State – Fall 2013
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State & Citizen – Fall 2013
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CHECKLIST TO BRING TO EXAM
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Constitution
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PRE-EXAM CHECKLIST
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Use the bathroom
Relax
Breath
Have a snack
EXAM QUESTION CHECKLIST:
1. Count the questions, determine how much time on each one
1.1. Divide time based on how much each question is worth
1.2. Plan the time for each question
2. Read the questions before the facts
3. Read the facts
3.1. Read them again, take notes, spot issues
3.2. Refer to exact words
3.3. Circle, highlight, etc
4. Plan the answer
4.1. Sketch the outline
4.2. Remember IRAC
4.3. Give both sides of the argument
4.4. Think of the fact pattern as a real-world problem
5. Write
5.1. IRAC
5.2. Give both sides
5.3. Stay in character
5.4. Cite authorities, use short-forms
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TABLE OF CONTENTS
Table of Contents ...................................................................................................................... 2
1. Branches of Government ................................................................................................... 5
1.1 Legislature ..................................................................................................................................... 5
Constitution Act, 1867, s 17 .................................................................................................................................... 5
Constitution Act, 1867 -- Part IV – Legislative Power ................................................................................. 5
1.1.1 Parliament..............................................................................................................................................5
Constitution Act, 1867, Part IV ss 37-57 ........................................................................................................... 5
House of Commons, Précis of Procedure .......................................................................................................... 5
Special Committee on the Reform of the House of Commons, Report ................................................. 6
Canada Elections Act, s 56.1 .................................................................................................................................... 6
Canada (House of Commons) v Vaid [2005] 1 SCR 667 ............................................................................. 6
Authorson v Canada (Attorney General) 2003 SCC ...................................................................................... 6
1.1.2 Senate.......................................................................................................................................................6
Constitution Act, 1867, Part IV ss 21-36 ........................................................................................................... 6
Constitution Act, 1867, s 24 & 32 ......................................................................................................................... 7
Bill C-7 – Senate Reform Act (not enacted) ...................................................................................................... 7
1.2 Executive......................................................................................................................................... 7
Roncarelli v Duplessis, 1959 SCC .......................................................................................................................... 7
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 RCS ....................................... 7
Dunsmuir v New Brunswick, 2008 SCC ............................................................................................................. 8
Judicial Review of Administrative Decisions ................................................................................................... 8
1.2.1 Governor General ................................................................................................................................8
Constitution Act, 1867, Part III – ss 10-14 ........................................................................................................ 8
Letters Patent, 1947 ................................................................................................................................................... 8
1.2.2 Privy Council .........................................................................................................................................8
1.2.3 Prime Minister......................................................................................................................................8
Black v Crétien, (2001), 199 DLR (4th) 228 (Ont CA)................................................................................... 8
1.2.4 Municipalities .......................................................................................................................................9
Shell Canada Products Ltd v Vancouver (City), [1994] 1 SCR 231 ........................................................ 9
1.2.5 Crown Prerogative..............................................................................................................................9
Black v Crétien, (2001), 199 DLR (4th) 228 (Ont CA)................................................................................... 9
1.2.6 Statute ......................................................................................................................................................9
1.3 Judiciary ....................................................................................................................................... 10
The Constitution Act, 1867 – Part VII ............................................................................................................... 10
The Constitution Act, 1982, s 24(1) ................................................................................................................... 10
O’Donohue v The Queen, 2003 ............................................................................................................................ 10
Brown v Alberta, 1999 ............................................................................................................................................ 10
Samson v AG of Canada, 1998 .............................................................................................................................. 10
Sauve v Canada (Chief Electoral Officer), 2002 SCC 68 (quoted in Fitzgerald) ............................. 11
Edwards v AG Canada, 1930 ................................................................................................................................. 11
Sister Act, 1992 IMDB .............................................................................................................................................. 11
Supreme Court Act .................................................................................................................................................... 11
Federal Court Act ....................................................................................................................................................... 11
Judges Act ...................................................................................................................................................................... 12
Ontario Courts of Justice Act ................................................................................................................................. 12
Federal Appointments (non-SCC) ...................................................................................................................... 12
2. Fundamental Principles of the Constitution ........................................................... 12
Source Judicial Independence: Provincial Judge’s Reference (1997) ................................................. 12
Source of 4 Super-normatives: Secession Reference (1998) ................................................................. 12
2.1 Judicial Independence ............................................................................................................ 12
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Constitution Act, 1867 ............................................................................................................................................. 13
Constitution Act, 1982 (Charter) ........................................................................................................................ 13
Reference Re: Remuneration of Judges of the Provincial Court of PEI et al. ................................... 13
BC v Imperial Tobacco, 2005 SCC ....................................................................................................................... 13
2.2 Constitutionalism and the Rule of Law ............................................................................. 13
2.2.1 The Rule of Law Principle ............................................................................................................. 13
Roncarelli v Duplessis, 1959 SCC ........................................................................................................................ 13
Reference Re: Secession of Quebec, 1997 ....................................................................................................... 14
BC v Imperial Tobacco, 2005 SCC ....................................................................................................................... 14
BC v Christie, 2007 SCC ........................................................................................................................................... 14
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 RCS ..................................... 14
2.2.2 The Principle of Constitutionalism ........................................................................................... 14
The Constitution Act, 1982, s 52(1) ................................................................................................................... 14
Reference Re: Secession of Quebec, 1997 ....................................................................................................... 14
BC v Christie, 2007 SCC ........................................................................................................................................... 14
R v Big M Drug Mart, 1985 SCC............................................................................................................................ 14
R v Oakes. 1986 SCC ................................................................................................................................................. 15
O’Donoghue v The Queen, 2003 .......................................................................................................................... 15
Edwards v AG Canada, 1930 ................................................................................................................................. 15
2.3 Democracy .................................................................................................................................. 15
The Charter, s 3 ........................................................................................................................................................... 15
The Charter, s 4 ........................................................................................................................................................... 15
The Charter, s 5 ........................................................................................................................................................... 15
Reference re Provincial Electoral Boundaries (Sask), 1991 ................................................................... 16
Figueroa v Canada (Attorney General), 2003 SCC 37 ................................................................................ 16
Sauve v Canada (Chief Electoral Officer), 2002 SCC 68 (quoted in Fitzgerald) ............................. 16
Fitzgerald v Alberta, 2002 ABQB ........................................................................................................................ 16
Authorson v Canada (Attorney General) 2003 SCC .................................................................................... 16
Reference Re: Secession of Quebec, 1997 ....................................................................................................... 16
2.4 Federalism .................................................................................................................................. 17
Figueroa v Canada (Attorney General), 2003 SCC 37 ................................................................................ 17
Constitution Act, 1982, Part V, ss 38 – 49 ....................................................................................................... 17
Secession Reference ................................................................................................................................................. 17
Constitution Act, 1867 – s 22 ................................................................................................................................ 17
Upper House Reference, 1980 SCC .................................................................................................................... 17
2.5 Respect for Minority Rights .................................................................................................. 17
The Charter, s 1 – Guarantee of Rights Except as Justified ...................................................................... 17
The Charter, s 2 – Fundamental Freedoms .................................................................................................... 17
The Charter, s 15 – Equality before the law ................................................................................................... 17
R v Big M Drug Mart, [1985] 1 SCR 295 ........................................................................................................... 17
Syndicat Northcrest v Amselem, 2004 SCC 47.............................................................................................. 18
Charter of Human Rights and Freedoms (Quebec) ..................................................................................... 18
Figueroa v Canada (Attorney General), 2003 SCC 37 ................................................................................ 18
Edwards v AG Canada, 1930 ................................................................................................................................. 18
Reference Re: Secession of Quebec, 1997 ....................................................................................................... 18
3. Sources of Law .................................................................................................................... 19
Letters Patent, 1947 ................................................................................................................................................. 19
3.1 Constitution ................................................................................................................................ 19
3.1.1 Constitutional Convention............................................................................................................ 19
3.1.2 Constitution Act, 1867 ................................................................................................................... 19
3.1.3 Statue of Westminster, 1931 (?) ................................................................................................ 19
3.1.4 Constitution Act, 1982 ................................................................................................................... 19
3.1.5 Constitutional Amending Formula............................................................................................ 19
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Reference Re: Remuneration of Judges of the Provincial Court of PEI et al. ................................... 19
3.2 Crown Prerogative ................................................................................................................... 20
3.2.1 Prorogation......................................................................................................................................... 20
3.3 Parliamentary Privilege ......................................................................................................... 20
Constitution Act, 1867, Preamble and s 18 .................................................................................................... 20
Canada (House of Commons) v Vaid [2005] 1 SCR 667 ........................................................................... 20
Appendix: Statutes ................................................................................................................ 21
Federal Court Act ............................................................................................................................. 21
Appointment of judges ............................................................................................................................................ 21
Tenure of office ........................................................................................................................................................... 21
Cessation of office ...................................................................................................................................................... 21
Relief against the Crown ......................................................................................................................................... 21
Cases ................................................................................................................................................................................ 21
Crown and subject: consent to jurisdiction.................................................................................................... 21
Conflicting claims against Crown........................................................................................................................ 21
Judges Act ........................................................................................................................................... 22
Supreme Court of Canada....................................................................................................................................... 22
Commission .................................................................................................................................................................. 22
Factors to be considered ........................................................................................................................................ 22
Nomination ................................................................................................................................................................... 23
Ontario Courts of Justice Act ........................................................................................................ 28
Court of Appeal jurisdiction .................................................................................................................................. 28
Divisional Court jurisdiction ................................................................................................................................. 28
Proceedings in Family Court ................................................................................................................................. 29
Jurisdiction ................................................................................................................................................................... 30
Jurisdiction of Ontario Court of Justice ............................................................................................................ 30
Criminal matters ........................................................................................................................................................ 30
Appointment of provincial judges ...................................................................................................................... 30
Judicial Appointments Advisory Committee ................................................................................................. 32
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1. BRANCHES OF GOVERNMENT
1.1 Legislature
Constitution Act, 1867, s 17
17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House
styled the Senate, and the House of Commons.
Constitution Act, 1867 -- Part IV – Legislative Power
 Privileges – s 18
o And in preamble that imports UK traditions
 Senate – ss 21 – 36
 Parliament – ss 37 – 57
1.1.1 Parliament
Constitution Act, 1867, Part IV ss 37-57
 Elected members from geographical constituencies
o Size of constituencies set by the 10 year census (1867, s 51)
 Formula for number of seats provided by constitution (1867, s 51)
 295 members (1867, s37)
o Ontario – 99
o Quebec – 75
o Nova Scotia – 11
o New Brunswick – 10
o Manitoba – 14
o British Columbia – 32
o PEI – 4
o Alberta – 26
o Saskatchewan – 14
o Newfoundland – 7
o Yukon – 1
o NWT – 2
House of Commons, Précis of Procedure
 Prorogation
o ends a session
o all roles maintained
o all bills, committees, etc must be restarted
 Dissolution
o new election
o 5 year max (4 year statutory fixed election date)
o GG can dissolve outside these terms
 “no confidence” vote by constitutional convention
 Stages of a bill to law
o Bill introduced, and first reading
o Second Reading
o Committee
o Report
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o Third Reading
o Senate
o Royal Assent and Proclamation
Special Committee on the Reform of the House of Commons, Report
 Ministerial Responsibility (doctrine by convention)
o Responsibility to the Queen or GG (not elected, appointed!)
o Minister responsible to the House
o Ministry responsible to the house
Canada Elections Act, s 56.1
(1) Nothing in this section affects the powers of the Governor General, including the
power to dissolve parliament at the Governor General’s discretion.
(2) Subject to subsection (1), each general election must be held on the third Monday of
October in the fourth calendar year following polling day for the last general election,
with the first general election after this section comes into force being held on Monday,
October 19, 2009.
Canada (House of Commons) v Vaid [2005] 1 SCR 667
 Privilege does not extend outside the requirements to discharge the duties
of the house.
 To invoke, it must be shown that the sphere of activity is closely and
directly related to the fulfillment of legislative functions
Authorson v Canada (Attorney General) 2003 SCC
 Parliament is limited by the constitution; the courts can only intervene
where parliament violates the constitutional rules set out. There is no duty
for legislation to be fair.
1.1.2 Senate
Constitution Act, 1867, Part IV ss 21-36
 Appointed by the GG on the advice of the PM (Constitutional Convention)
 Four Divisions with 104 Senators (total)
o Ontario - 24
o Quebec - 24
o Maritime Provinces - 24
 Nova Scotia (10)
 New Brunswick (10)
 PEI (4)
o Western Provinces - 24
 Manitoba (6)
 British Columbia (6)
 Saskatchewan (6)
 Alberta (6)
o Newfoundland – 6
o Territorites – 1 ea
 Tenure – until the age of 75 (s 29)
o or resigns (s 30)
 Disqualification rules (s 31)
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Constitution Act, 1867, s 24 & 32
24. The Governor General shall from Time to Time, in the Queen’s Name, by
Instrument under the Great Seal of Canada, summon qualified Persons to the Senate;
and, subject to the Provisions of this Act, every Person so summoned shall become and
be a Member of the Senate and a Senator.
32. When a Vacancy happens in the Senate by Resignation, Death or otherwise, the
Governor General shall by Summons to a fit and qualified Person fill the Vacancy.
Bill C-7 – Senate Reform Act (not enacted)
 an act intended to create a procedure for electing senators
 limit the term of a Senator to 9 years
 calls on provinces to put in place elections to represent Senators
 may not have any constitutional power, but could serve as a constitutional
convention if followed by the PM and GG for future appointments
1.2 Executive
Constitution Act, 1867, Part III – Executive Power
s 9. The Executive Government and Authority of and over Canada is hereby declared to
continue and be vested in the Queen.
Roncarelli v Duplessis, 1959 SCC
 The court should only interfere when the exercise is clearly outside the
scope of statute.
 Broad and generous interpretation of statute; what is the legislative
intent?
 Executive discretion must not be arbitrary.
 The executive has only the powers granted to it by statute, save the
prerogative powers.
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 RCS
 Baker was a Jamaican citizen who was living and working illegally in
Canada. She had 4 children born in Canada who were Canadian Citizens.
She applied for an exemption to being deported on humanitarian and
compassionate consideration that there were 2 Canadian children for
whom she was the sole provider.
 A decision that effects the rights and expectations of individuals should be
procedurally fair, and exercised with reasonable discretion.
 Internationally law can help as an interpretive provision when guiding the
judicial review of administrative action, since it reflects the will of the
executive (sometimes legislature)
 The court should not lightly interfere with the exercise of executive power.
 Only interfere when the exercise is clearly ultra vires.
 Decision makers have a duty to act fairly towards persons affected by their
decisions. Not a fair outcome, but procedural fairness.
o A duty to provide reasons.
o Right to participate
o Right to an impartial decision maker
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Dunsmuir v New Brunswick, 2008 SCC
 Court clerk who served “at pleasure” and was dismissed.
 There should be a different review process than decision process, so that
it’s a question of whether the initial decision was erroneous, not to get a
new decision.
 2 standards for substantive review:
1. Correctness – stricter standard
2. Reasonableness – more deferential standard
Judicial Review of Administrative Decisions
 Governed by:
1. The statute that defines the administration
2. Statutory provisions (eg Federal Courts Act, or Administrative
Tribunals Act)
3. Common law requirements: fair administrative procedure and legal
validity of administrative decisions
 Controlling procedures & the duty to be fair
1. A person should not be their own judge.
2. A person should be able to know and answer the charge against him or
her.
1.2.1 Governor General

Appointed by the Queen on the recommendation of the PM
(Constitutional Convention)
Constitution Act, 1867, Part III – ss 10-14
 All executive powers rest in the Governor General and the Privy Council
Letters Patent, 1947
[The GG is] to exercise all powers and authorities lawfully belonging to Us in respect of
Canada.
1.2.2 Privy Council
The Privy Council includes the Cabinet, though the cabinet is not mentioned in
the constitution. The Privy Council and the Cabinet are not technically the same
thing; Privy Councilors are appointed for life, Cabinet Members are a much
shorter duration.
By Constitutional Convention, only Cabinet Members may exercise the powers of
the Privy Council.
1.2.3 Prime Minister
Black v Crétien, (2001), 199 DLR (4th) 228 (Ont CA)
 PM Chrétien gave advice to the Queen regarding the peerage of Conrad
Black, the advice fell under crown prerogative.
 The court has authority over crown prerogative where the prerogative
interferes with Charter rights or where it has a direct effect on the
legitimate rights or expectations of an individual.
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1.2.4 Municipalities
 Municipalities are creations of Provincial Statute
 Can be altered by the province without constraint
Shell Canada Products Ltd v Vancouver (City), [1994] 1 SCR 231
 City decided not to do business with Shell so long as Shell continued to do
business in Apartheid South Africa
 The legislative powers of municipalities should be broadly interpreted
because of the democratic legitimacy of the municipal government. (Given
in dissent, but broadly accepted)
 Majority said that municipalities must stay within the powers conferred on
them by statute, and that a municipality is authorized to act only for
municipal purposes.
1.2.5 Crown Prerogative
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Prerogative powers are the pre-existing powers of the king.
They can be legislated away by statute (Doctrine of Parliamentary
Supremacy)
Black v Crétien, (2001), 199 DLR (4th) 228 (Ont CA)
 PM Chrétien gave advice to the Queen regarding the peerage of Conrad
Black, the advice fell under crown prerogative.
 The court has authority over crown prerogative where the prerogative
interferes with Charter rights or where it has a direct effect on the
legitimate rights or expectations of an individual.
1.2.6 Statute
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Parliament can grant the powers it possesses to other bodies by the
Principle of Parliamentary Sovereignty
Limited in 2 ways
o Cannot exceed the charter
o Must maintain the power to over-rule the body the power is granted
to
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1.3 Judiciary
The Constitution Act, 1867 – Part VII
 Appointment of judges: s 96
 Selection of judges: s 97-98
 Tenure of judges: age of 75, s 99
 Salaries: s 100
 Court of Appeal: s 101
The Constitution Act, 1982, s 24(1)
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
O’Donohue v The Queen, 2003
 The court can apply the constitution to statutes that are not a part of the
constitution and to the actions of state actors
 All parts of the Constitution have equal status, they cannot over-rule one
another and must be interpreted in a way that is harmonious.
Brown v Alberta, 1999
 The court must have jurisdiction to rule
 The courts can rule only on legal issues
Samson v AG of Canada, 1998
 The court has no authority to impose a duty that is not granted by the
constitution.
 FPCs cannot over-ride express provisions of the constitution
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Sauve v Canada (Chief Electoral Officer), 2002 SCC 68 (quoted in Fitzgerald)
McLachlin CJ: The right to vote is fundamental to our democracy and the rule of law
and cannot be lightly set aside. Limits on it require not deference, but careful
examination. This is not a matter of substituting the Court’s philosophical preference
for that of the legislature, but of ensuring that the legislature’s proferred justification is
supported by logic and common sense.
Edwards v AG Canada, 1930
 Living tree interpretation of the Constitution
The BNA Act planted in Canada a living tree capable of growth and expansion within its
natural limits. The object of the Act was to grant a Constitution to Canada. “Like all
written constitutions it has been subject to development through usage and
convention”

NOTE: “Living Tree” only applies to the Constitution, not to statutes.
Living tree is required to prevent the constitution from being frozen in the
past.
Customs are apt to develop into traditions which are stronger than law and remain
unchallenged long after the reason for them has disappeared.

When considering the meaning of a word consider 2 points (NOTE: This
can also be applied to acts other than the constitution)
1) The external evidence derived from extraneous circumstances such
as pervious legislation and case law
2) The internal evidence derived from the Act itself
3) The purpose of the act itself
 Constitution is for a “responsible and developing state” – intentional use
of broad principles: the originalist theory is the living tree reading
Sister Act, 1992 IMDB
Supreme Court Act
Constitution of Court
4. (1) The Court shall consist of a chief justice to be called the Chief Justice of Canada,
and eight puisne judges.
Appointment of judges
4. (2) The judges shall be appointed by the Governor in Council by letters patent under
the Great Seal.
Tenure of office
9. (1) Subject to subsection (2), the judges hold office during good behaviour, but are
removable by the Governor General on address of the Senate and House of Commons.
Cessation of office
(2) A judge shall cease to hold office on attaining the age of seventy-five years.
Jurisdiction throughout Canada
35. The Court shall have and exercise an appellate, civil and criminal jurisdiction within
and throughout Canada.
Federal Court Act
See Appendix if you need the text
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s5.2 – Federal judges appointed by GG in council
s8 – hold office during good behaviour until 75
Jurisdiction, beginning on s 17
o Over anything to do with the crown, basically
Judges Act
See Appendix if you need the text
 s9 – sets the salaries for the Supreme Court Justices
 s 26 – criteria for compensation
 Members of the commissions
o 1 nominated by the judiciary
o 1 nominated by the minister
o chair nominated by 2 others
 s59-69 – Constitution and role of the judicial council
 s65 – sets out the standard of removal in 2 questions
o 1.) Is the judge incapacitated or disabled by reason of (a) age, (b)
misconduct, (c) having failed in execution of the office, or (d) placed
through misconduct in a position incompatible with the office
o 2.) Is the conduct so manifestly and profoundly destructive of the
concept of impartiality that public confidence would be sufficiently
undermined?
Ontario Courts of Justice Act
See Appendix if you need the text
 s6 – Court of appeal hears lower courts
 s19 – Division has jurisdiction over court orders, payments
 s21.8 – Family court has jurisdiction
 s23 – Small claims court
 s38 – Court of justice jurisdiction
 s42-43 – Recommendation Committee
Federal Appointments (non-SCC)
 Appointed by GG in council
 Judicial Advisory Committee creates a list of candidates
 Executive does not have to follow recommendation of advisory committee
2. FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION
Source Judicial Independence: Provincial Judge’s Reference (1997)
 FPCs can be used to fill in gaps in the constitution
Source of 4 Super-normatives: Secession Reference (1998)
 FPCs help with interpretation of the constitution
 Create new binding obligations that limit the power of the government
 Principles are not in isolation from one another, do not trump one another
2.1 Judicial Independence
3 Requirements: (Can claim the Provincial Judge’s references for these)
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1. security of tenure - orig in s 99 of 1867, expanded in PJR
2. financial security – orig in s 100 of 1867, expanded in PJR
3. administrative control w/respect to managing court business
Constitution Act, 1867
 s99 – judges sit until age 75 and are not removable during good behavior
 s100 – salaries, allowances, and penseions of superior court judges fixed
by parliament
Constitution Act, 1982 (Charter)
 s11(d) – requires judicial independence for criminal circumstances
Reference Re: Remuneration of Judges of the Provincial Court of PEI et al.
 Preamble imports judicial independence where there are gaps
 s11(d) requires all courts that hear criminal cases to be independent
 suggested creation of independent, objective, and effective Judicial
Compensation commission
 La Forest’s dissent
o Judges shouldn’t be ruling on matters that concern them
o The preamble can’t be used to import laws, particularly when there
were none there in 1867
o If you want to change the constitution, amend it, don’t read
something in
BC v Imperial Tobacco, 2005 SCC
 Court needs the freedom to render decisions based solely on the
requirements of the law and justice.
 The executive and legislative branches of government should nto impinge
on the essential authority and function of the court.
2.2 Constitutionalism and the Rule of Law
2.2.1 The Rule of Law Principle
The Rule of Law requires 3 principles: (BC v Imperial Tobacco)
1.) The law is supreme over officials of the government as well as private
individuals and thereby preclusive to the influence of arbitrary power.
2.) The creation and maintenance of an actual order of the positive laws that
preserve and embody the more general principle of normative order.
3.) The Law governs the relationship between the state and the individual.
Roncarelli v Duplessis, 1959 SCC
 The Rule of Law infuses legal discretion with a duty to act in good faith
within the purpose of the statute, and not to act arbitrarily.
 The rule of law is a “fundamental postulate of our constitutional structure”
 The relationship between the state and individuals must be regulated by
law.
 Statutes must be interpreted in light of their objectives, and the intent of
the legislation as a whole, so as not to permit arbitrary exercise of
executive power.
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Reference Re: Secession of Quebec, 1997
 All government action must comply with the law, including the
constitution.
BC v Imperial Tobacco, 2005 SCC
 A law made by the legislature cannot violate the rule of law
 The 3 principles of the rule of law
 The rule of law cannot be used to amend written constitutional principles.
o neither can any unwritten principle
BC v Christie, 2007 SCC
 The rule of law does not provide a right to legal services.
 The right to an attorney in all matters is not a principle of fundamental
justice. Historically it has only been applied to criminal cases.
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 RCS
 Judicial review ensures that government authority is exercised in a
manner consistent with its statutory grant.
2.2.2 The Principle of Constitutionalism
All government action must comply with the constitution. (Secession Reference)
3 Reasons a Constitution should be difficult to change (Secession Reference)
1.) Protect rights from majority neglect
2.) Protect minorities from majoritarian rule
3.) Federalism
The Constitution Act, 1982, s 52(1)
The Constitution of Canada is the supreme law of Canada and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
Reference Re: Secession of Quebec, 1997
 Reasons a constitution should be difficult to change
 The 4 fundamental principles with super normative importance
o Constitutionalism & the Rule of Law
o Democracy
o Federalism
o Respect for Minorities
 Constitutionalism creates the orderly framework for people to make
political decisions.
BC v Christie, 2007 SCC
 The constitutionality of a law comes directly from the constitution.
 The Charter grants only that the state provide an attorney under s 10(b).
Inclusio unius est exclusio alterius
s 10. Everyone has the right on arrest or detention (b) to retain and instruct counsel
without delay and to be informed of that right
R v Big M Drug Mart, 1985 SCC
 A law that violates the constitution (Charter) is unconstitutional and thus
invalid.
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R v Oakes. 1986 SCC
 A law can be challenged against the charter (onus on the plaintiff/accused)
 A law can be saved under s 1 if it passes the 2-part Oakes Test (onus on the
government)
1) Is the law of sufficiently pressing purpose?
2) Is the infringement on the right proportional?
I. Minimal impairment
II. Rational connection
III. Benefits outweigh the detriments
O’Donoghue v The Queen, 2003
 The Charter can not be applied to other parts of the Constitution
 The Charter can only be applied to the actions of state actors and to
statutes that are not part of the Constitution
 All parts of the Constitution have equal status and must be interpreted in a
way that is harmonious.
Edwards v AG Canada, 1930
 Living tree interpretation of the Constitution
The BNA Act planted in Canada a living tree capable of growth and expansion within its
natural limits. The object of the Act was to grant a Constitution to Canada. “Like all
written constitutions it has been subject to development through usage and
convention”

When considering the meaning of a word consider 2 points
4) The external evidence derived from extraneous circumstances such as
pervious legislation and case law
5) The internal evidence derived from the Act itself
Customs are apt to develop into traditions which are stronger than law and remain
unchallenged long after the reason for them has disappeared.
2.3 Democracy
The Charter, s 3
Every citizen of Canada has the right to vote in an election of members of the House of
Commons or of a legislative assembly and to be qualified for membership therein.
The Charter, s 4
4. (1) No House of Commons and no legislative assembly shall continue for longer than
five years from the date fixed for the return of writs at a general election of its
members.
(2) In time of real or apprehended war, invasion, or insurrection, a House of Commons
may be continued by Parliament and a legislative assembly may be continued by the
legislature beyond five years if such continuation is not opposed by the votes of more
than one-third of the members of the House of Commons or the legislative assembly,
as the case may be.
The Charter, s 5
There shall be a sitting of Parliament and of each legislature at least once every twelve
months.
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Reference re Provincial Electoral Boundaries (Sask), 1991
 s 3: Absolute parity of the vote is impossible, relative parity of voting is
sufficient.
 Balance between the rural and urban districts reflects the difficult of
representation and approximates the differences in population
 The right specified in s 3 is for effective representation, not equal voting
power; a deviation of +/-15% or so is permissible
Figueroa v Canada (Attorney General), 2003 SCC 37
 Effective representation includes the right of each citizen to play a
meaningful role in the electoral process.
 Meaningful participation contains an aspect of equity or fairness.
 An arbitrary 50-candidate limit unfairly punishes candidates that may
bring forward regional or marginal interests benefitting national parties,
harming effective representation.
 50-candidate limits encourage majority governments, which may not be a
better outcome; there is no evidence to the effect. Without evidence, this
may harm effective representation if that is what the people want.
Sauve v Canada (Chief Electoral Officer), 2002 SCC 68 (quoted in Fitzgerald)
McLachlin CJ: The right to vote is fundamental to our democracy and the rule of law
and cannot be lightly set aside. Limits on it require not deference, but careful
examination. This is not a matter of substituting the Court’s philosophical preference
for that of the legislature, but of ensuring that the legislature’s proferred justification is
supported by logic and common sense.
Fitzgerald v Alberta, 2002 ABQB
 Only those who have a stake in the outcome can vote: citizenship,
residency, and age.
A rational and informed electorate is essential to the integrity of the electoral process,
the maintenance of which is “always of pressing and substantial concern in any society
that purports to operate in accordance with the tenets of a free and democratic
society” (Harvey)

There is no test that can be applied for competency. There will be those
older and younger that are not competent to vote, but the line has to be
drawn somewhere and 18 is a reasonable place to draw it. There is a
rational connection, a minimal impairment, and a proportionate effect.
Authorson v Canada (Attorney General) 2003 SCC
 Parliament is limited by the constitution; the courts can only intervene
where parliament violates the constitutional rules set out. There is no duty
for legislation to be fair.
Reference Re: Secession of Quebec, 1997
 Democratic principle is rooted in the notion that our institutions should be
a product of the sovereign will of the people.
 The concept of federalism does not say that any one majority across and
between each government is more or less legitimate than the others.
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2.4 Federalism
Figueroa v Canada (Attorney General), 2003 SCC 37
 An arbitrary 50-candidate limit unfairly punishes candidates that may
bring forward regional or marginal interests benefitting national parties,
harming effective representation.
Constitution Act, 1982, Part V, ss 38 – 49
 The 5 amending formulae:
1) 7/50 – The General Formula (s 38)
2) Unanimity Formula (s 41)
3) Some-but-not-all Formula (s 43) – affected provinces
4) Parliament Alone (s 44) – only affect parliament
5) Province Alone (s 45) – only affect that province
Secession Reference
 Canada is the federal government and the provinces together
Constitution Act, 1867 – s 22
 Four divisions with 24 Senators each, Senators for Newfoundland (6) and
the territories (2 each)
Upper House Reference, 1980 SCC
 The Senate is an important part of the federal-provincial relationship
 The Senate was an important criteria in the formation of the federal unit,
and intended to defend regional interests from the popular majority
2.5 Respect for Minority Rights
The Charter, s 1 – Guarantee of Rights Except as Justified
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms
set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
The Charter, s 2 – Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
a.) freedom of conscience and religion;
b.) freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication;
c.) freedom of peaceful assembly; and
d.) freedom of association.
The Charter, s 15 – Equality before the law
15. (1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion, sex,
age, or mental or physical disability.
(2) Subsection (1) does not preclude any law, program, or activity that has as its object
the amelioration of conditions of disadvantaged individuals or groups including those
that are disadvantaged because of race, national or ethnic origin, colour, religion, sex,
age, or mental or physical disability.
R v Big M Drug Mart, [1985] 1 SCR 295
 The Lords Day Act was found to violate s 2(a) due to its origin and name.
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
Post-facto arguments about its current secular usage were irrelevant b/c
there was no option for those who found an alternative day holy.
Syndicat Northcrest v Amselem, 2004 SCC 47
 Civil case, but the Québec Charter of Human Rights and Freedoms
applied; Iaccabucci said that this applied to s 2(a) Canadian Charter
challenges as well.
 The 2 step test for freedom of Religion (onus on the plaintiff)
1) demonstrate that an individual has a sincere belief that he or she
has a practice or belief with a nexus in religion, and
2) demonstrate that the conduct of a third party interferes with the
ability to act on that practice or belief in a non-trivial way
Charter of Human Rights and Freedoms (Quebec)
3. Every person is the possessor of the fundamental freedoms, including freedom of
conscience, freedom of religion, freedom of opinion, freedom of expression, freedom
of peaceful assembly and freedom of association.
9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper
regard for democratic values, public order and the general well-being of the citizens of
Québec.
10. Every Person has a right to full and equal recognition and exercise of his human
rights and freedoms, without distinction, exclusion or preference based on race, colour,
sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion,
political convictions, language, ethnic or national orgin, social conditions, a handicap or
the use of any means to palliate a handicap.
 Applies to private matters as well as public matters within Québec.
Figueroa v Canada (Attorney General), 2003 SCC 37
 An arbitrary 50-candidate limit unfairly punishes candidates that may
bring forward regional or marginal interests benefitting national parties,
harming effective representation.
Edwards v AG Canada, 1930
 Living tree interpretation of the Constitution
The BNA Act planted in Canada a living tree capable of growth and expansion within its
natural limits. The object of the Act was to grant a Constitution to Canada. “Like all
written constitutions it has been subject to development through usage and
convention”

When considering the meaning of a word consider 2 points
6) The external evidence derived from extraneous circumstances such as
pervious legislation and case law
7) The internal evidence derived from the Act itself
Customs are apt to develop into traditions which are stronger than law and remain
unchallenged long after the reason for them has disappeared.
Reference Re: Secession of Quebec, 1997
 Protecting minority language rights was important to the founding fathers
 Denominational schools were protected in Quebec and Ontario
 Aboriginal rights are probably in a different category
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3. SOURCES OF LAW
Letters Patent, 1947
 Grant powers of the crown to Governor General
[The GG is] to exercise all powers and authorities lawfully belonging to Us in respect of
Canada.
3.1 Constitution
The constitution doesn’t say anything about laws being unfair; they just have to
be constitutional (Authorson v Canada)
The rule of law does imply that government actors must act fairly, though.
(Roncarelli)
3.1.1 Constitutional Convention
3.1.2 Constitution Act, 1867


Defines Parliament, the Senate, the Privy Council, the GG
Defines Roles
3.1.3 Statue of Westminster, 1931 (?)

The UK Parliament would no longer pass laws that affect the colonies,
except at Canada’s request to amend the constitution
3.1.4 Constitution Act, 1982



Patriation of the constitution
Contains the Charter
Contains the constitution amending formula
3.1.5 Constitutional Amending Formula


From Constitution Act, 1982, Part V, ss 38 – 49
There are 5 formulae:
6) 7/50 – The General Formula (s 38)
7) Unanimity Formula (s 41)
8) Some-but-not-all Formula (s 43) – affected provinces
9) Parliament Alone (s 44) – only affect parliament
10) Province Alone (s 45) – only affect that province
Reference Re: Remuneration of Judges of the Provincial Court of PEI et al.
 La Forest’s dissent
o The preamble can’t be used to import laws, particularly when there
were none there in 1867
o Judges should not read things into the constitution that aren’t
there.
o If you want to change the constitution, amend it, don’t read
something in
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3.2 Crown Prerogative

Residual powers of the crown that have not been legislated away
3.2.1 Prorogation


power of the GG on the advice of the PM (convention)
divides the sessions of parliament
o ends a session of parliament but does not dissolve
o abolishes legislation (all bills must be re-introduced)
 standing order 86.1 reintroduces PM’s bill’s automatically
o quashes committee activity
3.3 Parliamentary Privilege
Constitution Act, 1867, Preamble and s 18
 Part of the Westminster tradition
 Propositions accepted by the courts and parliamentary experts
 Privilege is attached to specific activities
 Includes immunities necessary to do legislative work
 Founded in historical necessity (prevent interference from the King)
 If a privilege is challenged, the court needs to apply the necessity test
o The test is what “the dignity and efficiency of the House” require
o Onus on the party that relies on the necessity
 Categories include: freedom of speech, control over debates or
proceedings, day-to-day procedure, power to exclude strangers,
disciplinary authority over members and non-members who interfere
with the discharge of duties, immunity of members from subpoenas
during a parliamentary session (Vaid)
 Courts role is to ensure legislature is not immunized from ordinary law
 The courts look more closely at people outside than those inside
Canada (House of Commons) v Vaid [2005] 1 SCR 667
 Privilege does not extend outside the requirements to discharge the duties
of the house.
 PP doesn’t protect activities just because they happen in Parliament.
 PP is the necessary immunity of MPs and MLAs
 Established categories (see Const above above)
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APPENDIX: STATUTES
Federal Court Act
Appointment of judges
5.2 The judges of the Federal Court of Appeal and the Federal Court are to be
appointed by the Governor in Council by letters patent under the Great Seal.
Tenure of office
8. (1) Subject to subsection (2), the judges of the Federal Court of Appeal and the
Federal Court hold office during good behaviour, but are removable by the Governor
General on address of the Senate and House of Commons.
Cessation of office
(2) A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on
becoming 75 years old.
Relief against the Crown
17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the
Federal Court has concurrent original jurisdiction in all cases in which relief is claimed
against the Crown.
Cases
(2) Without restricting the generality of subsection (1), the Federal Court has concurrent
original jurisdiction, except as otherwise provided, in all cases in which
(a) the land, goods or money of any person is in the possession of the Crown;
(b) the claim arises out of a contract entered into by or on behalf of the Crown;
(c) there is a claim against the Crown for injurious affection; or
(d) the claim is for damages under the Crown Liability and Proceedings Act.
Crown and subject: consent to jurisdiction
(3) The Federal Court has exclusive original jurisdiction to hear and determine the
following matters:
(a) the amount to be paid if the Crown and any person have agreed in writing that the
Crown or that person shall pay an amount to be determined by the Federal Court, the
Federal Court — Trial Division or the Exchequer Court of Canada; and
(b) any question of law, fact or mixed law and fact that the Crown and any person have
agreed in writing shall be determined by the Federal Court, the Federal Court — Trial
Division or the Exchequer Court of Canada.
Conflicting claims against Crown
(4) The Federal Court has concurrent original jurisdiction to hear and determine
proceedings to determine disputes in which the Crown is or may be under an obligation
and in respect of which there are or may be conflicting claims.
Relief in favour of Crown or against officer
(5) The Federal Court has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or the Attorney General of
Canada claims relief; and
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(b) in proceedings in which relief is sought against any person for anything done or
omitted to be done in the performance of the duties of that person as an officer,
servant or agent of the Crown.
Federal Court has no jurisdiction
(6) If an Act of Parliament confers jurisdiction in respect of a matter on a court
constituted or established by or under a law of a province, the Federal Court has no
jurisdiction to entertain any proceeding in respect of the same matter unless the Act
expressly confers that jurisdiction on that court.
Extraordinary remedies, federal tribunals
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ
of quo warranto, or grant declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of
relief contemplated by paragraph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a federal board, commission or
other tribunal.
Extraordinary remedies, members of Canadian Forces
(2) The Federal Court has exclusive original jurisdiction to hear and determine every
application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of
prohibition or writ of mandamus in relation to any member of the Canadian Forces
serving outside Canada.
Remedies to be obtained on application
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an
application for judicial review made under section 18.1.
Judges Act
Supreme Court of Canada
9. The yearly salaries of the judges of the Supreme Court of Canada are as follows:
(a) the Chief Justice of Canada, $370,300; and
(b) the eight puisne judges, $342,800 each.
Commission
26. (1) The Judicial Compensation and Benefits Commission is hereby established to
inquire into the adequacy of the salaries and other amounts payable under this Act and
into the adequacy of judges' benefits generally.
Factors to be considered
(1.1) In conducting its inquiry, the Commission shall consider
(a) the prevailing economic conditions in Canada, including the cost of living, and the
overall economic and current financial position of the federal government;
(b) the role of financial security of the judiciary in ensuring judicial independence;
(c) the need to attract outstanding candidates to the judiciary; and
(d) any other objective criteria that the Commission considers relevant.
Quadrennial inquiry
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(2) The Commission shall commence an inquiry on October 1, 2015, and on October 1 of
every fourth year after 2015, and shall submit a report containing its recommendations
to the Minister of Justice of Canada within nine months after the date of
commencement.
Postponement
(3) The Commission may, with the consent of the Minister of Justice and the judiciary,
postpone the date of commencement of a quadrennial inquiry.
Other reports
(4) In addition to its quadrennial inquiry, the Minister of Justice may at any time refer to
the Commission for its inquiry a matter mentioned in subsection (1). The Commission
shall submit to that Minister a report containing its recommendations within a period
fixed by the Minister after consultation with the Commission.
Extension of time
(5) The Governor in Council may, on the request of the Commission, extend the time for
submission of a report under subsection (2) or (4).
Report of Commission
(6) The Minister of Justice shall table a copy of the report in each House of Parliament
on any of the first ten days on which that House is sitting after the Minister receives the
report.
Referral to Committee
(6.1) A report that is tabled in each House of Parliament under subsection (6) shall, on
the day it is tabled or, if the House is not sitting on that day, on the day that House next
sits, be referred by that House to a committee of that House that is designated or
established by that House for the purpose of considering matters relating to justice.
Report by Committee
(6.2) A committee referred to in subsection (6.1) may conduct inquiries or public
hearings in respect of a report referred to it under that subsection, and if it does so, the
committee shall, not later than ninety sitting days after the report is referred to it,
report its findings to the House that designated or established the committee.
Definition of "sitting day"
(6.3) For the purpose of subsection (6.2), “sitting day” means a day on which the House
of Commons or the Senate, as the case may be, sits.
Response to report
(7) The Minister of Justice shall respond to a report of the Commission within four
months after receiving it. Following that response, if applicable, he or she shall, within a
reasonable period, cause to be prepared and introduced a bill to implement the
response
Nomination
26.1 (1) The Judicial Compensation and Benefits Commission consists of three
members appointed by the Governor in Council as follows:
(a) one person nominated by the judiciary;
(b) one person nominated by the Minister of Justice of Canada; and
(c) one person, who shall act as chairperson, nominated by the members who are
nominated under paragraphs (a) and (b).
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Tenure and removal
(2) Each member holds office during good behaviour, and may be removed for cause at
any time by the Governor in Council.
Term of office
(3) The term of office for the initial members appointed to the Commission ends on
August 31, 2003. The members subsequently appointed hold office for a term of four
years.
Continuance of duties
(4) Where the term of a member ends, other than in the case of removal for cause, the
member may carry out and complete any duties of the members in respect of a matter
that was referred to the Commission under subsection 26(4) while he or she was a
member.
Reappointment
(5) A member is eligible to be reappointed for one further term if re-nominated in
accordance with subsection (1).
Absence or incapacity
(6) In the event of the absence or incapacity of a member, the Governor in Council may
appoint as a substitute temporary member a person nominated in accordance with
subsection (1) to hold office during the absence or incapacity.
Vacancy
(7) If the office of a member becomes vacant during the term of the member, the
Governor in Council shall appoint a person nominated in accordance with subsection (1)
to hold office as a member for the remainder of the term.
Quorum
(8) A quorum of the Commission consists of all three members.
Remuneration
(9) The members of the Commission and persons carrying out duties under subsection
(4) shall be paid
(a) the fees fixed by the Governor in Council; and
(b) such travel and living expenses incurred in the course of their duties while away from
their ordinary place of residence as are fixed by the Governor in Council.
Compensation
(10) The members of the Commission and persons carrying out duties under subsection
(4) are deemed to be employed in the federal public administration for the purposes of
the Government Employees Compensation Act and any regulations made under section
9 of the Aeronautics Act.
Personnel
26.2 (1) The Commission may engage the services of any persons necessary for the
proper conduct of the Commission.
Presumption
(2) No person engaged under subsection (1) shall, as a result, be considered to be
employed in the federal public administration.
Costs payable
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26.3 (1) The Commission may identify those representatives of the judiciary
participating in an inquiry of the Commission to whom costs shall be paid in accordance
with this section.
Entitlement to payment of costs
(2) A representative of the judiciary identified under subsection (1) who participates in
an inquiry of the Commission is entitled to be paid, out of the Consolidated Revenue
Fund, two thirds of the costs determined under subsection (3) in respect of his or her
participation.
Determination of costs
(3) A prothonotary of the Federal Court shall determine the amount of costs, on a
solicitor-and-client basis, as if the assessment of costs were an assessment of costs
under subsection 413(1) of the Federal Court Rules, 1998, with any modifications that
the circumstances require.
Application
(4) This section applies to costs incurred in relation to participation in any inquiry of the
Commission conducted after September 1, 1999.
Council established
59. (1) There is hereby established a Council, to be known as the Canadian Judicial
Council, consisting of
(a) the Chief Justice of Canada, who shall be the chairman of the Council;
(b) the chief justice and any senior associate chief justice and associate chief justice of
each superior court or branch or division thereof;
(c) the senior judges, as defined in subsection 22(3), of the Supreme Court of Yukon, the
Supreme Court of the Northwest Territories and the Nunavut Court of Justice; and
(d) the Chief Justice of the Court Martial Appeal Court of Canada.
(e) [Repealed, 2002, c. 8, s. 104]
(2) and (3) [Repealed, 1999, c. 3, s. 77]
Substitute member
(4) Each member of the Council may appoint a judge of that member's court to be a
substitute member of the Council and the substitute member shall act as a member of
the Council during any period in which he or she is appointed to act, but the Chief
Justice of Canada may, in lieu of appointing a member of the Supreme Court of Canada,
appoint any former member of that Court to be a substitute member of the Council.
Objects of Council
60. (1) The objects of the Council are to promote efficiency and uniformity, and to
improve the quality of judicial service, in superior courts.
Marginal note:Powers of Council
(2) In furtherance of its objects, the Council may
(a) establish conferences of chief justices and associate chief justices;
(b) establish seminars for the continuing education of judges;
(c) make the inquiries and the investigation of complaints or allegations described in
section 63; and
(d) make the inquiries described in section 69.
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Meetings of Council
61. (1) The Council shall meet at least once a year.
Work of Council
(2) Subject to this Act, the work of the Council shall be carried on in such manner as the
Council may direct.
By-laws
(3) The Council may make by-laws
(a) respecting the calling of meetings of the Council;
(b) respecting the conduct of business at meetings of the Council, including the fixing of
quorums for such meetings, the establishment of committees of the Council and the
delegation of duties to any such committees; and
(c) respecting the conduct of inquiries and investigations described in section 63.
Employment of counsel and assistants
62. The Council may engage the services of such persons as it deems necessary for
carrying out its objects and duties, and also the services of counsel to aid and assist the
Council in the conduct of any inquiry or investigation described in section 63.
Inquiries concerning Judges
Inquiries
63. (1) The Council shall, at the request of the Minister or the attorney general of a
province, commence an inquiry as to whether a judge of a superior court should be
removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d).
Investigations
(2) The Council may investigate any complaint or allegation made in respect of a judge
of a superior court.
Inquiry Committee
(3) The Council may, for the purpose of conducting an inquiry or investigation under this
section, designate one or more of its members who, together with such members, if
any, of the bar of a province, having at least ten years standing, as may be designated
by the Minister, shall constitute an Inquiry Committee.
Powers of Council or Inquiry Committee
(4) The Council or an Inquiry Committee in making an inquiry or investigation under this
section shall be deemed to be a superior court and shall have
(a) power to summon before it any person or witness and to require him or her to give
evidence on oath, orally or in writing or on solemn affirmation if the person or witness is
entitled to affirm in civil matters, and to produce such documents and evidence as it
deems requisite to the full investigation of the matter into which it is inquiring; and
(b) the same power to enforce the attendance of any person or witness and to compel
the person or witness to give evidence as is vested in any superior court of the province
in which the inquiry or investigation is being conducted.
Prohibition of information relating to inquiry, etc.
(5) The Council may prohibit the publication of any information or documents placed
before it in connection with, or arising out of, an inquiry or investigation under this
section when it is of the opinion that the publication is not in the public interest.
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Inquiries may be public or private
(6) An inquiry or investigation under this section may be held in public or in private,
unless the Minister requires that it be held in public.
Notice of hearing
64. A judge in respect of whom an inquiry or investigation under section 63 is to be
made shall be given reasonable notice of the subject-matter of the inquiry or
investigation and of the time and place of any hearing thereof and shall be afforded an
opportunity, in person or by counsel, of being heard at the hearing, of cross-examining
witnesses and of adducing evidence on his or her own behalf.
Report and Recommendations
Report of Council
65. (1) After an inquiry or investigation under section 63 has been completed, the
Council shall report its conclusions and submit the record of the inquiry or investigation
to the Minister.
Recommendation to Minister
(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or
investigation has been made has become incapacitated or disabled from the due
execution of the office of judge by reason of
(a) age or infirmity,
(b) having been guilty of misconduct,
(c) having failed in the due execution of that office, or
(d) having been placed, by his or her conduct or otherwise, in a position incompatible
with the due execution of that office,
the Council, in its report to the Minister under subsection (1), may recommend that the
judge be removed from office.
Effect of Inquiry
66. (1) [Repealed, R.S., 1985, c. 27 (2nd Supp.), s. 6]
Leave of absence with salary
(2) The Governor in Council may grant leave of absence to any judge found, pursuant to
subsection 65(2), to be incapacitated or disabled, for such period as the Governor in
Council, in view of all the circumstances of the case, may consider just or appropriate,
and if leave of absence is granted the salary of the judge shall continue to be paid
during the period of leave of absence so granted.
Annuity to judge who resigns
(3) The Governor in Council may grant to any judge found to be incapacitated or
disabled, if the judge resigns, the annuity that the Governor in Council might have
granted the judge if the judge had resigned at the time when the finding was made by
the Governor in Council.
Further inquiries
69. (1) The Council shall, at the request of the Minister, commence an inquiry to
establish whether a person appointed pursuant to an enactment of Parliament to hold
office during good behaviour other than
(a) a judge of a superior court, or
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(b) a person to whom section 48 of the Parliament of Canada Act applies,
should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to
(d).
Applicable provisions
(2) Subsections 63(3) to (6), sections 64 and 65 and subsection 66(2) apply, with such
modifications as the circumstances require, to inquiries under this section.
Removal from office
(3) The Governor in Council may, on the recommendation of the Minister, after receipt
of a report described in subsection 65(1) in relation to an inquiry under this section in
connection with a person who may be removed from office by the Governor in Council
other than on an address of the Senate or House of Commons or on a joint address of
the Senate and House of Commons, by order, remove the person from office.
Ontario Courts of Justice Act
Court of Appeal jurisdiction
6.(1)An appeal lies to the Court of Appeal from,
(a) an order of the Divisional Court, on a question that is not a question of fact alone,
with leave of the Court of Appeal as provided in the rules of court;
(b) a final order of a judge of the Superior Court of Justice, except an order referred to in
clause 19 (1) (a) or an order from which an appeal lies to the Divisional Court under
another Act;
(c) a certificate of assessment of costs issued in a proceeding in the Court of Appeal, on
an issue in respect of which an objection was served under the rules of court. R.S.O.
1990, c. C.43, s. 6 (1); 1994, c. 12, s. 1; 1996, c. 25, s. 9 (17).
Divisional Court jurisdiction
19. (1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice, as described in subsections
(1.1) and (1.2);
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as
provided in the rules of court;
(c) a final order of a master or case management master. 2006, c. 21, Sched. A, s. 3.
Same
(1.1) If the notice of appeal is filed before October 1, 2007, clause (1) (a) applies in
respect of a final order,
(a) for a single payment of not more than $25,000, exclusive of costs;
(b) for periodic payments that amount to not more than $25,000, exclusive of costs, in
the 12 months commencing on the date the first payment is due under the order;
(c) dismissing a claim for an amount that is not more than the amount set out in clause
(a) or (b); or
(d) dismissing a claim for an amount that is more than the amount set out in clause (a)
or (b) and in respect of which the judge or jury indicates that if the claim had been
allowed the amount awarded would have been not more than the amount set out in
clause (a) or (b). 2006, c. 21, Sched. A, s. 3; 2009, c. 33, Sched. 2, s. 20 (2).
Same
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(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1) (a) applies in
respect of a final order,
(a) for a single payment of not more than $50,000, exclusive of costs;
(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in
the 12 months commencing on the date the first payment is due under the order;
(c) dismissing a claim for an amount that is not more than the amount set out in clause
(a) or (b); or
(d) dismissing a claim for an amount that is more than the amount set out in clause (a)
or (b) and in respect of which the judge or jury indicates that if the claim had been
allowed the amount awarded would have been not more than the amount set out in
clause (a) or (b). 2006, c. 21, Sched. A, s. 3; 2009, c. 33, Sched. 2, s. 20 (3).
Combining of appeals from Superior Court of Justice
(2) The Divisional Court has jurisdiction to hear and determine an appeal that lies to the
Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the
Divisional Court. R.S.O. 1990, c. C.43, s. 19 (2); 1996, c. 25, s. 9 (17).
Idem
(3) The Divisional Court may, on motion, transfer an appeal that has already been
commenced in the Superior Court of Justice to the Divisional Court for the purpose of
subsection (2). R.S.O. 1990, c. C.43, s. 19 (3); 1996, c. 25, s. 9 (17).
Appeal from interlocutory orders
(4) No appeal lies from an interlocutory order of a judge of the Superior Court of Justice
made on an appeal from an interlocutory order of the Ontario Court of Justice. R.S.O.
1990, c. C.43, s. 19 (4); 1996, c. 25, s. 9 (17, 18).
Proceedings in Family Court
21.8 (1) In the parts of Ontario where the Family Court has jurisdiction, proceedings
referred to in the Schedule to this section, except appeals and prosecutions, shall be
commenced, heard and determined in the Family Court. 1994, c. 12, s. 8.
Motions for interlocutory relief
(2) A motion for interim or other interlocutory relief in a proceeding referred to in the
Schedule that is required or permitted by the rules or an order of a court to be heard
and determined in a part of Ontario where the Family Court has jurisdiction shall be
heard and determined in the Family Court. 1994, c. 12, s. 8.
Same
(3) A motion for interim or other interlocutory relief in a proceeding referred to in the
Schedule that is required or permitted by the rules or an order of the Family Court to be
heard and determined in a part of Ontario where the Family Court does not have
jurisdiction shall be heard and determined in the court that would have had jurisdiction
if the proceeding had been commenced in that part of Ontario. 1994, c. 12, s. 8.
SCHEDULE
1. Proceedings under the following statutory provisions:
Change of Name Act
Child and Family Services Act, Parts III, VI and VII
Children’s Law Reform Act, except sections 59 and 60
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Divorce Act (Canada)
Family Law Act, except Part V
Family Responsibility and Support Arrears Enforcement Act, 1996
Interjurisdictional Support Orders Act, 2002
Marriage Act, section 6.
2. Proceedings for the interpretation, enforcement or variation of a marriage contract,
cohabitation agreement, separation agreement, paternity agreement, family
arbitration agreement or family arbitration award.
3. Proceedings for relief by way of constructive or resulting trust or a monetary award
as compensation for unjust enrichment between persons who have cohabited.
4. Proceedings for annulment of a marriage or for a declaration of validity or invalidity
of a marriage.
5. Appeals of family arbitration awards under the Arbitration Act, 1991.
1994, c. 12, s. 8; 1996, c. 31, s. 65; 1999, c. 6, s. 18 (1); 2002, c. 13, s. 56; 2002, c. 14,
Sched., s. 9; 2005, c. 5, s. 17 (1); 2006, c. 1, s. 4.
Jurisdiction
23.(1)The Small Claims Court,
(a) has jurisdiction in any action for the payment of money where the amount claimed
does not exceed the prescribed amount exclusive of interest and costs; and
(b) has jurisdiction in any action for the recovery of possession of personal property
where the value of the property does not exceed the prescribed amount. R.S.O. 1990,
c. C.43, s. 23 (1).
Jurisdiction of Ontario Court of Justice
Criminal matters
38. (1) A provincial judge has the power and authority of two or more justices of the
peace when sitting in the Ontario Court of Justice and shall exercise the powers and
perform the duties that any Act of the Parliament of Canada confers on a provincial
court judge when sitting in the Ontario Court of Justice. R.S.O. 1990, c. C.43, s. 38 (1);
1996, c. 25, s. 9 (18).
Appointment of provincial judges
42. (1) The Lieutenant Governor in Council, on the recommendation of the Attorney
General, may appoint such provincial judges as are considered necessary. 1994, c. 12,
s. 16.
Qualification
(2) No person shall be appointed as a provincial judge unless he or she,
(a) has been a member of the bar of one of the provinces or territories of Canada for at
least 10 years; or
(b) has, for an aggregate of at least 10 years,
(i) been a member of a bar mentioned in clause (a), and
(ii) after becoming a member of such a bar, exercised powers and performed duties of a
judicial nature on a full-time basis in respect to a position held under a law of Canada or
of one of its provinces or territories. 2006, c. 21, Sched. A, s. 5 (1).
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Chief Justice
(3) The Lieutenant Governor in Council may, on the recommendation of the Attorney
General, appoint a provincial judge as Chief Justice of the Ontario Court of Justice.
1994, c. 12, s. 16; 1996, c. 25, s. 9 (18, 20); 2006, c. 21, Sched. A, s. 5 (2).
Associate chief justices
(4) The Lieutenant Governor in Council may, on the recommendation of the Attorney
General, appoint two provincial judges as associate chief justices of the Ontario Court
of Justice. 2006, c. 21, Sched. A, s. 5 (3).
Same
(5) One of the associate chief justices shall be appointed to the office of Associate Chief
Justice-Co-ordinator of Justices of the Peace, which is created for the purposes of the
Justices of the Peace Act. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).
Regional senior judges
(6) The Lieutenant Governor in Council may, on the recommendation of the Attorney
General, appoint a provincial judge to be the regional senior judge of the Ontario Court
of Justice for each region. 2006, c. 21, Sched. A, s. 5 (4).
Same
(6.1) Before making a recommendation referred to in subsection (4) or (6), the
Attorney General shall consult with the Chief Justice of the Ontario Court of Justice.
2006, c. 21, Sched. A, s. 5 (4).
Terms of office
(7) The associate chief justices each hold office for six years, and regional senior judges
each hold office for three years. 1994, c. 12, s. 16; 1996, c. 25, ss. 1 (5), 9 (20).
Same
(7.1) The Chief Justice holds office for eight years from the time of his or her
appointment. If a successor has not yet been appointed on the day the term expires,
the Chief Justice continues in office until a successor is appointed, but shall not hold
office for more than nine years in any event. 1996, c. 25, ss. 1 (6), 9 (20).
Reappointment
(8) The Chief Justice and associate chief justices shall not be reappointed. 1994, c. 12,
s. 16; 1996, c. 25, s. 9 (20).
Same
(9) A regional senior judge may be reappointed once, for a further three years, on the
Chief Justice’s recommendation; if the Chief Justice so recommends, the Lieutenant
Governor in Council shall reappoint the regional senior judge. 1994, c. 12, s. 16; 1996,
c. 25, s. 9 (20).
Salary at end of term
(10) A Chief Justice, associate chief justice or regional senior judge whose term expires
continues to be a provincial judge and is entitled to receive the greater of the current
annual salary of a provincial judge and the annual salary he or she received immediately
before the expiry. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).
Transition
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(11) The following applies to the Chief Judge and regional senior judges who are in
office on the day section 16 of the Courts of Justice Statute Law Amendment Act, 1994
comes into force:
1. The Chief Judge holds office for eight years from the time of his or her appointment.
If a successor has not yet been appointed on the day the term expires, the Chief Judge
continues in office until a successor is appointed, but shall not hold office for more than
nine years in any event.
2. A regional senior judge holds office for five years from the time of his or her
appointment, and may be reappointed once, for a further three years, on the Chief
Judge’s recommendation. If the Chief Judge so recommends, the Lieutenant Governor
in Council shall reappoint the regional senior judge. 1994, c. 12, s. 16; 1996, c. 25, s. 1 (7).
Judicial Appointments Advisory Committee
43.(1)A committee known as the Judicial Appointments Advisory Committee in English
and as Comité consultatif sur les nominations à la magistrature in French is established.
1994, c. 12, s. 16.
Composition
(2)The Committee is composed of,
(a) two provincial judges, appointed by the Chief Justice of the Ontario Court of Justice;
(b) three lawyers, one appointed by The Law Society of Upper Canada, one by the
Canadian Bar Association-Ontario and one by the County and District Law Presidents’
Association;
(c) seven persons who are neither judges nor lawyers, appointed by the Attorney
General;
(d) a member of the Judicial Council, appointed by it. 1994, c. 12, s. 16; 1996, c. 25,
s. 9 (18, 20).
Criteria
(3)In the appointment of members under clauses (2) (b) and (c), the importance of
reflecting, in the composition of the Committee as a whole, Ontario’s linguistic duality
and the diversity of its population and ensuring overall gender balance shall be
recognized.
Term of office
(4)The members hold office for three-year terms and may be reappointed.
Staggered terms
(5)Despite subsection (4), the following applies to the first appointments made under
subsection (2):
1. One of the provincial judges holds office for a two-year term.
2. The lawyer appointed by the Canadian Bar Association-Ontario holds office for a
two-year term and the lawyer appointed by the County and District Law Presidents’
Association holds office for a one-year term.
3. Two of the persons who are neither judges nor lawyers hold office for two-year terms
and two hold office for one-year terms.
Chair
(6)The Attorney General shall designate one of the members to chair the Committee
for a three-year term.
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Term of office
(7)The same person may serve as chair for two or more terms.
Function
(8)The function of the Committee is to make recommendations to the Attorney
General for the appointment of provincial judges.
Manner of operating
(9)The Committee shall perform its function in the following manner:
1. When a judicial vacancy occurs and the Attorney General asks the Committee to
make a recommendation, it shall advertise the vacancy and review all applications.
2. For every judicial vacancy with respect to which a recommendation is requested, the
Committee shall give the Attorney General a ranked list of at least two candidates
whom it recommends, with brief supporting reasons.
3. The Committee shall conduct the advertising and review process in accordance with
criteria established by the Committee, including assessment of the professional
excellence, community awareness and personal characteristics of candidates and
recognition of the desirability of reflecting the diversity of Ontario society in judicial
appointments.
4. The Committee may make recommendations from among candidates interviewed
within the preceding year, if there is not enough time for a fresh advertising and review
process.
Qualification
(10)A candidate shall not be considered by the Committee unless he or she has been a
member of the bar of one of the provinces or territories of Canada for at least ten years
or, for an aggregate of at least ten years, has been a member of such a bar or served as
a judge anywhere in Canada after being a member of such a bar.
Recommendation by Attorney General
(11)The Attorney General shall recommend to the Lieutenant Governor in Council for
appointment to fill a judicial vacancy only a candidate who has been recommended for
that vacancy by the Committee under this section.
Rejection of list
(12)The Attorney General may reject the Committee’s recommendations and require it
to provide a fresh list.
Annual report
(13)The Committee shall submit to the Attorney General an annual report of its
activities.
Tabling
(14)The Attorney General shall submit the annual report to the Lieutenant Governor in
Council and shall then table the report in the Assembly. 1994, c. 12, s. 16.
Retirement
47.(1)Every provincial judge shall retire upon attaining the age of sixty-five years.
Same
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Page 34
(2)Despite subsection (1), a judge appointed as a full-time magistrate, judge of a
juvenile and family court or master before December 2, 1968 shall retire upon attaining
the age of seventy years. 1994, c. 12, s. 16.
Continuation of judges in office
(3)A judge who has attained retirement age may, subject to the annual approval of the
Chief Justice of the Ontario Court of Justice, continue in office as a full-time or parttime judge until he or she attains the age of seventy-five years. 1994, c. 12, s. 16; 1996,
c. 25, s. 9 (18, 20).
Same, regional senior judges
(4)A regional senior judge of the Ontario Court of Justice who is in office at the time of
attaining retirement age may, subject to the annual approval of the Chief Justice,
continue in that office until his or her term (including any renewal under subsection
42 (9)) expires, or until he or she attains the age of seventy-five years, whichever comes
first. 1994, c. 12, s. 16; 1996, c. 25, s. 9 (18, 20).
Same, Chief Justice and associate chief justices
(5)A Chief Justice or associate chief justice of the Ontario Court of Justice who is in
office at the time of attaining retirement age may, subject to the annual approval of the
Judicial Council, continue in that office until his or her term expires, or until he or she
attains the age of seventy-five years, whichever comes first. 1994, c. 12, s. 16; 1996,
c. 25, s. 9 (18, 20).
Same
(6)If the Judicial Council does not approve a Chief Justice’s or associate chief justice’s
continuation in that office under subsection (5), his or her continuation in the office of
provincial judge is subject to the approval of the Judicial Council and not as set out in
subsection (3). 1994, c. 12, s. 16; 1996, c. 25, s. 9 (20).
Criteria
(7)Decisions under subsections (3), (4), (5) and (6) shall be made in accordance with
criteria developed by the Chief Justice and approved by the Judicial Council. 1994, c. 12,
s. 16; 1996, c. 25, s. 9 (20).
Transition
(8)If the date of retirement under subsections (1) to (5) falls earlier in the calendar year
than the day section 16 of the Courts of Justice Statute Law Amendment Act, 1994
comes into force and the annual approval is outstanding on that day, the judge’s
continuation in office shall be dealt with in accordance with section 44 of this Act as it
read immediately before that day. 1994, c. 12, s. 16.
Removal for cause
51.8(1)A provincial judge may be removed from office only if,
(a) a complaint about the judge has been made to the Judicial Council; and
(b) the Judicial Council, after a hearing under section 51.6, recommends to the Attorney
General that the judge be removed on the ground that he or she has become
incapacitated or disabled from the due execution of his or her office by reason of,
(i) inability, because of a disability, to perform the essential duties of his or her office (if
an order to accommodate the judge’s needs would not remedy the inability, or could
not be made because it would impose undue hardship on the person responsible for
meeting those needs, or was made but did not remedy the inability),
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(ii) conduct that is incompatible with the due execution of his or her office, or
(iii) failure to perform the duties of his or her office.
Tabling of recommendation
(2)The Attorney General shall table the recommendation in the Assembly if it is in
session or, if not, within fifteen days after the commencement of the next session.
Order for removal
(3)An order removing a provincial judge from office under this section may be made by
the Lieutenant Governor on the address of the Assembly.
Application
(4)This section applies to provincial judges who have not yet attained retirement age
and to provincial judges whose continuation in office after attaining retirement age has
been approved under subsection 47 (3), (4) or (5).
Transition
(5)A complaint against a provincial judge that is made to the Judicial Council before the
day section 16 of the Courts of Justice Statute Law Amendment Act, 1994 comes into
force, and considered at a meeting of the Judicial Council before that day, shall be dealt
with by the Judicial Council as it was constituted immediately before that day and in
accordance with section 49 of this Act as it read immediately before that day. 1994,
c. 12, s. 16.
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