ROLE OF THE CONSTITUTION
-
-
In a federal parliamentary democracy, a constitution establishes:
o Who has authority to make the law
o How that authority is divided among the levels of government
o An amendment process
Note: Each legislature is supreme within its jurisdiction unless the constitution imposes limits (as
does the Charter)
Adaptability: The courts interpret the division of powers and the limits on the powers (treating it
as a “living tree”)
The constitution establishes the relationships between institutions of the state
o Explicitly, in writing, or
o Implicitly, by convention
RULE OF LAW
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-
A fundamental underlying principle, even the most powerful state institutions and officials must
comply with the law
1) Re ordinary legislation: Constitution Act, 1982, s. 52(1):
o “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.”
2) Re the actions of governments and officials: the rule of law requires that they comply with
the law, including the Constitution.
The principle is explicitly acknowledged in the preamble to the Charter:
o “Whereas Canada is founded upon principles that recognize …the rule of law: …”
The rule includes …
o The actions of officials must be authorized by law.
o The law is supreme over officials as well as private individuals, and thereby precludes
arbitrary use of executive power
o Both officials and private individuals are tried in the ordinary courts
Roncarelli v. Duplessis (SCC 1959) (88)- RULE OF LAW
Director relied on his statutory discretion to award or revoke liquor licences
SCC: a statutory discretion must be exercised in good faith for a proper and authorized purpose, and on
the basis of relevant considerations. Officials must conduct a licensing system with impartiality and
integrity.They cannot use it to punish an individual for acts that are irrelevant to the regulated activity
CONSTITUTION
•
•
Constitution Act, 1982, s. 52(2):
•
Also, unwritten principles …
“The Constitution of Canada includes
o (a) the Canada Act 1982, including this Act;
o (b) the Acts and orders referred to in the schedule; and
o (c) any amendment to any Act or order referred to in paragraph (a) or (b).”
Reference re Secession of Quebec (SCC 1998)(91)- UNWRITTEN CONSTITUTIONAL PRINCIPLES
What comprises the constitution?
See s. 52(2)- GB- pg 76
Also: unwritten constitutional principles & rules, Including (relevant to the issues in this case):
Federalism
Democracy
Constitutionalism and the rule of law
Respect for minorities
The preamble specifies a constitution similar in principle to that of the UK. Specific written provisions of
the constitution are supreme over unwritten principles- But…the principles can generally be used to fill
gaps in the text. Some conventions will also give rise to substantive legal obligations (eg see Patriation
Reference). They may have powerful normative force, binding on courts and governments (This lays the
foundation for expansion of court’s role)
BC v. Imperial Tobacco Canada Ltd. (SCC 2005)(94)- LIMITS ON THE RULE OF LAW
BC legislation authorizing government to sue tobacco manufacturers re health care costs. Validity
challenged: on the basis of the rule of law on the grounds: the statute is retrospective, aimed at
specific defendants, embodies presumptions in favour of the government, interferes with fair trial
**Note the tendency to try to expand the scope of the rule of law
HELD: SCC rejects attempt to expand “rule of law”. The rule is not a means to avoid legislation one
doesn’t like. An expanded rule of law would duplicate & expand Charter rights and other constitutional
principles, thereby trivializing them. There are precedents which stand in the way of this proposed
expansion of the rule of law
CONSTITUTIONAL CONVENTIONS
o
o
Conventions are recognized as binding by the political actors
Conventions are not legally binding and cannot be enforced by the courts, but may be
recognized by the court (provided that they serve a proper purpose)
Example: Governor General works on the advice of the gov’t, due to the practice of
responsible government, this is a convention- not a written rule- it is just an established rule
(unwritten), a political convention
o
o
o
Thus in effect this convention revises the Constitution keeping it up to date
There is a requirement of provincial acceptance for conventions
Court has decided that Quebec did not have a veto in regard to such conventions
Patriation Reference (SCC 1981) (102)- CONVENTIONS- IS PROVINCIAL SUPPORT NEEDED FOR
PATRIATION?
Could federal government (supported only by Ontario and NB) request UK Parl’t to amend and patriate
the constitution? Is there a convention that would require support of the provinces?
HELD: SCC: there is a convention requiring provincial support (but does not quantify how much support)
The constitution includes:
• UK and Canadian statutes
• The common law of crown prerogative
• Conventions: initially developed in 19th c. England, exported to and developed in colonies as
they acquired self-government- Growth of conventions re federalism in Canada
Purpose of conventions: ensure that constitution operates in accordance with prevailing constitutional
values. Some conventions have been reduced to writing. Conventions are not judge-made rules and are
not enforced by courts. They often narrow the legal requirements by specifying how they will work.
Requirements for establishing a convention
How have the political actors acted in the past?
Did the actors consider they were bound by a rule?
Is there a reason for the rule?
In the past, amendments did not proceed without the agreement of a province whose legislative powers
would be affected, but consensus had never been reached on an amending formula. It makes sense to
require provincial consent to an amendment that affects provincial jurisdiction. In a federal state,
neither level of government is subordinate to the other. SCC requires the agreement of the provinces,
but does not quantify it.
CONSTITUTIONAL AMMENDMENT
o
o
o
o
o
o
A constitution must adapt to changing conditions- Found in Part V of the Constitution- GB pg 72
Provisions for amendment
o Constitutional interpretation
o The “originalist” approach
o The progressive” or “living tree” approach
Interpret the constitution in a manner that makes sense of the words used at the time it is being
interpreted-But only if the words are susceptible to that interpretation
o Edwards v. AG Canada (1930): are women “persons” who can be appointed to the
Senate?
o Reference re Same-Sex Marriage (SCC 2004)
Until 1982, the constitution was a UK statute and was amended by the UK Parliament, on
request from Canada
Various attempts to agree on an amending formula came to nothing; Quebec wanted a veto
Finally: federal initiative to “patriate” the constitution, adopt a Charter of Rights etc.
o
o
o
Did the proposed amendments affect the scope of provincial jurisdiction?
Did the request to the UK Parliament to enact the amendments require provincial
consent? Of all provinces?
The federal government referred the matter to the SCC
Patriation Reference- REQUIREMENTS FOR AMMENDMENTS
Federal government cannot proceed unilaterally; substantial agreement of provinces required
Federal-provincial conference: all provinces agreed to support the request to the UK … except Quebec
Quebec Veto Reference (SCC 1982)(127): SCC ruled that Quebec’s agreement was not needed to meet
the “substantial agreement” standard
UK Parliament enacted the Canada Act 1982. Effect: the Constitution Act 1982 came into force across
the country.
FIVE FORMULAS FOR AMENDMENT
1. General formula (s.38)
o Agreement of Parliament and the legislatures of at least 2/3 of provinces with 50% of
population
o Subs. 2-4: If the amendment derogates from the powers or rights of a province, it will
not apply in a province that does not support it, provided the legislature passes a
resolution of dissent (which is revocable)
o S. 40: Canada shall compensate provinces who do not assent to a transfer of provincial
powers re education & culture:
o S. 39: The proclamation shall not be issued until
o one year has passed, or
o all provinces have assented or dissented
o Application of s. 38- What this formula is used for:
o All matters not specifically addressed in other sections
o In addition (s.42):
 Proportionate representation of the provinces in the House of
Commons
 Senate: powers, selection process, number from each province,
residence qualifications
 Supreme Court of Canada (other than composition)
 Extension of provinces into territories
 Establishment of new provinces
o Couldn’t decide on procedure for changing the Supreme Court of
Canada requires unanimous vote
o S. 42 is kind of like an agenda of things to be dealt with later
2. Unanimity of Parliament & legislatures (s.41)
o The office of the Queen, Gov. Gen, Lieut. Gov. of a province
o
o
o
o
Right of province to number of members in House of Commons not less than number of
Senators (as of 1982)
Use of English or French language (subject to s.43)
Composition of Supreme Court of Canada
An amendment to the amending formula
3. Approval of Parliament and legislatures of affected provinces (s.43)
o Alterations to provincial boundaries
o Use of English or French language within a province
a. Changing of languages within a province required the approval of the federal
parliament (Senate and House of Commons) and the province itself
4. Parliament unilaterally may make amendments to executive government of Canada, Senate and
House of Commons (subject to ss. 41 & 42) (s. 44)
5. Provinces unilaterally re provincial constitution (subject to s. 41) (s.45)
o
Example of changing the way we vote in Canada from the ‘first past the post’ system
which is in effect now- The province could change its own Constitution by itself
By-passing Senate approval:
o
o
o
o
S. 47: When House of Commons passes a resolution approving an amendment, and
the Senate does not approve the resolution within 180 days …
The House of Commons can adopt the resolution again, and that will constitute
sufficient approval
Proclamation: When all necessary approvals have been given to an amendment,
Queen’s Privy Council for Canada so advises the Governor General to issue the
proclamation
Seen as the ‘sober second thought’ can slow the process down but not block
decisions of the House of Commons to effect changes.
RE: Succession of Quebec (SCC 1998) (131)
Secession = a province withdrawing from the federation. It is a political act with legal implications
Issue: Is unilateral secession legal under the Canadian constitution? As a matter of Canadian law? As a
matter of international law?
No provisions in the constitution (eg Part V) re amendments to provide for secession. Secession would
require amendment to the Constitution and therefore negotiation. A referendum supporting secession
would not be a sufficient foundation for unilateral secession.
The court engages in an analysis that applies the principles of federalism, democracy, constitutionalism
& the rule of law, and protection of minorities. A referendum would have no legal effect, but as an
expression of democratic will, it would be entitled to considerable weight. The referendum must be free
of ambiguity (a)In the question asked, (b)In the result achieved. The principles would give rise to a
reciprocal obligation to negotiate constitutional changes in response to a clear referendum supporting
secession. The seceding province could not dictate the terms, The other provinces & fed. govt could not
ignore the referendum. Negotiations must address the interests of Quebec, other provinces, federal
government, Canadians within and outside Quebec, including
National economic interests; national debt
Boundaries
Linguistic and cultural minorities, including aboriginal peoples
Need to maintain stability
A complex negotiation over “the threads of a thousand acts of accommodation [that are] the fabric of a
nation”.
Role of the court: the court’s main concern is to retain its proper role within the constitutional
framework: some issues are not justiciable -ie: not susceptible to resolution by legal analysis
The court identifies the constitutional framework within which political decisions will be made. The
court has no supervisory role over the negotiations. The court does not evaluate the clarity of the
question or the result of the referendum. The court does not assess the legitimacy of interests in the
negotiation
Breach of the constitutional duty to negotiate will undermine legitimacy at the international level.
Legitimacy is a precondition for international recognition. The court refrains from pronouncing on the
applicability of any particular constitutional procedure to effect secession unless and until it arises on
clear facts
Decision: province would need to have a clear referendum on a clear question regarding succession, this
would create a duty to enter into negotiation with the rest of the country. They identify the
fundamental principles that shape the constitution and this process: federalism, democracy,
constitutionalism and rule of law, protection of minorities. They state that it is not up to them to come
up with policy- that is parliament’s or legislature’s job- they just deal with principles.
Senate Reform Bills
o
o
o
o
o
o
o
Can the federal Parliament unilaterally amend s. 29 of the Constitution Act, 1867 to specify that
Senators hold office for eight years (instead of until age 75)? See Const. Act 1982, s. 38, s.
42(1)(b) and 44.
Note: the “Senate Reference” (SCC 1980): re whether a change of tenure for senators is a
fundamental change. Is this decision relevant to interpretation of the Const. Act 1982?
Bill C-43 (2006): Can Parliament unilaterally establish an advisory consultation process regarding
the election of Senators without the consent of the provinces?
See Const. Act 1982, s. 38(1), 42(1)(b)
Impact on democratic legitimacy of Senate?
Impact on Senate’s role?
o Argument that it is a change- the point of the Senate was not to elect people, but for
them to be appointed- this change is a huge change since they would somewhat be
elected
If the matter is referred to the SCC, is the court likely to interpret the amendment provisions
narrowly or in the context of the objectives and values of the constitution?
CONSTITUTIONAL SUPREMACY

Const 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”
o Makes explicit what was implicit: that the constitution is supreme and laws that are
inconsistent with the constitution are of no force and effect
o Constitutionalism is linked with the rule of law
Ref. Secession of Quebec (SCC 1998)(108)
The rule of law:
The law is supreme over the acts of both government and private persons: one law for all
Requires the creation and maintenance of an actual order of positive laws to maintain
normative order
The exercise of all public power must find its ultimate source in a legal rule: the relation
between state and citizen must be regulated by law
Constitutionalism: all government action must comply with the constitution : Const Act 1982, s.52(1)
Cf. rule of law: all government action must comply with the law, including the constitution. Const Act
1982 shifted Canada from parliamentary supremacy to constitutional supremacy. The constitution is
entrenched beyond the reach of majority rule.
Re secession: democracy (majority rule) does not override constitutionalism to alter the fundamental
balances of political power. Constitutionalism and the rule of law are not in conflict with democracy but
essential to it. Democracy is an important principle, but it is not the only rule, it does not trump the
other Constitutional principles, it works with them.
Implications of constitutional supremacy:
– Hierarchy of law
– Adjudication
– Counter-majoritarianism
– Amendment by super-majority
Hierarchy of law:
o
o
o
Constitutional law
Statute law: parliamentary supremacy
Common law
– Constitutional amendments cannot be made just with a majority vote.
– Parliamentary law is supreme as long as it conforms to the Constitution
– Common law cannot be ruled to infringe on the Charter, but it ought to be developed to
be consistent with Charter values
– The common law is not struck down, but it does need to be re-evaluated or
accommodated- it can be fixed while states can’t always be fixed
Adjudication: the courts’ authority to assess the validity of statutes
–
o
o
o
o
o
o
The means of determining and resolving inconsistencies between the constitution and
the law or government action
– The adjudicator must be independent of governments
– US Sup Ct declared its role: Marbury v Madison (1803)
• Constitutional issues determined by the federal courts and the US Sup Ct.
– South Africa – a special constitutional court
– Canada: constitutional issues are decided by the ordinary courts
If you want to challenge Charter rights, you have to work your way up the courts by framing it as
a legal case
Person can have standing, through the courts discretion, to raise an issue whether or not they
have been specifically affected by the statute- on the view that not law should be exempt from
judicial review
In reference to this standing, there must not be a case already in the courts where someone is
affected individually by the statute
o US have two sets of courts, the state and federal courts and the Supreme Court of US
which only deals with federal cases
There needs to be somebody to discuss issues regarding the Charter- this is the courts
Legal reason for this is that under a UK statute which said that any domestic statute would be
subject to imperial statutes
Constitution Act 1867 was an imperial statute, so statutes that were out of a province’s or
federal’s jurisdiction as defined in the Constitution Act 1867, the courts would strike it down
Judicial authority to adjudicate validity of statutes
-
Colonial Laws Validity Act (UK) (“CLVA”): domestic laws of the colonies must be consistent with
UK Imperial Statutes
- The Const Act 1867 was an imperial statute
o The courts adjudicated challenges to the jurisdictional validity of federal and provincial
legislation
- The Statute of Westminster repealed the CLVA except in so far as it applied to the Const Act
1867
- Canada Act 1982, repealed the Statute of Westminster and enacted the Const Act 1982, s. 52(1)
– a new source of authority for judicial review of legislative validity
 Can administrative tribunals (as well as courts) decide constitutional issues?
Nova Scotia (Workers’ Comp Bd) v. Martin (SCC 2003 (111)- CAN ADMINISTRATIVE TRIBUNALS DECIDE
CONSTITUTIONAL ISSUES?
It depends on the mandate of the tribunal, i.e. whether it has jurisdiction to interpret the law. If so, it
has power to determine the law’s constitutional validity
• Tribunals’ decisions on validity do not have precedent value
• In any event, they are subject to judicial review by the courts
Not all tribunals can apply the constitution, only those which have the right to decide questions of lawthey need to be staffed by those that have legal training
Counter-majoritarianism
-
-
Constitutional supremacy is a check on majority rule in favour of
• Individuals
• Minority groups
• Regional populations
The framers of a constitution anticipate for the future what values deserve protection from
majority preferences
Changes can be made through amendment
Limits the democracy in that the majority doesn’t necessarily rule supreme
Some don’t like the Charter because they feel that it changes political decisions into legal ones
Argued that the Charter still reflects dominant interests because you must have money to bring
Constitutional challenges
Amendment by super-majority, with checks & balances
-
-
In Canada the amending formula reflects federalism interests – approval is required from
Parliament and legislatures
Should our amending process be open to wider interests?
Do Parliament and the provincial legislatures all have similar interests re limits on government
to protect individual rights and freedoms?
 Does this maintain parliamentary supremacy as the governing principle?
Amending formula does not require representation that reflects the make up of the population
Governments can all get together and decided to pass any amendment they want- no checks
and balances past this point
EXERCISE OF PUBLIC POWER IN CANADA
Separation-of-powers
–
•
Governmental functions divided among three branches
• Legislative (making the law)
• Executive (implementing the law)
• Judicial (applying the law)
US presidential system: complete separation of powers with checks & balances on the
concentration of government power
•
In Canada’s parliamentary system: overlapping powers between the legislative and executive
branch
– Members of the cabinet sit in Parliament/legislature
– The head of state acts on the advice of cabinet
– The executive (cabinet) is subordinate to the legislative branch
LEGISLATIVE POWER
•
Federally: bicameral system
– Elected House of Commons
– Appointed Senate
• Provincially: elected legislatures
• All derive their powers from the constitution
• Subordinate governments (eg municipal governments) derive their powers from provincial
statutes)
 Each level of the legislature is supreme within their jurisdiction
The Principle of Parliamentary Supremacy
–
–
–
–
–
–
–
Established in the UK after a long struggle to bring the crown and the executive under
the authority of the elected parliament
Imported into Canada through the preamble to the Const. Act 1867: “a constitution
similar in principle to that of the UK”
Modified by the federal system which divides legislative power between two levels of
government
In 1982: further modified with the adoption of the Charter
• But subject to
– The override power (notwithstanding clause) (s.33)
– The amendment procedure (Part V)
Legislative supremacy over the executive remains
Statutes are subject to the constitution
Government action is subject to the constitution because it can be authorized only by
constitutional legislation
• And exercised for a proper purpose (i.e., subject to the rule or law)
Parliamentary supremacy & the rule of law
Babcock v. Canada (SCC 2002) (116)- PARLIAMENTARY SUPREMACY AND RULE OF LAW
Federal lawyers in BC and elsewhere were paid less than those in Toronto; sued federal gov’t – want
disclosure of some of the gov’t documents
Held: the federal legislation conferring on cabinet the power to protect its documents from disclosure
without judicial review is valid federal law- Consistent with the rule of law- Does not undermine the
independence of the judiciary or fundamentally alter the relationship between the courts and other
branches of government- cf BC v Tobacco Manufacturers- The restrictions on parliamentary supremacy
are limited
FEDERALISM
Accommodate regional cultural diversity and common national interests
Ref. Re Secession of Quebec (SCC 1998)(119)
The federal and provincial levels of government were unequal on paper. Federal power to reserve and
disallow provincial legislation (rarely used, now abandoned).Paramountcy of federal legislation.In
interpreting the constitution, the courts have always been guided by the federalism principle. The
national and provincial legislatures have “co-ordinate” authorities with equal sovereign status within
their jurisdiction, derived from the Constitution
EXECUTIVE POWER
•
•
•
Includes government ministries, civil servants, the armed forces, Crown corporations, statutory
bodies carrying out governmental functions
The executive is subordinate to the legislature and derives its authority from legislation
Responsible government: the executive is responsible to the legislature
– If the government loses the confidence of the House, it must resign and a new
government is formed from the House, or the House is dissolved and new elections are
held
JUDICIAL POWER
•
•
•
•
Judiciary’s constitutional law jurisdiction to determine whether
– legislation is invalid in that it exceeds the jurisdiction of the enacting legislature
– legislation or government action infringes the Charter in a manner that cannot be
justified, and, if so, what is the just and appropriate remedy?
Judiciary’s administrative law jurisdiction to determine whether government action is
authorized by statute
– The Federal Court exercises judicial review over federal government and agencies
– Provincial courts do the same re provincial government and agencies
Judiciary’s ordinary jurisdiction to
– develop and apply the common law
– Interpret and apply valid statute law
The principle of judicial independence
– The courts must be insulated from pressure
– The courts must decide matters in accordance with law and principle
PARLIAMENT AND THE LEGISLATIVE PROCESS
Structure & Operation of Parliament: Constituent parts of Parliament: Const. Act 1867, s. 17: the Queen
and Governor General, the Senate, the House of Commons
The Queen and Governor General (“GG”)
o
o
o
o
The Queen is part of Parliament, executive power is vested in the Queen as head of state:
Const Act 1867, s.9. Const. Act 1867 specifies powers of the Queen that are delegated to &
to be exercised by the GG: s. 10
In 1947 George VI delegated his powers re Canada to GG. Note that, in the absence of the
GG, a judge of the SCC acts as “Administrator of Canada”
Selection of the king or queen by heredity
Act of Settlement UK 1701: places limits on the succession
o Bars Roman Catholics
o Monarch is head of Church of England
o In Canada – an infringement of freedom of religion?
o Note, the provisions do not apply to the GG
O’Donohue v. The Queen (Ont.Sup.Ct.)(2003)- CHALLENGE SELECTION OF KING/QUEEN USING
CONSTITUTION
Former Toronto alderman, a Catholic, challenged constitutionality of Act of Settlement- Is the issue
justiciable? Does he have standing to raise it?
HELD: It is well-established that the Charter cannot be used to amend or trump another part of the
Constitution. The constitution adopts the British crown – as determined under UK law. Statute of
Westminster UK 1931 – any change to the succession of the throne – requires assent of the Parliaments
of the UK and all the Dominions. S of W is part of the Constitution of Canada (see documents listed in
schedule to Const Act 1982, s. 52(20(b)). Amendment re Queen, requires unanimous consent in Canada:
Const Act 1982, s. 41. The issue is not justiciable by the courts
Selecting the Governor General
o
o
o
o
The Queen appoints the GG on the recommendation of the PM
Queen is usually consulted in advance
No legal criteria constraining the choice
Practices:
o The GG is a Canadian
o Alternate between anglophone and francophone
Senate Selection
o
o
o
Senators are appointed by the GG (Const.Act 1867, s.24)
GG follows the advice of the PM by constitutional convention
Frequently, patronage appointments
Proposals for reform
•
Attempts by Alberta to control appointments: election of nominees
o
o
PM Mulroney appointed Stan Waters
PM Chretien declined to appoint others – Bert Brown sued
Brown v. Alberta (Alta CA 1999)(153)- CHALLENGE TO APPOINTMENTS MADE IN ALBERTA
The plaintiff does not challenge validity of the provisions re senatorial appointment but argues that
candidates elected in Alberta must be appointed in order to enhance democracy
HELD: the issue is not justiciable; Brown raises no legal issue re validity of appointments that do not
comply with the Alberta legislation; he merely seeks a declaration that the Senate appointment process
is not democratic – in order to influence the political process
See Supp 10-13 re PM Harper’s current proposals for reform of the appointment process
Samson v. AG Canada (FCTD 1998)(156)- CHALLENGE APPOINTMENT MADE IN ALBERTA
Application for injunction to restrain GG from appointing an unelected Senator from Alberta- Is there a
justiciable issue?
HELD: Const. Act 1867: GG has unfettered discretion in appointment of Senators (who are qualified) –
no procedural or other limitations. To impose restrictions: amendment required (Const.Act 1982, s. 41).
Exercise of the power to appoint is political. Secession Ref. does not authorize court to ignore the
express and unequivocal provisions of the Constitution. The appointment of one candidate who had
been elected does not constitute a convention. The issue is political, not legal: seek amendment in the
political arena. Application for injunction dismissed.
HOUSE OF COMMONS
Figueroa v. Canada (SCC 2003) (159)- CHALLENGE TO 50 CANDIDATE RULE TO CLASSIFY AS A PARTY
Plaintiff challenged constitutionality of requirement that a political party must field 50 candidates in
order to qualify to issue tax receipts, transfer unspent election funds to party, list affiliation on ballots,
etc. Does the requirement infringe Charter, s. 3? Is it justified under Charter, s.1?
HELD: Interpret Charter rights broadly and purposively. Purpose of s. 3? Effective representation; right
of each citizen to play a meaningful role in the electoral process; open debate. Political parties enhance
participation and debate, whether they are large or small. Restricting benefits to large parties infringes
s. 3.
Is the restriction justified under s. 1?
Objectives of the restriction:
Improve effectiveness of electoral process
Protect integrity of election financing
Deliver a viable outcome for our form of responsible government
These objectives justify some of the restrictions on smaller parties, but not all. The legislation is struck
down as inconsistent with the Constitution.
PARLIAMENTARY LAW MAKING
o
o
o
o
Parliamentary supremacy of Parliament and the legislatures within their respective
jurisdictions (federal division of powers)
Subject to the Charter
Parliament is free to pass careless, unwise or ill-motivated statutes, but not unconstitutional
statutes.
The courts are not concerned with the policy of the statute, but only with its validity
Bacon v. Sask. Crop Insurance Corp. (Sask.C.A. 1999) (187)- LEGALITY OF CROP INSURANCE PROGRAM
Issue: the legality of changes to a crop insurance program imposed by statute, which extinguishes
farmers’ claims for damages re breach of contract
Plaintiff: the legislation offends the rule of law (no claim that it is invalid on federalism or Charter
grounds). Relies on the Secession Reference
HELD: The law of contract does apply to governments and individuals, but the legislature has the power
to amend it, generally or specifically. It has jurisdiction to amend it in a manner that is arbitrary
(provided it does not infringe a right guaranteed by the Charter). Accountability is to the electorate, not
the courts. The rule of law protects against the arbitrary use of executive power in a manner not
authorized by law.
Other examples:
o
o
BC v. Tobacco
PSAC v. Canada (FCTD 2000) (190) (legislation ordering strikers back to work)
Turner v. Canada (FCCA 1992) (190)- CHALLENGING VALIDITY OF THE LAW
Plaintiff was involved in a lawsuit; a retroactive statutory amendment deprived him of his defence and
led to an unfavourable settlement. P sues the government, the PM and three Ministers for damages,
alleging that Parliament was misled. P concedes that the legislation is valid and does not infringe the
Charter. Relies on the allegation that the process of enacting the statute was tainted.
HELD: It is well-established that procedural fairness is not required in a legislative process –
Parliamentary supremacy includes Parliament’s right to inquire into and regulate its own process.
Appeal allowed with costs; action dismissed with costs
But: Parliament’s intention to derogate from common law rights must be clearly expressed
Wells v. Newfoundland (SCC 1999)(199)- GOV’T CAN VOID CONTRACT/ DENY DAMAGES IF DONE
EXPLICITLY
Are civil servants entitled to compensation when their positions are terminated by statute and their
contracts of employment are breached?
HELD: By legislation, the government can void a contract and deny damages, but to do so requires clear
language. Here, the position was eliminated, but there is no explicit denial of damages. Parliamentary
supremacy is constrained only as explicitly provided by the Constitution. Courts are reluctant to review
legislative process or impose standards on the legislative branch, other than to assure compliance with
formal Constitutional requirements. It appears that parliament is free to act unfairly in the legislative
process – subject to political consequences only
Authorson v. Canada (AG) (SCC 2000)(196)- VETERANS DENIED INTEREST FROM GOV’T
Class action on behalf of disabled veterans. Government acknowledges that it acted as a fiduciary re
funds held for veterans, that the funds were rarely credited with interest and that a full accounting was
never made. In 1990 legislation was passed to make the debt unenforceable
HELD: There is no protection for property rights in the Charter; the plaintiffs rely on a guarantee of the
Canadian Bill of Rights: no expropriation without compensation. Expropriation without compensation
requires clear and unambiguous language
EXCERCISES OF EXECUTIVE AUTHORITY
 Executive function carried on in part by tribunals. So there is some overlap between functions (exec.
and judicial)
 Requirements set forth in regulations as opposed to legislation and statutes. Institution imposes
regulations
 Eg. Law Society of Upper Canada- operates under a statute that sets out jurisdiction. Benchers
elected by profession and subject to the regulations
 Legislature can intervene if they want and pass statutes limiting their ability- but it is more custom
to let them self regulate
 Administrative agencies can have policy making powers, may be composed of experts, because they
have expertise, and legislature wants them to utilize this expertise, can had adjudicative functions
 There could be a complaint where it could go all the way to the Supreme Court- however with such
complaints members of the Law Society are the ones that adjudicate- this could bring bias into the
mix- the society investigations, prosecution, and adjudication and they make the policies
 Eg. Dudley George inquiry where the premier interfered with the police decisions, alleged that he
was trying to direct the police actions
 Question of how can you separate the various junctions that the Law Society has? Institutional
arrangements to set out separation
INTRODUCTION
o
o
Executive branch = institutions in government that are responsible for implementing and
enforcing laws formulated by the legislature or, re common law, the judiciary
The executive branch is governed by “administrative law”, which constrains the exercise of
administrative discretion in ways that respect the intentions of the legislative branch and
promote public interests
THE CROWN
o
o
Const. Act 1867, s. 9: executive government is vested in the Queen
The Crown bears legal rights and obligations
o Capacity to own property, enter contracts, sue and be sued
o
o
o
o
The Crown is divided along federalism lines
The Queen, Gov Gen and Lieut Govs
Powers apparently exercised by them are in fact exercised on the advice of the Prime
Minister or Premier and their cabinets
Only the active cabinet members within the Privy Council exercise the advisory function (by
convention)
PRIME MISTER AND CABINET
o
o
o
o
o
o
o
o
PM + Cabinet = the Government---Not all Ministers are Cabinet members
PM decides who are ministers, in what portfolios, who are in Cabinet, & for how long – advises
GovGen to make appointments
PM presides over Cabinet
PM’s prerogative (duties) extends
o To other appointments: SCC judges, Chief Justices, Senators
o To advising the Gov Gen to dissolve Parliament & call federal elections
Prime Minister’s office has become more powerful over the last couple of years- and now is
quite powerful with many powers being centralized
Cabinet determines the legislative agenda of Parliament
Responsible government:
o Cabinet members are generally drawn from the House of Commons/legislature
o The Cabinet is accountable to the legislative branch both collectively and individually
 Maintain the confidence of the legislature
 Accountable to legislature for ministry activities
Ministers have administrative responsibility for their departments – may exercise decisions that
affect individuals, eg extradition – p.228
PUBLIC SERVICE
o
o
o
o
Ministerial responsibility: The Minister is politically accountable for all matters within the
department
Political neutrality: Civil servants are politically neutral and serve successive governments (cf.
US)
Public service anonymity: civil servants are accountable to their political overseers, but not to
Parliament
Civil servants must refrain from public criticism of government policies
o Does the limit apply only to the civil servant’s direct responsibilities or to all government
policies ?
Fraser v. Canada (Public Service Staff Relations Board) (SCC 1985)(229)- RESTRICTIONS ON PUBLIC
SERVANTS
Fraser, a civil servant, was critical of the metric conversion program and the Charter. His job and his
department were not involved with these matters
HELD: A job in the public service has two dimensions: The employee’s tasks and how she performs them
AND The public’s perception of the manner in which he exercises his powers
The public service administers and implements policy. Employees must have knowledge, fairness &
integrity, must be loyal to the Govt of Canada (not the party in power), they may act as whistleblowers
where appropriate . But must not engage in sustained and highly visible attacks on major Government
policies. There is a public interest in the actual and apparent impartiality of the public service.
To what extent can the civil service engage in partisan political activities? Statutory restrictions on:
Active campaigning for a candidate or political party, Running as a candidate Struck down as an
infringement of freedom of expression because it was over inclusive. Now, the restrictions apply only to
senior civil servants
INDEPENDENT ADMINISTRATIVE BODIES
-
-
In some cases, executive functions are conferred on bodies that have a measure of
independence from government – rationale?
o Decisions best made on a principled basis
 Affect legal rights of individuals
 Create a specialized tribunal
o Where government is a party to the dispute, provide an independent tribunal
o Insulate decision making from politics and influence
o Ensure expertise
o Provide for multi-jurisdictional agencies
o “board, tribunal, commission, authority, council, agency”
o The product of the legislation that creates it
See statute creating Canadian Human Rights Commission (233)
Ocean Port Hotel Ltd. v. BC, (SCC 2001)(236)
What degree of independence is required of members sitting on administrative tribunals empowered to
impose penalties? Members of the Liquor Appeal Board serve at the pleasure of the Lieut Gov in Council
and receive remuneration set by them
HELD: The degree of independence required of a particular government tribunal is determined by its
statute. In the absence of clear legislation, the Court will infer that the legislature intended that the
tribunal’s process comply with principles of natural justice – including an independent and impartial
decision maker. But this inference can be ousted by clear language (note Wells v. Newfoundland). cf.
judicial independence from external influence, which is constitutionally required. The principle applies
only to courts whereas administrative tribunals are created to administer government policy. Here in
any event, the Board is primarily a licensing agency, not an adjudicator
CROWN CORPORATIONS
o
o
Administrative bodies that have their own legal personality separate from the government
Commercial enterprises with public objectives – the need for freedom from political
interference
o
o
o
o
o
Managed by direct ownership rather than imposition of regulatory controls
Deliver services of public importance – Canada Post, VIA Rail, electrical power
When the public aspect recedes – privatization
Standardized governance and accountability requirements
Authority for government to provide direction
MUNICIPALITIES
o
o
o
o
o
o
o
o
Created under provincial legislation
Provide a wide range of public services
Make policy on local matters
Largely independent of provincial government & elected
But: not a constitutionally recognized level of government
Subject to provincial control and direction – eg re amalgamation
On such matters, local governments are not entitled to be consulted
Does a municipality have legal authority to refuse to do business with companies that had
business ties to South Africa during apartheid?
Shell Canada Products Ltd. v. Vancouver (SCC 1994)(242)- SCOPE OF MUNICIPAL AUTHORITY
Does the city have the right to speak on behalf of the municipalities on issues such as national defence,
international policy? Resolutions passed by city council- Can’t do business with Shell as long as Shell
does business in South Africa- Shell applied to the court to quash the resolutions
Majority: council has no jurisdiction to pursue an extra-territorial purpose. Municipalities must be given
broad jurisdiction to make local decisions reflecting local values, free from judicial interference. But,
even though council is elected, council must refrain from adopting positions that are outside its
jurisdiction – this was seen as outside of their jurisdiction- international affairs
Questions Raised
Who has authority to speak for Canadians on matters of foreign affairs?
Does it become a local matter to determine from whom to purchase petroleum products needed by the
city?
Do city councils have jurisdiction to “support our troops” with buttons and stickers on city vehicles?
POLICE AND PROSECUTORS
o
o
The exec. branch enforces policies that have the force of law
Police: maintain order & investigate illegal conduct
o Provincial & municipal police: power to investigate breaches of provincial laws and
federal criminal laws (why?)
o RCMP (federal):
 investigate breaches of federal laws (but provincial police have primary
responsibility re Criminal Code).
 police the federal territories,
 provide police services in provinces under contract
o
Prosecutors: the federal government and the provincial governments exercise prosecutorial
power (Attorneys General)
R. v. Campbell (SCC 1999)(246)
Is an RCMP officer protected by crown immunity from the consequences of illegal conduct? What is the
relationship between the police and the executive?
HELD: Binnie J.
The RCMP is under the control and management of the Commissioner, appointed by GovGen in Council
and under the direction of the Solicitor General. But, a police officer investigating a crime is not acting as
a government functionary or agent. S/he occupies a public office, subject to statute and the common
law. The independence of police from government in the conduct of a criminal investigation underpins
the rule of law. The Commissioner is not subject to political direction. The Commissioner and every
constable, in investigating a crime and deciding whether to prosecute, is answerable only to the law and
his conscience. No Minister can direct an investigation or prosecution . Not under crown immunity
Krieger v. Law Society of Alberta (SCC 2002) (249)
Krieger was a Crown prosecutor – complaint made against him to the Law Society – Krieger sought to
prevent the Society from reviewing the matter (on the basis that the investigation interferes with the
exercise of prosecutorial discretion)
HELD: The court held that the matter is properly within the jurisdiction of the Law Society, but also
discusses. The nature and development of the AG’s office in Canada:
The office has constitutional recognition
Duties:
Law officer to legislature and government departments
Minister of Justice, responsible for drafting government legislation
Manage prosecutions: prosecutorial discretion is not subject to interference
National Security
-
Until 1984 – RCMP was responsible
But: revelations that RCMP had engaged in illegal activity in investigating the Parti Quebecois
MacDonald Commission recommended a separate civilian security agency – CSIS (Can. Security
Intelligence Service)
RCMP still plays a significant role – see Maher Arar inquiry
Controversies re political interference with police –
o See, also, the Dudley George Inquiry
o Inquiry into treatment of protestors at Asia-Pacific Economic Cooperation Conference in
Vancouver 1997
SOURCES OF EXECUTIVE POWER
-
Two sources:
o Prerogative powers
o Statutory powers
Questions
-
-
-
-
What is the source of the crown prerogative?
o Source of prerogative is the power not legislated upon- what’s left
Who exercises the crown prerogative?
o To the extent that the Gov Gen exercises the prerogative as the Queen’s representative,
s/he on the advice of the PM or cabinet.
o The PM and Ministers may also exercise the Crown prerogative
o The crown prerogative is an instrument of government and source of executive power –
eg, it enables the PM to speak for Canada re foreign affairs
Who determines its extent and scope?
o The Crown prerogative is the residue of discretionary authority, which at any given time
is left in the hands of the Crown
o It is a branch of the common law – court decisions define its existence and scope, and
whether it has been superseded by statute
o By virtue of parliamentary supremacy, it can be limited or displaced by statute
What sorts of things can currently be done through exercise of the prerogative?
o Activities of prerogative making treaties, making law, appoints ambassadors,
issuing passports
To what extent does the court exercise judicial review of the exercise of the prerogative?
o Judicial review is if it affects individual rights
What constraints are there on the exercise of the prerogative?
o Constraints is when it goes against legislation or a statute
Black v. Chretien (OCA 2001)(252)- EXERCISE OF CROWN PREROGATIVE, NOT JUSTICIABLE
Case involving a decision by the PM to recommend against the conferral of a foreign honour on Black.
Arguing that PM does not have the right to exercise crown prerogative, legislature takes away this right
through Department of Foreign Affairs and International Trade Act p. 252
Issues: Can the PM exercise the prerogative power? Was his advice to the Queen an exercise of the
prerogative or was it an unsolicited personal intervention in which he gave wrong legal advice? Are
prerogative powers subject to judicial review?
The granting of honours has never been displaced by statute in Canada. The Crown prerogative is not
exercised only by the Gov Gen- can be exercised by the PM. Historically, the PM’s advice to another
country is not justiciable, even if wrong, or given carelessly or negligently
Rationale: exercises of prerogative power ordinarily raise questions that courts are not qualified or
competent to determine
Now, an exercise of prerogative is subject to the Charter, which applies to Parliament/legislatures and
governments. (Black did not claim a Charter infringement). Exercises of prerogative which are justiciable
in that they affect individual rights are subject to judicial review. The ability of the individual to seek
relief should not turn on whether the action was pursuant to statutory power or prerogative. The
prerogative power can be exercised in matters of high policy (at one end of the spectrum) and in
matters of administration (eg issuing a passport) (at the other end). The first is not justiciable, the
second is.
Did the PM’s exercise of the prerogative affect Black’s rights? Denial of an honour has no adverse
consequences to the person affected (no impact on liberty, property, economic interests). The doctrine
of legitimate expectations gives rise only to a duty of procedural fairness, not rights. Even if it gave rise
to substantive rights, no one has a right to, or legitimate expectation of, an honour. Honours are totally
discretionary – no legal component to warrant the court’s intervention. The discretion to confer an
honour is not justiciable. The PM’s advice in that process is not justiciable. Since the honours
prerogative is beyond judicial review, the manner in which it was exercised is also not under reviewEven it wrong, careless, negligent, motivated by improper motives
STATUTORY POWERS
-
Most executive powers are delegated by statute
o To ministries
o To administrative agencies
The authority to delegate is limited by Constitutional restrictions re division of powers and
Charter rights
Parliament or a legislature cannot delegate powers that it does not possess
Moreover, the delegated powers must be exercised in accordance with the purpose of the
statute (Roncarelli v. Duplessis)
The delegated power (if it affects life, liberty or security of the person) must be sufficiently
specific to provide fair notice to those who may be affected (Charter, s. 7)
The delegation must not amount to a complete abdication of legislative authority ( Re Gray)
Parliament and the legislatures cannot delegate powers to each other
Re Gray (SCC 1918) (259 & Supp. 28-39)- DELEGATION OF AUTHORITY
Issue: the legality of changes to statutory conscription rules that had been enacted by Cabinet pursuant
to a general delegation of powers under the War Measures Act, s.6:
“The Governor-in-Council shall have the power to do and authorize such acts and things,
and to make from time to time such orders and regulations, as he may by reason of the
existence of real or apprehended war, invasion or insurrection, deem necessary or
advisable for the security, defence, peace, order and welfare of Canada.”
The cabinet order revoked farmers’ exemption from military service which had been granted pursuant
to the Military Service Act
Could Parliament delegate to the Cabinet the power to pass regulations that conflicted with rights
obtained pursuant to legislation?
War Measures Act is 1914, Military Services Act 1917- later in the war means that the later statute
which is dispute with the earlier statute would override the earlier act. The Military Act had a section
saying that the War Measures Act was still in effect issue is the Parliament abdicating their powers to
another section
Dissenting judge says that this is the very thing that we are trying to protect against. Says that it is not a
complete abdication- it was a delegation not an abdication- it was limited to times of war/ emergency,
they still had power. The parliament has to stay within the limits of the legislation (War Measures Act).
No limit in this statute that it can only be exercised during gaps
Held: Sir Charles Fitzpatrick CJ (reproduced in casebook, misattributed to Anglin J.): Parliament cannot
abdicate its functions, but in accordance with parliamentary supremacy can delegate its powers to the
executive. The delegation must be subject to termination by Parliament at any time. Executive acts must
not exceed the authority conferred by Parliament. Here, Parliament intended to clothe the executive
with broad powers in time of danger. The regulation revoking exemptions from conscription was passed
to provide for the security and welfare of Canada and is intra vires the statute. The concerns raised
should be addressed to Parliament, not to the court
Anglin J. (Davies J. concurring): Short of complete abdication, Parliament is entitled to delegate its
powers to the executive (parliamentary supremacy). The delegation can be terminated by Parliament at
any time. The Military Service Act, 1917 is expressly subject to the War Measures Act 1914, which
confirms Parliament’s intent to delegate powers to the executive in these matters. The concerns raised
about Parliament’s policy in delegating its functions to cabinet should be addressed to Parliament, not
to the court. By its terms, the War Measures Act does not apply only when Parliament is not in session.
Parliament’s intention can be determined only by the words it has used in the statute
Duff J.: S. 6 of the War Measures Act confers on cabinet law-making authority within federal jurisdiction
for the duration of the war. The court’s role is to give effect to the enactment of Parliament in
accordance with the words chosen to express its intention. During wartime the executive may need
extraordinary powers. The powers conferred are temporary, and anything done under them can be
nullified. No statute subsequent to the War Measures Act modifies its terms. The Military Service Act is
specifically subject to its terms.
Idington J. (Brodeur J.) dissenting: The wholesale surrender of the will of the people to any autocratic
power is exactly what we are fighting against. Properly enacted legislation cannot be subject to the fiat
of the executive
DELEGATION OF STATUTORY POWERS
o
When a statute delegates the power to enact regulations or other subordinate
legislation, the power is limited to its express terms.
o Regulations that exceed the authority are invalid (“ultra vires”)
o Regulations inconsistent with the statute are invalid
Canadian Wheat Board v. Canada (FC 2007)(S.36)
A regulation purporting to end the Board’s monopoly in barley was ultra vires in that the Act specified a
different process for making that kind of decision.
Ontario Public School Boards’ Assn. v. Ontario (OCJ, Gen Div)(1997)
Fewer School Boards Act contained a “King Henry VIII clause”: purported to confer power on cabinet to
make regulations that override the terms of the Act. The provision was challenged as unconstitutional
before any decision had been taken relying on it. The court held that it was premature to decide its
validity
NATURE AND FUNCTION OF DELEGATED POWERS
-
-
-
Legislatures delegate to executive bodies powers that can be characterized as
o Legislative (rule-making)
o Adjudicative
o Administrative
Historically, common law courts developed procedural requirements for the exercise of
adjudicative powers by administrative tribunals:
o The rules of natural justice
Now, courts focus less on the nature of the decision-maker and more on the type of interest
affected and the nature of the decision
There is a general duty of fairness, the content of which depends on the circumstances of the
case
WAYS IN WHICH THE POWER CAN BE DELEGATED
-
-
-
-
RULE MAKING FUNCTIONS OF ADMINSTRATIVE BODIES
Legislatures often delegate regulation-making powers
o To cabinet
o To municipalities
o To agencies
Delegated legislation is subordinate: it must always fall within the scope of the delegated power,
Otherwise, it is beyond jurisdiction (ultra vires)
The benefit of regulations:
o Easier to adapt as circumstances change
o The body responsible for implementation can be given authority to make specific rules,
utilizing its special expertise
The disadvantage:
o There is more scrutiny of legislation – by elected members and the public
However, legislation often requires consultation in the making of new regulations
Further, where the rule-making process has a direct impact on the rights of some individuals, (eg
municipal bylaws re land use) the courts do impose procedural obligations of notice and an
opportunity to be heard.
ADJUDICATION- DISPUTE RESOLUTION
Some administrative agencies are created to adjudicate disputes
o Some operate in the manner of courts
o Some exercise appellate functions
o Some are more informal
o Some include members who are not lawyers but are experts in the relevant field (eg
communications)
o
Some are authorized to make and apply public policy in the relevant field and thus take
into account a broader range of considerations than would be available in a court
proceeding
 Eg Ontario Municipal Board: hears appeals of planning decisions; deals with
them afresh (de novo)
Cloverdale Shopping Centre Ltd. V. Etobicoke (OCA 1966) (277)
Here, the OMB is not deciding a lis (an issue between parties), rather, it must assess the issues in light of
the public interest (re health, safety, convenience or welfare of inhabitants, requirements for land uses,
communications and public services). The Board is required to act judicially – meaning that the parties
are entitled to a full and fair hearing of their submissions. But, even if objections to the project are valid
and important, they may be overruled on policy grounds. The Board exercises a range of functions.
Some are strictly judicial; some are policy decisions, some are a hybrid
BENEFIT OR OBLIGATION DETERMINATION
-
-
A substantial group of administrative decision-makers are empowered to determine whether a
person will be
o Granted a benefit (social assistance, a licence, etc.
o Subject to a tax or other obligation
o Assessed a penalty
o Subject to an obligation
Sometimes complex conditions are attached and must be monitored
The need for fairness is often in conflict with the need for efficiency
o Eg 35,000 refugee determinations were made in 2004-5
ENFORCEMENT
-
-
Statutes may confer investigatory powers on administrative officials in particular regulatory
fields, with power to conduct searches and interviews, and require the production of documents
o Eg re securities trading, Licensed professionals
Where the official has reasonable grounds to do so, the statute may authorize them to initiate
court proceedings or proceedings before the administrative agency or tribunal
OVERLAPPING FUNCTIONS
-
An agency may have a variety of functions
o Eg Canadian Human Rights Commission:
 Rulemaking (issuing guidelines)
 Investigative powers re complaints of discriminatory practices
 Decision-making powers that may affect the rights of individuals
Limits on exercise of delegated authority
-
-
There are few constraints on the ability of the legislative branch to delegate authority
But the exercise of delegated authority is subject to rigorous limits
o It must be exercised within the limits of the delegation
 Any act that exceeds authority is invalid (ultra vires)
o It must be exercised in accordance with procedural requirements
The courts exercise supervisory authority
CONTROLLING JURISDICTION: SUBSTANTIVE INVALIDITY
-
A delegated authority can exercise only those powers that are granted to it
o May require interpretation of the statute: see Shell v. Vancouver
o May require determination re whether the facts come within the statutory
requirements: Bell v. Ontario Human Rights Commission (SCC 1971)(280): protections
against discrimination in accommodation applied only to a “self-contained dwelling
unit”; the Commission could not proceed re other types of dwellings.
o The powers must be exercised by the person designated in the statute: “delegatus
potestas non potest delegare”: the delegate cannot delegate the powers to someone
else without authority to do so.
 But administrative powers which do not require exercise of discretion can be
delegated
CONTROLLING PROCEDURES: DUTY TO BE FAIR
-
Administrative decision-makers have a duty to employ fair procedures
The rules of natural justice apply to judicial or “quasi-judicial” decisions (determinations of legal
rights)
Other decisions are subject to a duty of fairness
o The right to know and answer the case against one (“audi alteram partem”)
o The right to a neutral decision-maker (“nemo judex in sua causa”)
Knight v. Indian Head School Division No. 19 (SCR 1990)(282) – DUTY TO BE FAIR (NOTICE OF
REASONS, OPPORTUNITY TO BE HEARD)
Knight was employed by the School Division on contract. Was dismissed when he wouldn’t agree to a
longer term of renewal of his contract
HELD: SCC: Duty of fairness depends on: Nature of the decision, Final, specific, non-legislative,
Relationship between the individual and the admin. body
Knight held office “at pleasure” and was entitled to procedural fairness at termination. Effect of the
decision on the individual’s rights. Loss of employment is significant and gives rise to a duty to act fairly.
Content of the duty to act fairly is to be decided in the specific context of each case. The concept of
fairness is entrenched in the principles governing our legal system. Since Knight could be dismissed at
pleasure, the content of the duty of fairness would be minimal- notice of the reasons for the Board’s
dissatisfaction with his employment, an opportunity to be heard. Said that when someone’s job just
comes to an end they are entitled to know why and respond to comments against them
Duty Of Procedural Fairness
-
-
An administrative decision-maker has a duty to provide
o To those whose interests are affected by a decision
o A meaningful opportunity to present their case fully and fairly
See Baker v. Canada
Duty To Give Reasons
-
-
The duty of procedural fairness may require the provision of reasons in appropriate cases, eg:
o In a decision re individual interests
o Where there is a statutory right of appeal
Requiring reasons
o Reduces the risk of arbitrary decisions
o Increases confidence that the applicable issues have been fully considered
o Facilitates appeal or judicial review
o But: it may impose an inappropriate burden and increase cost and delay
Reasonable Apprehension Of Bias
-
Procedural fairness requires impartiality from the decision-maker and from subordinates who
make recommendations to the decision-maker
Actual bias or reasonable apprehension of bias (“RAB”)
o Test of RAB: would an informed person, viewing the matter realistically and practically,
and having thought the matter through, have a reasonable apprehension that the
decision-maker is biased?
o Standards may vary with the context and function of the decision-maker
Appropriate Considerations: Material, Relevant, Irrelevant
-
Failure to take account of mandatory considerations is reviewable error
Failure to take account of relevant considerations is not fatal
Taking account of irrelevant considerations is reviewable error
Standard Of Judicial Review
-
To what extent will the court defer to the administrative decision-maker?
Three standards of review: correctness; reasonableness; patent unreasonableness
The court will set aside the decision (standard of correctness) where
o The decision-maker failed to comply with the duty of procedural fairness
o The decision-maker acted beyond its jurisdiction
-
-
-
o The decision-maker made an error of law.
A decision-maker exercises a discretion whenever the effective limits on his power leave him
free to make a choice among possible courses of action or inaction
Discretionary decisions may be judicially reviewed only on limited grounds
o Bad faith
o Exercise of discretion for an improper purpose
o Use of irrelevant considerations
In determining the appropriate standard of judicial review (correctness, reasonableness or
patent unreasonableness), consider
o The expertise of the tribunal
o The nature of the decision being made, whether it is fact-specific or polycentric
involving policy considerations,
o The extent of discretion conferred by the statutory provision
o Whether there is a privative clause (limiting judicial review)
A decision is unreasonable if, in the main, it is not supported by any reasons that can stand up to
somewhat probing examination.
Deference requires respectful attention to the reasons offered or which could be offered in
support of a decision
Application In Baker v. Canada
-
The nature of the decision in Baker and the process by which it was made
Was procedural fairness provided?
Were reasons required? If so, were sufficient reasons provided?
Was there a reasonable apprehension of bias on the part of the decision-maker?
Were material considerations taken into account? Were any irrelevant considerations taken
into account?
What was the appropriate standard of review?
Applying the appropriate standard, should the court defer to the decision under review?
What are the key reasons why the appeal in Baker v. Canada was allowed?
THE COURTS AND THE JUDICIARY
CONSTITUTIONAL FRAMEWORK OF THE JUDICIARY
-
County (province) can set up the courts, but the federal government appoints the judges
Superior court and the court of appeal are set up, appointed and paid for by the federal
government
Lower courts, inferior courts, are set up, appointed and paid for by the province
They decide 85-90% of the criminal cases, the rest in superior- for example murder
May be a problem that the SCC is set up federally as the court can deal with interjurisdictional issues- may lead to bias
Some safe guards because in order for the government in power to change the make up of
the SCC would require the unanimity of the parliament and 50 % of the population
1970’s wanted to set up federal courts- SCC ruled that this court can only deal with matters
arising out of federal statutes, could not deal with the common law
Federal courts are special statutory courts that hear matters under federal jurisdiction
Const. Act, 1867: provides for divided jurisdiction re the courts
o
-
-
Provincial jurisdiction: S. 92(14):
i. “The Administration of Justice in the Province, including the Constitution,
Maintenance, and Organization of Provincial Courts, both of civil and of
Criminal Jurisdiction, and including Procedure in Civil Matters in those
Courts.”
o Federal jurisdiction:
i. s. 96: “The Governor General shall appoint the Judges of the Superior,
District, and County Courts in each Province…”
ii. s. 100: “The Salaries, Allowances and Pensions of the Judges of the Superior,
District and County Courts … shall be fixed and provided by the Parliament of
Canada.”
Thus, S. 96 courts- Superior Courts
iii. Provinces create s. 96 courts, provide their facilities and staff
iv. Federal government appoints and pays the judges of s. 96 courts
 ie federal control over a key source of patronage
Other “inferior” provincial courts: the province creates the courts, appoints and pays the
judges
S. 101 courts: “the Parliament of Canada may, notwithstanding anything in this Act, from
Time to Time provide for the Constitution, Maintenance and Organization of a General Court
of Appeal for Canada, and for the Establishment of any additional Courts for the better
Administration of the Laws of Canada.”
v. The Supreme Court of Canada
vi. The Federal Court of Canada
vii. The Tax Court of Canada
What jurisdiction can the provincial legislatures confer on “inferior” provincial courts and tribunals?
o
-
The SCC has employed s. 96 to maintain the jurisdiction of the superior courts, and
prevent it being reassigned by the provinces to their inferior courts and tribunals
Provinces cannot take responsibility of Superior Courts and divert them to provincial
tribunal court where judges/members appointed by provinces
If provinces takes jurisdiction and takes it somewhere else, it is interfering with specially
allocated power of federal government
Ref re Residential Tenancies Act (SCC 1981)(304)
Provincial legislature can :
- Confer non-judicial functions on courts or tribunals
- Confer judicial functions on non-courts, except that it cannot divert the powers of s.96
courts to provincial courts or tribunals (whose members are not appointed by the federal
government)
Three-part test:
- Do the powers to be diverted correspond to the powers exercised exclusively by superior
courts at the time of Confederation?
- Would the power be exercised in a judicial manner (a lis to be decided on legal grounds)?
- Is the institutional setting fundamentally judicial?
Compare: Residential Tenancies Commission; Ontario Municipal Board
The courts have interpreted s. 96 to protect the core functions of the superior courts; to maintain a
unitary court system; and to ensure that the superior courts continue to exercise inherent jurisdiction to
decide questions of constitutionality. Note that, pursuant to the Const. Act 1867, Parliament, acting
alone, has jurisdiction to establish and provide for the operation of the Supreme Court of Canada. Does
that mean the federal Parliament can replace the court with a different court and restructure its
operation? Why or why not?
Current Canadian Court System
PROVINCIAL COURTS
-
Provincial court of appeal can give leave for appeal- for example if there is one judge in dissent
and the court feels it is an important national issue
Most are given by the SCC themselves
Superior court judges are assigned to the divisional courts for 3 months at a time, they also hear
applications of judicial reviews- have they acted within their jurisdiction and done so fairly
In Ontario: the Ontario Court of Justice- Jurisdiction:
o Most criminal matters, and preliminary inquiries in those matters
o Family law except divorce
o Youth offenders
o Offences under provincial legislation
o Small claims in special informal courts
o Some courts are designated with special jurisdiction
i. Drug treatment court
ii. Youth court
iii. Domestic violence court
“S.96 COURTS”- SUPERIOR COURTS
-
Each province and territory has a superior court
o
o
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Terminology: Superior Court of Justice, Court of Queen’s Bench
Formerly in Ontario: “High Court”, “County and District Court”, “Ontario Court of Justice
(General Division)”
The superior court has “inherent jurisdiction”: can hear cases in any area except those that are
specifically limited to another level of court
Superior courts try the most serious criminal and civil cases
o In some provinces, the court has special divisions: eg the family division, the
commercial list
Superior courts exercise appellate jurisdiction over cases from the inferior courts
The court organization, structure, statutory framework, is established by the provincial or
territorial legislature, but the judges are appointed and paid by the federal government under
federal statute
COURT OF APPEAL
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Each province and territory has a court of appeal or appellate division that hears appeals
from decisions of the superior courts and the provincial/territorial courts
By statute, a court of appeal may be required to decide questions that are referred directly
to the court by the provincial government (“references”) (Courts of Justice Act, s. 8)
Courts of Appeal usually sit in panels of three, but may sit as five in an important case.
Jurisdiction is specified in provincial statute: Ontario Courts of Justice Act
The judges are appointed and paid pursuant to federal statute: federal Judges Act
FEDERAL COURTS
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Superior courts with civil jurisdiction, created by Act of Parliament pursuant to Const. Act
1867, s. 101
Jurisdiction limited to matters specified in federal statutes
o i.e. they are not courts of inherent jurisdiction
o Jurisdiction re intellectual property, citizenship and immigration, competition,
appeals from the Tax Court, etc.
o Exclusive jurisdiction over federal boards and tribunals
o Shared jurisdiction (with provincial superior courts) re federal-provincial matters
Headquarters in Ottawa, sits in other centres across the country
Specialized federal courts: Tax Court, Courts Martial
SUPREME COURT OF CANADA
-
Final court of appeal from all other Canadian courts (unlike the US Supreme Court, whose
jurisdiction is limited to Constitutional and federal law)
A Chief Justice and eight puisne judges, all appointed by the federal government
The Supreme Court of Canada Act requires that at least three judges be from Quebec
By convention, three are from Ontario, one from the Atlantic provinces and two from the four
western provinces (in rotation)
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Most cases come to the court through “leave to appeal” granted by a panel of the SCC or by the
court of appeal that heard the case
The applications for leave to appeal are made in writing.
No reasons are given for decisions to grant or not grant leave to appeal. Where leave to appeal
is denied, it does not mean that the SCC approves the decision below.
The grounds for granting leave are specified in the SCC Act:
o The case involves
 a question of public importance,
 an important issue of law or mixed law and fact, or
 an otherwise significant issue (eg when courts of appeal have reached
inconsistent results on the same issue)
Appeals “as of right”: leave to appeal is automatic
o When CA has overturned an acquittal
o When one judge in the CA dissented on a question of law
If the state of law is unsettled- e.g. If two provincial courts have decided in opposite ways
The SCC Act provides jurisdiction for the federal government to refer questions to the SCC for
determination (“references”)
JUDICIAL APPOINTMENTS
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Three alternative models for selecting judges in various jurisdictions
o Nomination committees with various appointment processes
o Nomination with confirmation hearings
o Direct election
US approaches
o Federal: nominated by the President; confirmed by Senate; serve during good
behaviour until they resign or are impeached and convicted by Congress
o State: often elected; generally serve for fixed terms
o The Missouri Plan: judges are nominated; Governor appoints one of three nominees to
fill a vacancy; retention election in one year and every 12 years thereafter
The problem with elections: impact on judicial independence
o Financing the costs; contributions detract from appearance of impartiality
o Playing to the electorate; constraining choice in future cases
PROVINCIAL JUDICIAL APPOINTMENTS
-
Provincial appointment process
o Selected by the executive branch following a short-listing process involving an advisory
committee
o See Ontario’s process (315)



Vacancies are advertised, Candidates submit 14 copies of an application form,
Reviewed by the advisory committee
 Composition to reflect the diversity of Ontario – gender, geography,
racial and cultural minorities
 7 lay members appointed the AG
 6 from legal community, appointed by Chief Justice, Law Society,
Ontario Bar Association, County and District Law Presidents’ Association
 Committee members serve for 3 years
Reference checks, confidential inquiries and interviews
Committee sends a ranked list to AG who appoints from that list.
Considerations:


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Personal and professional qualities and experience
Community awareness:
 Commitment to public service, Awareness of and interest in knowing
more about the social problems that give rise to cases coming before
the courts, Sensitivity to changes in social values relating to criminal and
family matters, interest in methods of dispute resolution alternatives to
formal adjudication and interest in community resources available for
participating in the disposition of cases
 Demographics
 Judiciary should be reasonably representative of the population
 Overcome under-representation of women, visible, cultural and racial
minorities and persons with disabilities.
In Ontario, little criticism that appointments are political
FEDERAL JUDICIAL APPOINTMENTS
Appointments other than to the SCC
-
-
Office of the Commissioner for Federal Judicial Affairs oversees the federal judicial appointment
process
Application (candidates may also be nominated and then invited to indicate whether they wish
to be considered
Personal history form, Statutory qualifications reviewed
o 10 years at the bar / on the bench
o Provincial superior court: 10 years in that province (Const Act 1867)
Review by the appropriate Judicial Advisory Committee (representing bench, bar, law
enforcement (added in 2006), public) – each nominating organization or office submits a list of
-
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-
-
-
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names from whom a representative committee can be appointed by the Minister of Justice for a
two year term, with possibility of one 2-year renewal
All proceedings and consultations are confidential
Since 2006, the judge on the committee serves as chair; votes only to break a tie.
Committees assess candidates as “recommended” or “unable to recommend”. “Highly
recommended” has been removed by the Minister.
Results are confidential – solely for the Minister’s use- Minister can consult elsewhere and ask
Committee for a reassessment
Criteria
o Professional competence and experience: general proficiency in the law, intellectual
ability, analytical skills, ability to listen, ability to maintain an open mind while hearing
all sides of an argument, ability to make decisions, capacity to exercise sound judgment,
reputation among peers and in general community, areas of specialization, ability to
manage time and workload, capacity to handle heavy workload, capacity to handle
stress and pressures of judicial isolation, interpersonal skills with peers and public,
awareness of racial and gender issues, bilingual ability
Personal characteristics: ethics, patience, courtesy, honesty, common sense, tact, integrity,
humility, punctuality, fairness, reliability, tolerance, sense of responsibility, consideration for
others
Potential impediments: debilitating physical or mental medical condition, including substance
dependency; past or current disciplinary actions; current or past civil or criminal actions;
financial difficulties
Assessments are valid for two years, Candidates can renew application
Appointments are made by the GovGen on advice of federal cabinet
o Minister of Justice makes recommendation to cabinet re puisne judges
o Prime Minister makes recommendation re Chief Justices
Candidates need to consider the potential impact on them and their families – see 321-22
Criticisms of the federal judicial appointment process (non SCC): the pool of recommended and
highly recommended candidates is so large that recommendations to Cabinet may be influenced
by political considerations. Now that “highly recommended” is removed, the problem is more
severe. The Canadian Judicial Council denounced this and other recent changes, which were
implemented by the Minister of Justice without consultation.
Parliamentary committee’s suggestions for reform
o The Minister should consult with Chief Justices and define criteria for each appointment
o The Committee should recommend the best 3-5 candidates
o Candidates should be interviewed in private
The changes made in 2006 by the Minister of Justice did not respond to these concerns.
Instead, by appointing a representative of law enforcement to the advisory committees and
making the judge non-voting, a majority of each committee is now appointed by the Minister.
Does the new process risk a constitutional challenge that it undermines the independence of the
judiciary?
-
Note that, the federal judicial appointment process is not authorized by statute. How is it
authorized? Should it be specified in legislation?
SUPREME COURT OF CANADA APPOINTMENTS
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-
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Arguments for more transparency in the appointment process, The court plays a significant role
in judicial review of legislative action, The appointment process is already political, but
underground
Should candidates be interviewed in public? The confirmation process in the US is highly
politicized.
To what extent do judges act on their personal political views rather than in accordance with the
law as applied to the particular case they are deciding? Are judges likely to become more
politicized if appointed through a highly politicized process? Will some good candidates be
deterred? Can a process be designed to avoid possible abuses?
In 2004, the Minister of Justice presented the names of his nominees to the Standing Committee
on Justice and answered questions on the search process and qualifications of the two
nominees (Justice Charron and Justice Abella of the Ontario Court of Appeal)
Justice Minister’s proposal (Liberal)(2005) to appoint a replacement for Justice Major (328)
o Principles:
 Overriding consideration: merit; also, the needs of the court re expertise
 The executive branch is constitutionally responsible for the appointment
 The process should protect and promote the reality and perception of judicial
independence
 The process should be more transparent: ensure public understanding and
confidence
 There should be meaningful Parliamentary input and provincial input
Proposal for a four-stage process:
1) Minister conducts consultations
2) Advisory committee appointed as each vacancy arises
 Composition: an MP from each recognized party, a retired judge, a nominee of
the provincial AGs, the law societies, two prominent Canadians
 Mandate:
 Vet the merit of candidates identified by the Minister against criteria
provided by the Minister
 Provide an unranked list of three candidates, with an assessment of
their merit and a report of consultations
3) Minister consult further and provide advice to Prime Minister, who makes a
recommendation to Cabinet, generally from the short list
4) Minister to appear before Justice Committee after the appointment to explain the
process and the professional and personal qualities of the appointee
-
-
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Proposal rejected by Conservative opposition, who recommended that the chosen nominee be
ratified by Parliament. Before an appointment could be made, an election was held and the
Conservatives came to power
Early 2006: Conservative PM Harper announced a hybrid plan including questioning of the
nominee in a parliamentary committee. PM recommended appointment of Mr. Justice
Rothstein, who had been on the short list of the preceding government. He was questioned in a
public hearing by a parliamentary committee before he was appointed.
The process was highly scripted and controlled; committee members generally respected the
guidelines re the impropriety of questions about how he had decided past cases or how he
would decide future cases
The Can. Bar Association denounced the process on grounds that open questioning will
ultimately impair judicial independence.
See the process used in South Africa for appointments to the Constitutional Court – p. S-51-2.
JUDICIAL INDEPENDENCE
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Definition: Judicial independence : The freedom to render decisions based solely on the
requirements of the law and justice, without interference from any other entity and particularly
from the executive and legislative branches of government
Judges protect against abuses of the state. Courts really just have the authority of being
respected, their decisions are just accepted. Concerned not just with the executive and
legislative branches of the government but also other sources of power such as organized crime
Judges do make errors, that’s why we have appellant courts. Just because they are independent,
does not mean they are free from scrutiny
Assessing independence
-
The test: whether a reasonable person who is fully informed of all the circumstances would
consider that a particular court enjoyed the necessary independent status
o Actual independence
o Conditions supporting a reasonable perception of independence
 (cf the test for reasonable apprehension of bias)
Canada v. Tobiass (SCC 1997)(339)
Whether judicial independence had been impaired by a private meeting bwtn a senior Department of
Justice official and the Chief Justice of the Federal Court.
HELD: Judiciary must be independent and be seen to be independent. Complete liberty of individual
judges to hear and decide the cases that come before them. No interference (by government, pressure
group, individual, another judge) with the way in which a judge conducts the case or makes the decision
Three core characteristics of judicial independence:
Security of tenure
Financial security
Administrative independence
The criteria apply in two dimensions:
Independence of individual judges
Institutional or collective independence – without institutional independence, no
individual judge can be independent
SECURITY OF TENURE
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Judges continue as long as they have good behaviour- not based on the decision of the
government
Originally they were in office for life, now they serve until they are 75- if they retire before that
they may be supernumerary judges- part time
A judge cannot be removed from office except for incapacity to perform his or her judicial
duties. There must first be a judicial inquiry at which the judge is entitled to be heard
Superior court judges can be removed from office only by a joint address of the House of
Commons and Senate: Const. Act 1867, s. 99.
o 1867-81: four cases came before Parliament; none were successful
o 1960’s: Justice Leo Landreville – resigned before the matter was heard by Parliament
Judges Act was amended in 1971 to establish the Canadian Judicial Council – responsible for
investigating complaints against federally appointed judges. Council may recommend to
Minister of Justice the removal of the judge from office. Minister may introduce motion in Parl’t
Canadian Judicial Council (342)
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Objective: promote efficiency and uniformity and improve the quality of judicial service in the
superior courts
To review an alleged error in the case: appeal
To complain about conduct of judge: complain to Judicial Council
o Review by a member of the Judicial Conduct Committee
o If there is an issue to answer, the complaint is referred to the judge and the judge’s chief
justice for comment, with a view to resolution
o If not resolved, refer to a panel of up to five members of Council. Panel either
recommends a formal hearing, or closes the file with an expression of concern, or other
remedial measures
o Council considers a report of an Inquiry Committee and makes a recommendation to the
Minister
Statistics
o On average, 165 complaints per year (most re family law)
o 66% are concluded within three months
o Over 94% concluded within six months
Provincial judges sit until 65 rather than 75
There is an Ontario Judicial Council, Chief Justices of each province also get together to discuss
issues
FINANCIAL SECURITY
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Judicial independence precludes government from using its power to set judicial salaries
as a means of applying pressure on judges
In the 90’s, cost-cutting provincial governments proposed to reduce the salaries of
provincial judges
Reference Re Remuneration of the Judges of the Prov. Crt of P.E.I- FINANCIAL SECURITY FOR JUDGES
Sparked by a climate in which a number of provincial gov’t were implementing policies of financial
restraint. Since judge are paid highly compared to others (not to federal crt judges) they seemed like a
likely target.
HELD: Independence of the judiciary implies:
Freedom from executive or legislative encroachment and political pressures
Freedom from financial or business entanglement
Is it right for the SCC to decide on such matters? They are deciding on something that could directly
affect them. They are protections for themselves
Financial security has three components that flow from the constitutional imperative that the
relationship between the judiciary and the other branches of government be depoliticized
First, salaries of prov. ct. judges can be reduced, increased or frozen as part of an overall economic
measure, But, any changes require prior recourse to an independent, effective and objective
commission. The Commission’s recommendations are not binding, but should not be set aside lightly,
and departures must be justified. “Governments are constitutionally bound to go through the
commission process.” Judges must not be perceived as susceptible to political pressure through
economic manipulation
Second, judges collectively and individually must not engage in negotiations over remuneration with the
executive or legislature. Any reductions to judicial remuneration must not take those salaries below a
basic minimum level of remuneration which is required for the office of a judge
The commissions must be:
o Independent, in order to create the necessary buffer
 Security of tenure for a fixed term
 Appointments not entirely controlled by any one of the branches of
government
Objective: recommendations based on objective criteria, not political expedience; receive submissions
from government and judges’ association; the statute should list relevant factors to consider
Effective: Government cannot change or freeze remuneration without receiving and considering
Commission’s report. Commission meets and reports after a fixed period has expired since last report (3
to 5 years).
Options: Make Commission’s report binding, Make it binding unless legislature votes to reject or amend,
Make it subject to legislative approval
It is open to governments to design a different approach as long as it provides an effective institutional
sieve between the judiciary and other branches of government .
Prov. Ct Judges’ Assns of New Brunswick, Ontario, Alberta and Quebec verus respective Provinces
(SCC 2005) (364)- SECOND LOOK AT RE: REMUNERATION OF P.E.I JUDGES
The decision in the PEI Reference has not provided the anticipated solution, and more is needed. A
commission’s report is consultative, the legislature may make it binding. The government can reject the
recommendation, but must provide adequate and rational reasons for doing so. The reasons should
reflect the underlying public interest in depoliticizing the commission process. The rejection of
commission recommendations in NB, Ont., and Alberta, but not Quebec, met the rationality test.
ADMINISTRATIVE INDEPENDENCE
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Requires that courts themselves have control over the administrative decisions “that
bear directly and immediately on the exercise of the judicial functions”
Canada (Minister of Citizenship & Immigration) v. Tobiass (SCC 1997)(365)
Inordinate and inexcusable delay by Associate Chief Justice in hearing a case. In more than a year, the
ACJ had heard one day of argument on a preliminary motion. An application to the ACJ to expedite
matters had been unsuccessful. Senior official in Justice (Thompson) went to the CJ privately to discuss
the problem and indicated that if the delay was not addressed it would be necessary to refer the matter
to the SCC- CJ spoke with ACJ. ACJ expedited the cases – now that he “understood the urgency from the
government’s perspective”. CJ and ACJ gave assurances that a reference would not be necessary
Held: General rules: Counsel for one party should not discuss a particular case with a judge except with
the knowledge and preferably the participation of counsel for the other parties to the case. Note
exception for ex parte proceedings. A judge should not accede to the demands of one party without
giving counsel for the other parties a chance to present their views.
SCC finds that Thompson acted on the basis of proper motives, but holds that what he did was
inappropriate: he arranged to speak privately with the CJ about cases that were pending; and he applied
pressure. The CJ is responsible for the operation of the court, including expeditious progress of cases,
but it was inappropriate for him to pursue the matter at the request of one party to the case. There was
no bad faith, There was no solid evidence that the independence of the judges was actually
compromised, But: an informed person would conclude that the judges had been improperly and unduly
influenced by a senior officer of the Department of Justice, and decided to compress the hearing to the
disadvantage of the individual respondents and in order to avoid a reference. To pledge to cure delay is
one thing, To do it to avoid accountability in a reference is another. SCC set aside stay of proceedings
and ordered that the matter be heard by another judge.
SOURCES AND SCOPE OF JUDICIAL INDEPENDENCE
EXPLICIT CONSTITUTIONAL PROTECTIONS OF JUDICIAL INDEPENDENCE
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-
Const. Act 1867, s. 92(14): provincial legislatures have jurisdiction to establish and maintain the
courts
Const. Act 1867, s. 101: Parliament has jurisdiction to establish
- A general court of appeal for Canada (the SCC)
- Courts for the better administration of the laws of Canada
Const. Act 1867, ss. 96 – 100.
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-
S. 96: Federal government has power of appointment of superior, county and district court
judges
- S. 99: judges of the superior courts hold office during good behaviour until age 75 and can
be removed only on joint resolution of Commons and Senate (security of tenure)
- S. 100: salaries, allowances and pensions of superior court judges are fixed and provided by
Parliament (some financial security)
 Security of tenure is the only strictly set out element of judicial independence
 Salaries fixed by Parliament- can’t be done in the privacy of a cabinet room- still does allow for
economic manipulation
 Sections 96-100 are episodic- doesn’t deal with everything
Charter, s. 11(d): any person charged with an offence (criminal or penal, federal or provincial) has
the right …(d) to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal
- To what extent do these provisions provide protection for judicial independence? To what
extent do they leave gaps in that protection?
 Applies to all judges, deals with any courts dealing with offences- even if they have a mix of
cases it will apply to them as well
 Would not apply to courts that only deal with non criminal matters- such as provincial tribunalswould not be covered
PRINCIPLE OF JUDICIAL INDEPENDENCE
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Purpose of the principle:
- Maintain public confidence in the impartiality of the judiciary
- Maintain the rule of law (the exercise of all public power must find its ultimate source in a
legal rule)
An unwritten principle
Source: the Preamble to the Constitution Act 1867
- Note that a preamble is not a source of positive law, but can be used to identify the purpose
of a statute and as an aid to construing ambiguous statutory language : see Provincial Judges
Reference
- How is it that the preamble to the Const. Act 1867 goes beyond this purpose and “provides
organizing principles to fill out gaps in the express terms of the constitutional scheme”?
- A constitution similar in principle to that of the UK
 She believes that the preamble- “similar to UK” should have been a contractual principle
 More than just filling the gaps, ‘constitution is what the judges say it is”
- The historical origins of the principle of judicial independence: the Act of Settlement 1701
- The preservation of the basic structure of government is a constitutional imperative
- judicial independence is essential to the judicial role and the effectiveness of the
judicial branch
The majority in the Provincial Judges Reference:
-
“Judicial independence is an unwritten norm, recognized and affirmed by the preamble….
In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the
constitution, that the true source of our commitment to this foundational principle is
located.”
Provincial Judges Ref.
A majority of the SCC establishes judicial independence as a fundamental constitutional principle which
authorizes the courts to elaborate constitutional requirements to fill in the gaps and create the
conditions required for judicial independence. On this basis, they identify the three core characteristics
of judicial independence and develop an institutional process to achieve those characteristics in relation
to the financial security of provincial court judges.
Ell v. Alberta (SCC 2003)(338)
Does the principle of judicial independence apply to the office of justice of the peace?
HELD: Major J.: Judicial independence protects a strong and independent judiciary capable of upholding
the rule of law
our constitutional order
public confidence in the administration of justice
Judicial independence is the “lifeblood of constitutionalism in democratic societies”. It requires objective
conditions that ensure the judiciary’s freedom to act without interference from any other entity. The
principle is explicitly recognized in ss. 96-100, and Charter, s. 11(d). The principle extends beyond the
limited scope of these provisions, to cover provincial court judges and judges exercising civil jurisdiction
On the basis of the nature of their duties and their exercise of judicial functions, justices of the peace are
also constitutional required to be independent in the exercise of their duties.
STATUTORY INTERPRETATION
Related to: Constitutional supremacy
-
When it is alleged that Parliament or a legislature has enacted legislation that exceeds its
jurisdiction, on federalism grounds or under the Charter, the court
- Determines the nature and scope of the constitutional limits by interpreting the
Constitution,
- Interprets and assesses the constitutional validity of the legislation, and
- If the legislation is inconsistent with the constitution, the court generally declares it to be of
no force and effect (Const. Act 1982, s. 52)
- The court may, in an appropriate case, read limits into the legislation, or “read out”
specific provisions which render the legislation invalid; it may also allow a transition
period for amendment of the legislation
 Interpretation of the Constitution is different because it is a long standing document that is
difficult to change, this makes interpretation much more important
 Have to first interpret the scope of the legislation- how broad is it, what does it cover?
 When interpreting you shouldn’t take a literal interpretation, you should take a large and liberal
approach, need to try to identify what they meant to say
 You have to know what the statute means before you can decided whether it is constitutional or
not
 Usually this comes to court when someone wants to know whether or not it applies to themcomes up with litigation
Related to : Parliamentary supremacy
-
As long as a legislature/Parliament observes constitutional limits on its jurisdiction, its legislation is
supreme
- The role of the court is to construe and apply the legislation to give effect to the meaning of
the words used
- The court does not second guess the policy choices of Parliament or the legislature. Its role
is limited to assessing the legislation’s constitutional validity.
 In statutes the power of the courts over the legislature is reversed- brings the power to
Parliamentary supremacy
 in order to displace the common law, the legislature has to use clear language- Newfoundlandemployee let go, said they could do so at pleasure- court ruled the statute did not give specific
enough consequences
 When a law has passed this means this statute has been accepted with those words by a
majority of the House of Commons and the Senate
 Whether or not they agree with the statute has no effect
OVERVIEW OF STATUTORY INTERPRETATION
Interpretation Acts
-
Each jurisdiction has one, setting forth principles of statutory interpretation
See the Interpretation Act (Canada)(379)
- s. 8(1): federal enactments apply to whole of Canada, unless a contrary intention is
expressed
- s .8.1: the common law and civil law are equally authoritative sources of the law of property
and civil rights in Canada – where necessary to interpret an enactment, refer to the law in
force in the province at the time the enactment is being applied
- s. 8.2: apply civil law terminology in Quebec, and common law terminology in other
provinces
- s. 10: the law is always speaking, and where expressed in present tense it shall be applied to
the circumstances as they arise, to give effect to the true spirit, intent and meaning of the
enactment
- s. 11: “shall” is imperative and “may” is permissive
- S. 12: every enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects (key)
- S. 13: a preamble shall be read as a part of the enactment intended to assist in explaining its
purport and object.
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-
S. 14: marginal notes form no part of the enactment – for convenience only
S. 15(1): definitions or rules of interpretation in an enactment apply to all provisions of the
enactment; operate only if a contrary intention does not appear; and apply to other
enactments dealing with same subject matter unless a contrary intention appears
S. 16: where an enactment confers power to make regulations, expressions used in the
regulations have the same respective meanings as in the enactment
S. 17: no enactment is binding on Her Majesty except as indicated in the enactment.
 Crown is not bound by statutes unless the statute says that it specifically is bound
 Charter says that her Majesty is bound, says specifically that it does apply to the
government and legislature
SPECIFIC INTERPRETATION TOOLS
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-
Specific interpretation rules are often included in acts and regulations
- Definitions of terms used in the statute
- Application sections indicating the scope of the legislation in terms of territorial application,
temporal application, persons affected, exemptions etc.
- Preambles and purpose statements indicate the reasons for legislation
- Commencement provisions: when the legislation will come into force
- Transitional provisions: how the legislation will apply to situations in progress
For an example, see the Canadian Human Rights Act (381)
COMMON LAW RULES OF STATUTORY INTERPRETATION
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Four approaches
- 16th c.: “equitable construction” which evolved into the “mischief rule” or “the rule in
Heydon’s Case”: construe the statute so as to suppress the mischief identified by
Parliament, advance the remedy and suppress subtle inventions and evasions for
continuance of the mischief, according to the true intent of the makers of the act
- 18th c.: strict construction to constrain the impact of government on the life, liberty and
property interests of individuals
- In criminal law and taxation law- people need to know what they are and aren’t
allowed to do, needs to be very specific, therefore if there are gaps or breaches
then this is in the favour of the accused- the court will not fill in the gaps
th
- 19 & 20th c.: Parliamentary sovereignty and the rule of law: literal construction and the
evolution of interpretative principles:
“ the plain meaning rule”: in ascertaining the intent of the legislature, a court must stick to
the literal meaning of the legislative text in so far as that meaning is clear & unambiguous
- Rationale for the “plain meaning” approach
- The plain meaning of the words is the best evidence of legislative intent
- Relying on the plain meaning enhances certainty, predictability and the rule
of law
- But: meaning is rarely plain; and application is often difficult;
-
-
- when the “plain meaning rule” would lead to an intolerable result, courts often turn to
“the golden rule”: which enables a court to depart from the ordinary meaning of a text only as far
as necessary to avoid an absurd, repugnant or inconsistent result
- The legislature cannot envisage and provide for (or against) every possible application of its
general rules.
Today, legislative intention, textual meaning, and consequences of different approaches to
interpretation are all relevant to interpretation.
Current theory and practice (385)
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In interpreting legislation, courts start with the text, but also take into account the statutory context
and purpose
If the text is clear and unambiguous, the text will govern – particularly if
- the text is detailed, concrete and precise and
- the certainty and predictability of the provision is important
The intention of the legislature will also be assessed, particularly if
- it is directly relevant to the problem affected by the interpretation issue
- evidence of intention is reliable, clear and compelling
 Sometimes that way something has been dealt with in another part can shed light on
this section
 If there is precise wording there is little room for interpretation
APPROACHES TO INTERPRETATION
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Sometimes courts will take a strict and narrow approach to interpretation:
Harvard College v. Canada (Commissioner of Patents) (SCC 2004)(387)- STRICT INTERPRETATION
The statute provided for patenting an invention re composition of matter
HELD: The genetically altered Harvard mouse was not included in “composition of matter” – Parliament
had not contemplated this application and this radical departure should be addressed by Parlt, not
introduced through interpretation. . Took the status quo approach, let Parliament change the rules
specifically if they want to include genetics- took an intentional approach- thought that what was meant
by ‘composition of matter’ did not include was it meant today.
Re Vabalis (OCA 1983)(387)- INTERPRETIVE APPROACH, STATUTE IGNORED
A married woman using her own name seeks to alter the name. The statute requires that the change
cannot be made unless her husband and children also take the altered name
HELD: that application of this requirement would be absurd and limited it to married applicants who
already have the same surname. Predicated that when a woman marries that she takes her husband’s
name. Sets precedent that the court can and will ignore statutes.
Are the two different approaches justified in the circumstances? Why?
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Where there is a gap in the application of legislation, courts will generally decline to fix it. Whether
or not the gap appears to come within the purpose of the legislation, whether or not the omission is
deliberate or may be inadvertent, the court cannot “amend” the legislation
Beattie v. National Frontier Insurance Co (OCA 2003)(388)
The legislation provided that no-fault insurance benefits would be held in trust and returned to the
insurer at the conclusion of the trial if claimant was convicted of a criminal offence. Sued the insurance,
said that it only goes up until conviction, does not cover after the conviction- he got the benefits after he
was convicted
HELD: Court held that the statute did not deprive claimant of post-trial benefits. Common law can be
used to filled the gap.
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But, the court may rely on the common law where it supplements legislation that is underinclusive
(does not specifically apply to situations equivalent to those that are specified)
Beson v. Director of Child Welfare for Nfld (SCC 1982)(388)- COMMON LAW LOOKED AT
The statute provided for appeals in a number of situations, but not in the circumstances of this
particular case
SCC: as a matter of common law, the court could have allowed an appeal
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The court may fix a drafting error where the legislature’s clear intent can be established and the
mistake clearly identified
Morishita v. Richmond Township (BCCA 1990)(389)- FIX A DRAFTING ERROR
A bylaw referred to s. 4, which made it incoherent; it was clear that the reference should have been to
s. 5.
- There is a presumption of overlap if two provisions apply to the same facts and do not conflict.
- In some situations, however, the court may hold that the statute constitutes an exhaustive code
which excludes overlapping legislative provisions or the common law
Gendron v. Supply & Services Union (SCC 1990)(389)
The Canada Labour Code is comprehensive and displaces common law remedies.
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Where the court finds that legislation conflicts with other legislation, the more specific provision
will generally prevail – unless the more general provision relates to more significant interests …
Insurance Corp of BC v. Heerspink (SCC 1982)(389)- LEGISLATIVE CONFLICT, SIGNIFICANT INTERESTS
TAKE PRECENDENCE
Human Rights Code provides that a service cannot be denied to an individual without reasonable cause.
This takes precedence over statutory right of an insurance company to cancel a contract without
establishing any cause.
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When legislation conflicts with the common law, the legislation prevails on the basis of
parliamentary supremacy
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When a later statute conflicts with an earlier statute, the later provision impliedly repeals the
former to the extent of the inconsistency
RULES OF STATUTORY INTERPRETATION
RULES ABOUT MEANING
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Ordinary meaning rule: It is presumed that the legislature intended the ordinary meaning of the
words used
Technical meaning rule: when legislation deals with a specialized subject and uses language that the
specialists would understand in a particular way, the specialized understanding is preferred over
ordinary meaning
Re Witts and AG BC (BCSC 1982)(390)- TECHNICAL MEANING RULE
Witts bought a horse (which was held out to be a colt) for breeding purposes and discovered it was a
gelding. The purchase was made at a claiming race – no opportunity for inspection. The Horse Racing
Rules provided that no claim could be made based on the sex or age of a claimed horse. The stewards
rejected Witts’ claim on grounds that it was based on sex. “Sex” was not defined in the Rules. There was
expert evidence that, in the horse world, a horse is never described as being “male or female” but is
always specifically described (stallion, colt, gelding, ridgling, mare or filly)
HELD: no error was made in rejecting the claim on the basis that it related to the sex of the horse.
Purpose of the rules re claiming races: provide a marketplace for racing horses; once a sale is made, it is
certain and unconditional. Meaning of “sex”: to be interpreted as the term is understood in the racing
fraternity. No order as to costs. Note: the party arguing for a technical meaning bears the onus of
proving the technical meaning and that it was intended- Usually done through expert evidence (persons
qualified by study or experience) . The problem could have been avoided if “sex”, like “age” had been
defined in the rules.
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Bilingual rule: If one version of a bilingual text is capable of two meanings, but the other is not, the
shared meaning is adopted
Original meaning rule: static versus dynamic interpretation: limit meaning to original intentions or
adapt it to new circumstances – make depend on degree of generality of the language used and the
possible impact of adaptation
Plausible meaning rule: if the court expands the ordinary meaning to give effect to legislative intent,
it may do so only if the expanded meaning is a plausible interpretation of the words used.
PRESUMPTIONS
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Straightforward expression: The legislature chooses the clearest, simplest and most direct way of
stating its meaning.
Uniform expression: The legislature uses the same words and techniques to express the same
meaning and different words and techniques to express different meanings.
No tautology or redundancy: Every word and feature of the text is there for a reason.
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Internal coherence: provisions of a legislative text fit together logically and work together
coherently to achieve the purposes of the legislation.
MAXIMS OF INTERPRETATION (394)
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Implied exclusion (expressio unius est exclusio alterius): if something is not mentioned in a
provision where others are mentioned, it is impliedly excluded)
Associated words (noscitur a sociis): the meaning of a word or phrase is affected by the other words
or phrases with which it is linked in a sentence.
Limited class (ejusdem generis): When a list of things that all belong to an identifiable class is
followed by a more general term, the general term may be read down to include only other things
within the identifiable class.
The legislature would have said “x”: i.e., if the legislature had intended the proposed
interpretation, it would have framed the legislation in a different way, as it did elsewhere
R. v. Daoust (SCC 2004)(395)- INTERPRETATION OF WORDS
Undercover officer took merchandise to accused on four occasions, for the purpose of selling it, each
time hinting that it was stolen. Each time, the accused bought the goods. There was evidence that the
accused knew the goods were stolen. D and the store manager, B, were charged under s. 462.31 of the
CCC with transferring the possession of property with the intent to conceal or convert it, knowing that it
was obtained as a result of the commission of a crime. Convicted at trial. Appeal allowed by CA
SCC held: appeal dismissed:
The offence does not apply to the receiver of the property. The “transfer of possession” is the act of the
person who has the control or possession of the object and tries to pass it on
Plain meaning of the words used: criminalizes the acts of the person who transfers or delivers the
goods- “in any manner and by any means” – expands the methods but not the actors that are culpable
Associated words: The verbs used all apply to the deliverer and not to the receiver of stolen property;
the list cannot be expanded by the court
Redundancy: The activity of the receiver is already an offence under another section (s. 354). It must be
assumed that the two sections criminalize different behaviours. (Parlt does not legislate in vain)
PURPOSE AND SCHEME ANALYSIS
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Legislative purpose:
- Courts seek the purposes of legislation and, so far as the text permits, adopt an
interpretation that promotes or is at least consistent with those purposes.
- The more general the language of the provision, the more discretion is conferred re its
interpretation and the more important its purpose will be in that process
Legislation is to be given a fair, large and liberal construction to ensure attainment of its objects:
Interpretation Acts
Legislative scheme: provisions are presumed to work together in a coherent scheme; the overall
context can assist in the interpretation of a particular provision
R. v. Chartrand (SCC 1994) (399)
Accused invited child to accompany him in his car so that he could take photos of him. Child agreed.
Father found them together when they stopped to take photos. Accused claimed the photos were a
surprise for the parents. Accused was charged with abduction (CCC, s.281) for “unlawfully” taking a
person under 14 with intent to deprive the parent of possession of the child.
Issues: What is the meaning of “unlawfully”? What is the significance of the fact that the equivalent
“illegalement” does not appear in the French language version?
Held: The word “unlawfully” in the English version is surplus; it does not require commission of another
unlawful act
Methodology: consider legislative history of the section, its purpose and context, its wording, and
interpretation of the word “unlawfully”. Legislative history: amendment in 1982 to distinguish
abduction by strangers and abduction by a parent; “unlawfully” was included in the English version re
abduction by strangers, but deleted from the French; the subsection creating a defence of lawful
possession was dropped.
Purpose and context: Considers provisions re kidnapping, hostage taking and abduction: some are
offences against the victim; others, like s. 281, are offences against the custodial rights of parents (for
the protection of the children). The harm: abduction of children; statistics. In this context, the restrictive
interpretation proposed by the defence (that “unlawfully” requires proof of another crime) is not
attractive.
Wording of the section: what does “an unlawful taking” mean? = without excuse or justification?=
without lawful authority?
To require that an additional unlawful act occur beyond the act of taking the child is at cross-purposes
with the mischief Parliament wanted to cure. The word “unlawfully” in the English text was an oversight;
the French text reflects Parl’ts true intent when it redrafted the section to apply only to abduction by
strangers
MISTAKES AND GAPS
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Correctable mistakes: If there is persuasive evidence that the text does not accurately reflect the
rule the legislature intended, the courts have jurisdiction to correct the mistake (unless it amounts
to a gap).
Uncorrectable gaps: As a matter of ordinary statutory interpretation, courts almost always decline
to cure a gap or make provisions more inclusive.
- Contrast the court’s approach constitutional interpretation and to remedying a statute
which is inconsistent with the constitution
Supplementing legislation by relying on the common or civil law: The court may correct a gap if
there is a means to do so at common or civil law.
PRESUMPTIONS OF LEGISLATIVE INTENT
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Strict construction: Legislation that takes away freedom or property from an individual or otherwise
interferes with his or her rights is generally construed strictly (eg criminal statutes; taxing statutes)
- Penal legislation
- Legislation that interferes with individual rights
- Exceptions to the general law (cf Baker v. Canada)
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Liberal construction:
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Legislation that is designed to cure a problem or confer a benefit is considered to be
remedial and attracts a liberal construction
- Constitutional interpretation is liberal, progressive, purposive
- Human rights codes
- Remedial legislation
- Social welfare legislation
- Legislation relating to aboriginal people
- Constitution
Presumed compliance with
- Constitutional law and values
- Rule of law
- International law
Presumed continuation of common law (see Wells v. Nfld.)
Presumed non-interference with common law rights
Presumption against
- The extra-territorial application of legislation
- The retroactive application of legislation
- Interference with vested rights (both common law and statutory)
- Applying legislation to the Crown and its agents.
These presumptions can be rebutted, but require the use of clear statutory language in order to do
so.
Avoiding absurdity
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It is presumed that the legislature does not intend its legislation to produce absurd consequences
- Irrational distinctions
- Irrational, contradictory or anomalous effects
- Defeating the purpose of the legislation
- Undermining the efficient application of legislation
- Violating important norms of justice or fairness
Relation to other legislation and other sources of law
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Constitutional law: presumption of constitutionality: the party challenging the constitutional validity
of legislation bears the onus of establishing its invalidity. The court will prefer an interpretation that
upholds constitutional validity (judicial restraint in interfering with legislation).
Regulations: legislation and regulations are read as an integrated scheme
Related legislation (statutes in pari materia): statutes dealing with the same subject matter must be
read together and are presumed to offer a coherent and consistent treatment
Comparisons with other statutes
Common law/civil law concepts
International law
Extrinsic aids to interpretation
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Legislative sources: agreements implemented in legislation; legislation modelled on other
legislation
Legislative history: material brought to the attention of the legislature – to identify the purpose of
the legislation, but not to ascertain the intent of the language used in the legislation
- In the US: congressional debates
- In Canada: focus on the wording that was settled on when the vote was taken as indicating
the intent of the legislature as a whole
Legislative evolution: successive amendments and re-enactments of a provision
Expert opinion: scholarly articles etc.
Medovarski v. Canada (Min. Citizenship & Immigration) (427)
The meaning of the words –
if version A is ambiguous and version B is not, version B governs
if both are ambiguous, but both lend themselves to a single, particular meaning, this is the
shared meaning.
If both versions are clear but say different things, there is no shared meaning
If one version is broader in scope that the other, either the narrower version is the shared meaning or
the two versions say different things and there is no shared meaning.
- but, consider whether thee is evidence that the legislature intended the broader meaning.
Old and new statute, where the new does not allow for an appeal where the former does- there was a
transition period. Ambiguity between French and English versions- French is more open. English versionambiguity about what it means to be granted a stay. Passive interpretation makes distinguishments
between people for no reason
CONSTRAINTS ON LEGISLATION AND ADMINISTRATIVE ACTION
Re Drummond Wren (Ont HC 1945)(4)- RESTRICTIVE CONVENANT, VOID AGAINST PUBLIC POLICY
Unopposed application to remove a restrictive covenant on land in Toronto which prohibited its sale to
“Jews or persons of objectionable nationality”
Is the covenant void as against public policy?
Whatever is injurious to the interests of the public is void, on the ground of public policy, which changes
over time. Courts may consider legislation in determining principles relative to public policy- UN
Charter, signed and ratified in Canada (Preamble,Articles 1 & 55: “universal respect for, and observance
of, human rights and fundamental freedoms for all without distinction as to race, sex, language or
religion”) Atlantic Charter: freedom from fear and freedom of worship. UN Charter: We the people of
the United Nations determined to save succeeding generations from the scourge of war, which twice in
our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights,
in the dignity and worth of the human person, in the equal rights of men and women and of nations
large and small, and for these ends to practice tolerance ad liv together in peace with one another as
good neighbours…
Canada had signed on to the UN and Atlantic Charter- The Racial Discrimination Act (1944) prohibited
the publication or display of representations indicating an intent to discriminate on the basis of race or
creed (see, now, s. 13 Ont. Human Rights Code)
If the covenant is valid, it could be used anywhere against any religious or ethnic group – create or
deepen divisions, permit segregation and confinement of particular groups to particular areas. The
courts have a moral duty to lend aid to all forces of cohesion and repel all tendencies that would imperil
national unity. By invoking public policy, courts obviate the need for rigid constitutional guarantees. In
particular the rights of Jews must be protected, in light of their oppression by the Nazis.
The covenant is void as against public policy
 Racial discrimination act did not apply because there was no publication
 Absence of the Charter, but don’t have any laws against it, they feel that morally they should
strike it down but the courts don’t have the right to tell Canada about their morals
Re Noble and Wolf (OR HC 1948)(8)
An application to remove restrictive covenants (against Jews, blacks and coloureds) on cottage lots was
opposed by owners of other lots who asserted their right to preserve congeniality and land values
HELD: Schroeder J. rejects the decision of Mackay J. in Drummond Wren :
Not bound by decision of a court of co-ordinate jurisdiction. There are dangers in allowing a court to
create a new head of public policy which overrides an indisputable principle of law – leads to vagueness,
uncertainty and confusion. Danger of allowing judicial tribunals “to roam unchecked in the field
occupied by that unruly horse, public policy”. Views may differ re political expedience or what is good
for the community. It is for the legislature to determine what is best for the public good. The role of the
court is to apply the law. Courts are not authorized to establish as law everything which they may think
for the public good, and prohibit everything which they think otherwise. Only the legislature can
abrogate common law rights, and only by clear language. Conclusion: the covenant is valid and
enforceable …
Schroeder J. sees little danger in the covenants, but observes that his view is irrelevant – matters of
public good can with greater propriety and safety be left to the duly elected representatives of the
people
Appeal to CA dismissed- Appeal to SCC allowed on other grounds
After Noble and Wolf
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Ont. Leg. passed an amendment rendering void discriminatory restrictive covenants and other
provinces followed suit
Query: Leaving aside the Charter, how assertive should judges be in applying “public policy” to graft
new moral positions onto the law? Should the courts or the legislature establish new public policy?
Does it matter whether the source of the law in issue is common law or statute?
 Ends to justify the means
 Legislature doesn’t have to be unbiased, but judges do- checks and balances
 Charter makes it clear what powers the courts have and what powers they don’t have
FORMAL EQUALITY FOR WOMEN: THE “PERSONS CASE”
Edwards v. AG Canada (JCPC 1930)(13)
Issue: are women “qualified and fit persons” eligible to be appointed to the Senate?
Const. Act 1867, s. 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" …
See s. 23 which sets out qualifications, See ss. 24, 26 (“qualified”), See s. 32 (“fit and qualified”)
Parliament can alter from time to time the qualifications of persons elected to the House of Commons,
ss. 41 & 52. No equivalent provision re Senate
Two prime ministers met with them and said they would like to appoint women but that they could not
due to women not being persons
SCC: concludes, unanimously, that a woman is not a “qualified and fit person” within s. 24 of the Const.
Act 1867. Interprets the phrase in accordance with its meaning in 1867 when women did not have legal
capacity
JCPC: there is a burden of persuasion on appeal from a unanimous judgment of the SCC; and it is met in
this case. In context, “persons” is ambiguousOrdinary meaning: includes women, External evidence:
previous legislation and decided cases. Historical legal incapacity of women: in 1867, “persons” would
have been understood as limited to males; that understanding has become a tradition, but history is not
conclusive. When was it enacted it was meant to apply just to men, but that history is not conclusive.
Approach to constitutional interpretation: not limited to original meanings; constitution must be
adapted - “a living tree capable of growth and expansion within its natural limits” - “large and liberal”
interpretation
The Const. Act 1867 is to be construed like an ordinary statute, but there are statutes and statutes: cf
constitutional statute with tax and penal statutes- more strict interpretation
Internal considerations: There are sections where “persons” clearly includes females. There are sections
where “male British subjects” is used (ss. 41 & 84). Interpretation Act: the masculine includes the
feminine unless the contrary is explicitly stated. Have to construe Constitution so it is valid over time.
Where they didn’t restrict this to male explicitly then it must mean to include females as well
Is this case about the rights of women?
The JCPC explicitly states that the decision is merely a matter of statutory interpretation, that it is not
about the “rights of women”, and that no one has a “right” to sit in the Senate. Could the JCPC have
dealt with the issue differently?
STATUTES & DEVELOPMENT OF THE COMMON LAW
Does enactment of a statute limit the development of the common law?
Bhadauria v. Board of Governors of Seneca College (OCA 1979)(38)
Plaintiff claims that the College discriminated against her on the ground of her ethnic origin in declining
to interview her for ten advertised teaching positions for which was qualified. Rather than filing a
complaint under the Ontario Human Rights Code, she sued for damages, relying on a common law duty
not to discriminate and statutory breach of the OHRC
Issue: assuming she can prove the facts, do they give rise to a cause of action? No court has recognized
or repudiated a tort of discrimination.Due to the Human Rights Code, can you sue for a tort of
discrimination? Does the Human Rights code displace or compliment the common law? Once the statute
is put into place, does that stop the development of the common law?Damages under the HRC are
limited
The complainant has a right not to be discriminated against (OHRC) and breach of the right can be
remedied through a tort of discrimination. The OHRC does not exclude a common law remedy. The
appointment of a board of inquiry is within Ministerial discretion. There is no need to determine
whether one can sue for breach of the OHRC.
On appeal to the SCC (1981)(41): Rejects the argument that a right of action arises from a breach of the
OHRC. A cause of action based on statutory breach arises in negligence, with the statute providing the
standards of conduct which, if breached by someone with a duty of care, constitute negligence. Said
that the Human Rights Code is exhaustive, nothing in common law that provides you as a base for suingwill not look to the code for common law because the code itself sets out reasons and instructions for a
claim. Here, the OCA has created by judicial fiat an obligation to confer an economic benefit for breach
of a statute which already provides comprehensively for remedies for its breach. Rejects the argument
that a common law tort of discrimination can be recognized on the basis of the policies adopted in the
OHRC. The OHRC establishes a public policy and the remedies available for its breach (it cannot be used
as the basis for developing a new tort).
Ashby v. White: breach of a right should have a remedy’ but here the right at common law had not been
established
Re Drummond Wren – disapproved in the lower courts in Re Noble and Wolf; which was decided in the
SCC on property law grounds, without addressing the use of public policy.
It is clear that a statute can displace a common law rule if it does so clearly. The situation may be
more complex where the statutory scheme does not clearly displace the common law.
OCA: relied on the authority of the court to recognize new legal interests to be protected by the
common law, on the basis of public policy established in legislation, international agreements, etc.
SCC: The legislature has established protection for various forms of discrimination; the protection did
not pre-exist the legislation. The OHRC provides a comprehensive statutory scheme: complaint,
settlement, adjudication, remedies, curial enforcement, rights of appeal. The comprehensive legislative
initiative overtook the existing common law in Ontario and established a different regime which does
not exclude the courts but rather makes them part of the enforcement machinery under the Code. The
legislature has laid out procedures for vindication of the public policy
JUSTIFICATION OF CONSTITUTIONAL JUDICIAL REVIEW
In the United States
Marbury v. Madison (USSC 1803)(370)- US APPROACH
Can an Act, repugnant to the Constitution, become the law of the land? The people have an original
right to establish constitutional principles, which are deemed fundamental and cannot easily be altered.
Providing for the organization of government. Establishing limits not to be transcended by government
The constitution is either a superior, paramount law, unchangeable by ordinary legislation Or an
ordinary statute alterable by the legislature.
It is the province and duty of the judicial branch to say what the law is. If a law is in conflict with the
constitution, the constitution must govern – otherwise, the foundation of the constitution is subverted.
Moreover, the constitution extends judicial power to all cases arising under the Constitution
In Canada: constitutional supremacy
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Colonial Laws Validity Act 1865
Statute of Westminster 1931
Constitution Act 1982, s. 52(1)
Now this is under s 51
The Colonial Laws Validity Act 1865, said that legislation in the colonies had to be consistent with
imperial statutes, one of those statues was Constitution Act 1867, meaning all statutes had to
comply with that act- reference to federal and provincial allotments 91 and 92 – when colonial act
was repealed, it was kept alive in relation to Constitution Act 1867
LIMITS ON CONSTITUTIONAL JUDICIAL REVIEW
Manitoba Language Reference (SCC 1985)(393)
Manitoba Act, 1870 (part of the Constitution of Canada)-Manitoba joined confederation as a province.
S.23: guaranteed use of the English and French languages in the legislature and courts. 1890: the
Manitoba legislature enacted an Official Languages Act establishing English only. The Act was declared
unconstitutional in several cases, but continued on the statute books; laws continued to be enacted and
published in English only. In 1980, after Re Forest was decided in the SCC, Manitoba began to enact new
legislation in both languages. Manitoba launched a constitutional amendment process to validate
legislation passed in English only.
Consequences of failing to enact legislation in both languages: Manitoba Act, s. 23: a constitutional
duty re manner and form of enactment of legislation, protecting substantive rights of Manitobans to
equal access to the law in French and English. Duty of the courts to ensure that the constitution prevailsCourts have no role in assessing the wisdom of legislative policy. But they do insure that legislation is
consistent with the constitution
Rule of Law: The invalidity of unilingual legislation in Manitoba creates a legal vacuum and consequent
legal chaos. All institutions operating under legislation would be without legal authority, Composition of
the legislature might be in issue, Legal rights and obligations established by statute would be open to
challenge. The Rule of Law requires the creation and maintenance of an actual order of positive laws to
maintain public order
Transitional order: the existing rights, obligations etc. will continue in effect for the period of time
necessary to cure the defect. Support from the doctrine of state necessity
THE LEGITIMACY OF JUDICIAL REVIEW
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Concerns about the legitimacy of judicial review
- Are courts usurping the power that is properly the domain of Parlt and the legislatures?
- Is the rule of law giving way to the rule of unelected judges?
Vriend v. Alberta (SCC 1998)(401)
SCC held that the exclusion of sexual orientation from the Individual Rights Protection Act (IRPA)
infringed equality rights guaranteed in the Charter of Rights and Freedoms. SCC addresses the role of the
courts in judicial review of legislation on constitutional grounds.
The Charter shifted Canada from parliamentary supremacy to constitutional supremacy
Effect of the Charter:
Guarantees rights, Subject to justification of infringements under s. 1
The courts are responsible for settling disputes over scope and meaning- Is this role illegitimate because
in some cases it thwarts the will of elected representatives? The model was chosen by elected
representatives on behalf of Canadians. Courts do not substitute their policy preferences for those of
Parlt or the legislatures. The position of the legislature is entitled to respect – particularly in the analysis
under s. 1. Legislative supremacy is retained by virtue of the override clause, s. 33.
The process gives rise to a dialogue between the legislature and the court : each branch is somewhat
accountable to the other and responds to the work of the other, enhancing the democratic process
rather than denying it. The concept of democracy is broader than the notion of majority rule. If
legislators fail to take democratic values into account, judges are not acting undemocratically by
intervening
Remarks of Chief Justice McLachlin (406)
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Role of the courts:
- Decide legal disputes
- Define division of powers (federalism)
- Assess compliance with Charter of Rights and Freedoms
- Supervise administrative tribunals
The role of the courts is more visible under the Charter
The charge is made that activist judges have gone beyond impartial judging to advocate for
special causes and achieve particular political goals
- If this is true, judges are exceeding their role. But is it true?
Four aspects to the criticism:
- Judges should never go against the will of elected representatives?
- Inconsistent with our constitution, which requires the court to invalidate
unconstitutional legislation
- Judges are pursuing a particular political agenda?
- Lack of evidence
- Judges are focused on interpreting and applying the law in a way that reflects
legislative purpose
- The judicial role remains distinct from the political
- Judges should apply, not make, the law?
- Answers to constitutional questions are not obvious or pre-ordained – there is
no clear line between interpreting, applying and making the law – choices must
be made between competing positions
- Are judges making decisions that should be made by elected representatives (mandate
for law-making and institutional competence to weigh all the relevant factors)?
- Where a legal issue is before the courts, there is no option to decline to answer
- Courts do and should act with appropriate deference to the other branches of
government
Some judges have been critical of the extent to which the SCC has overreached its institutional
limits in some cases
Ref. Re Remuneration of PEI Judges (SCC 1997) (409)
Dissent: La Forest J:
Unlike the other branches of government, the judicial branch does not initiate matters and has no
agenda of its own. Courts are reluctant to comment on matters that are not necessary to dispose of the
case, particularly in constitutional cases. Troubled that the case is being decided on issues that were not
fully argued (principles of judicial independence). Judicial independence was not clearly established as a
fundamental principle in the UK constitution. The framers entrenched the fundamental components of
judicial independence set out in the Act of Settlement in ss 99-100 of the Const. Act, 1867. The Act of
Settlement was limited to superior court judges. The ability of courts to nullify laws derives legitimacy
from the Constitution and is limited by it. – it should be based on textual authority, not on the notion
that the preamble contains implicit protections. The express provisions of the Constitution are not, as
Chief Justice Lamer contends, “elaborations of the underlying unwritten and organizing principles found
in the Preamble. Rather, they are the Constitution.
Pro Judicial Review
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Charter is not absolute, need the judicial intervention
Dialogue model- involved in dialogue with legislature and executive
Criticism that judges have their own political agenda- no evidence of this
Law isn’t black and white- need review sometimes
Need check and balances- democracy is not idealistic
Against Judicial Review
Could act as activists
Through appointment of judges, they may be selected for specific reasons
Gov’t don’t really want to take a stand- judges are forcing them into it- not really using the
withstanding clause
 Judges to obey the law not make the law