority. o -t wal/s a fine line between safeguarding the rights of boriginal peoples and establishing a process to permit British settlement. -t finds a balance in an arrangement allowing boriginal and non7boriginal people to divide and share sovereign rights to the lands that are now anada. o o o
tage V9 Renewal and renegotiation ?olicies of domination and assimilation battered boriginal institutions, sometimes to the point of collapse. ?overty, ill health and social disorgani'ation grew worse. boriginal people struggled for survival as individuals, their nationhood erased from the public mind and almost forgotten by themselves. +esistance to assimilation grew wea/, but it never died. -n the Vth stage of the relationship, it caught fire and grew into a political movement. =ne stimulus was the federal governmentCs White ?aper on -ndian policy, issued in 3PUP !hey studied their history K found evidence confirming that they have rights arising from the spirit K intent of their treaties K the #oyal *roclamation of @.!hey too/ heart from decisions of anadian courts, most since 3P43, affirming a special relationship with the rown K their uni2ue interest in their traditional lands. !hey set about beginning to rebuild their communities K their nations with new7found purpose. do'en years of intense political struggle by boriginal people, including appeals to the Dueen and the British ?arliament, produced an historic brea/through9 H*#isting boriginal and treaty ri ghtsH were recogni'ed in the &* <-F. •
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!he way forward !he policies of the past have failed to bring peace and harmony to the relationship between boriginal peoples and other anadians. *2ually, they have failed to bring contentment or prosperity to boriginal people -n the following chapters, we outline a powerful set of interlin/ed ideas for moving forward. But governments have so far refused to recogni'e the continuity of boriginal nations and the need to permit their decoloni'ation at last. By their actions, if not their words, governments continue to bloc/ boriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and wor/ out their own solutions to social, economic and political problems. -t is this refusal that effectively bloc/s the way forward. !he new partnership we envision is much more than a political or institutional one. -t must be a !"art"lt $ommitm"nt among peoples to live together in peace, harmony and mutual support. 3. :. 8. V. W" #ro#os" M PRINCIPLES as 0asis or a r"n"w"d r"lations!i#: r"$onition2 r"s#"$t2 s!arin J r"s#onsi0ilit% W" #ro#os" t!at tr"ati"s 0" t!" m"$!anism or turnin #rin$i#l"s into #ra$ti$"
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+estructuring the relationship To r"stor" t!" "ss"n$" o t!" "arl% r"lations!i# 0"tw""n A0oriinal and s"ttl"r so$i"ti"s d"s$ri0"d in C!a#t"r 12 t!" "l"m"nts o #artn"rs!i# must 0" r"$r"at"d in mod"rn orm. T!" startin #oint or t!is transormation is r"$onition o A0oriinal nation!ood. Ri!t to s"l ov"rnm"nt is im#ortant:
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. elf government !he right is inherent in boriginal people and their nationhood We hold that boriginal governments are of G orders of gov)t in &anada 7 federal, provincialterritorial and boriginal. !o have self7government, they need to establish larger communities, develop human resources W" #ro#os" a n"w Ro%al Pro$lamation. !he proclamation should be followed by the enactment of companion legislation by the ?arliament of anada 7 legislation to create the new laws K institutions needed to implement the renewed relationship. T!"ir $om0in"d . #ur#os" is to #rovid" t!" aut!orit% and tools or A0oriinal #"o#l" to stru$tur" t!"ir own #oliti$al2 so$ial and "$onomi$ utur" t%#"s o s"l ov"rnm"nt9 nation government, public government, and community interest government 1inancing self government is another issue (e.g. developing own source revenues such as a ta#ation system) • • • •
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F. +edistributing lands and resources boriginal land, in relation to the si'e of anada, is small and t reaty agreements did not end the conflict. ome boriginal nations have gone to court to force governments to recogni'e their rights to land and resources, and some have been successful. A s"ri"s o $ourt d"$isions !as $onirm"d t!at A0oriinal #"o#l"s !av" mor" t!an a stron moral $as" or r"dr"ss on land and r"sour$" issu"s t!"% !av" l"al ri!ts. !he law of boriginal title establishes t!r"" t!ins9 • •
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(:) greements between the rown and an boriginal nation (such as treaties) must be wor/ed out before non7boriginal people can occupy or use that nationCs traditional lands. (8) !he rown is the guardian of boriginal title to their traditional lands and is obliged to protect their interests in those lands
But courts are cumbersome, costly K insensitive way to solve human issues that underlie land K resource claims T!" "7istin land $laims s"ttl"m"nt #ro$"ss is d""#l% law"d: It assum"s t!at no A0oriinal ri!ts a##l% on Crown land unl"ss A0oriinals $an #rov" ot!"rwis". T!is #osition is at odds wit! t!" do$trin" o $ontinuin A0oriinal titl" J wit! dut% o Crown to #rot"$t A0oriinal int"r"sts. T!" ovDt o Canada $ontrols t!" #ro$"ss. It a$ts as d""nd"r o t!" Crowns int"r"sts J also as ud" J ur% on $laims. Cl"ar $onli$t o i nt"r"st: it $onsid"rs its"l t!" los"r i a $ laim is s"ttl"d in avour o A0oriinal ##l A n"w #ro$"ss or n"otiatin t!" air distri0ution o lands and r"sour$"s is lon ov"rdu". T!" Commission #ro#os"s t!at t!is 0" !andl"d as #art o a n"w tr"at% #ro$"ss 1ailure to redistribute land K resources will lead boriginal ppl to state of dependency on other G&s 7 causing grievance on both sides G. *conomic development boriginal people want to ma/e a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go with dependence, and free of the debilitating effects of poverty. *conomic self7reliance will let them thrive as individuals and as nations and ma/e their new governments a success everal factors will ma/e revitali'ation of boriginal economies a big challenge9 dependence on government for funds; ine2uality; variability (in that aboriginal communities are located all over the country) =wnership of lands and resources is essential to create income and wealth for boriginal individuals and nations !ransforming boriginal economies from dependence to self7reliance will not be easy. !he greatest boost for most nations will come from access to a fair share of lands and resources. But that won$t be enough. We call on f ederal and provincial governments to enter into long7 term development agreements with boriginal nations to provide support, advice and stable funding for economic development !he employment problem is immense, and needs reformsupport ?ublic investment in education K training is vital to improve employment prospects for boriginal people in the e#isting job mar/et. lternatives to welfare are needed. !here may never be enough jobs in boriginal communities. et social assistance, as now delivered, is not a good way of providing cash income. -t traps recipients in a marginal e#istence •
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!he relationship restructured We have outlined major steps needed to transform the relationship between boriginal people and other anadians from its present state of tension and failed initiatives to one of co7operation and growing successes. !he steps are numerous and may seem daunting. But they are logical, they are progressive, they reinforce each other, and they constitute a wor/able plan. Let us review them briefly9
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(3) T!" "d"ral ov"rnm"nt s!ould 0"in t!" $%$l" o r"n"wal wit! an a$t o national int"ntion a n"w Ro%al Pro$lamation (We propose a new +oyal ?roclamation, stating anadaCs commitment to principles of mutual recognition, respect, responsibility K sharing in the relationship between original peoples and t hose who came later) (:) Parliam"nt s!ould "na$t $om#anion l"islation to iv" t!"s" int"ntions orm and m"anin and #rovid" t!" l"al instrum"nts n""d"d to im#l"m"nt t!"m. (8) T!" "d"ral ov"rnm"nt s!ould #rovid" a orum or n"otiatin a Canadawid" ram"wor< ar""m"nt to la% t!" round rul"s or #ro$"ss"s to "sta0lis! t!" n"w r"lations!i# (V) A0oriinal nations s!ould 0"in t!"ir r"0uildin #ro$"ss"s (@) All ov"rnm"nts s!ould #r"#ar" to "nt"r into t!" n"w tr"at% #ro$"ss (U) -ov"rnm"nts s!ould ta<" int"rim st"#s2 as #ro#os"d 0% t!is Commission2 to r"distri0ut" lands J r"sour$"s (4) A0oriinal and nonA0oriinal ov"rnm"nts s!ould $oo#"rat" to stimulat" "$onomi$ d"v"lo#m"nt A0oriinal Ri!ts
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V. !reaties9 the mechanism for change !he ommission proposes a wide7ranging agenda for change to achieve two goals9 +ebuilding boriginal nations as the best and proper way for boriginal people to protect their heritage and identity, restore health o and prosperity to their communities, and reorgani'e their relations with anada. +estoration of relations of mutual respect and fair dealing between boriginal and non7boriginal people. o • s comple# as the project appears, it can be done. T!" $"ntral m"$!anism o $!an" is t!" tr"at%. • W" #ro#os" t!at t!" tr"at% r"lations!i# 0" r"stor"d and us"d rom now on as t!" 0asis o t!" #artn"rs!i# 0"tw""n A0oriinal and nonA0oriinal #"o#l" in Canada • -mplementation of treaty terms K promises was problematic from the start. s time passed K the balance of power bw boriginal K non7 boriginal people shifted, gov$ts were able to ignore terms and promises that no longer suited them • =n the second point, the ommission has concluded that the treaties should be im-lemented to reflect their s-irit and intent not ust t!"ir words, whether spo/en or written • -t is deeply self7serving of anadian authorities to insist on a literal interpretation of such clauses. -f the relationship between boriginal and non7boriginal people is ever to be set right, the underlying intentions of treaty promises 7 not the letter of outdated terms 7 must guide their present7day implementation • We believe that those without a treaty, accord, compact or other agreement clarifying their relationship with anada have the right to see/ one. 1or its part, anada has a duty to conclude such treaties. • W" #ro#os" a n"w tr"at% #ro$"ss to l"ad t!" wa% to r"$on$iliation 0"tw""n A0oriinal and nonA0oriinal #"o#l" ov"r t!" n"7t %"ars. An ar""d tr"at% #ro$"ss $an 0" t!" m"$!anism or im#l"m"ntin virtuall% all t!" r"$omm"ndations in our r"#ort ind""d2 it ma% 0" t!" onl% l"itimat" wa% to do so. • To s"t t!" sta"2 w" r"$omm"nd t!at Parliam"nt d"$lar" its su##ort or t!" tr"at% r"lations!i# in t!" orm o a n"w Ro%al Pro$lamation. By itself, a new proclamation will change nothing; it needs to be bac/ed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision7ma/ing bodies, independent of government, to conduct them. •
# v S-arro 77< The ord e;isting in s @A means that s @A only -rotects une;tinguished aboriginal rights and treatiesB 7 The ords “recogni4ed and affirmed' in s @A mean that aboriginal rights+treaties are constitutionally -rotected, but are not absolute rights, and may be infringed if the test of “%ustified interference' is metB 7@ Sets out the test of %ustified interference FACTS: !he appellant, a member of the Eus2ueam -ndian Band, was charged under s. U3(3) of the 8isheries *ct of the offence of fishing with a drift net longer than that permitted by the terms of t he BandCs -ndian food fishing licence. >e has throughout admitted the facts alleged to constitute the offence, but has defended the charge on the basis that he was e#ercising an e#isting aboriginal right to fish and that the net length restriction contained in the BandCs licence is inconsistent with s. 8@(3) of the &onstitution *ct, <-F and therefore invalid ISS&E: Whether the respondent was e#ercising an "aboriginal right% within the meaning of s 8@(3) REASONIN-:
!he word "e#isting% in s 8@ What is the status of aboriginal or treaty rights that had been e#tinguished or regulated before 3PQ: !he word He#istingH ma/es it clear that the rights to which s. 8@(3) applies are those that were in e#istence, or une#tinguished, when the &onstitution *ct, <-F came into effect. !his means that e#tinguished rights are not revived by the &onstitution *ct, <-F. right that has been validly e#tinguished before 3PQ: is not protected by s 8@ lso, the phrase He#isting aboriginal rightsH must be interpreted fle#ibly so as to permit their evolution over time. !hose rights are Haffirmed in a contemporary form rather than in their primeval simplicity and vigour
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!he "aboriginal right% !hat Er. parrow was fishing in ancient tribal territory where his ancestors had fished from time immemorial in that part of the mouth of the 1raser +iver for salmonH is supported by the evidence and was not contested !he respondent contends, however, that the progressive restriction and detailed regulation of the fisheries has had the effect of e#tinguishing any aboriginal right to fish. But this argument confuses regulation with e#tinguishment. ?rior to 3PQ: when this provision was enacted, the only way e#tinguishment could have occurred is with a clear and plain intention by ?arliament; there is nothing in the 1isheries ct that demonstrates this. We have no doubt that the -ndians have an e#isting aboriginal right to fish in the relevant area. •
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"+ecogni'ed and affirmed% We now turn to the impact of s. 8@(3) of the &*, <-F on the regulatory power of ?arliament and on the outcome of this appeal specifically. -t is clear, then, that s. 8@(3) of the &onstitution *ct, <-F, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. • •
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-n our opinion, #uerin, together with R. v. aylor and Williams, ground a general guiding principle for s. 8@(3). !hat is, the Jovernment has the responsibility to act in a fiduciary capacity with respect to aboriginal people. !he relationship between the Jovernment and aboriginals is trust7li/e, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship !he constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong chec/ on legislative power. While it does not romise immunity from government regulation in a society that is increasingly more comple#, interdependent and sophisticated, and where e#haustible resources need protection and management, it does hold the rown to a substantive promise. !he government is re2uired to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 8@(3). -n short, s 8@(3) is a constitutional guarantee of aboriginal and treaty rights. >owever, the guarantee isn$t absolute, and the s 8@ rights are subject to regulation by federal laws, provided that the laws meet a standard of justification.
ection 8@(3) and 0ustified -nterferences 3. !he irst 8u"stion to be as/ed is w!"t!"r t!" l"islation in 8u"stion !as t!" ""$t o int"r"rin wit! an "7istin a0oriinal ri!t.-f it does have such an effect, it represents a rima facie infringement of s. 8@(3) Ms/9 is the limitation unreasonable econd, does the regulation impose undue hardship !hird, does the regulation deny to the holders of the right their preferred means of e#ercising that rightN. !he onus of proving a rima facie infringement lies on the individual or group challenging the legislation. :. -f there is a prima facie infringement, t!" s"$ond 8u"stion is whether the rown can justify it (for the law to be upheld, there must be sensitivity to and respect for the rights of aboriginal peoples on behalf of the government) (a) What constitutes legitimate regulation of a constitutional aboriginal right M-s there avalid l"islativ" o0"$tiv" -s the regulation sought to be imposed re2uired to complete that objectiveN. -f yes, go on to (b). (b) Consid"r t!" s#"$ial trust r"lations!i# and r"s#onsi0ilit% o ov"rnm"nt vis a vis a0oriinals M!here must be a lin/ between the 2uestion of justification and the allocation of priorities in the fisheryN
(:) Eust satisfy the /int"ral3 t"st: T!" $laimant must d"monstrat" t!at t!" #ra$ti$"2 $ustom or tradition was a $"ntral and sinii$ant #art o t!" so$i"t%s distin$tiv" $ultur" #rior to $onta$t. &ote that this test re2uires the practice to be distinctive, not distinct. Gistinct means uni2ue. onsider things li/e whether the practice was merely incidental to another practice; (a) !he practices, customs and traditions must have $ontinuit% with those that e#isted prior to contact (b) ourts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims (c) laims to aboriginal rights must be adjudicated on a specific rather than general basis9 the e#istence of an aboriginal right will depend entirely on the practices, customs and traditions of the particular aboriginal community claiming the right
HEL4: !he appellant has failed to demonstrate that the e#change of fish for money or other goods was an integral part of the distinctive to9lo society which e#isted prior to contact. !he e#change of fish too/ place, but was not a central, significant or defining feature of to9lo society. !he appellant has thus failed to demonstrate that the e#change of salmon for money or other goods by the to9lo is an aboriginal right recogni'ed and affirmed under s. 8@(3) of the &* <-F.
# v Sa--ierB # v 3ray 7.ven though a -ractice may have been underta2en for survival -ur-oses, it can still be considered integral to an 6boriginal community’s distinctive culture FACTS: harged w unlawful possession or cutting of rown timber. -n defence, they say they possess an aboriginal and treaty right to harvest timber for personal use. ISS&E: Whether a right to harvest timber e#isted pre7contact for the relevant aboriginal peoples REASONIN-: !he boriginal right claim 4EFINITION -n 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 right9 R. v. >an der $eet . !he respondents rely on the pre7contact practice of harvesting timber in order to establish their aboriginal right. ection 8@ of the &onstitution *ct, <-F see/s to provide a constitutional framewor/ for the protection of the distinctive cultures of aboriginal peoples, so that their prior occupation of &orth merica can be recogni'ed and reconciled with the sovereignty of the rown9 >an der $eet , at para. 83. -n an oft72uoted passage, Lamer .0. ac/nowledged in >an der $eet , at para. 8A, that, "the doctrine of aboriginal rights e#ists, and is recogni'ed and affirmed by s. 8@(3), because of one simple fact9 when *uropeans arrived in &orth merica, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries%. !he goal for courts is, therefore, to determine how the claimed right relates to the pre7contact culture or way of life of an aboriginal society. econd, it is also necessary to identify the pre7contact practice upon which the claim is founded in order to consider how it might have evolved to its present7day form
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# v an der *eet 7The Court articulated the legal test to be used to identify an “ e;isting aboriginal right' +in the meaning of s @A FACTS: !he appellant Gorothy Fan der ?eet was charged under s. U3(3) of the 8isheries *ct , +... 3P4A, c. 173V, with the offence of selling fish caught under the authority of an -ndian food fi sh licence, contrary to s. :4(@) of the "ritish &olumbia 8ishery 3#eneral4 Regulations , =+QV7:VQ. !he charges arose out of the sale by the appellant of 3A salmon. !he appellant, a member of the to9lo, has not contested these facts at any time, instead defending the charges against her on the basis that in selling the fish she was e#ercising an e#isting aboriginal right to sell fish. !he appellant has based her defence on the position that the restrictions imposed by s. :4(@) of the +egulations infringe her e#isting aboriginal right to sell fish and are therefore invalid on the basis that they violate s. 8@(3) of t he &onstitution *ct, <-F. ISS&E: >ow are the aboriginal rights recogni'ed and affirmed by s. 8@(3) of the &onstitution *ct, <-F to be defined REASONIN-9 lthough e2ual in importance and significance to the rights enshrined in the &harter , aboriginal rights must be viewed differently from &harter rights because they are rights held only by aboriginal members of anadian society. !he tas/ of this ourt is to define aboriginal rights in a manner which recogni'es that aboriginal rights are rights but which does so without losing sight of the fact that they are rights held by aboriginal people because they are aboriginal. !he way to accomplish this tas/ is through a #ur#osiv" a##roa$! to s. Q+1,. -t is through identifying the interests that s. 8@(3) was intended to protect that the dual nature of aboriginal rights will be comprehended !his purposive approach must be guided by the general principle that s Q+1, s!ould 0" iv"n a "n"rous and li0"ral int"r#r"tation in avour o a0oriinal #"o#l"s, w!i$! aris"s rom t!" natur" o t!" r"lation s!i# 0=w t!" Crown and a0oriinals +i.". idu$iar% on", purposive analysis of s 8@(3) results in the following conclusions9 t!" a0oriinal ri!ts r"$oni"d and airm"d 0% s. Q+1, ar" 0"st und"rstood as2 irst2 t!" m"ans 0% w!i$! t!" Constitution r"$oni"s t!" a$t t!at #rior to t!" arrival o Euro#"ans in Nort! Am"ri$a t!" land was alr"ad% o$$u#i"d 0% distin$tiv" a0oriinal so$i"ti"s2 and as2 s"$ond2 t!" m"ans 0% w!i$! t!at #rior o$$u#ation is r"$on$il"d wit! t!" ass"rtion o Crown sov"r"int% ov"r Canadian t"rritor%. T!" $ont"nt o a0oriinal ri!ts must 0" dir"$t"d at ulillin 0ot! o t!"s" #ur#os"s; the ne#t section of the judgment T"st or id"nti%in a0oriinal ri!ts in s Q+1,: TEST o !he test for identifying the aboriginal rights recogni'ed and affirmed by s. 8@(3) must be directed at identifying the crucial elements of those pre7e#isting distinctive societies. o !he following test should be employed9 " in order to be an aboriginal right an activity must be an element of a -ractice, custom or % tradition integral to the distinctive culture of the aboriginal grou- claiming the right •
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STEP 1 +CHARACTERIATION,: -n the present cases, the relevant practice for the purposes of the >an der $eet test is harvesting wood. !he record shows that wood was used to fulfil the communities$ domestic needs for such things as shelter, transportation, tools and fuel. - would therefore characteri'e the respondents$ claim as a right to harvest wood for domestic uses as a member of the aboriginal community. STEP +T!" INTE-RAL to a 4ISTINCTIE C<&RE TEST,9 *vidence established that the wood was critically important to the Ealiseet and Ei$Tma2 people pre7contact. Furt!"r2 "v"n t!ou! t!" #ra$ti$" ma% !av" 0""n und"rta<"n or survival #ur#os"s2 it $an still 0" $onsid"r"d int"ral to an A0oriinal $ommunit%Ds distin$tiv" $ultur" +THIS IS THE PRINCIPAL ISS&E ON THIS APPEAL,. (a) ontinuity9 lthough the nature of the ractice which founds the aboriginal right claim must be considered in the conte#t of the pre7contact distinctive culture of the particular aboriginal community, t!" natur" o t!" right must 0" d"t"rmin"d in li!t o #r"s"ntda% $ir$umstan$"s6 /loi$al "volution m"ans t!" sam" sort o a$tivit%2 $arri"d on in t!" mod"rn "$onom% 0% mod"rn m"ans.% o, 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. ny other conclusion would free'e the right in its pre7contact form.
*#tinguishment9 !his issue was raised in the #ray case. !he rown must show that legislation evidenced a clear intention to e#tinguish the right. But this argument fails
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# v *oley 77< or "etis claimants of aboriginal rights, the focus on .uro-ean contact had to be moved forard to the time of effective .uro-ean controlB 7 Courts lays don @ indicia of “"etis -eo-le' FACTS: ? charged with unlawfully hunting moose; ? argues that, as Eetis, they have aboriginal right to hunt for food in the ault te Earie
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We uphold the basic elements of the >an der $eet test and apply these to the respondents$ claim. >owever, we modify certain elements of the pre7contact test to reflect the distinctive history and post7contact ethnogenesis of the Etis, and the resulting differences between -ndian claims and Etis claims. T!" #r"$onta$t t"st is inad"8uat" to $a#tur" t!" ran" o 5"tis $ustoms2 #ra$ti$"s or traditions t!at ar" "ntitl"d to #rot"$tion2 sin$" 5"tis $ultur"s 0% d"inition #ostdat" Euro#"an $onta$t 1irst, t!" $ourt s"t out t!" indi$ia to d"t"rmin" w!"t!"r a $laimant m""ts t!" d"inition o 5"tis #"o#l": +1, S"lid"ntii$ation +, An$"stral $onn"$tion +, Communit% a$$"#tan$" -n this case, there is no reason to overturn !0$s findings that ? is member of Eetis that arose K still e#ists in and around ault te. Earie T!" r"l"vant tim" ram" !he test for Etis practices should focus on identifying those practices, customs and traditions that are integral to the Etis community$s distinctive e#istence and relationship to the land. !his uni2ue history can most appropriately be accommodated by a #ost$onta$t 0ut #r"$ontrol t"st t!at id"ntii"s t!" tim" w!"n Euro#"ans ""$tiv"l% "sta0lis!"d #oliti$al and l"al $ontrol in a #arti$ular ar"a . !he focus should be on the period after a particular Etis community arose and before it came under the effective control of *uropean laws and customs +THE PRECONTROL TEST, The an der *eet test STEP 1 +C!ara$t"riation o t!" ri!t,: >ere, the right being claimed can therefore be characteri'ed as the right to hunt for food in the environs of ault te. Earie. STEP +Int"ral t"st,: !he practice of subsistence hunting and fishing was a constant in the Etis community, even though the availability of particular species might have wa#ed and waned. !he evidence indicates that subsistence hunting was an important aspect of Etis life and a defining feature of their special relationship to the land. *vidence supports the trial judge$s finding that hunting for food was integral to the Etis way of life at ault te. Earie in the period just prior to 3Q@A (which meets the modified time frame test) (a) ontinuity9 >unting for food was an important feature of the ault te. Earie Etis community,K the practice continuous to the present.
-nfringement of right9 =ntario currently does not recogni'e any Etis right to hunt for food, or any "special access rights to natural resources% for the Etis whatsoever (appellant$s record, at p. 3A:P). !his lac/ of recognition, and the conse2uent application of the challenged provisions to the ?owleys, infringe their aboriginal right to hunt for food as a continuation of the protected historical practices of the ault te. Earie Etis community -s the infringement justified !he main justification advanced by the appellant is that of conservation. lthough conservation is clearly a very important concern, we agree with the trial judge that the record here does not support this justification. -f the moose population in this part of =ntario were under threat (there was no evidence that it is) the Etis would still be entitled to a priority allocation to satisfy their subsistence needs in accordance with the criteria in R. v. Sarrow HEL4: Legislation is invalid •
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Haida (ation v 1C 7case deals ith the situation here aboriginal interests are in the -rocess of being -roved: 7< The duty to consult and accommodate is rooted in the honour of the CronB 7The duty arises hen the Cron !as , T!"r" is no dut% or t!" ov"rnm"nts to ar"",
FACTS: !his brings us to the issue before this ourt. !he government holds legal title to the l and. *#ercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Bloc/ U of the land (which is subject to a land title claim by the >aida people). ISS&E: -s the gov$t re2uired to consult with >aida people about decisions to harvest the forests and to accommodate their concerns about what if any forest in Bloc/ U should be harvested before they have proven their title to land REASONIN-:
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4ut% round"d in !onour o t!" Crown9 in all its dealings with boriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the rown must act honourably Where treaties remain to be concluded, the honour of the rown re2uires negotiations leading to a just settlement of boriginal claims.Onderlying this duty is s 8@ of onstitution, which implies a duty to consult K, if appropriate, accommodate !he ourt$s seminal decision in Delgamuu'w , sura, at para. 3UQ, in the conte#t of a claim for title to land K resources, confirmed and e#panded on the duty to consult, suggesting the content of the duty varied with the circumstances CanadaDs A0oriinal #"o#l"s w"r" !"r" w!"n Euro#"ans $am" J w"r" n"v"r $on8u"r"d. 5an% 0ands r"$on$il"d t!"ir $laims wit! t!" sov"r"int% o Crown t!rou! n"otiat"d tr"ati"s. Ot!"rs2 nota0l% in BC2 !av" %"t to do so. T!" #ot"ntial ri!ts "m0"dd"d in t!"s" $laims ar" #rot"$t"d 0% s. Q o t!"C6
When the duty to consult and accommodate arises -s the rown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof K resolution of the boriginal claim =r must it adjust its conduct to reflect the as yet unresolved rights claimed by the boriginal claimants T!" answ"r2 on$" aain2 li"s in t!" !onour o t!" Crown. !he rown, acting honourably, cannot cavalierly run roughshod over boriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof !he rown isn$t rendered impotent 5 it may continue to manage the resource in 2uestion pending claims resolution; but d"#"ndin on t!" $ir$umstan$"s2 t!" !onour o t!" Crown ma% r"8uir" it to $onsult and r"asona0l% a$$ommodat" A0oriinal int"r"sts &either the authorities nor practical considerations support the view that a duty to consult and, if appropriate, accommodate arises only upon final determination of the scope and content of the right. But2 w!"n #r"$is"l% do"s a dut% to $onsult aris" T!" oundation o t!" dut% in t!" CrownDs !onour and t!" oal o r"$on$iliation su"st t!at t!" dut% aris"s w!"n t!" Crown !as
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!he scope and content of the duty to consult and accommodate In "n"ral t"rms2 it ma% 0" ass"rt"d t!at t!" s$o#" o t!" dut% is #ro#ortionat" to a #r"liminar% ass"ssm"nt o t!" str"nt! o t!" $as" su##ortin t!" "7ist"n$" o t!" ri!t or titl"2 and to t!" s"riousn"ss o t!" #ot"ntiall% adv"rs" ""$t u#on t!" ri!t or titl" $laim"d -n all cases, the honour of t he rown re2uires that the rown act with good faith to provide meaningful consultation appropriate to the circumstances. harp dealing is not permitted. >owever, t!"r" is no dut% to ar""; rat!"r2 t!" $ommitm"nt is to a m"aninul #ro$"ss o $onsultation t one end of the spectrum lie cases where the claim to title is wea/, the boriginal right limited, or the potential for infringement minor. -n such cases, the only duty on the rown may be to give notice, disclose information K discuss any issues raised in response to the notice. t the other end of the spectrum lie cases where a strong rima facie case for the claim is established, the right K potential infringement is of high significance to boriginal ppl, K the high ris/ of non7compensable damage. -n such cases consultation, aimed at finding a satisfactory interim solution maybe re2uired !he controlling 2uestion in all situations is what is re2uired to maintain the honour of the rown and to effect reconciliation between the rown and the boriginal peoples with respect to the i nterests at sta/e. (i.e. this may re2uire W!"n t!" $onsultation #ro$"ss su"sts am"ndm"nt o Crown #oli$%2 w" arriv" at t!" sta" o a$$ommodation ta/ing steps to avoid irreparable harm or to minimi'e t he effects of infringement, pending final resolution of the underlying claim)
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Go third parties owe a duty to consult and accommodate &o. !he rown alone remains legally responsible for the conse2uences of its actions and interactions with third parties that affect boriginal interests !he provinces$ duty ?rovinces and federal government are subject to this duty
Ta2u #iver v 1C 7.;am-le of ho the duty to consult is fulfilled, and reinforces the -rinci-le set out inHaida that meaningful consultation doesn’t re0uire agreement
crystalli'ed around the potential effect on wildlife and traditional land use, as well as the lac/ of ade2uate baseline information by which to measure subse2uent effects ISS&E: Guty to consult and of accommodation REASONIN-: -n Haida Nation v. "ritish &olumbia 3Minister of 8orests 4, this ourt has confirmed the e#istence of the rown$s duty to consult and, where indicated, to accommodate boriginal peoples prior to proof of rights or title claims. !he principle of the honour of the rown grounds the rown$s duty to consult and, if indicated, accommodate boriginal peoples, even rior to proof of asserted boriginal rights and title. !he duty of honour derives from the rown$s assertion of sovereignty in the face of prior boriginal occupation.-t has been enshrined in s. 8@(3) of the &onstitution *ct, <-F, which recogni'es and affirms e#isting boriginal rights and titles !he duty to consult arises when a rown actor has /nowledge, real or constructive, of the potential e#istence of boriginal rights or title and contemplates conduct that might adversely affect them When +edfern applied for project approval, in its efforts to reopen the !ulse2uah hief Eine, it was apparent that the decision could adversely affect the !+!1&$s asserted rights and title. !he contemplated decision thus had the potential to impact adversely the rights and title asserted by the !+!1&. -t follows that the honour of the rown re2uired it to consult and if indicated accommodate the !+!1& in ma/ing the decision whether to grant project approval to +edfern, and on what terms !he scope of the duty to consult is "proportionate to a preliminary assessment of the strength of the case supporting the e#istence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed% !here is sufficient evidence to conclude that the !+!1& have rima facie boriginal rights and title over at least some of the area that they claim and the potentially adverse effect of the Einisters$ decision on the !+!1&$s claims appears to be relatively serious. -n summary, the !+!1&$s claim is relatively strong While it is impossible to provide a prospective chec/list of the level of consultation re2uired, it is apparent that the !+!1& was entitled to something significantly deeper than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characteri'ed as accommodation. T!" Crown ulill"d its dut% to $onsult and a$$ommodat". T!" #ro$"ss o rantin #ro"$t a##roval to R"d"rn too< t!r"" and a !al %"ars2 and was $ondu$t"d lar"l% und"r t!".nvironmental 6ssessment 6ct8 5"m0"rs o t!" TRTFN w"r" invit"d to #arti$i#at" in t!" Pro"$t Committ"" to $oordinat" r"vi"w HEL4: Crow ulill"d dut%
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A0oriinal titl" is a ri!t in land and2 as su$!2 is mor" t!an t!" ri!t to "na" in s#"$ii$ a$tiviti"s w!i$! ma% 0" t!"ms"lv"s a0oriinal ri!ts &ni8u" dim"nsions o a0oriinal titl":A0oriinal titl" is a sui generis int"r"st in land. !he idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title. =ne dimension is INALIANABILIT) +lands $anDt 0" trans"rr"d sold or surr"nd"r"d to an%on" ot!"r t!an t!" Crown,.nother dimension of aboriginal title is its SO&RCE (it$s source, although thought to be in the +oyal ?roclamation, 34U8, arises from the prior occupation of anada by aboriginal peoples; what ma/es aboriginal title sui generis is that it arises from possession before the assertion of Briti sh sovereignty, whereas normal estates, li/e fee simple, arise afterward). 1urther, aboriginal title is held CO55&NALL) (aboriginal title cannot be held by individual aboriginal persons)
Cont"nt lthough cases involving aboriginal title have come before this ourt and ?rivy ouncil before, there has never been a definitive statement from either court on the content of aboriginal title - have arrived at the conclusion that t!" $ont"nt o a0oriinal titl" $an 0" summari"d 0% two #ro#ositions9 irst, that aboriginal title encompasses the right to e#clusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and s"$ond, that those protected uses must not be irreconcilable with the nature of the group$s attachment to that land +egarding the second proposition, it is drawn by reference to the other dimensions of aboriginal title which are sui generis as well%. -mplicit in the protection of historic patterns of occupation is a recognition of the importance of the continuity of t he relationship of an aboriginal community to its land over time. s a result, uses of the lands that would threaten that future relationship are, by their very nature, e#cluded from the content of aboriginal title. 1or e#ample, 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). -t is for this reason also that lands held by virtue of aboriginal title may not be alienated. lienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it.
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A0oriinal titl" und"r s Q+1, boriginal title at common law is protected in its full form by s. Q+1,. Proo o a0oriinal titl" boriginal title differs from aboriginal rights (which are defined in terms of activities). boriginal title 6 right to land itself. In ord"r to ma<" out a $laim or a0oriinal titl"2 t!" a0oriinal rou# ass"rtin titl" must satis% t!" ollowin $rit"ria: 5&ST satis% to 0" $onsid"r"d A0oriinal
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+i, T!" land must !av" 0""n o$$u#i"d #rior to sov"r"int%:!he relevant time period for the establishment of title is different than for the establishment of aboriginal rights to engage in specific activities.Proo o o$$u#an$% must 0" "sta0lis!"d 0% 0ot! $ommon law +i". #!%si$al o$$u#ation=#oss"ssion, J a0oriinal #"rs#"$tiv" on land. I #r"s"nt o$$u#ation is r"li"d on as #roo o o$$u#ation #r"sov"r"int%2 t!"r" must 0" a $ontinuit% 0"tw""n #r"s"nt and #r" sov"r"int% o$$u#ation: onclusive evidence of pre7sovereignty occupation may be difficult to come by. -nstead, an aboriginal community may provide evidence of present occupation as proof of pre7sovereignty occupation in support of a claim to aboriginal title. What is re2uired, in addition, is a continuity between present and pre7sovereignty occupation, because the relevant time for the determination of aboriginal title is at the time before sovereignty. &eedless to say, there is no need to establish "an unbro/en chain of continuity
A0oriinal Titl"
Delgamuu2 v 1C 7The leading case on 6boriginal title and shos ho to -rove it FACTS: -n 3PQV, 8@ Jit#san and 38 Wet$suwet$en >ereditary hiefs instituted proceedings against the ?rovince of British olumbia. !hey claimed, both individually and on behalf of their respective >ouses, ownership (une#tinguished boriginal title) and resulting jurisdiction (entitlement to govern by boriginal laws) over separate portions of territory in northwest British olumbia totalling @Q,AAA s2uare /ilometres ISS&E: !he nature and scope of the constitutional protection afforded by s. Q+1, to common law aboriginal title. REASONIN-: !rial judge errors MEust follow 8 stepsN 1irst thing court noted is the errors made by the !0, including giving little weight to aboriginal oral histories and recollections of aboriginal live !hese errors are particularly worrisome because oral histories were of critical importance to the appellants$ case. !hey used those histories in an attempt to establish their occupation and use of the disputed territory, an essential re2uirement for aboriginal title !he trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached the conclusion that the appellants had not demonstrated the re2uisite degree of occupation for "ownership%. >ad the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different. new trial is warranted &ontent of aboriginal titlehow it)s rotected by s GI34re9uirements for roof -"n"ral #oints !he parties disagree over whether the appellants have established aboriginal title to the disputed area. >owever, sin$" t!os" a$tual issu"s r"8uir" a n"w trial2 w" $annot r"solv" t!at dis#ut" in t!is a##"al.But factual issues aside, the parties also have a more
+ii, At sov"r"int%2 t!at o$$u#ation must !av" 0""n "7$lusiv":*#clusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to e#clude others from the lands held pursuant to that title. s with the proof of occupation, #roo o "7$lusivit% must r"l% on 0ot! t!" #"rs#"$tiv" o t!" $ommon law and t!" a0oriinal #"rs#"$tiv"2 #la$in "8ual w"i!t on "a$!
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Inrin"m"nt o a0oriinal titl": t!" t"st o ustii$ation !he aboriginal rights recogni'ed and affirmed by s. 8@(3), including aboriginal title, are not absolute. !hose rights may be infringed, both by the federal (e.g., Sarrow ) and provincial (e.g., &Jt1) governments. >owever, s. Q+1, re2uires that those infringements satisfy the test of justification. T!" "n"ral #rin$i#l"s ov"rnin ustii$ation laid down inS-arro o#"rat" wit! r"s#"$t to inrin"m"nts o a0oriinal titl" (-.e. s/, first, whether the infringement is i n 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 rown and aboriginal peoples 5 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. =ther conte#ts permit that the fiduciary duty be articulated in other
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consulted with respect to the conservation measures being implemented) -n this conte#t, with regard to the second stage, aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. !his point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sarrow . !he aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. !his aspect of aboriginal title suggests that the fiduciary relationship between the rown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions ta/en with respect to their lands. lso, the economic aspect of aboriginal title suggests that compensation is relevant to the 2uestion of justification as well HEL4: +emit case bac/ to trial
3. ?re7sovereignty occupation9 "ny land that was occupied pre7sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants%. !he standard of occupation re2uired to prove aboriginal title may be established in a variety of ways (e.g. construction of dwellings) :. ontinuity9 !his only becomes an aspect of the test where an aboriginal claimant relies on present occupation to raise an inference of pre7sovereignty occupation. boriginal claimants do not need to establish an unbro/en chain of continuity. 8. *#clusivity9 *#clusive occupation may be demonstrated to e#clude others, including the intention and capacity to retain e#clusive control of the lands. ?roof must rely on both common law and aboriginal perspective on land, each being given e2ual weight. BC Tr"at% Commission2 /W!% tr"ati"s in t!" mod"rn a"3 When the early *uropeans first began to settle in the eastern part of &orth merica, Britain r ecogni'ed that those people who were living there had title to land9 the +oyal ?roclamation of 34U8 declared that only the British rown could ac2uire lands from 1irst &ations, and only by treaty -n most of the t reaties, aboriginal people gave up their title in e#change for land reserves and for the right to hunt and fish on the land they$d given up -n B, aboriginal peoples signed treaties, but they were later on e#tinguished by the Gominion of anada =ver the decades, aboriginal people protested demanding treaties to be signed. !he demand intensified, culminating in the formation of the llied !ribes of B in 3P3U to wor/ for treaties. -n response, =ttawa amended the -ndian ct in 3P:4 to ma/e it illegal to raise funds to pursue land claims (which was lifted only in 3P@3) o treaties should have been made but they weren$t. -sn$t it simply too late to revisit this Onder s Q of the onstitution ct 3PQ:, aboriginal rights and treaty rights are recogni'ed and affirmed
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Tsilh0ot’in (ation v 1C boriginal title (nature) anadian courts began to outline and define boriginal title in t atherine$s Eilling case T!" d"s$ri#tion o A0oriinal titl" as a usuru$tuar% ri!t was avour"d 0% t!" SCC in t!" 1@?s (usufructuary meaning a legal right to use, benefit from and derive profit from property belonging to another person) But, viewed through a contemporary lens, it is not surprising that the has found that describing boriginal title as a usufrutuary right isnt$ helpful (see Gelgamuu/w,. Now2 it $an no lon"r 0" $!ara$t"ri"d as su$! !he notion of an occupancy based boriginal title started to gain acceptance at a time when countries such as anada began the process of decoloni'ation. -n anada, decoloni'ation e#perienced its first legal challenge in alder () Cald"r was a turnin #oint in our 0asi$ und"rstandin o A0oriinal ri!ts. !he "a'er La/e case, decided shortly after alder, said that Cald"r was solid aut!orit% or t!" "n"ral #ro#osition t!at t!" law o Canada r"$oni"s t!" "7ist"n$" o an a0oriinal titl" ind"#"nd"nt o T!" Ro%al Pro$lamation or an% ot!"r #r"roativ" a$t or l"islation +it aris"s at $ommon law, T!" n"7t im#ortant d"v"lo#m"nt in anadian boriginal law was the patriation of the anadian onstitution with the "na$tm"nt o t!" Constitution A$t2 s Q+1,. ?rofessor lattery argues that this provision represents a basic shift in our understanding of the constitutional foundations of anada. ection 8@ renounces the old rules of the game under which the rown established courts of law and denied those courts the authority to 2uestion sovereign claims made by the rown. ?rofessor argues for a new concept of the onstitution which he calls the =rganic Eodel, under which it is said that the onstitution is rooted in anadian soil T!" vi"w t!at a0oriinal titl" is root"d in Canadian soil is "m0odi"d in t!" t!"or% t!at titl" is sui "n"ris.?ut simply, a0oriinal titl" in t!is $ountr% is uni8u" and in a $lass 0% its"l. T!" d"s$ri#tion o A0oriinal titl" as sui "n"ris $a#tur"s t!" "ss"n$" o a #ro#ri"tar% ri!t s!a#"d 0% 0ot! $ommon law and A0oriinal s%st"ms +not" t!" sui "n"ris as#"$ts not"d inDelgamuu2 =ne of the /ey challenges of boriginal law is reconciliation between present day boriginal title holders and the rown. ny definition of e#isting aboriginal rights must ta/e into account that they e#ist in the conte#t of an industrial society with all of its comple#ities and competing interests. !he common law recognition of boriginal rights and title calls for a reconciliation of boriginal people$s prior occupation of anada and the sovereignty of the rown. T!" an der *eet d"$ision $larii"d our $urr"nt und"rstandin o t!" oriin and natur" o t!"s" ri!ts (and articulated a test for determining whether a particular activity is protected as an boriginal right) Toda%2 w" no lon"r s#"a< o an ov"rar$!in A0oriinal titl". It is mor" a$$urat" to s#"a< o a ari"t% o A0oriinal ri!ts2 on" o w!i$! is titl" to land. It is #ossi0l" or an A0oriinal rou# to s!ow t!at a #arti$ular #ra$ti$" ta
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!he *volution of boriginal !itle Calder d"$ision r"$oni"s a0oriinal titl" +1@>,. T! " d"$ision was a l"al turnin #oint . !he recognition of aboriginal title in &alder as a legal right was sufficient to cause the federal government to establish a land claims process; but B refused to participate. till, the 2uestion remained9 had aboriginal title been e#tinguished before B joined onfederation or not -nSarrow , the ourt too/ the same approach as in alder, who said that unless legislation had evinced a "clear and plain intention% to e#tinguish aboriginal rights, it did not have that effect. !his case dealt with particular aboriginal rights, not rights in land. But in Delgamuu2 2 t!" SCC $onirm"d t!at a0oriinal titl" "7ists in BC Eorever, t!" "arshall and 1ernard d"$ision s"ts limits on a0oriinal titl". -n the case, the ourt unanimously dismissed the claim to both treaty and aboriginal rights. -t found that although the treaty protected the Ei$/ma2 rights to sell certain products, this right did not e#tend to commercial logging.!he ourt said that while rights are not fro'en in time, the protected right must be a logical evolution of the activity carried on at the ti me of treaty7ma/ing. !reaties protect traditional activities e#pressed in a modern way and in a modern conte#t; new and different activities are not protected. T!" Court ado#t"d stri$t #roo o a0oriinal titl". -t stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in 2uestion. !raditional practices must translate into a modern legal right, and it is the tas/ of the court to consider any proper limitations on the modern e#ercise of those rights. T!" Court urt!"r stat"d t!at a0oriinal titl" would r"8uir" "vid"n$" o "7$lusiv" and r"ular us" o land or !untin2 is!in or r"sour$" "7#loitation. S"asonal !untin and is!in in a #arti$ular ar"a amount"d to !untin or is!in ri!ts onl%2 not a0oriinal titl".
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+0, T"st or a0oriinal titl" Delgamuu2 t"st
What do these legal decisions mean !he courts have confirmed that aboriginal title still e#ists in B, but they have not indicated where it e#ists. !o resolve this situation, the governments and 1irst &ations have two options9 either negotiate land, resource, governance and jurisdiction issues through a treaty process or go to court K have aboriginal rightstitle decided on a case to case basis Haida Nation and lingit 8irst Nation cases provide guidelines for the negotiation K definition of aboriginal title in B -n Mi'isew , the e#tended the rown$s obligation to consult and accommodate aboriginal interest (established in Haida and a'u) to include e#isting treaty rights. •
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All o t!"s" landmar< udm"nts to"t!"r $onirm t!at: (3) boriginal rights e#ist in law (:) boriginal rights are distinct from the rights of other anadians (8) !hey include aboriginal title, which is a uni2ue communally held property right (V) boriginal rights ta/e priority over the rights of others, subject only to the needs of conservation
(U) !he legal and constitutional statute of aboriginal peoples derives not from their race but from the fact that they are descendants of the peoples and governing societies that were resident in &orth merica long before settlers arrived (4) boriginal rights and title cannot be e#tinguished by simple legislation because they are protected by the 3PQ: (Q) Jov$t has a duty to consult and possible accommodate aboriginal interest even where title has not been proven (P) Jov$t has continuing duty to consult, and perhaps accommodate, where treaty rights might be adversely affected A0oriinal Tr"ati"s
!he following areas are where the separation of powers starts to blur9 a) !he parliamentary tradition adopted by anada$s founders gives pre7eminence to the legislative branch, to which the e#ecutive is made subordinate (an introductory e#ample) b) !he parliamentary system contemplates an overlapping of personnel between the legislature and the e#ecutive. !he ?E and members of hisher abinet, who comprise the e#ecutive council "advising% the head of state, are elected members of the legislature. !his is not the case in the O (another introductory e#ample)
T!" ollowin would 0" mor" suita0l" or t!" 0od% o t!" "ssa%:
# v "arshallB # v 1ernard FACTS: E and B were convicted of offences related to the sellingpossession of timber ISS&E: Whether the Ei$/ma/ people in & and &B have the right to log on rown lands for commercial purposes pursuant to either treaty or boriginal title REASONIN-:
boriginal treaty right9 the test !he cases raise issue of scope of treaty right. rown argues that s$o#" o tr"at% ri!t is to 0" d"t"rmin"d 0% w!at trading activities w"r" in t!" $ont"m#lation o t!" #arti"s at t!" tim" t!" tr"ati"s w"r" mad". !his is correct But tr"at% ri!ts ar" not ro"n in tim". 5od"rn #"o#l"s do traditional t!ins in mod"rn wa%s. /T!" 8u"stion is w!"t!"r t!" mod"rn tradin a$tivit% in 8u"stion r"#r"s"nts a loi$al "volution rom t!" traditional tradin a$tivit% at t!" tim" t!" tr"at% was mad"3 !hus, the 2uestion is whether the commercial logging here at issue is the logical evolution of a traditional Ei$/ma2 trade activity
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!est applied -n each case, the trial j udge concluded that the evidence did not support a treaty right to commercial logging -n Marshall , urran ?rov. t. 0. found no direct evidence of any trade in forest products at the time the treaties were made. -n"ernard , Lordon ?rov. t. 0. made similar findings on similar evidence. I $on$lud" t!at t!" "vid"n$" su##orts t!" trial ud"sD $on$lusion t!at t!" $omm"r$ial loin t!at orm"d t!" 0asis o t!" $!ar"s aainst t!" r"s#ond"nts was not t!" loi$al "volution o traditional 5iDKK1
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boriginal title !he respondents also claim they hold aboriginal title to the l ands they logged !he common law theory underlying recognition of aboriginal title holds that an aboriginal group which occupied land at the time of *uropean sovereignty and never ceded or otherwise lost its right to that land, continues to enjoy title to it. ?rior to constitutionali'ation of aboriginal rights in 3PQ:, aboriginal title could be e#tinguished by clear legislative act (see >an der $eet ). &ow it is not possible. !he rown can impinge on aboriginal title only if it can establish that this is justified in pursuance of a compelling and substantial legislative objective for the good of larger society9 R. v. Sarrow ) !hese principles were canvassed at length in Delgamuu'w v. "ritish &olumbia, which enunciated a test for aboriginal title based on e#clusive occupation at the time of British sovereignty. Delgamuu'w re2uires that in analy'ing a claim for aboriginal tit le, the ourt must consider both the aboriginal perspective and the common law perspective. =nly in this way can the honour of the rown be upheld A su0 issu" !"r" is w!"t!"r nomadi$ and s"minomadi$ #"o#l"s $an "v"r $laim titl" to a0oriinal land . !he answer is that it depends on the evidence. W!"t!"r a nomadi$ #"o#l" "no%"d sui$i"nt /#!%si$al #oss"ssion3 to iv" t!"m titl" to t!" land2 is a 8u"stion o a$t HEL4: Court $on$lud"s t!at t!"r" is no round to int"r"r" w= t!" trial ud"s indin t!at no titl" "7ist"d
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c) Legitimacy of onstitutional judicial review9 $s interpretation of the "vague% harter and vague language in the onstitution ct, 3QU4 leads to concern is that when judges give concrete shape to the rights provided in the harter, and invalidate laws that do not conform to their interpretation of these re2uirements, the rule of law may become subtly transformed into the rule of unelected judges d) 1orms of administrative justice or adjudication have grown out of the development of e#ecutive functions (tribunals verge on being courts in some circumstances 5 see >uman +ights !ribunal, p. :V3) K rule ma/ing of admin bodies (delegated legislation) blurs the role between the e#ecutive and legislature; see also the leniently interpreted difference between delegation of power ?arliamentlegislature power and abdication (re #ray 4 e) !here is a considerable degree of integration between the Legislature and Jovernment (i.e. e#ecutive) 5 it is the same individuals, on a practical level, who control the legislative and e#ecutive branches of government. !al/ about idea of responsible government here. f) !he ability of the to "enforce% e#ecutive decisions creates a tension between the appropriate relationship of judiciary and e#ecutive (see Doucet;"oudreau case) g) ability to give "advisory opinions% to the federal government (the government may as/ the ourt to consider 2uestions on any important matter of law or fact, especially concerning the interpretation of the onstitution. +, Giscuss cases cited in the rai/ boo/ that demonstrate the blur between the separation of powers andor the problems that result as a result of the blurred roles of the legislature, e#ecutive and judiciary9 +, riti2ue the role of international law in anadian domestic law9 a) What is the approach Gualist tradition re9 treaties (i.e. needs to be "implemented% in legislation); customary international law (no special approach) b) dvantages about anada$s approach re9 international law9 Gemocratic participation in the i nternational law ma/ing process Teeps in chec/ separation of powers (ie. ?revents e#ecutive from "law ma/ing%) c) ?roblems9 -mplementation issue9 "a'er $s approach too strict (why can$t there be "implied% implementation); hesitancy after ba/er to treat international law as binding (generally treated as merely persuasive) 5 this wea/ens the fabric of law 5 on the verge of becoming "optional% law to be applied at judge$s discretion 5 this would wea/en international respect for us ourts$ use (or lac/ thereof) of presumption of legislative intent (see article)9 uncertainty of the effect of that presumption in conte#t of harter interpretation; unclear, than/s to "a'er , as to whether presumption applies e2ually to anada$s international obligations and non7binding international norms; particularly suspect in conte#t of interpreting customary international norms 5 "a'er 6 "values% of international instruments may help inform conte#tual approach to statutory interpretation if dealing w unimplemented norm, but what about presumption lthough int. instrument in that case was unimplemented, it was binding on anada (via ratification) and should have appealed to presumption uresh approach of allowing unimplemented treaties aid interpretation of legislation (potential problem) Onclear what $s position is re9 customary int$l law9 !here is no une2uivocal statement on whether custom is part of G& law or not. !he decisions in Sraytech and Suresh leave room to be interpreted as suggesting that customary law, including even just cogens, is not directly binding in anada. !he : decisions permit the inference that custom merely helps inform a conte#tual approach to statutory interpretation, furnishing a potentially relevant K persuasive source for this power, that$s about it • •
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+M, Onwritten constitutional principles
Pot"ntial Essa% (u"stions +1, -t is often said that under our constitutional system, the role of the legislature is to ma/e the law, the role of the judiciary is to interpret the
Positiv"s in$lud": !hese are fundamental concepts about which everyone can agree, so it ma/es sense that they will affect judicial decision ma/ing (even the highest court of -ndia has recogni'ed almost identical unwritten principles, R 3 more); ?roblems or situations may arise which are not e#pressly dealt with by the te#t of the onstitution. -n order to endure over time, a •
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!hey are only resorted to when the e#press wording of the onstitution is insufficient to solve a problem (which is a valuable limit on the doctrine, and prevents it from being used inappropriately); We are used to unwritten legal principles (that$s what our common law system is built on)
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N"ativ"s in$lud": By swaying away from written te#t, we get into a realm of uncertainty, ambiguity; !hey are so broad that they can be found to apply t o any issue; !o recogni'e these principles can be seen as an unauthori'ed judicial e#pansion of their power in the constitutional sphere; written constitution promotes certainty and predictability. • • • •
+Q, onstitutional conventions 7 what are they Jive some e#amples9 a. ee boo/ for definition b. *#amples include9 electing a governor general9 the Dueen follows the anadian ?E$s recommendations (based on an "instrument of advice%); in turn, the governor general and lieutenant governors for each province are bound by constitutional convention to e#ercise their powers with the advice of the abinet of their respective government electing members for the enate9 the governor general follows advice of the ?E !he governor general calls ?arliament into session on the advice of the ?E (i.e. summoning ?arliament) ?arliament can be prorogued through a speech by the governor general in the enate hamber ?E to resign his or her gov$t or see/ parliamentary dissolution after a "no confidence% vote by the >ouse +esponsible government (and all of its understood "rules%) !he individual commanding the confidence of the >o (that is, the majority) is appointed ?E =nly privy councillors who are in the abinet are entitled to e#ercise the powers of the ?rivy ouncil !he ?E, leader of the abinetgov$t, possess authority to e#ercise so7called personal prerogatives, e.g., heshe may select ppl to fill some important appoints that are technically made by the governor general 1ormal e#ecutive bodies are limited to the governor general and lieutenant governors, federal and provincial abinets, and the system of governmental departments and ministries that are overseen by individual ministers, including the civil service •
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onsider that ?arliament is free to pass careless or bad laws; onsider that even if the ministry tri c/s ?arliament into passing a law, that alone i s insufficient for a court to stri/e it down (see !urner v anada); onsider that anadians aren$t entitled to due process or procedural fairness in the law7ma/ing process (so long as the procedures in the onstitution have been met); onsider that there can be e#propriation without compensation by way of legislation that ma/es such an intent clear ( *uthorson v &anada4
Arum"nts aainst: onsider the division of powers found in ss P3 and P: which identify certain subjects in respect of which ?arliament cannot legislate; consider the limitations put on it by the harter; •
+@, ritically analy'e the limits on delegated legislation +1, Go you thin/ there needs to be a reforming of the judicial appointment process Whywhy not9 trengths number of filters e#ist before judges are selected; fle#ibility in appointing allows for ability t o tailor bench to needs of society at the time oncerns ?olitical patronage; abundance of discretion; lac/ of transparencyaccountability; the appointment process is simply policy, and cannot be legally enforced, which gives rise to concerns that it may be manipulated in individual rather than societal favour; What should be done &ote9 discuss both times of federal appointments 5 non upreme ourt and upreme ourt (and note the uni2ue concerns w upreme ourt appointments) •
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+11, Giscuss, and give e#amples demonstrating, the significance of the rule of principle in anadian society and law
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+K, Bijuralism +>, dvantages and disadvantages of precedent Advanta"s=0"n"its: (i) ids in the stability and coherence of the law, ma/ing it more predictable (ii) ?rovides fairness in decision ma/ing; (iii) ?romotes efficiency and eliminates sources of error (such as judicial bias); (iv) 1ulfills a symbolic role by recogni'ing the relationship between courts and the legislature; (v) ?rovides some certainty (liberty to decide each case as you thin/ right without any regard to principles laid down in previous cases would result in uncertainty of law); (vi) ?ossibility of growth (new rules can be established and old rules can be adapted to meet new circumstances and the changing needs in society) (tal/ about how feminists would enjoy this aspect of the doctrine, without which the laws today relating to female participation in society might be primitive) 4isadvanta"s=#ro0l"ms: (i) +igidity (once a rule is laid down, it is binding even if the decision is thought to be wrong) R ?erpetuation of errors; (ii) Bul/comple#ity (so much law, difficult to learn it all; lay people can$t access it); (iii) lowness in growth (the system depends on litigation for rules to emerge); (iv) *asy to distinguish (give case e#ample); (v) (v) lso some intellectual uncertainty (as the law is in constant evolution) +?, -s the ?arliament of anada truly "supreme% Giscuss9 Arum"nts or: onsider that the scope of ?arliament$s law7ma/ing jurisdiction is endless, so law i s it conforms to the onstitution (rules governing •
+1, Go you thin/ anada should abolish prorogation +1 , boriginal rightss 8@ 2uestion
