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Foundations of Canadian Law NCA Outline


 Positivism & Natural Law
Re Drummond Wren: Natural Law: Facts: WEA bought a lot with intent to build it in order to
raise funds. Restrictive covenant: land cannot be used or sold to Jews or objectionable
nationality. WEA (buyer) applied to have covenant invalidated. Held: Judge decides case on
morality and justice by extending his views beyond the statute and gives way to public policy.
Res. Cov promotes segregation and deepens divisions b/w existing groups, contrary to Racial
Discrimination Act. Canada country of minorities, :. Duty to aid unity. Void due to offensive
nature of RC to public policy. Reinforced by official acceptance of intnl policies frowning on this
type of discrimination.

Facts:The Worker’s Education Association (WEA) had purchased a lot with intentions of
building a house on it and then raffle it off for fund-raising. The land was restricted by a
covenant pronouncing that it was “not to be sold to Jews or persons of objectionable nationality.”
The WEA applied to have the covenant declared invalid because the covenant was void as
against policy, it contravened the provisions of the Racial Discrimination Act 1944, and the
contemporary version of s.13 of Ontario Human Rights Code which prohibits the publication or
display of representations indicating intent to discriminate on the basis of race or creed.

Held: the covenant is void because it is offensive to the public policy of this jurisdiction.
“I do not deem it necessary for the purpose of this case to deal with this argument, except to say
that it appears to me to have considerable merit. My opinion as to the public policy applicable to
this case in no way depends on the terms of The Racial Discrimination Act, save to the extent
that such Act constitutes a legislative recognition of the policy which I have applied...“An order
will therefore go declaring that the restrictive covenant attacked by the applicant is void
and of no effect.”-The argument of the applicant is that the impugned covenant is void because it
is injurious to the public good

- If the sale of one piece of land can be so prohibited, the sale of other pieces of land can likewise
be prohibited. In my opinion, nothing could be more calculated to create or deepen divisions
between existing religious and ethnic groups in this province, or in this country, than the sanction
of a method of land transfer which would permit the segregation and confinement of particular
groups to particular business or residential areas, or, conversely, would exclude particular groups
from particular business or residential areas

Re Noble and Wolf: Legal Positivism: Facts: Individual cottages similar Res Cov re coloured
and Jews, tried to rely on Drummond Wren to invalidate. Held: Disagrees with Drummond, leave
public policy for politicians. Drummond based on shelter, this creation purposes (distinguished).
Judge said would stick to laws, written statutes, unwritten or common law decisions, or text .. not
speculations as to what is best. To expound and interpret the law, not to create law based on
individual belief or opinion of what law ought to be. Appeal to certainty of positivism.
(i) Early formalist feminism – the “Persons” case
 Early feminism – concerned with seeking women’s formal equality to men.
 Prior to 1916, laws related to elections did not allow women to vote.
 In 1918, Parliament passed the Women’s Suffrage Act, SC 1918, c. 20, which gave every
female British subject over age 21 the right to vote, as long as she possessed the same
qualifications required for men.
 Despite these political advancements, women remained barred from holding a Senate
 All relied on s. 24 of the British North America Act of 1867 which stated that only
“qualified Persons” were eligible to be appointed to the Senate. Governments argued not
have been considered to be “qualified persons” in 1867 Act passing
 The approach the Privy Council took to interpreting the Canadian Constitution, which
understood constitutions as evolving documents that could respond to changes in society
over time, remains an important guide to constitutional interpretation today.

Edwards v. AG Canada [1930] AC 124, 1 DLR 98 (PC) LORD SANKEY LC: 

 Question: whether the words “qualified persons” in that section include a woman, and
consequently whether or women are eligible to be summoned to and become 
members of the Senate of Canada.
 The BNA Act planted in Canada a living tree capable of growth and expansion 
within its natural limits. 
 The object of the Act was to grant a Constitution to Canada. “Like all written 
constitutions it has been subject to development through usage and convention”: 
Canadian Constitutional Studies, Sir Robert Borden, (1922), p. 55. Not judges duty
to give it a technical and strict interpretation.
 If Parliament had intended to limit the word “persons” in s. 24 to male persons 
it would surely have manifested such intention by an express limitation as it has 
done in ss. 41 and 84. There would be a high burden of proof to prove otherwise (pg
 their Lordships have come to the conclusion that the word “persons” in s. 24  
includes members both of the male and female sex.
 Courts torn between 2 methods of interpretation: 1) internal evidence from the Charter
itself, 2) external evidence from changing society.
Contemporary Feminism: R. v Morgentaler. Wilson J., wrote concurring opinion that section
251 violates two rights: liberty and security of person. She emphasized how section 251 violated
a woman's personal autonomy by preventing her from making decisions affecting her and her
fetus' life. To Wilson, a woman's decision to abort her fetus is one that is so profound on so many
levels it goes beyond being a medical decision and becomes a social and ethical one as well. By
removing the women's ability to make the decision and giving it to a committee would be a clear
violation of their liberty and security of person. Wilson scathingly noted the state is effectively
taking control of a woman's capacity to reproduce.

Wilson went on to agree with the other judges that section 251 (prohibiting the performance of
an abortion except under certain circumstances) is procedurally unfair, adding that the violation
of section 7 also has the effect of violating section 2(a) of the Charter (freedom of conscience) in
that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to
legally perform one) were in many cases so onerous or effectively impossible that they were
"resulting in a failure to comply with the principles of fundamental justice". The decision to
abort is primarily a moral one, she noted, and therefore by preventing her from doing so, the
decision violates a woman's right to conscientiously-held beliefs. With the abortion law, the
government was supporting one conscientiously-held belief at the expense of another, and in
effect, was treating women as a means to an end and depriving them of their "essential

“The decision whether to terminate a pregnancy is essentially a moral decision, a matter of

conscience. I do not think there is or can be any dispute about that. The question is: whose
conscience? Is the conscience of the woman to be paramount or the conscience of the
state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and
democratic society it must be the conscience of the individual.”

In her analysis of section 1, Wilson noted the value placed on the fetus is proportional to its stage
of gestation and the legislation must take that into account. However, here, the law cannot be
justified because it takes the decision-making power away from the woman absolutely and
therefore cannot pass the proportionality test.

 Critical Legal Studies: Reject any kind of “natural legal order” discoverable by objective
means, from Legal Realism, attacking 2 axioms of formalist understanding of common law:
1) common law legal rules were neutral and objective; 2) rules could be determined with
sufficient certainty. Realists – all rules were indeterminate, subject to multiple
interpretations, results reflect unstated public policy preferences of judges.
o Judging with CLS: A Case Study: R. v S (RD). Trial Judge Sparks (black)
remarked that police officers had been known to mislead courts in the past and
overreact particularly with non-white groups, but not tied to particular policeman. 15
yr old (black) alleged interference with arrest of another youth. Only police and
accused witnesses. Q of reasonable apprehension of bias, use of social context in
assessing credibility; presumption of judicial integrity; “as a member of the
community it was open to her to take into account the well-known presence of racism
in that community and to evaluate the evidence as to what occurred against that
background. “she was alive to well known racial dynamics that may exist in
interactions btwn police and visible minorities”.
 Law & Economics: Efficiencies of outcome. Economic theory of regulation or “public choice
theory” applies basic economic theory to try and understand public policy, tries to explain
governmental intervention as a corrective to market failure. Policy makers act in order to
maximize political support, not necessarily attempting to maximize social welfare and are
motivated by self-interest.
Public Law and Economics Theory. Ex: Bank of America Canada v Mutual Trust Co. 2002:
SCt upheld trial judge’s award of compound interest ($5 difference from simple interest), with
Time Value of Money argument. 3 factors account for depreciation of money: 1) opportunity cost;
2) risk; 3) inflation. Compound interest compensates lender for decrease in value of money,
because unpaid interest is treated as unpaid principal, and Comp. Interest treats a dollar as a
dollar, more precise, and is norm in banking/financial systems in Canada & Western world.
Contract Damages: Expectation damages focus on value Plaintiff would have received had the k
been performed. Restitution Damages (infrequently employed) focus on advantage gained by
Def as a result of breach of k.
 The appellant, Bank of America, advanced money to a developer, and the respondent, 
Mutual Trust, had undertaken to advance money to the purchaser of houses 
(device called TOC).
 The developer assigned its rights against Mutual Trust to Bank of America 
Canada. The funds advanced by Mutual Trust under the TOC would have 
discharged the loan made by Bank of America Canada to the developer. 
 MT backed out of deal after real estate market collapsed. BOA lost 10 million as a result. 
 Trial judged awarded interest on this amount at a different rate (compounding vs simple 
interest rate). 
 The difference between the two amounts was in the order of $5 million. Bank of 
America Canada appealed.
HELD:  The appeal should be allowed and the trial judgment restored.
The judgment of the Court was delivered by MAJOR J
 (1)   The Time­Value of Money
Three factors account for the depreciation of the value of money:  
(i) opportunity cost  (ii) risk, and  (iii) inflation. 
(2)   Contract Damages
 Expectation damages, the usual measure of contract damages, focus on the value which 
the plaintiff would have received if the contract had been performed.  
 Restitution damages, which are infrequently employed, focus on the advantage gained by 
the defendant as a result of his or her breach of contract.
(a)  Expectation Damages
 Generally, courts employ expectation damages where, if breach is proved, the plaintiff 
will be entitled to the value of the promised 
 (b)  Restitution Damages
 The other side of the coin is to examine the effect of the breach on the defendant.  
 In contract, restitution damages can be invoked when a defendant has, as a result of his or
her own breach, profited in excess of his or her expected profit had the contract been 
performed but the plaintiff’s loss is less than the defendant’s gain.  
To prevent defendants from exploiting the time­value of money to their advantage, by delaying 
payment of damages so as to capitalize on the time­value of money in the interim, courts must be
able to award damages which include an interest component that returns the value acquired by a 
defendant between breach and payment to the plaintiff.

An award of compound interest will prevent the respondent from profiting by its breach at the 
expense of the appellant.  
The award of the trial judge yields a satisfactory result with respect to both expectation damages 
and restitution damages.

[e] Similarities / Differences in Theories:
- Both positivism and natural law are concerned with concepts of law and justice, even if they 
diverge as to how the two relate to one another. 
- Both as also based largely on Western, Liberal ideas about law and society. 
- In contrast, feminism and critical studies take issue with the liberal basis od law and its 
relationship to justice; both attempt to establish alternative versions of what justice might be. 
- Law and economics theories look at law from a less of a moral theory, and more in ideas 
about efficiency. 
- Public choice critique in law and economic theory echoes the complaints voiced by the CLS 
and feminist scholars. 

ISLANDS OF EMPOWERMENT(Bhabha): anti-discrimination law and question of racial

emancipation: CRITICAL RACE STUDIES: subjective experiences with law =important source
of knowledge for full and just application of law to facts, esp in racialized context, and 2) urged
position of pragmatism re resort to litigation to advance a justice claim. Remain “realistic” about
limits of “liberal reform” within existing structures. Unconscious racial bias. Peel Law
Association v Pieters. HRTO named anti-black racism as a social distortion that unconsciously
affects ind. Behaviour. Also that “backlash” may be part of longer process of attitude and norm
shifting. Political engagement and persuasion can achieve more re attitude shifting that strong
rights adjudication. W/o reordering of social and economic foundations, inequality is likely to
remain an essential feature of Canadian race relations. Litigation alone cannot solve social


positivism affords to social facts reflects a fundamental truth about law, namely, that the law
guides conduct through the authoritative settlement of moral and political issues. D says H’s
(1) “The law of a community can be identified and distinguished by specific criteria, by tests
having to do not with their content but with their pedigree or the manner in which they were
adopted or developed.” PEDIGREE THESIS
(2) “The set of these valid legal rules is exhaustive of ‘the law,’ so that if someone’s case is
not clearly covered by such a rule (because there is none that seem appropriate, or those that
seem appropriate are vague, or for some other reason) then that case cannot be decided by
‘applying the law.’ It must be decided by some official, like a judge, ‘exercising his
(3) “To say that someone has a ‘legal obligation’ is to say that his case falls under a valid
legal rule that requires him to do or to forbear from doing something.” OBLIGATION THESIS
D. legal principles fill in where there are no legal rules.

WORK OF IDEOLOGY IN CANADIAN LEGAL THOUGHT (Kelly): hermeneutic of suspicion in

judges of ideological motives behind maj/opp in the Labour Trilogy (Rothstein, J). Charter
provisions like “freedom of association” require judges to take interpretive positions and make
arguments to define their content.” Whether to overrule, depart from precedent requires judges
perform inductive and policy work. Mediating between correctness and predictability in law,
requires J to make conscious choice about the value of certainty v evolution. Ideology manifests
itself in the legal work she performs on materials before her. Uphold/overturn precedent,
(Canada v Craig) Ct engages in balancing exercise between correctness and certainty. Surgical
distinguishing precedent (confining it to its facts, narrow/strict) v loose approach (reliance on
language wholly apart from facts that gave rise to decision).


 Aboriginal Rights and Title
o Three Views on the Constitutional Relationship btwn Indigenous and Non-Indigenous
people in Canada: 1) evolution of and legitimacy qua history of same, remedy rest on
IDing Canada’s origin and future in treaty relationship; 2) C.Const order does or
ought to reflect relationship btwn C and AG ppl. Four complex facts:p 55.3)Borrows,
on evolution of relationship, AB laws provide significant context and detail for
judging our relationships with the land and one another. Qs as to C’s sources of law,
& cultural commitments, institutional receptiveness and interpretive competency.
o Indigenous Relations Prior 1982.
 Nation to Nation Relations
 Suppression of Indigenous Governance Authority and Practices (Statement of Apology to
Former Students of Indian Residential Schools-see TRC and settlement +$300million)
 Turn to Affirming and acknowledging persistence of indigenous legal rights
 Indigenous Self-Government Aspirations (UNDRIP), perhaps way to actually reconciliation?
 The Modern Treaty Making Process
B.N.A --- Section 91(24) of the Constitution Act 1867 (UK) and 30 & 31 Victoria C. 3
Federal Government has power over subject matter of “Indians, and Lands reserved for the
Indians”. It was clear that S. 91(24) applies to First Nations people who have status under the
Indian Act [1876] (“Status Indians”). In 1939 SCR 104, the Supreme Court held that s. 91(24)
also applies to Inuit people. Daniels case spoke to Metis being included in “Indian” definition.
Section 35 of the Constitution Act 1982 and the Doctrine of Reconciliation
A. Constitutionalization of Aboriginal and Treaty Rights:
R. v Sparrow (1990);
Supreme Court established a set of criteria, known as the “Sparrow test,” to interpret section 35.
Since section 35 does not specify what qualifies an Indigenous right, the test provides a way for
lawmakers to determine that.

First, the person invoking the section 35 right must show that (1) it holds an “existing” Aboriginal or
treaty right that was not extinguished in 1982, and (2) there has been a prima facie infringement of
that right in the sense of an unreasonable limitation, an undue hardship or a denial of the preferred
means of exercising the Aboriginal or treaty right. Then, the burden is on the Crown to justify the
interference based on a valid legislative objective, and to show that the interference is consistent with
the honour of the Crown and its fiduciary duty to Aboriginal peoples. At the justification stage
regarding the honour of the Crown, consultation with Aboriginal peoples was recognized (along with
the issue of minimization of the infringement and fair compensation) as a factor that might justify an
infringement of an Aboriginal fishing right caused by fishing regulations.

The first part of the test asks “Has a right been infringed on?”
Answer: A government activity threatens to infringe on an Indigenous right if:
 it imposes an “undue hardship” on First Nations
 it is considered “unreasonable” by the court
 it denies the right holders “their preferred means of exercising that right”
The second part of the test asks “What might justify an infringement on an Indigenous right?”
Answer: An infringement might be justified if:

 it serves a “valid legislative objective,” such as “conserving and managing a natural


 it involves “as little infringement as possible” to achieve the intended result

 it is for the purposes of expropriation and “fair compensation” is provided

 the government has consulted with the Indigenous group in question about conservation
measures being implemented
B. Aboriginal Rights and Restraints on State Power: R. v Sparrow: (Thomas Milne,
Case Brief)
Majority Opinion Reasoning: Dickson CJ and La Forest J (Lamer, Wilson, L'Heureux-Dube and
Sopinka JJ)(McIntyre took no part): Aboriginal rights are not extinguished merely by their being
controlled in great detail by the regulations under the Fisheries Act. Nothing in that Act or its
detailed regulations demonstrated a clear and plain intention to extinguish the Aboriginal right to
fish. Fishing permits were simply a manner of controlling the fisheries, not of defining
underlying Aboriginal right. Historical Crown policy can neither extinguish existing Aboriginal
right without a clear intention nor delineate the Aboriginal right. The nature of government
regulations cannot be determinative of content or scope of existing Aboriginal rights.
Government policy can regulate the exercise of the Aboriginal right but such regulation must be
in keeping with s. 35(1).
“Existing Aboriginal Rights”: Term must be interpreted flexibly so as to permit their evolution
over time and must reject “frozen rights” approach.
“Recognized and Affirmed”: Framework for interpreting this term must include appreciation of
history and policy between Crown and Aboriginal peoples, and be construed in a purposive way,
because the purposes of s.35 demand generous and liberal interpretation.
Section 35 Test: This is a two-part test that sets whether s. 35 rights are interfered, and if so,
whether that interference is justified.
Part One - Interference: does the impugned legislation have the effect of interfering with the
existing Aboriginal right? If “yes”, then prima facie infringement of s. 35 established and the
following must be asked: (i) is limitation on Aboriginal right unreasonable?, (ii) does the
limitation impose undue hardship?, and (iii) does the limitation deny s. 35 holders preferred
means of exercising Aboriginal right? The onus is on the group challenging the legislation.
Part Two - Justification: once interference is established, then ask (i) is there a valid legislative
objective? If “yes”, then (ii) does legislative objective uphold honour of Crown? The onus is on
the Crown defending the impugned legislation.
“Sparrow Test”: Part One involves asking whether the effect of the restriction unnecessarily
infringes the interests protected by the Aboriginal right, with the onus lying on the aboriginal
claimant. Part Two involves the court inquiring whether the legislative objective is valid, which
must be something more than a “public interest” justification because that is too vague and
broad. If a valid objective is found, then is the honour of the Crown upheld? This is a key
consideration whether the objective is justified. There must be a link with justification and
restriction on the Aboriginal right. The justificatory standard is a heavy onus on the Crown but s.
35(1) requires that the Aboriginal right be given priority over the interests of other groups.
Further questions are dependent on the circumstances of the inquiry, which may include (i)
whether there has been as little infringement as possible in order to effect the desired result, (ii)
whether fair compensation is available, and (iii) whether the Aboriginal group was consulted
with respect to the measures being taken, however this is not an exhaustive list.

C. The Van Der Peet Test (1996):

“Integral to a distinctive culture Test”
1) Activity must be an element of practice, custom, or tradition integral to the distinctive culture
of the aboriginal group asserting the right
Must be of central significance, a defining characteristic of the society, one of the things that
makes the society distinct. Without this practice/custom, would the society be altered
fundamentally? If so it is an integral practice
2) The practice must have developed before ‘contact’. Contact is the arrival of Europeans in
North America
Practice may evolve over the years since contact (fishing with nets instead of spears).
Contemporary practices that developed as a result of European contact do not qualify.
Contact is defined differently for Métis…it is the time of effective European control.
The burden is going to be on the Crown to justify any regulation of an aboriginal right. If there is
any doubt in describing or defining the scope of a right that doubt is to be resolved in favour of
the aboriginal claim.
The test outlines ten criteria that must be met in order for a practice to be affirmed and protected
as an Aboriginal right pursuant to Section 35. These ten criteria are as follows:

1. Courts must take into account the perspective of Aboriginal peoples themselves;
2. Courts must identify precisely the nature of the claim being made in determining whether
an Aboriginal claimant has demonstrated the existence of an Aboriginal right;
3. In order to be integral a practice, custom or tradition must be of central significance to the
Aboriginal society in question;
4. The practices, customs and traditions which constitute Aboriginal rights are those which
have continuity with the practices, customs and traditions that existed prior to contact;
5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent
in adjudicating Aboriginal claims;
6. Claims to Aboriginal rights must be adjudicated on a specific rather than general basis;
7. For a practice, custom or tradition to constitute an Aboriginal right it must be of
independent significance to the Aboriginal culture in which it exists;
8. The integral to a distinctive culture test requires that a practice, custom or tradition be
distinctive; it does not require that that practice, custom or tradition be distinct;
9. The influence of European culture will only be relevant to the inquiry if it is
demonstrated that the practice, custom or tradition is only integral because of that influence;
10. Courts must take into account both the relationship of Aboriginal peoples to the land and
the distinctive societies and cultures of Aboriginal peoples.1
11. The Supreme Court’s ruling and the subsequent adoption of the Van der Peet test are
regarded as problematic by critics who point out that, by further defining Aboriginal rights,
the test circumscribes the scope of Aboriginal rights as set out by the previous test outlined
in R. v. Sparrow. Some critics view this as enabling the Crown to extinguish rights at the
point of definition

D. R. v Sappier R v Gray

R. v Sappier/R v Gray: The Sappier decision1 is the first Supreme Court of Canada
decision to recognize an aboriginal right to harvest forest resources for personal, non-
commercial use. The decision involved three status Indians, two Maliseet Indians (Mr. Sappier
and Mr. Polchies) who are members of the Woodstock First Nation in New Brunswick and one
Mi’kmaq (Mr. Gray) who is a member of the Pabineau First Nation in New Brunswick. All three
had cut trees on Crown lands without authorizations from the Government of New Brunswick,
and were charged with unauthorized possession of timber taken from Crown lands. In their
defence, they asserted a treaty right and an aboriginal right to harvest timber for personal use
under s. 35(1) of the Constitution Act, 1982.
The Supreme Court took pains in characterizing the nature of the right claimed, stating that the
characterization of the right to harvest wood must be directly associated with the particular way
of life of the aboriginal community. The Court found the “right to harvest timber for personal
uses”2 to be too general. Instead, the right was characterized as a right to harvest wood for
domestic uses as a member of the aboriginal community. The Maliseet and Mi’kmaq were
“migratory people who lived from fishing and hunting and who used the rivers and lakes of
Eastern Canada for transportation.” Thus, the right to harvest wood was tied to meeting the
communities’ traditional needs for such things as shelter, tools and fuel.

The Court emphasized that the right to harvest timber for domestic uses could have no
commercial dimension. No timber could be sold, traded or bartered to produce assets or raise
money even if money so generated were used to build or purchase shelter. 3 While the aboriginal
right to harvest timber was therefore recognized, the Supreme Court — no doubt recalling the
violent reaction that followed the release of the Marshall decision — carefully circumscribed the
scope of the right. RIGHT TIED TO SPECIFIC SITES

In Sappier, the Supreme Court applied the “site-specific” requirement on hunting and fishing
rights of aboriginal communities from previous case law to the present case of harvesting timber.
The Supreme Court placed a geographic limitation on the aboriginal right, stating that it was
limited to domestic uses on Crown lands traditionally used for this purpose by members of the
Pabineau First Nation. Another important issue for the Supreme Court was to decide whether
harvesting timber was central enough to the First Nations’ culture to warrant constitutional
protection as an aboriginal right. In previous cases, the Supreme Court had set a high standard
for this test, holding that an activity had to be integral to the distinctive culture of the aboriginal
group in question. In its decision in Mitchell4, the Supreme Court had said that an aboriginal
activity must be part of the core identity of an aboriginal community in order to constitute an
aboriginal right.

This is an important limitation. It means that, in each case where an aboriginal right to harvest
forest resources is asserted, the existence of the right must be decided based upon evidence of
supporting the existence of the asserted right in a specific location. The fact that the Supreme
Court has recognized a right of members of two First Nations to harvest trees in two locations in
New Brunswick does not mean that those First Nation members have a right to harvest trees
elsewhere; nor does it mean that other aboriginal peoples in other parts of Canada necessarily
have similar rights.

However, timber harvesting for home construction was an activity shared by aboriginal and non-
aboriginals alike. A test requiring that the activity be part of the core identity of the aboriginal
community could make it impossible for an aboriginal community to establish an aboriginal right
tied to activities like harvesting trees for shelter. To address this potential problem, the Supreme
Court effectively lowered the standard for determining cultural importance of an activity, by
holding that that the pre-contact practice upon which the aboriginal right is based need not go to
the core of the society’s identity, i.e. it need not be its single most important defining character. 5
The Supreme Court stated that, in establishing an aboriginal right, a court must seek to
understand how the particular pre-contact practice relied upon relates to the aboriginal
community’s current way of life. However, the practice does not have to go so far as to be the
“core of a people’s culture”. In addition, the Court clarified what is meant by “culture” in the
analysis. It held that the inquiry is into the pre-contact way of life of a particular aboriginal
community, including the community’s “means of survival, their socialization methods, their
legal systems, and potentially, their trading habits”.6 The Court indicated that “flexibility” is
important when assessing whether a traditional practice constitutes an aboriginal right, because
the object is to “provide cultural security and continuity for the particular aboriginal society.” 7 In
the absence of direct evidence, judges are to draw necessary inferences about the existence and
integral nature of the practice.

In this case, the aboriginal defendants had argued that their timber harvesting was part of a
broader aboriginal right to sustenance. This was rejected by the Supreme Court. The Court
distinguished the right to sustenance from the right to the means of obtaining sustenance. It held
“that the traditional means of sustenance, meaning the pre-contract practices relied upon for
survival, can in some cases be considered integral to the distinctive culture of the particular
aboriginal people”. However, the Court firmly stated that “there is no such thing as an aboriginal
right to sustenance”.8 Consistent with earlier decisions allowing the exercise of aboriginal rights
in a modern manner, the Supreme Court held that the nature of the aboriginal right to harvest
timber must be considered in light of present day circumstances. On that basis, the Supreme
Court rejected the Crown’s submission that the respondents should not have a right to harvest
wood to build large permanent dwellings, obtained by modern methods of forest extraction. The
Supreme Court stated that ancestral practices that are the foundation for aboriginal rights may be
expressed in modern form. The Supreme Court cautioned that limiting the rights of aboriginal
communities to building wigwams would truly limit the doctrine of aboriginal rights “to a
narrow subset of ‘anthropological curiosities’ and our notion of aboriginality would be reduced
to a small number of outdated stereotypes. EXTINGUISHMENT

A final consideration was the impact of the Government of New Brunswick’s forest regulatory
regime on the aboriginal right to harvest forest resources. Where timber harvesting is extensively
regulated by provincial laws, the question arises whether that regulatory regime has effectively
extinguished any inconsistent aboriginal right. In this case, the Crown argued that any aboriginal
right to timber had been extinguished by provincial legislation and regulation of timber
harvesting. As in the Sparrow case, 10 this argument was rejected. The Supreme Court
reconfirmed that it is the Crown who bears the burden of proving extinguishment, and that the
intention must be clear and plain.11 The Court held that the regulation of Crown timber through a
licensing scheme does not meet the high standard of demonstrating a clear intent to extinguish
the aboriginal right to harvest wood for domestic uses. Therefore, the aboriginal right to harvest
wood continued to exist despite the extensive regulatory regime governing timber harvesting on
Crown land in New Brunswick

As the first Supreme Court decision to recognize an aboriginal right to timber, the decision will
have important practical implications. Governments will have to review forest tenures and
regulatory regimes to consider whether changes are required to accommodate any site-specific
rights that may be established in the future. While the decision clearly rules out any commercial
component to the right, existing commercial timber licensees may still be affected if
governments are required to give priority to aboriginal timber harvesting rights over commercial
rights. In this sense, the Sappier decision could have the same impact on the forest industry as
the Supreme Court’s Sparrow and Marshall12 decisions had on the commercial fishing industry.

The Sappier decision also provides guidance on the nature of aboriginal rights and the
requirements for establishing their existence:

► the right to sustenance is not an aboriginal right, although the means to obtaining the
sustenance may be a right;

► aboriginal rights are to be defined on a site-specific and case-by-case


► the threshold for finding an aboriginal right should not be unnecessarily heightened by
words such as “core identity” from previous case law;

► courts should consider how particular pre-contact practice that is relied upon relates to the
current way of life of the aboriginal community, including modern forms of the practice; and

► characterization of an aboriginal right must not be overly broad, must contain a

geographic element and should avoid personal or trade uses.
D. Section 35 and Indigenous Laws
E. Section 25 and Métis Rights
F. Treaty Rights
a. The Era of Modern Treaties
Modern Treaties as a Third Order of Government: Campbell et al v AG CB & Nisga’a
Nation et al. As made clear by Justice Williamson in the SCt of BC in the case involving then
opposition leader Gordon Campbell in 2000, section 25 of the Canadian Charter of Rights and
Freedoms trumps section 15 equality rights. Treaty (which spoke to legislative (non-crim) rights
of Nisga’a Nation, and limits thereupon) stands. BNA ss. 91,92 distributed all of (but no more
than) the powers that until 1867 belonged to the colonies. Aboriginal Rights, incl. Right to Self
Government akin to a legislative power to make laws, survived as one of the unwritten
“underlying values” of the Const. outside of 91,92. Ab Ppl had legal systems prior to Euro
arrival, unwritten form, handed down from one generation to another. MOST salient fact is that
since 1867 Canadian Courts have enforced laws made by AB societies, demonstrating a limited
right to self-government, limited degree of legislative power.
Modern Treaties and Indigenous Law. Inuit Charter rights broader than Can. Charter,
Modern Treaties and the Constitutional Relationship: Beckman v Little
Salmon/Carmacks First Nation (2010) SCC 53. Duty to Consult = means of upholding honour of
the Crown. Consultation can be shaped by agreement of the parties, treaty sets out rights and
obligations of parties, from assertion of sovereignty to resolution of claims and implementation
of treaties. Special Relationship.
The Honour of the Crown: Manitoba Métis Federation v Canada (AG). Facts: The
Canadian government agreed in 1870 to grant Mètis children shares of 1.4 million acres of land
and to recognize existing Mètis landholdings. These promises were set out in ss. 31 and 32 of the
Manitoba Act, 1870, a constitutional document. Errors and delay interfered with the division and
granting of the land among the eligible recipients.
Issue: Whether Canada failed to comply with the Honour of the Crown in the implementation of
ss. 31 and 32 of the Manitoba Act, 1870.
Holding: Appeal allowed in part. The Federal Crown failed to implement the land grant provision
set out in s. 31 of the Manitoba Act, 1870 in accordance with the Honour of the Crown (HOC).
Majority Opinion Reasoning: Section 31 was a constitutional obligation to the Mètis, an
Aboriginal people. The broader purpose of the obligation was to reconcile Mètis Aboriginal
interests with the assertion of Crown sovereignty. Although not a fiduciary duty, it was a solemn
constitutional obligation to the Mètis that engaged HOC, and required the Crown to act diligently
in fulfilling that promise, which it failed to do.
Rule: Honour of the Crown: The ultimate purpose is the reconciliation of pre-existing Aboriginal
societies with the assertion of Crown sovereignty. HOC was engaged by an explicit obligation to
an Aboriginal group that is enshrined in the Constitution, but it will not be engaged where there
is simply a strong interest. The duties imposed concern how the obligation must be fulfilled
which varies with the circumstances. The question is simply this: Viewing the Crown’s conduct
as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment
of the purposes of the obligation?
Limitations: A claim for declaratory relief sought to assist in extra-judicial negotiations with the
Crown in pursuit of reconciliation, a constitutional goal in s. 35. The claim is not barred by
limitations because no personal relief sought and no claim for damage or for land. Limitations
cannot prevent courts, as guardians of the Constitution, from issuing declarations on the
constitutionality of the Crown’s conduct. As long as an issue remains outstanding the goal of
reconciliation and constitutional harmony remains unachieved. Also, policy rationales
underlying limitations acts do not apply in Aboriginal context such as this where reconciliation
weighs heavily in the balance, and sometimes a declaration is the only way to give effect to
Laches: The claim is also not barred by laches because the court is loath to apply an equitable
doctrine to defeat the Mètis claim given its role as guardian of the Constitution especially when a
constitutional provision not been fulfilled as required by HOC.
Application: Honour of the Crown: When the issue is implementation of a constitutional
obligation to an Aboriginal people, HOC requires that Crown (i) take a broad, purposive
approach to the interpretation of the promise, which is borne out of jurisprudence regarding s.
35(1), and (ii) act diligently to fulfill it because the law assumes the Crown always intends to
fulfill its solemn promises, such as those found in treaties, but also constitutional obligations
such as in this case. A persistent pattern of errors and indifference that substantially frustrates the
purposes of a solemn promise may amount to a betrayal of the Crown's duty to act honourably in
fulfilling its promise.
Dissenting Opinion(s) Reasoning: Rothstein J (Moldaver J)(paras 156-303): Majority reasoning
results in new common law constitutional obligation derived from HOC. This results in an
unpredictable expansion of the scope of duties and a significant expansion of Crown liability
where promise made to an Aboriginal group. The claim should be barred by limitations and
laches which are universally applicable. The court never recognized a general exception from
limitations for constitutionally derived claims.
Aboriginal Title: Tshilhqot’in Nation v BC 2014 SCC 44:

Facts: BC issued a license to harvest trees in Appellant’s territory. The Appellant objected which
led to negotiations with BC. Negotiations came to an impasse. The Appellant sued BC and
claimed for Aboriginal Title (AT). Trial Judge found Appellants were entitled to declaration of
AT, but for procedural reasons the TJ refused to make the declaration. BC appealed. BCCA held
AT had not been established, but that it might exist to specific sites. Appellants appealed to SCC.
Issues: Is AT established? What rights does AT confer? Did BC breach its Duty to Consult?
Holding: Appeal allowed. Declaration of AT granted. BC breached its duty to consult.

RULE: TEST for AT: (i) Sufficiency: Sufficiency lied at the heart of this appeal. What
constituted sufficient occupation to ground title? This issue arose because the Appellant’s were
semi-nomadic. The question for all parts of the AT test must be approached from both the “CL
perspective” (which imports the idea of possession and control of the lands) and “Aboriginal
perspective” (which focuses on laws, practices, customs and traditions of the group). The inquiry
is context-specific. The claimant group must show it historically acted in a way that would
communicate to third parties that it held the land for its own purposes. The kinds of acts showing
sufficient occupation are dependent on the manner of life of the people and the nature of the
land. Sufficiency is similar to an intention to occupy or hold land, however what a court
considers “occupation” must give equal weight to the perspective of the claimant group which,
depending on its size and manner of living, might conceive of possession of land differently.
Sufficiency is a question of fact depending on all the circumstances, in particular the nature of
the land and the manner in which it is commonly used.
(ii) Continuity: Continuity between present and pre-sovereignty occupation must be established,
however the claimant group need not produce an unbroken chain of occupation, rather the
evidence of present occupation must be rooted in pre-sovereignty times to establish the
(iii) Exclusivity: Exclusive occupation at the time of sovereignty requires showing an intention
and capacity to retain exclusive control over the land. It depends on various factors such as the
context, the characteristics of the claimant group, the nature of other groups in the area, and the
characteristics of the land in question. Other peoples being on the same land at the same time
does not negate exclusivity. If others were excluded from the land, or if others were on the land
by permission, exclusivity can still be established.
What rights does AT confer?: AT confers ownership rights similar to those with fee simple,
however it comes with an important restriction: it is collective title held not only for the present
generation but for all succeeding generations. The right to control the land means that govts and
others seeking to use the land must obtain the consent of the AT holders. If the AT holders do not
consent to the use, the govt’s only recourse is to establish the proposed incursion on the land is
justified under s. 35. To show the proposed incursion is justified under s. 35, the govt must show:
(1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were
backed by a compelling and substantial objective; and (3) that the govt action is consistent with
the Crown’s fiduciary obligation to the group.
Provincial laws of General Application: Provincial laws are subject to the s. 35 infringement and
justification framework (“Section 35-Sparrow Approach”). In assessing the constitutionality of
an impugned provincial law, the Section 35-Sparrow Approach must be used, which is a
carefully calibrated test that reconciles provincial laws with ARs per s. 35. This approach is also
a fairer and more practical assessment from a policy perspective in comparison to the Doctrine of
Interjurisdictional Immunity, which has no further role to play regarding ARs. It no longer
matters whether ARs, which includes AT, fall within the jurisdiction of s. 91(24) because ARs are
a limit on both federal and provincial jurisdiction. Neither the provinces nor the federal govt are
permitted to legislate in a way that results in a meaningful diminution of ARs, unless such an
infringement is justified and is consistent with the Crown’s fiduciary duty owed to the Aboriginal
First, as part of its return to principles set out in the Court’s 1997 decision in Delgamuukw v
British Columbia, [1997] 3 SCR 1010, (TERRITORIAL), Tsilhqot’in Nation includes a return
to an equal role for Aboriginal perspectives that includes Aboriginal laws, instead of the
exclusive focus on Aboriginal practices (SITE SPECIFIC) that was a feature of R v Marshall; R
v Bernard, 2005 SCC 43, [2005] 2 SCR 220, the Court’s second post-1982 decision on
Aboriginal title. Second, Tsilhqot’in Nation clarifies an understanding of occupation that
accords with a territorial approach to Aboriginal title, one that does not require and piece
together intensive use of well-defined tracts of land. In doing so, the Court turned its back on the
approach it took in Marshall/Bernard, an approach that was the source of the arguments made by
the governments of Canada and British Columbia in Tsilhqot’in Nation and the basis of the
British Columbia Court of Appeal decision in this case (William v British Columbia, 2012 BCCA
285). The June 26 decision therefore brings increased certainty to the law of Aboriginal title by
clarifying the type of occupation that will ground Aboriginal title. It also increases the likelihood
of more successful Aboriginal title claims and, hopefully, more intensive and good faith
negotiations in modern land claims and treaty processes.
The Chief Justice begins the discussion of the test for Aboriginal title by emphasising
occupation. Initially, the test is put in the context of what she calls “a semi-nomadic indigenous
group”, a characterization of the six bands making up the Tsilhqot’in Nation (para 24, 29), but
the test does apply to claims for Aboriginal title by all Aboriginal groups. The test is a highly
contextual one (para 37). Intensity and frequency of use is to vary with the characteristics of the
Aboriginal group and the nature of the land (para 37). The characteristics of the Aboriginal group
include “its laws, practices, size, [and] technological ability
The court held that Aboriginal title constitutes a beneficial interest in the land, the underlying
control of which is retained by the Crown.[4] Rights conferred by Aboriginal title include the right
to decide how the land will be used; to enjoy, occupy and possess the land; and to proactively use
and manage the land, including its natural resources.[5] But, the court set out a Sparrow-style
mechanism by which the Crown can override Aboriginal title in the public interest:

1. the Crown must have carried out consultation and accommodation;

2. the Crown's actions must have been supported by a compelling and substantial objective;
3. the Crown's action must have been consistent with its fiduciary obligation to the
Aboriginal body in question.

UNDRIP, Article 32.1

States shall consult and cooperate in good faith with the indigenous peoples concerned through
their own representative institutions in order to obtain their free and informed consent prior to
the approval of any project affecting their lands or territories and other resources, particularly in
connection with the development, utilization or exploitation of mineral, water or other resources.
TRC CALLS TO ACTION: We call upon federal, provincial, territorial, and municipal
governments to fully adopt and implement the United Nations Declaration on the Rights of
Indigenous Peoples as the framework for reconciliation. 44. We call upon the Government of
Canada to develop a national action plan, strategies, and other concrete measures to achieve the
goals of the United Nations Declaration on the Rights of Indigenous Peoples.
We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with
Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The
proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764,
and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown. The
proclamation would include, but not be limited to, the following commitments:
 Repudiate concepts used to justify European sovereignty over Indigenous lands and
peoples such as the Doctrine of Discovery and terra nullius.
 Adopt and implement the United Nations Declaration on the Rights of Indigenous
Peoples as the framework for reconciliation.
 Renew or establish Treaty relationships based on principles of mutual recognition, mutual
respect, and shared responsibility for maintaining those relationships into the future.
 Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal
peoples are full partners in Confederation, including the recognition and integration of
Indigenous laws and legal traditions in negotiation and implementation processes
involving Treaties, land claims, and other constructive agreements.

We call upon the corporate sector in Canada to adopt the United Nations Declaration on the
Rights of Indigenous Peoples as a reconciliation framework and to apply its principles,
norms, and standards to corporate policy and core operational activities involving
Indigenous peoples and their lands and resources. This would include, but not be limited to,
the following:
i. Commit to meaningful consultation, building respectful relationships, and obtaining the free,
prior, and informed consent of Indigenous peoples before proceeding with economic
development projects.
ii. Ensure that Aboriginal peoples have equitable access to jobs, training, and education
opportunities in the corporate sector, and that Aboriginal communities gain long-term sustainable
benefits from economic development projects.
iii. Provide education for management and staff on the history of Aboriginal peoples, including
the history and legacy of residential schools, the United Nations Declaration on the Rights of
Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown
relations. This will require skills-based training in intercultural competency, conflict resolution,
human rights, and anti-racism.

Seven Gifts

UNDRIP: Intro (Fitzgerald and Schwartz): Recapt of UNDRIP, and how Canadian Govt can
start to implement UNDRIP. FPIC (Free Prior and Informed Consent) is a basis of UNDRIP. Do
away with Van der Peet “central and integral to the distinctive culture” approach, and find a
better way to articulate the scope of section 35(1) of the Constitution Act 1982. Remove Doctrine
of Discovery from Canadian Law. Q Right to Self-Determination, right to lands and resources.
Worry that common law from 35(1) will maintain status quo. Morales: FPIC, and why duty to
consult and accommodate has been unable to achieve reconciliation. Indigenous legal traditions?
“ Indigenous Languages Act?

UNDRIP: Braiding from the Incommensurate (Sarah Morales). No Duty to Agree.

Commitment is to a meaningful process (spectrum of duty to consult). Art 10 and 29(2) of
UNDRIP require states receive consent of IP in cases where projects will result in the relocation
of a group from its traditional lands and cases involving the storage or disposal of toxic waste
within In territories. Even if consent is not a strict requirement, UNDRIP requires states engage
in good faith negotiations in an effort to reach agreement or consent. Even if state determines
consent is not required, and proceeds with project in absence of consent, it is bound to respect
and protect the rights of IP and must ensure other applicable safeguards are implemented, to
minimize or offset the limitation on the rights through impact assessments, measures of
mitigation, compensation and benefit sharing. Adequacy of same & consultations about them
will be factors in determining proportionality. And should be subject to review by impartial
judicial authority. FPIC essential for operationalization of right to self-determination, right
should be interpreted such that it makes space for IN laws and practices re: decision making and
dispute resolution. Nation-to-nation should include IN legal traditions. Art 18 and 19 UNDRIP
state IP have right to participate in decision-making processes according to their own legal
traditions. DEVELOPING CONSENSUS, but if deadlock, ultimate decision maker (elder,
respected leader or chief and council). FPIC more than just a veto, encompasses IN perspectives
around legitimacy, fairness and respect. Conclusion: UNDRIP provides normative framework for
engagement. If implemented in good faith, with the aim of realizing its overarching purpose of
IN self-determination, it will help address historical power imbalances which caused illegal land
takings and resource exploitation. Braiding of Canadian, international and IN legal traditions.
When conflict of these three, then IN self-determination to determine best path forward.

CURRENT STATUS OF BILL C262 – Working on Second Reading in the Senate 238..10/23,
254..11/29 2018. Conservatives voting against (House of Commons), everyone else for.

POV for extractive industries. Speaks of UNDRIP as vague, repeatedly asserts that somehow it
will negatively affect the Canadian system that supposedly restrains state action (it doesn’t).
Speaks of “necessary and unavoidable infringement” of IN interests where such conflict with
“broader, substantial social interests”. Repeats s. 35 as if it somehow acknowledges and
reconciles “Sovereignty of the Crown” with IN societies and practices. Admits that SCC used
reconciliation as a vehicle for recognizing that at times broader public interests will justify
incursions on IN rights. FPIC “inconsistent” with “highly tuned concept of reconciliation”. FPIC
“appears unworkable”. Larger projects like pipelines “may be unworkable” :. Makes Canadian
democratic process unworkable, and inconsistent with Canadian Federalism. “Allowing IP to
veto laws and projects regulated by either the Fed or Prov govts creates and overlap of authority
unintended and incompatible with principles of federalism (150 yrs of). One exception: military
activities. UNDRIP IN rights are human rights may be derogated *Oakes test s1* “enshrined in
our in our Parliamentary system. HERE, authors fail to “get” that human rights re ID rights are
not included in Charter, but have special significance. Afraid that instead of focusing veto on
“actual harm” and rather on benefits received by non-IN persons, this might (ha ha) undermine
reconciliation by creating long-term conflict between the interests of IN and non-IN ppls. Speaks
of “reality of Crown Sovereignty”. Substantial uncertainty (i.e., increased risk of extraction
costs) in pursuit of “opaque objectives”. Predictability for non-IN people. Reconciliation .. to
move forward In and non IN “in confidence and with certainty together towards a sustainable


Evidence by Perry Bellegarde and Craig Benjamin: There are numerous other examples of
how the declaration is already helping shape how the laws passed by Parliament are
interpreted and applied. For members of Parliament interested in better understanding
the declaration's provisions on free, prior, and informed consent, there is an excellent
summary in a 2014 report from a federal impact assessment panel, one that reviewed
the proposed New Prosperity mine in British Columbia. That panel appropriately took
note of the fact that the Tsilhqot'in Nation had withheld their consent. It took that lack
of consent into consideration in its finding that the mine would have serious impacts on
their lives and culture.

Bill C-262 will provide momentum and a plan for implementing the UN declaration in
Canada, working with first nations in an orderly and timely way. This is something that
Canada has repeatedly committed itself to do under several UN resolutions, including
the declaration itself.
Passing this bill will advance Canada, as well as first nations peoples, in many ways.
It will implement key aspects of the TRC calls to action. It will see Canada move
forward on existing international commitments regarding human rights. It will provide a
framework for the federal government to work in partnership with first nations to
ensure that Canada's laws, policies, and practices are revised to realize rights,
recognize rights, and implement and enforce rights, rather than deny rights. Also, it will
provide transparency and accountability for everyone by requiring an annual reporting
to Parliament.
I want to spend a few minutes now to talk with you about free, prior, and informed
consent. That seems to be a focus of concern, so I want to be very clear on that. I
know that it's talked about federally and provincially and by industry, so I want to focus
on that right up front.
FPIC—free, prior, and informed consent—was not created in the UN declaration. It
was not created in this bill. It already exists in international law. It is an essential
element of the right of all peoples, including indigenous peoples, to self-determination,
which Canada has recognized for decades.
After the first nations child welfare issue went back to the Canadian Human Rights
Tribunal, many of the parties to that case, including the Canadian Human Rights
Commission and Amnesty International, made arguments based on the interpretation of
the declaration. In its final ruling, the Human Rights Tribunal did in fact make
significant use of the declaration. In its discussion of the declaration, the tribunal also
made this statement, which I think is particularly relevant to today's discussion. The
tribunal said, “Canada’s statements and commitments, whether expressed on the
international scene or at the national level, should not be allowed to remain empty

Memo to Canada, Indigenous People are not your incompetent Children

 Rio Tinto Alcan v Carrier Sekani Tribal Council 2010
the duty to consult attaches not only to decisions that directly result in adverse impacts on
resources, but also to “strategic, higher level decisions” (at para. 44). This has generally involved
decisions relating to the management of a specific resource on the First Nations’ traditional
territory. The Court also confirmed that government action triggering the duty to consult is not
limited to the exercise of statutory powers and extends to "strategic, higher level decisions" that
may have an impact on aboriginal claims and rights, including the transfer of tree farm licenses,
the approval of a multi-year forest management plan over a large geographic area, the
establishment of a review process for a major gas pipeline, and a comprehensive inquiry to
determine a province’s infrastructure and capacity needs for electricity transmission. McLachlin
C.J. stated that the Court would leave the issue of whether "government conduct" for the
purposes of consultation also applies to legislative action for another day.

Examples of such strategic planning decisions that have given rise to a duty to consult include the
 The approval of a forest stewardship plan: Kwakiutl First Nation v. North Island Central Coast
Forest District, 2015 BCCA 345;
 A municipal land use plan: Squamish Nation v. British Columbia (Community, Sport and Cultural
Development), 2014 BCSC 991, [2014] 8 W.W.R. 742;
 An order-in-council enacting a regional water management plan: Tsuu T’ina Nation;
 A decision to designate a project as subject to environmental assessment: Fort Nelson First Nation
v. British Columbia (Environmental Assessment Office), 2015 BCSC 1180;
 The design of the process for the environmental assessment of a gas pipeline: Dene Tha’ First
Nation v. Canada (Minister of Environment), 2006 FC 1354, [2006] F.C.J. No. 1677;
 A non-binding agreement-in-principle between the Crown and another First Nation with
overlapping land claims: Sambaa K’e Dene Band v. Duncan, 2012

On the issue of what constitutes an "adverse effect" for the purpose of triggering the duty to
consult, the Court stated that the claimant:
must show a causal relationship between the proposed government conduct or decision and a
potential for adverse impacts on pending claims or rights. Past wrongs, including breaches of the
duty to consult, do not suffice.
The Court went on to say that speculative impacts and impacts on future negotiating positions
will not trigger the duty. A past or continuing breach of a claim or right, including prior failures
to consult, will only trigger a duty to consult if the present decision at issue causes a new adverse
effect. Equally important is the Court’s rejection of consultation being appropriate for past events
or decisions that may adversely affect aboriginal interests, including the lack of past consultation.
The Court confirmed that consultation must be focused on the action or decision at hand and not
focused on past events. The Court stated that ‘other remedies’ are available to aboriginal peoples
for such past events, although the Court did not expressly provide guidance on the nature of the
specific cause of action that would be required to remedy such past wrongs.
The Court made several references to compensation and damages being an appropriate remedy in
cases where the Crown did not consult. While the Court cites Haida as authority for this
proposition, nowhere in Haida did the Court discuss damages or compensation as an appropriate
remedy for breach of the duty to consult regarding unproven or asserted rights. Up until Rio
Tinto, the issue of compensation for breaches of section 35 generally has been focused around
infringements of established aboriginal or treaty rights. It remains unclear whether the Court
intended to apply compensation to consultation regarding unproven rights and, if so, would such
compensation be related to the infringement of an unproven right or would it be limited to the
fact that consultation had not occurred? In either case, this raises the question of how damages to
unproven rights would be established and why an aboriginal group would ever need to establish
an aboriginal right in the first place if compensation is payable simply upon not be consulted.
Finally, the Court did not set out the nature of the cause of action to pursue the compensation

 Chippewas of the Thames First Nation v Enbridge Pipelines Inc 2017:

In two companion cases, Clyde River (Hamlet) v. Petroleum Geo-Services Inc. and Chippewas
of the Thames First Nation v. Enbridge Pipelines Inc., the Supreme Court confirmed that the
process and decision of an independent regulatory body can trigger the Crown’s constitutional
duty to consult and can also, in some circumstances, fulfill it. But the processes and procedures
(for example, oral hearings, participant funding, information requests, closing submissions,
Indigenous language translations, written reasons, and so on) necessary to discharge the duty to
consult, and whether a body’s process is sufficient to do so, are highly circumstance- specific.
The result in any case will depend on the precise powers of the particular regulatory body, the
nature and scope of the rights claimed and the potential impacts of the project. This means it’s
even more important that potential Indigenous rights issues be carefully and fully identified by
proponents at a project’s very earliest stages rather than bolting them on at the end of the
regulatory approval process. Otherwise, litigation and project delays will likely ensue.

The Duty to Consult. Following a number of its earlier decisions, the Court decided that an
independent regulatory body with the statutorily delegated executive responsibility to make final
decisions on project applications (and specifically, the NEB) is acting on the Crown’s behalf.
NEB decisions therefore amount to Crown action that can trigger the Crown’s constitutional duty
to consult. The Crown can, in some circumstances, also rely on a regulatory body (or its process)
to partly or completely fulfill its duty to consult - but only if:

 Power. That body has the statutory power in its enabling legislation necessary to do what
the duty to consult requires in the particular circumstances.
 “Notice”. The Crown makes clear to affected Indigenous groups, in a timely fashion, that
it will be relying on the regulatory body’s process to fulfill its duty to consult affected
Indigenous groups.
The Supreme Court decided the NEB does have the procedural powers necessary to engage
in consultation and the remedial powers to, where necessary, accommodate affected
Aboriginal and treaty rights. Consequently the Crown could rely on it to fulfill its duty to
consult. But the Court reached different conclusions about whether the NEB met that duty in
each case: in Chippewas of the Thames, the Court decided the NEB’s consultation was
“manifestly adequate” in the circumstances and upheld the NEB’s approval; in Clyde River,
the Supreme Court quashed the NEB’s approval because of its “significantly flawed” process
in the circumstances. The key differences between the cases: the scope of the projects, the
nature of the rights involved and the process the NEB undertook.
The Consultation Process. Whether a particular regulatory process is adequate to fulfill the
Crown’s duty to consult depends on the level of consultation the circumstances require. Of
particular importance are the strength of the claim for Aboriginal rights and the seriousness of
the project’s potential impact on the asserted right. The Supreme Court confirmed that the duty to
consult does not give Indigenous groups a ‘veto’ over final Crown decisions. Consequently at the
accommodation stage, the regulatory body must balance Aboriginal and treaty rights with
competing social, economic and public interest considerations.

 Canada v Mikisew Cree First Nation 2016 FCA. Sct rejects duty to consult when Govt
makes new legislation. 4 opinions: 1)Law making does not constitute Crown conduct; 2)
Abella would only allow challenges after legislation made. Federal Courts Act 1971 gave
right to review to Fed Ct & FCt appeals review of Federal decision makers. Judicial
Review on legality, reasonableness and fairness of procedures used and actions taken”
(Govt action, not legislation). 18.1 “fed board, commission or other tribunal”. 2(2)
specifically excludes Senate, HoC…BUT separation of powers (legislative branch before
enactment of law unreviewable) precludes Judicial Review of the Legislative Process.
Ministers acting as Legislature here. Parliamentary Privilege.
 The duty to consult is of course a duty to consult collectively; there is no duty to consult with
any individual. There can however be no duty to consult prior to the passage of legislation,
even where aboriginal rights will be affected: Authorson v. Canada (Attorney General),
[2003| 2 S.C.R. 40. It cannot be suggested there are any limits on Parliament’s right to amend
the Indian Act. It would be an unwarranted interference with the proper functioning of the
House of Commons and the Provincial Legislatures to require that they engage in any
particular processes prior to the passage of legislation. The same is true of the passage of
regulations and Orders in Council by the appropriate Executive Council. Enactments must
stand or fall based on their compliance with the constitution, not based on the processes used
to enact them. Once enactments are in place, consultation only becomes an issue if a prima
facie breach of an aboriginal right is sought to be justified: Mikisew Cree at para. 59.
 Tsilhqot'in Nation v British Columbia 2014. ARG: possession of pre-existing and
continuing rights in land, called AB title. Clarified test for proving AB title, rights w/title, and
how Fed and Prov law applied in situations of proven and claimed AB title. Under s. 35, a
right will be infringed by legislation if the limitation is unreasonable, imposes undue
hardship, or denies the holders of the right their preferred means of exercising the right.
Where Aboriginal title has been established, the Crown must not only comply with its procedural
duties, but must also justify any incursions on Aboriginal title lands by ensuring that the
proposed government action is substantively consistent with the requirements of s. 35 of
the Constitution Act, 1982 . This requires demonstrating both a compelling and substantial
governmental objective and that the government action is consistent with the fiduciary duty
owed by the Crown to the Aboriginal group. This means the government must act in a way that
respects the fact that Aboriginal title is a group interest that inheres in present and future
generations, and the duty infuses an obligation of proportionality into the justification process:
the incursion must be necessary to achieve the government’s goal (rational connection); the
government must go no further than necessary to achieve it (minimal impairment); and the
benefits that may be expected to flow from that goal must not be outweighed by adverse effects
on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to
adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.
This s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests
of all Canadians.

Daniels v Canada 2016. Metis: Court said that the term “Métis” in s. 35 refers to distinctive
Métis collectives who, in addition to their mixed ancestry, developed their own customs, way of
life, and group identity–separate from their Indian, Inuit or European forebears. Court only set
out three broad factors (self-identification, ancestral connection and community acceptance) to
be used in identifying who can exercise a Métis community’s s. 35 right to hunt. SITE

The Court held that provincial laws pertaining to Métis and non-status Indians are not inherently
beyond the scope of provincial legislatures (para. 51). Provinces can pass laws in relation to
provincial areas of jurisdiction, which affect or specifically deal with Métis or non-status Indians,
as long as those laws do not impair the core of s. 91(24). The Métis Settlements Act (Alberta),
The Métis Act (Saskatchewan) or Métis Nation of Ontario Secretariat Act (Ontario) are all
examples of this type of permissible provincial law, wherein provinces have acted in their
respective jurisdictional spheres.

The Court reaffirmed based on Delgamuukw v. BC and Manitoba Metis Federation Inc. v.
Canada that the Crown is in a fiduciary relationship with all Aboriginal peoples, including Métis
and non-status Indians.

The Court reaffirmed based on Haida Nation v. BC, Tsilhqot’in Nation v. BC and Powley that “a
context-specific duty to negotiate” exists “when Aboriginal rights are engaged.” This duty is not
triggered by mere inclusion in s. 91(24), however; it applies where Métis or non-status Indian
communities have credible or established s. 35 rights or claims.

The Supreme Court said that the appropriate way to define Métis rights in s. 35 is to modify the
test used to define the Aboriginal rights of Indians (the Van der Peet test).This modified Métis
test came to be known as the Powley test. The test is set out in ten parts:
1. Characterization of the right - For a harvesting right, the term “characterization” refers
to the ultimate use of the harvest. Is it for food, exchange or commercial purposes? The
Court said that the Métis right to hunt is not limited to moose just because that is what the
Powleys were hunting. Métis do not have to separately prove a right to hunt every species of
wildlife or fish they depend on. The right to hunt is not species-specific. The Métis right to
hunt is a general right to hunt for food in the traditional hunting grounds of the Métis

2. Identification of the historic rights bearing community - A historic Métis community

was a group of Métis with a distinctive collective identity, who lived together in the same
geographic area and shared a common way of life.The historic Métis community must be
shown to have existed as an identifiable Métis community prior to the time when Europeans
effectively established political and legal control in a particular area.

3. Identification of the contemporary rights bearing community - Métis community

identification requires two things. First, the community must self-identify as a Métis
community. Second, there must be proof that the contemporary Métis community is a
continuation of the historic Métis community.

4. Verification of membership in the contemporary Métis community - There must be

an “objectively verifiable process” to identify members of the community. This means a
process that is based on reasonable principles and historical fact that can be documented.
The Court did not set out a comprehensive definition of Métis. However, it set out three
components to guide the identification of Métis rights-holders: self-identification, ancestral
connection to the historic Métis community, and community acceptance. Difficulty in
determining membership in the Métis community does not mean that Métis people do not
have rights.

5. Identification of the relevant time - In order to identify whether a practice was

“integral” to the historic Aboriginal community, the Court looks for a relevant time. Ideally,
this is a time when the practice can be identified and before it is forever changed by
European influence. For Indians, the Court looks to a “pre-contact” time. The Court
modified this test for Métis in recognition of the fact that Métis arose as an Aboriginal
people after contact with Europeans. The Court called the appropriate time test for Métis the
“post contact but pre-control” test and said that the focus should be on the period after a
particular Métis community arose and before it came under the effective control and
influence of European laws and customs.

6. Was the practice integral to the claimant’s distinctive culture – The Court asks
whether the practice - subsistence hunting - is an important aspect of Métis life and a
defining feature of their special relationship to the land. The Court specifically noted that the
availability of a particular species over time is not relevant. So even though the case may be
about moose hunting, as it was with the Powleys, the issue is really about the right to hunt
generally. The Court found that, for the historic Sault Ste. Marie Métis community, hunting
for food was an important and defining feature of their special relationship with the land.

7. Continuity between the historic practice and the contemporary right - There must be
some evidence to support the claim that the contemporary practice is in continuity with the
historic practice. Aboriginal practices can evolve and develop over time. The Court found
that the Sault Ste. Marie Métis community had shown sufficient evidence to prove that
hunting for food continues to be an integral practice.

8. Extinguishment - The doctrine of extinguishment applies equally to Métis and First

Nation claims. Extinguishment means that the Crown has eliminated the Aboriginal right.
Before 1982, this could be done by the constitution, legislation or by agreement with the
Aboriginal people. In the case of the Sault Ste. Marie Métis community, there was no
evidence of extinguishment by any of these means. The Robinson Huron Treaty did not
extinguish the Aboriginal rights of the Métis because they were, as a collective, explicitly
excluded from the treaty. A Métis individual, who is ancestrally connected to the historic
Métis community, can claim Métis identity or rights even if he or she had ancestors who
took treaty benefits in the past.

9. Infringement - No rights are absolute and this is as true for Métis rights as for any other
rights. This means that Métis rights can be limited (infringed) for various reasons. If the
infringement is found to have happened, then the government may be able to justify (excuse)
its action. The Court said here that the total failure to recognize any Métis right to hunt for
food or any special access rights to natural resources was an infringement of the Métis right
to hunt.
10. Justification - Conservation, health and safety are all reasons that government can use to
justify infringing an Aboriginal right, but they have to prove that there is a real threat. In the
Powley case, there was no evidence that the moose population was under threat. Even if it
was, the Court said that the Métis would still be entitled to a priority allocation to satisfy
their subsistence needs in accordance with the criteria set out by the Supreme Court in R. v.
Sparrow. The Court said Ontario’s blanket denial of any Métis right to hunt for food could
not be justified.

 Brown v Canada (AG) 2017. Residential Schools.

o Modern Treaties and Land Claims Agreements
o Modern Treaties as a “Third Order of Government”: Campbell et al v AG BC/AG
Cda & Nisga’a Nation et al. “The doctrine of Aboriginal rights exists… because of
one simple fact: when Europeans arrived in North America, Aboriginal peoples were
already here, living in communities on the land, and participating in distinctive
cultures, as they had done for centuries. It is this fact, and this fact above all others,
which separates Aboriginal peoples from all other minority groups in Canadian
society and which mandates their special legal status.” –R. v. Van der Peet, para 30.
The Court found that the Crown, to justify an infringement, would have to show that the procedural
duty to consult had been complied with, that there was a compelling and substantial objective for
the infringement, and that the benefit to the public was proportionate to the adverse effect on
Aboriginal interest. As such, the duty to consult evolved from a factor to be considered, amongst
others, in the justification stage of the infringement analysis, to a necessary condition of a
finding of justification of infringement.

The duty to consult was also applied outside of the justification context in Mikisew Cree First Nation
v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, a decision which
involved the interpretation of the “taking up” clause in Treaty No. 8. Mikisew Cree objected to
Canada’s decision to take up land alongside its reserve to run a winter road, which incidentally cut
through a number of its band members’ family traplines. The Supreme Court found that when
contemplating a proposed taking up of lands under Treaty No. 8, the honour of the Crown imposes a
distinct, procedural right to consultation. In other words, the Crown could not invoke the Sparrow
test to show that regardless of consultation, the infringement of the Mikisew Cree’s treaty rights was
justifiable. The Crown had to first meet its duty to consult, and absent adequate consultation, the
infringement was unjustifiable regardless of the substantive reasons that might justify running a road
by the reserve. The same obligations attach to taking up lands under Treaty No. 3 (see generally
Grassy Narrows).

CALDER v AG of BC1973] SCR 13, Ct first recognized existence of Aboriginal Title. Calder
v. Attorney-General of British Columbia [1973]
In 1967, Frank Calder and other Nisga’a elders sued the provincial government of British
Columbia, declaring that Nisga’a title to their lands had never been lawfully extinguished
through treaty or by any other means. While both the BC Supreme Court and the Court of Appeal
rejected the claim, the Nisga’a appealed to the Supreme Court of Canada for recognition of their
Aboriginal title to their traditional, ancestral and unceded lands. Their appeal was a landmark
move that posed considerable risk not only to the Nisga’a, but to all Aboriginal peoples hoping to
have their rights and title affirmed and recognized.
What the Supreme Court concluded was groundbreaking. While the lower levels of court had
denied the existence of Aboriginal title, the Supreme Court ruled in 1973 that Aboriginal title had
indeed existed at the time of the Royal Proclamation of 1763. The Supreme Court’s 1973
decision was the first time that the Canadian legal system acknowledged the existence of
Aboriginal title to land and that such title existed outside of, and was not simply derived from,
colonial law.
However, the Court was split on whether the Nisga’a’s claim to their lands was valid. Three
judges ruled that while Aboriginal title may have existed at one point, it had since been
extinguished by virtue of Confederation and colonial control over the land. Three other judges
affirmed the Nisga’a’s Aboriginal title, arguing that it had never been extinguished through treaty
or statute. The seventh judge dismissed the case on a technicality.
While the Nisga’a did not win their case and the ruling did not settle their land question, it did
pave the way for the federal government’s Comprehensive land claims process, which sets up a
process for Aboriginal groups to claim title to their territory. The province of British Columbia,
however, refused to acknowledge Aboriginal title until 1990, when the British Columbia Claims
Task Force was established. This would then lead to the B.C. Treaty Process and the settling of
the first modern land claim in British Columbian history, the Nisga’a Final Agreement in 1998.
The Supreme Court’s acknowledgement of the existence of Aboriginal title also opened the door
for other Aboriginal rights cases, most notably Delgamuukw v. British Columbia (1997), which
further defined Aboriginal title. As a landmark case, the Calder decision continues to be cited in
modern Aboriginal land claims across Canada, as well as internationally in Australia and New
Delgamuukw v British Columbia [1997] has to date been the most comprehensive decision
about Aboriginal title. Delgamuukw set out how the courts will deal with Aboriginal title, by
setting a test to determine if Aboriginal title still existed and, if so, how the Crown might
justifiably infringe upon it. The Court further ruled that Aboriginal title is different from merely
land use and occupation, as it had previously been defined, but also incorporates Aboriginal
jurisdictional authority over howthe land is used. Delgamuukw also acknowledged Aboriginal
collective ownership of the land that includes a cultural relationship to the land.

TEST for Aboriginal title:

(i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on
as proof of occupation pre-sovereignty, there must be a continuity between present and pre-
sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.

Supreme Court elaborated on the justification test for an infringement of Aboriginal title. Noting that
Aboriginal title entailed the right to choose how the land would be used, the Court found that there
was a duty of consultation, particularly when enacting hunting and fishing regulations relating to
Aboriginal lands.

R. v. Guerin [1984] fiduciary duty of Crown to AB. – used EQUITY Ratio: When a native
band surrenders land to the Crown, a fiduciary relationship is created and the
Crown has a duty to represent the best interests of the Band in its dealings with
respect to the land.  
R. v. Guerin is a landmark Supreme Court of Canada decision that established the Canadian
government’s fiduciary duty to First Nations, a trust-like relationship stemming from the sui
generis right of Aboriginal title.
In 1956, Musqueam held just over 400 acres of reserve land overlooking the Fraser River in
Vancouver’s prestigious Southlands neighbourhood. At that time, the Shaughnessy Golf and
Country Club was looking for land for its golf course. The Club approached the Department of
Indian Affairs (DIA) in the hopes of leasing 162 prime acres of the Musqueam reserve. The DIA
obtained Musqueam’s consent by assuring them that the band would receive revenue from the
lease. According to Musqueam, the band was denied legal representation.1 They consented to the
deal regardless. After the DIA obtained their consent, DIA representatives re-negotiated the deal
with the Club and leased the land on substantially different terms than what Musqueam had
agreed to.
Musqueam had been told that they would profit off of the 75-year lease, with rents being
adjusted to fair market rates every decade. Unbeknownst to the band, however, the deal was re-
negotiated to allow the Club to only pay what amounted to 10% of the fair market rent for the
These changes to the lease were kept secret from the Musqueam for 12 years, until an employee
at the DIA revealed them to then-chief Delbert Guerin. It took five years before Musqueam was
able to find a lawyer who would take on the case, as there was little to no legal or governmental
acknowledgement of Aboriginal rights and title at that time.3 The case was filed in 1975 and
went through three levels of court before the federal court ruled in Musqueam’s favour and
awarded $10 million in compensation to the band. The government, however, appealed this
ruling and the compensation was repealed. Musqueam in turn appealed to the Supreme Court of
Canada. In 1984, the Supreme Court ruled in Musqueam’s favour and re-instated the award. The
Court ruled that the Crown had neglected its fiduciary duty to the Musqueam in its handling of
the deal with the Shaughnessy Golf and Country Club. This ruling not only affirmed
Musqueam’s rights, but also set a precedent in the recognition of Aboriginal rights in Canada.
R. v. Guerin acknowledged that Canada (the federal government) has a trust-like relationship, or
“fiduciary duty” towards First Nations, specifically in regards to reserve lands. In other words,
the federal government has the obligation to act in their best interest. Chief Justices Wilson and
Dickson interpreted this fiduciary duty as stemming from an Aboriginal interest and title to the
land, and the Crown’s relationship to Aboriginal peoples. Wilson understood this relationship to
be characterized by Section 18 of the Indian Act, which specifies that reserves are held by the
Crown “for the use and benefit of the respective bands for which they are set apart,” and that
“the Governor in Council may determine whether any purpose for which lands in a reserve are
used or are to be used is for the use and benefit of the band“4 (emphasis added). The government
demonstrated it did not act in Musqueam’s best interest by not consulting them about the revised
terms of the lease.
The concept of “fiduciary duty” has gone on to inform other Aboriginal rights cases as well as
the protection of Aboriginal rights under Section 35 of the Canadian Constitution.
o Modern Treaties and Indigenous Law
o Modern Treaties and the Constitutional Relationship
R. v Marshall; R. v. Bernard 2005. Delgamuukw requires that in analyzing a claim for
aboriginal title, both aboriginal and European common law perspectives must be considered.
Court must examine the nature and extent of pre-sovereignty aboriginal practice and translate
that practice into a modern common law right. Aboriginal title to land is established by
aboriginal practices that indicated possession similar to that associated with title at common law.
Evidence must prove “exclusive” pre-sovereign “occupation” of the land by their forebears.
“occupation” means physical occupation and “exclusive occupation” means an intention and
capacity to retain exclusive control of the land. However, evidence of acts of exclusion is not
required, just demonstration of effective control of the land by the group, from which a
reasonable inference can be drawn that the group could have excluded others had it chosen to do
so. Continuity is required, showing group’s descent from pre-sovereignty group whose practices
are relied on for the right. Oral history is admissible (that meets standard of usefulness and
reasonable reliability) (R. v Marshall). Trial Judges applied proper test requiring proof of
sufficiently regular and exclusive use of cutting sites by Mi’kmaq. Protected Treaty right
includes not only a right to trade by a corresponding right to access to resources for the purpose
of engaging in trading activities. In order to be protected, must be modern equivalent or a logical
evolution of the use of forest products at the time Treaties were signed. Patters and nature of Ab
occupation should inform the standard. “physical occupation proof of possession” remains but
not governing criterion. Proof of Ab title relates to the manner in which the group used and
occupied the land prior to Crown Sov., mere fact that group traveled within its territory and did
not cultivate land doesn’t take away from title claim. Semi/nomadic. Premised on notion that
specific land was of central significance to the group’s culture. Occupation proved by tradition
and culture that connects group with land. This case, two Mi’kmaq – logging not logical
evolution of activities traditionally engaged in by them.

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511The
two-part test for determining whether a duty to consult has been triggered was set out in Haida
Nation v British Columbia.
The Supreme Court of Canada found in Haida Nation that it was inconsistent with the honour of the
Crown for the province to allow continued logging over territories in a manner that might leave the
Haida Nation with meaningless rights over lands of cultural significance once they managed to
prove them in court. The Court found that when the Crown contemplates conduct that may
adversely affect an asserted Aboriginal or treaty right, a duty to consult arises.

The Crown must (1) have real or constructive knowledge of the potential existence of Aboriginal
rights or title, and (2) contemplate conduct that might adversely affect it. The duty to consult
is grounded in the honour of the Crown, which exists separate of any treaty obligations.
Although only assertion, rather than proof, of existence of Aboriginal title is required to
necessitate a duty to consult on the part of the Crown, the extent of the duty will vary according
to the strength of the prima facie claim. Strong proof of Aboriginal rights or title that have the
potential to be seriously impacted require a corresponding duty of deep consultation and possibly
accommodation, while weaker claims may only require a mere duty of notice. Consultation must
occur early on to ensure that Aboriginal concerns are addressed, and if appropriate,
accommodated. While there is no duty to agree, the honour of the Crown requires that it act in
good faith at all times and have a genuine intention to address Aboriginal concerns. Aboriginal
parties must also act in good faith and may not take unreasonable positions to sabotage the
Crown’s attempts to come to a mutual understanding.
If the duty to consult is not met Aboriginal parties can pursue a variety of remedies, including
interlocutory injunctions, damages, or an order complete consultation before proceeding with the
proposed government conduct. Although injunctions can be pursued absent of any the duty to
consult, they were identified by the Supreme Court in Haida as often contrary to the
constitutional goal of reconciling Crown-Aboriginal interests
The Common Law and Civil Law Traditions
Reception of European Law: Cooper v Stuart (1889) Australia. [Rule of Reception]. 1. Common
law implemented in settled colony- Their lordships held that as soon as colonial land became the
subject of settlement and commerce, all transactions in relation to it were governed by English
(common) law. Colony consisted of territory practically unoccupied, w/o settlers or settled law –
was annexed to British dominions. Rule of Conquest was applied to central Canada, and rule of
Settlement to everywhere else. Rule of Reception dictated that entire body of English law,
statutory and common, was imported into the settled colony. Local exceptions and variations
allowed where received laws unsuitable to circumstances of colony. In N. America, problem of
determining which of Rules of Reception would apply was compounded by two facts: 1)
aboriginal people were already present, so true “settlement” in Blackstone’s definition could not
apply; 2) France also had an interest in much of British North America, and claimed much of its
1. Nature of Common and Civil Law: Com.Law: 2 ideas: 1) judges do not make the law, only
declare it; 2) all relevant past decisions are considered as evidence of the law, and judges
infer from these precedents what is the true law in a given instance. ComLaw constructed out
of series of cases. Judge made law:: CivLaw- based on established laws, normally written as
broad legal principles. Legislation = primary source of law. Jmts rely on provisions of codes
and statutes. J reasoning based on general principles of rule or code, whereas ComLaw, even
where statutory sources are present, employs analogical reasoning from statutory provisions
to fill in gaps. Quebec inherited Civil Law, codified in 1866. At Confederation, Civil Code of
Lower Canada replaced most of the laws inherited from the Custom of Paris, but
incorporated elements of English law as it had been applied in Lower Canada, such as Eng.
Law of trusts.
2. Operation of Common Law and Precedent. Stare Decisis:
 Canada Trust Co v Ontario Human Rights Commission(1990): Scholarship trust est
1923 Q contrary to public policy, restricted to white Christians of Brit nationality or
parentage. Trustee came to Ct to seek advice and direction. Administration of trusts in
Superior Ct jxn, esp charitable or public trusts. HRC first mandate = effect settlement
but Trustee not allowed to enter into settlement contrary to terms of Trust. HRC can’t
grant adequate remedy (only court invoked cy-pres (near to) doctrine to bring trust
into accord with public policy by removing offensive restrictions, hence permitting it
to remain a scholarship.

Norms of the institutional practice:

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

Common Law Method: Precedent and Equity

 DeLaurier v Jackson: If the general welfare of the child requires that father’s rights in
respect of the religious faith in which child should be raised, should be suspended or
superseded, Courts in exercise of their equitable jxn have power to override them, as
they have power to override all other parental rights, though they must do so
 Guerin v The Queen: When native band surrenders to the Queen, fiduciary
relationship is created and Crown has duty to represent best interests of Band in its
dealings with respect to land. (Musqueam Indian Reserve land, Crown leased land to
golf course. History of “surrender requirement” by Band to Crown, “in the nature of
a private law duty” . 1763 Royal Proclamation – all purchases from Indians had to be
by and in the name of the Crown, in a public assembly of the Indians…
 KLB v BC. Abuse in foster homes. Q Breach of Fiduciary Duty of Care. Ct holds that
Govt’s narrowly defined duty, to avoid certain harmful actions that constitute betrayal
of trust, of loyalty and of disinterest. Essence of Superintendent’s misconduct was
negligence, not disloyalty or breach of trust. (Failure to take sufficient care, not
 Manitoba Métis Federation v Canada (AG). Considered historical role of the Crown
in its relationship with Métis of Manitoba. Fiduciary duty arises re Aboriginal people,
in this case the Métis, and result = Manitoba Act 1870.
Statutory Law:
Statutes and the common law: Statutory Rule will supersede judge-made rule (common
law). Mix when statutory scheme doesn’t expressly overturn common law rule, or where
common law ventures into new territory (same –sex marriages):
 Halpern v. Canada (AG) 2003. Definition of marriage found at common law.
Same-sex couples CAN marry as a matter of capacity; freezing definition of
marriage as per 1867 runs counter to (Edwards v Canada) “living tree” of Lord
Sankey. Hence “definition of marriage does not have constitutionally fixed
meaning”. Ct found common law definition of marriage infringed claimants rights
under s. 15(1) of the Charter, and not saved by s. 1. Court DECLARED common
law definition invalid. Reformulated common law definition, immediate effect;
ordered Clerk of City of Toronto to issue marriage licences and Registrar to
accept them. Govt draft Bill. Civil Marriage Act SC 2005 (after Reference re
Same Sex Marriage Act, 2004 SCC 79.
International Law
p. 108. Law Commission of Canada: “Crossing Borders, Law in a Globalized world”
a. TREATIES: bilateral or multilateral, written contracts btwn states. Affect state’s
foreign policy without necessitating changes to domestic law.
b. CUSTOMARY Intnl Law. Formed by general and universal state practice,
undertaken by states with a sense of legal obligation (opinio juris). When state
practice and opinio juris become sufficiently widespread among states of the
world (not clearly defined), practice is said to become legally binding as
customary international law. (UN Declaration of Human Rights ex). 1995 Canada
reported it “entrenched in customary Int. law binding on all governments”.
EXCEPT those states that have been sufficiently persistent in rejecting it prior to
its emergence as a binding norm.
c. Dualism jxn: Canada. Until domestic legislation “implements” or transforms
Treaty into Canadian law, it has not direct effect. w/o Act of Parliament, treaties.
BUT Incorporation of Customary Int. Law –monist, once rule is recognized as
customary law, it is automatically part of Canadian common law. BUT this can be
displaced or overturned by statute that is inconsistent with it.
Some thoughts on Bijuralism in Canada and the World (2001) DOJ Canada

Grimard v Canada (2009) FCA47. In support of his conclusions, the Judge referred to an
article he wrote while serving as a judge. It is perilous for a judge to publish his or her opinion
on an issue on which he or she may eventually be called upon to rule, since this may give rise to
a perception of bias especially on the part of a self-represented citizen. In this case, however, a
person who is informed as to the facts and the circumstances, viewing the matter realistically and
practically and having thought the matter through, could not reach this conclusion, the Judge
referring to his article merely to reproduce the opinion of the Minister of Justice of Quebec and
the state of the case law which he correctly applied to the facts of this case.
Direction and control over the work are a determinative factor in a contract of employment, but
the other criteria established by the common law are also relevant because they provide indicia
of subordination or supervision. (Quebec, Q whether IC or employee) REASONING:
1425 CCQ: Common intention of the parties shall be sought in interpreting a contract.
2085 CCQ: K of employment – under the direction or control of another person.
2098 CCQ: K of enterprise – undertakes to carry out physical or intellectual work for another
person, the client or to provide a service, for a price which the client binds himself to pay.
2099 CCQ: Contractor is free to choose the means of performing the contract and no relationship
of subordination exists between the contractor and the client.
S. 8.1 of the Interpretation Act allows for the CVL to be referred to. But the CVL and the CML
are not antonymous in any event.
The CVL lists the required elements for a contract of employment or enterprise, whereas the
CML lists relevant factors. 2085 requires direction or control for a K of employment. 2099
requires an absence of subordination for a K of enterprise. 2099 requires an absence of control
and the free choice of the contractor as to the means for completing the work. 1425 says that
Courts should refer to the intention of the parties.
CML factors are not useless in determination of a contract in Quebec. The notion of control is
essential in the CVL, it is important also in the CML. The idea of profit/loss is similar in both
systems. Ownership of tools can also be useful. In both systems, no one factor is determinative.
In determining whether subordination exists, there is nothing wrong with Quebec courts referring
to the CML factors.
Here, the contract was silent as to the intention of the parties. Different clauses have different
connotations. Nevertheless, the nomenclature of the contract is not determinative in any way.
What is important is genuine nature of the contract.
The tribunal had a right of control over the taxpayer. There was a link of subordination. All the
necessary tools were furnished by the tribunal. There were no risks of loss for the taxpayer.
HOLDING: Taxpayer was an employee.


PRECEDENT” (Parkes). Bedford/Carter SCC approach authorizing lower courts to revisit
precedent in limited circumstances. (“anticipatory overruling”). 1) where new legal issue is
raised; and 2) where there is a change in the circumstances or evidence that “fundamentally
shifts the parameters of the debate”. R. v Henry overruled two precedents (SCC, horizontal)- 3
compelling reasons (unworkability of former rules, unfairness to the accused, and inconsistency
with purpose of Charter section). SCC overruling its own precedent preferable to approach that
distinguishes case on technical grounds. Then SCC overruled Henry, but SCC framed it as an
interpretation question. Fraser (Ontario, Section 2(d) labour law) SCC “reinterpreted” (limited)
scope of prior precedent (British Columbia Health Services 2007, which recognized a right to
bargain collectively). Rothstein in separate opinion, said he wanted to overrule British Columbia
Health Services as it has in his mind “wrongly” expanded 2(d), tipping it in favour of unions and
workers. Majority upheld BCHS. Canada v Craig (taxes) Rothstein wrote the majority opinion
overruling Moldowan v Canada (35 year precedent), adopting a “plain meaning” rule to the
Income Tax Act, strikingly different from SCCC contextual and purposive approach in other
areas of statutory interpretation. Horizontal Stare Decisis analysis in Craig – loose balancing test
(certainty v correctness). Parliament turned around and returned law to Moldowan (grin).
Canada v Bedford 2013 overturned Prostitution Reference 1990 (economic liberty argument and
commercial expression claim. Bedford- security of the person and principles of fundamental
justice (arbitrariness, gross disproportionality and overbreadth) as opposed to vagueness and
indirect criminalization which were argued in ProsRef. New body of social science evidenc –
new social and legislative facts- materially different from ProsRef. CONSTITUTIONAL
SUPREMACY. Applied in Saskatchewan Federation of Labour v Sask., then affirmed in
CARTER, at least in constitutional cases. “stare decisis is not a judicial straight-jacket”.
Revisiting precedent. ??? In AB cases? In BEDFORD, Asper Centre suggested non-exhaustive
list to assist in determining whether a change in social and leg facts is significant and material:
(1) the length of time that has passed since the earlier decision;
(2) the breadth of the new evidence that was not available to the court in the earlier decision;
(3) evidence that the social, political, or economic assumptions underlying the earlier
decision are no longer valid;
(4) evidence of a shift internationally in approaching the problem;
(5) any difference in adjudicative facts between the two cases; and
(6) and difference in the perspective of the claimants in the two cases

The new labour trilogy: United Food and Commercial Workers, Local 503 v Wal-Mart (2014),
Mounted Police Association of Canada v Canada (AG) (2015), and Saskatchewan Federation of
Labour v Saskatchewan (2015) . More explicit emphasis on correctness than certainty. Rate of social
change is increasing. Access to justice. “policy of husbanding scarce resources for true matters of dispute
may have to give way to in some cases to the importance of providing access to justice to enable
advocacy of change in and refinement of the law” (Andrews v Canada 2014). “a litigant may have a
‘reasonable chance of success’ within the (Bedford) test if based on a reasonable argument there is a
reasonable possibility that the law might change”. (not striking out at pleading stage like others).

Fear that Garden of uprooted annuals (replacing the Edwards Living Tree) were unfounded. Bedford
threshold high.

constancy, principle of generality, principle of institutional responsibility, and principle of
fidelity to law. 1) Rule of law generates a distinctive perspective on Stare Decisis; 2) Best to
understand impact of rule of law on Stare Decisis in layers. One principle, the principle of
constancy, counsels against lightly overturning such precedents as we have. Another principle,
the principle of generality, requires all judges to base their decisions on general norms and not
just leave them as freestanding particulars. Another principle, the principle of institutional
responsibility, requires subsequent judges not to give the lie to the use by precedent judges of
certain general norms to make their decisions. And, finally, a fundamental principle of fidelity to
law requires the precedent judge to approach her decision as far as she can by trying to figure out
the implicit bearing of such existing law as there is on the case in front of her. She figures out the
bearing of the law, she formulates it into a general norm, a subsequent judge takes note of the
general norm that she has used, he plays his part in establishing the norm as something whose
generality is more than merely notional, and judges try to maintain the constancy and stability of
the body of law that emerges from all this by not overturning precedents lightly or too often.


would a person with a good conscience do) in equity.
By re-establishing conscience as the moral centre of this area of law, it becomes clear that the
constructive trust is being imposed so as to prevent the immoral earning of a profit from a bribe.
The wrong is the corruption and the breach of fiduciary duty. The constructive trust is imposed
so that no benefit is taken from that wrong and because equity looks upon as done that which
ought to have been done. Unjust enrichment in home ownership (Canada) – general avoidance of
injustice in ownership of family home (Peter v Beblow 1993 1 SCR 980 )
Baker v Canada pp 69-71; 78-81 + headnote
Justice L'Heureux-Dubé : Duty of fairness required in the context of
judicial review, she outlined the following factors as those that
should be taken into consideration
1. The nature of the decision being made and process followed in
making the decision;
2. the nature of the statutory scheme and the terms of the
statute pursuant to which the body operates;
3. the importance of the decision to the individuals affected;
4. the legitimate expectations of the person(s) affected by the
5. the agency or administrator's choice of procedure.
De Guzman v Canada (2005) FCA 436
Facts: De Guzman was sponsored by her mother as an “unmarried”
daughter in 1993. She had lied by saying that she had never been
married and had no dependents. During her physical examination,
she confessed she had one daughter. The birth certificate of De
Guzman's daughter showed her father as “unknown” and the place
and date of her parent's marriage as “illegitimate.” De Guzman and
and her daughter were granted permanent residency.
However, De Guzman had been married and had two other sons
whose birth certificate listed their father and De Guzman as married
to him.
De Guzman's misrepresentation gained her permanent residency -
she would not have qualified for sponsorship if she was married.
In 2003, De Guzman tried to sponsor her 16 and 17 years old sons.
They were rejected on the grounds that they were not members of
the Family Class because they had not been examined for
immigrations purposes when De Guzman applied to come to
Issue 1: Was IRPR, s. 117(9)(d) authorized by IRPA, s. 14?
Issue 2: Does IRPR, s. 117(9)(d) violate the applicants rights to
liberty or security of the person?
Issue 3: Is IRPR, s. 117(9)(d) invalid b/c it renders the IRPA non-
compliant with international human rights instruments to which
Canada is a signatory?
Analysis 1: Court notes that the De Guzman knew of her
misrepresentation in 1991 and the impact it would have had on her
application. “It would seriously impede the effective administration
of immigration to interpret the IRPA as precluding the possibility
that, in addition to removal, another sanction may be imposed on a
person who misrepresented a material fact in order to gain entry to
Court finds that nothing in s. 14 or the IRPA that would reduce the
breadth of regulation-making discretion to narrowly fit within each
Part or Division. Thus, regulations may be enacted ti create
exceptions to policies in the Act.
Analysis 2: Court finds no deprivation of liberty (right to make
fundamental personal choices) or security of the person
(psychological stress). Any deprivations so caused are not the result
of the state, as De Guzman chose to leave her children behind and
was always able to return to the Philippines to be with them.
Furthermore, there are other options beyond the sponsorship
program – she can apply for exemption under IRPA, s. 25 or her sons
could apply for permanent residency on their own.
Analysis 3: Per Baker v Canada, international law is an interpretive
aid that places great weight on the "best interests of the child."
However, the jurisprudence is unclear. Sometimes international law
is merely persuasive or part of the context, while at other times it
may be determinative.
Court finds that the Convention of the Rights of a Child applies to
the interpretation and application of the IRPA, but does not require
that each and every provision of the IRPA and IRPR comply with
international human rights instruments when considered in isolation.
Held: IRPR, s. 117(9)(d) is validly enacted under the IRPA and does
not violate the Charter or the Convention.
2005 International Human Rights instruments do not prevail over conflicting (local) provisions.
The direction that the IRPA “must be construed and applied in a manner that complies with
international human rights instruments to which Canada is a signatory” does not give priority to
them. Expanding role intnl common law has given in interpretation of domestic law. “must be
construed” = instructs courts to give more than persuasive or contextual significance. Even non-
binding Ct thought should be persuasive / contextual, and binding ones, more than that. Ct
considers provision in context of entire legislative scheme. If regulation and is held to make
IRPS non-compliant, Ct then has to determine whether the relevant enabling section of the IRPA
authorizes the Governor in Council to enact a regulation which renders IRPA non compliant with
a binding Intern HR instrument to which Canada is a signatory. Only a clear legislative intention
to the contrary will warrant a conclusion that regulation making power could be lawfully
exercised in this manner.

Executive Act.
Treaties lack direct effect w/I implementation legislation. Indirect effect of treaties (taking
judicial notice of state’s treaty obligations). Harmonizing by use of interpretative presumption of
conformity. HERE no legitimate expectation of specific procedural rights (Baker v Canada).
Vienna Convention of the Law of Treaties (VCLT) 1969. Canada party to VCLT.1980. First
define purpose of Convention / Treaty as a whole, then the purpose and place of the impugned
section/article within the scheme. Background (human right character) (Pushpanthan). Centrality
of VCLT to interpretation of Treaties by Canada. 2. Crown Forest v Canada 1995. (TAX) “a
literal or legalistic interpretation must be avoided when the basic object of the treaty might be
defeated or frustrated” (JD Gladden Estate v The Queen).. Start with Treaty’s express terms,
viewed in their context and light of treaty’s object and purpose, then resorting to supplementary
means of interpretation to confirm the textual meaning or to resolve ambiguity. Mugesera 2005
(customary international law).
“In the face of certain unspeakable tragedies, the community of nations must provide a
unified response. Crimes against humanity fall within this category. The interpretation
and application of Canadian provisions regarding crimes against humanity must therefore
accord with international law. Our nation‘s deeply held commitment to individual human
dignity, freedom and fundamental rights requires nothing less.”
Presumption of conformity: 1) judicial policy; 2) values and principles of international law (incl
treaties) are said to form part of context in which statutes are enacted; 3) rebuttable.
Presumption of conformity applies to interpretation of powers granted by statute to
ADMINISTRATIVE decision-makers (R. v Hape). Unclear whether it applies to Charter issues
HAPE: “Wherever possible, [this court] has sought to ensure consistency between its
interpretation of the Charter, on the one hand, and Canada‘s international obligations and the
relevant principles of international law, on the other….
In interpreting the scope of application of the Charter, the courts should seek to ensure
compliance with Canada‘s binding obligations under international law where the express words
are capable of supporting such a construction.”
AND Health Services and Support-Facilities Subsector Bargaining Association v BC 2007.p.39
in article.

Reference Re Supreme Court Act ss 5 and 6, pp 1-12; 72-107 (NADON)

The majority decision was attributed to all six of the judges in the majority, rather than to a
single judge. The Court held that the amendment to the Supreme Court Act was not simply
declaratory of the previous law, but an actual change to the composition of the Court, and was
therefore ultra vires federal Parliament. A change to the composition of the Court can only be
made by a unanimous constitutional amendment under s. 41 of the Constitution Act, 1982. The
appointment of Justice Nadon was therefore void ab initio. He remained a supernumerary judge
of the Federal Court of Appeal.

The reference asks the Court to determine what the proper interpretation of ss. 5, and 6 of the
Supreme Court Act (“SCA”) are. Specifically, whether s. 6 of the SCA contains a temporal
requirement that persons “from the advocates” of the province must be current members of the
Quebec bar. The Court is also asked to consider whether Parliament can legislate an
interpretation of s. 6 of the SCA that would allow former members of the Quebec bar, with a
minimum of 10 years standing, to be eligible under s. 6 of the SCA.
The Majority of the Court concludes that to meet the definition of “from the advocates” a judge
must be selected from among the current members of the Quebec bar. Parliament cannot
unilaterally amend the SCA.
Interpretation of ss. 5, 6
Both a textual and purposive interpretation of the provision lead the Majority to conclude that
former advocates are excluded from appointment to the Supreme Court as being “from among
the advocates” under s. 6. Section 6 contains a temporal requirement. The language of s. 6 is
more restrictive than the language of s. 5 of the SCA. Section 5 speaks to both current and
former members of at least ten years standing with the bar. In contrast, s. 6 does not speak to, and
by extension encompass, former members of the bar.
Section 6 is an important provision in protecting the central bargain made by Quebec in
negotiations leading up to Confederation. As was agreed to, s. 6 ensures that judges on the
Supreme Court have civil law training and represent the legal and social traditions of Quebec
society. Quebec’s confidence in the Court depended on representation of the province.
Amending Formula
Unanimous approval of the provinces would be required make constitutional the proposed
amendment to the SCA. The SCC is a constitutionally essential court that engages both federal
and provincial interests. The unanimity formula is reserved for topics that engage the interests of
all provinces; the formula effectively creates veto power in each individual province and
The SCC has constitutional protection. Its status as a constitutionally protected Court is
supported by the developmental history of the Court, which the Majority goes into some detail
on. In 1949, for example, when the right of appeal to the Judicial Committee of the Privy
Council was abolished the SCC became the Court of last resort; an integral part of the
constitutional architecture. “it became the final arbiter of division of powers disputes, and
became the final words on matters of public law and provincial civil law.” Later, the Court
abolished appeals as of right in Civil matters, giving the Supreme Court wider discretion over the
cases it hears.
For the majority composition means more than 9 judges, 3 from Quebec. Composition entails
that the members of the bench meet eligibility requirements. It means who is eligible to be one of
the three judges from Quebec. Incidentally, the SCC suggests that composition entails continued
existence of the Court.
Dissent Moldaver J. authored a strong dissent. To have had standing at the Quebec bar for over
10 years, while not a current member, is sufficient to meet the eligibility requirements under s. 6
of the SCA.
It would be an odd result if re-joining the Quebec bar for one day could change a judge’s
The textual links between ss. 5, and 6 restrict the Court from interpreting s. 6 as including a
temporal element. Reading ss. 5, and 6 of the SCA together it cannot be said that Quebec
appointees are under more stringent eligibility requirements than their common law counterparts.
Section 5 uses the language “Any person may be appointed a judge who is or has been” a judge
of a superior court of a province or a barrister or advocate of at least ten years standing at the bar
of a province”. The words any person suggest that the “eligibility requirements set out in that
section apply to all appointees.” “The judges” referred to in s. 6, must be the ascertained judges
that are eligible under s. 5.


1. The Constitution of Canada
a. Convention of the Constitution
Re: Resolution to Amend the Constitution
Unwritten Principles of the Constitution
Reference re Secession of Quebec

Principles underpinning public law

Rule of Law. All exercises of legitimate public power must have a source in law and every state
actor is subject to constraint of law.
a. Substantive limits on legislation:
a. British Columbia v Imperial Tobacco Canada Ltd.: Ct closed door to arg that rule
of law principle gives rise to substantive rights capable as serving as a basis for
challenging Constitutionality of statutes. BUT
b. Trial Lawyers Association of BC v BC. $3600 for 10 day Ct hearing (family law).
Breached “access to justice” in S 96 of Constitution Act 1867 and principle of rule
of law. “There cannot be a rule of law without access”…:Provinces not given
right to deny access to ppl to Courts of superior jxn.
b. Arbitrary Exercises of Statutory Power: Roncarelli v. Duplessis:
Roncarelli was successful restaurant owner & practicing Jehovah's Witness in Montreal, active in
the Jehovah's Witness community & used his wealth to support persecuted members by offering
bail security for those who had been arrested by the municipal government. Tension between the
dominant Roman Catholic community & the Jehovah's Witness community saw increasing
arrests of Jehovah's Witness members for selling copies of their magazines without the necessary
permits under city by-laws. Roncarelli furnished bail for over 375 Jehovah's Witness members in
three years & many were arrested multiple times. The Chief Prosecutor of the city contacted the
Premier who spoke to the Chairman of the Quebec Liquor Commission. Roncarelli's liquor
license was subsequently revoked. Extensive testimony showed the government actors believed
Roncarelli was disrupting the court system, causing civil disorder, & was therefore not entitled to
the liquor license. Roncarelli was told that he was “forever” barred from holding a liquor license
and that this action was a warning to others that they would similarly be stripped of provincial
“privileges” if they persisted in their activities related to the Witnesses. Roncarelli received news
of the revocation in December 1946, & while he tried to keep his business open without the
license, it was not profitable and he put it up for sale within six months. Consequently, he
brought an action against Duplessis for $118,741 in damages. At trial, the Quebec Court of
Queen's Bench found in favour of Roncarelli, however it was overturned on appeal.
Issue: Did the Premier of Quebec overstep his authority in revoking the liquor license of
Analysis: Three judges wrote that Duplessis had ordered the cancellation which was outside his
authority as premier; two judges stated that although Duplessis had the power to order the
cancellation, he had done so in bad faith; and the sixth judge concluded the premier was not
entitled to immunity as a public official. Cartwright wrote a dissenting judgment which argued
that it was within the power of the commission to refuse to grant Roncarelli a permit as the act
only fettered the commission by delineating circumstances under which the granting of a permit
was forbidden and circumstances in which the cancellation of a permit was mandatory, and
nothing more. The Justice argued that as this was an administrative tribunal, and not a judicial
one, it was "a law unto itself" and did not need to base its decision on anything more than policy
and expediency. Cartwright went on to argue that even if the commission were to be considered
quasi-judicial, in which case procedural fairness guarantees would apply, that still would not
entitle the plaintiff to monetary damages.
Ratio: the unwritten constitutional principle of the “rule of law” means no public official is above
the law, that is, they can neither suspend it nor dispense it. Holding: Roncarelli wins

Constitutional Supremacy: CON = supreme law of society & any law inconsistent w.CON –no
force and effect.
1. Hierarchy in Law
2. The Need for Constitutional Adjudication
3. A Counter-Majoritarian Purpose.
4. Constitutional Amendment Requires a Super Majority
a. Parliamentary Supremacy
i. Babcock v Canada (AG)

Parliamentary sovereignty and the separation of powers doctrine are well-established pillars of
our Constitution and have been recognized by the Supreme Court on numerous occasions, most
recently in Criminal Lawyers’ Association.
If there is one principle that is beyond any doubt, it is that courts will not supervise the legislative
process and will provide no relief until a bill has been enacted

b. Federalism: PARL supremacy in Canada is subject to division of law-making

powers or jurisdictions BTWN National PARL and legislatures of the provinces.
c. Separation of Powers
i. Functional Role of the Separation of Powers: Relationship among
Legislative, Executive and Judicial Branches of the State
ii. Normative Role of the Separation of Powers: Preventing Overstepping of
Institutional Roles: Ontario v Criminal Lawyers Association of Ontario;
This Court most recently restated the applicable test for when a
declaration should be granted in Canada (Prime Minister) v. Khadr,
[2010] 1 S.C.R. 44. The party seeking relief must establish that the court
has jurisdiction to hear the issue, that the question is real and not
theoretical, and that the party raising the issue has a genuine interest in its
resolution. A declaration can only be granted if it will have practical
utility, that is, if it will settle a “live controversy” between the parties:-
d. Judicial Independence. Judicial Branch must have sufficient degree of
institutional independence from the LEG and EXEC branches to perform its
CONST functions.
Constitutional Amendment
The Amending Formula in Part V of the Constitution Act 1982
1. Amendment of the Supreme Ct of Canada: The Supreme Court Act Reference
2. Amendment and the Senate of Canada: The Senate Reform Reference

Judicial Interpretation and the “Living Tree”

Singh v Canada (AG) 2000 pp 13-44. Parliamentary Sovereignty. Rule of Law. Independence
of Judiciary. Canada Evidence Act s.39, Clerk of Privy Council certificate --- immunity from
judicial review. Cabinet Secrecy. Here certificate puts Cabinet documents beyond judicial review
(absolute). Babcock v BC (AG) – if there has been disclosure, 39 does not apply to already
disclosed info/docs. Thus, ministers undertake by oath as Privy Councillors to maintain the
secrecy of Cabinet deliberations and the House of Commons and the courts respect the
confidentiality of Cabinet decision-making. In England, judge may view documents to certify
need for confidentiality, and there is a 20 year limit. Here, absolute!
The Chairman held that this included whether the Prime Minister or members of his Office or of
the Privy Council Office or of the Government of Canada gave improper orders or directions to
any RCMP members respecting security at the APEC Conference, and that the Commission
could make findings and recommendations to this effect. A defence of superior orders was not
raised. It was not disputed that there had been discussions between officials of the Prime
Minister's Office and the RCMP concerning security arrangements. The Commission requested
that the Government of Canada disclose all government records relevant to the hearing. Two
successive Clerks of the Privy Council filed certificates under Canada Evidence Act, subsection
39(1) certifying that information contained in certain documents constituted confidences of the
Queen's Privy Council for Canada. Section 39 provides that such documents shall not be
disclosed and the Court is unable to examine them to determine whether the Clerk's
determination is correct or if the public interest warrants a refusal to disclose.


 The Monarch and Governor General
o Selecting the Monarch
 O’Donohue v Canada
 McAteer v Canada (AG)
Selecting the Governor General
 Senate
o Reference re Senate Reform
 House of Commons
o Elections Canada, the Electoral System of Canada
o Reference re Prov Electoral Boundaries (Sask)
o Figueroa v Canada (AG)
o Opitz v Wrzesnewskyj (elections)
o McEwing v Canada (AG)
Reforming the Senate of Canada: FAQ, background paper, Library of Parliament
Parliamentary Privilege ---- Singh v Attorney General of Quebec 2018 QCCA 257. Mr.
Singh and Mr. Kaur are practicing Sikhs who wear kirpans, or ceremonial daggers central to their
faith, at all times. Because they wouldn’t surrender their kirpans to security guards, they were
denied access to the National Assembly on the basis of a provincial law that prohibits dangerous
objects, including knives, from the premises. This law was authorized through parliamentary
privilege, which provides an exemption from ordinary law so the legislature to properly
discharge its functions. The Court of Appeal noted that in N.B. Broadcasting, the Supreme Court
held a legislature’s privilege to exclude strangers is an absolute constitutional power, which
doesn’t infringe on any Charter rights. And while Vaid notes the scope of parliamentary privilege
may change over time, depending on necessity, it doesn’t provide a basis for the courts to
question that scope. Unlike Multani, in which the Supreme Court concluded that schools
couldn’t ban kirpans, the appellants’ right to freedom of doesn’t diminish parliamentary
privilege, which cannot be set aside. The Court therefore upheld the trial judge’s decision, and
the law prohibiting kirpans in the National Assembly remains intact.. RULE OF
RECOGNITION: first determine whether those questions have been positively and
authoritatively established by the Constitution, legislation, regulations or settled jurisprudence
RULE OF NECESSITY If it has, by statute or by the express declaration of the legislature itself,
or by jurisprudence, there is little or no scope for further review in the courts. If it has not, the
reviewing court must consider second whether the proponent of parliamentary privilege can
demonstrate whether it is necessary for the effective administration of the legislature
 Summoning: House of Commons Procedure and Practice
 Prorogation
 Dissolution
 Key Actors
o Political Parties
o The Speaker
o Parliamentary Committees
 Parliament Procedure
o Constitutional and Legislative Basis: Parliamentary Privilege
 Canada (House of Commons) v Vaid
 Parliamentary Law Making
o Scope of Parliament’s Law Making Jurisdiction
 The power to pass bad laws
Bacon v Saskatchewan Crop Insurance Corp
Turner v Canada
Wells v Newfoundland
The Power to Follow Unfair Procedures
Authorson v Canada (AG)
Ethic in Law Making
Conflict of Interest at the Federal Level: Leg framework
 The Functions of the Executive
 Sources of Executive Power
o Prerogative Powers: Black v Canada (Prime Minister). PM ditched OBE for
Black by talking to the Queen. Beyond Judicial Review!
o Statutory Powers
o Constitutional Constraints on the delegation of statutory power to the executive
 In Re George Edwin Gray
 AG of Nova Scotia v AG of Canada
 Executive Institutions and the Political Executive
a. The Crown
b. PM and Cabinet: Gergis v Novak et al
c. The Public Service: Fraser v PSSRB
d. Independent Administrative Agencies
i. Canadian Human Rights Act
ii. Ocean Port Hotel v BC (GM of Liquor Licensing)
iii. Saskatchewan Federation of Labour v Gov. Of Sask.
Crown Corporations
Enforcement Bodies: Police and Prosecutors
R v Campbell
Krieger v Law Society of Alberta. Prov jxn over prof. disciplinary issues not
intruding on (fed) criminal law. Not prosecutorial discretion (didn’t inform Def of DNA
test implicating another, for 10 days), but legal duty to disclose, Law Society had jxn to
review. AG’s office can discipline prosecutor for failing to meet standards of office but
Law Society jxn is limited to Q of ethical violation.
Municipalities and other elected subordinate bodies
Shell Canada Products v Vancouver (City)


 Structure of Canadian Court System
o Constitutional Framework of the Judiciary
 Judicial Appointments
 Federal Judicial Appointment Process
-The federal government appoints superior court judges, and this process varies: s.96 court,
Federal Court, and Tax Court judges are appointed by the governor in council (the Cabinet)
usually following review of candidates by an advisory committee. No such advisory committee
has existed for the SCC appointments. Rather, the SC justices have traditionally been simply
appointed by the governor in council
 Non-SCt Appointments
 SCt Appointments: Overview; History 2004-2014: 10 year democratic audit
 Provincial Judicial Appointment Process
The Canadian judicial selection process: judges are selected by the executive branch
-For provincial/territorially appointed judges, the process of choosing judges varies depending on
the province/territory
-The basic model is built on an advisory committee composed of a mixture of members from the
legal community and laypersons. The committee accepts applications and
interviews candidates before submitting a list of recommendations to the provincial A-G.
-Considerations listed on p321
Range of Models *(US DOJ)
 Judicial Independence
 Sources and Scope
 Ref re Remuneration of Judges of Prov Ct of PEI; Independence and Impartiality of
Judges PEI
 Assessing Independence
 Dimensions and Core Characteristics
 Security of Tenure
 Report of the Canadian Judicial Council to MoJ: conduct of Justice Jean Bienvenue of
Superior Ct of Quebec in R. v T Theberge.
 Financial Security
 Ref re Remuneration of judges of the Prov Ct of PEI;
 Ref re Independence and Impartiality of Judges Prov Ct PEI;
 Provincial Ct Judges Assn of NB v New Brunswick (MoJ);
 Ontario Judges Assn v Ontario (Mgmt Board)
 Bodner v Alberta; Conference des juges du Quebec v Quebec;
 Minc v Quebec
 Administrative Independence
Canada (Minister of Citizenship and Immigration) v Tobiass. APPEARANCE OF
INDEPENDENCE? Would a reasonable observer perceive judicial independence was
BASSAM-AL-Rawi’. Judge oral “clearly a drunk can consent”
What occurred in this legal proceeding is unacceptable. Judge Lenehan’s failure warranted much of the
public critique and outrage it received. His mistakes and deficiencies in this case were serious. Although
the principle of judicial independence demands that we not lose sight of the difference between judicial
error and misconduct, the public is right to expect and demand much better of those individuals granted
the enormous power and responsibility to preside over sexual assault trials. As recently noted by the
Canadian Judicial Council: “Canadians expect their judges to know the law but also to possess empathy
and to recognize and question any past personal attitudes and sympathies that might prevent them from
acting fairly.”126 While Judge Lenehan’s decision is filled with errors and it should be overturned, his
conduct of the case in Al-Rawi does not appear to amount to judicial misconduct. What it does amount to,
however, is further evidence of the need for both a legal rule requiring judges in sexual assault trials
to provide written decisions, and much more rigorous sexual assault training for judges.
Perhaps the exercise of composing written reasons would have prevented Judge Lenehan from making the
legal errors that pervaded his oral decision. His oral decision in Al-Rawi stands in stark contrast to written
decisions involving similar facts and legal issues, like that of Justice Greene in Tariq. In assessing
whether an intoxicated complainant with severe memory loss lacked capacity to consent, Justice Greene
carefully reviewed the relevant case law and legislative framework. Judge Lenehan did not cite or review
a single legal precedent in Al-Rawi.
just keep your knees together”?
1. Approaches to Interpretation
2. An Overview of the Modern Approach to Interpretation:
Purposive interpretation is used when the courts use extraneous materials from the pre-enactment
phase of legislation, including early drafts, Hansards, committee reports, and white papers. The
purposive interpretation involves a rejection of the exclusionary rule.”
3. The Modern Approach in Action
a. The Original Case: Re Rizzo and Rizzo Shoes Ltd: Iacobucci, J “ the
words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act, and the intention of Parliament. Ont Interpretation
act, “Every Act shall be deemed to be remedial ... and shall accordingly
receive such fair, large and liberal construction and interpretation as will
best ensure the attainment of the object of the Act according to its true
intent, meaning and spirit.”
b. Dynamic and Static Approaches in the Supreme Ct Act Reference
c. Presumption against absurdity
d. How Common Law presumption is incorporated under and used in
Modern Approach. Common law “associated words” presumption—words
take their colour from their context.
e. Contextual and Purposive Approach within the Modern Approach. P490.
Mossop applied for beareavement leave (“common law spouse” but male
lover, no “”family”. Interpreted meaning in Canadian Human Rights Act.
f. Modern Approach in the midst of a Sea Change in meaning?
Interpretation and Criticism of the Modern Approach: Critics of purposivism argue it fails to
separate the powers between the legislator and the judiciary,[9] as it allows more freedom in
interpretation by way of extraneous materials in interpreting the law
Review of older approaches to statutory interpretation
Reconsidering the modern approach
Cheat Sheet: Forcese 523
Schnarr v Blue Mountain Resorts: The issues in the case clustered around the dual application
of both the Occupiers’ Liability Act (“OLA“) and the Consumer Protection Act(“CPA“) to
agreements between skiers and ski resorts.
As an occupier of premises, ski resorts are subject to the OLA. To encourage landowners to make
their property available for recreational activities, the OLA allows for landowners to limit their
liability through waivers of liability. However, as a consumer agreement, these ski resort
contracts are also governed by the CPA. The CPA requires services supplied under a consumer
agreement to be of a reasonably acceptable quality and deems waivers purporting to limit
resultant liability to be void.
The concurrent governance of the OLA and the CPA thrust two issues before the Court of Appeal:
(1) whether the two provisions could be interpreted to find a state of harmony; and (2) if not,
what effect should be ascribed to each provision?
The Court of Appeal answered the first question by finding a conflict between the two
provisions. It rejected the argument – accepted by the trial judge – that harmony could be
established by limiting the application of each provision to a specific cause-of-action. The trial
judge had held that the OLA provision allows waivers to limit liability in tort, while
the CPA provision voids waivers attempting to limit liability under contract.
The Court of Appeal denied this attempt at harmony by noting that each statute deals with a duty
of care, not a particular cause-of-action. The provisions of each statute therefore extend across
the same range of liability, encompassing both tort and contract. The OLAallows liability to be
waived, while the CPA does not. Conflict cannot be avoided.
To answer the second question, the Court of Appeal relied upon five principles of statutory
interpretation to hold that the OLA provision – enforcing waivers of liability – prevails. The
principles of statutory interpretation urge an approach that allows both statutes to maintain their
maximum application and effectiveness. The principles affecting the analysis with respect to
which statute should take precedence include:
(i) where a class of things is modified by general wording that expands the class,
the general wording is usually restricted to things of the same type as the listed
items (ejusdem generis);

(ii) when one or more things of a class are expressly mentioned, others of the same
class are excluded (expressio unius est exclusio alterius);

(iii) the exhaustiveness doctrine;

(iv) the provisions of a general statute must yield to those of a special one
(generalia specialibus non derogant); and

(v) the absurdity doctrine.

 Judicial Review in a Democratic Society
o Justification for Constitutional Judicial Review (Marbury v Madison)
o Limitations of Judicial Review using the Constitution
 Issue of Justiciability: Operation Dismantle v The Queen. Testing of
cruise missiles. Court unwilling to find Govt action insulated from
Charter. BUT Wilson, J., conclusion: Courts are entitled to determine
whether a particular govt action that has foreign policy implications
infringes a person’s constitutionally protected rights. But Courts are not
indifferent to respective roles of Exec/Jud/Leg in fashioning remedies for
breaches. Canada (PM) v Khadr, Ct overturned remedial lower Ct
requesting Canada repatriate Khadr from Guantanamo. Held Khadr’s
rights had been violated but left to Govt how to address consequences.
 Issue of Enforcement:
 Doucet-Boudreau v Nova Scotia (Min. of Ed); Retention of Jxn to hear
progress reports on status of Province’s efforts in providing school
facilities by required dates.
 Re Manitoba Language Rights. Laws not in French (only in English),
invalid and of no force and effect, BUT SCt, Constitution requires
temporary validity until French versions enacted. Judicial Review of
Legislative Process. Recourse to unwritten constitutional principles
enables Cts to achieve creative solutions to constitutional dilemmas that
are not easily resolved with reference to the text of Const.
 Issue of Legitimacy: Vriend v Alberta; Have Courts usurped power that
is domain of Parliament under the banner of Constitutional Supremacy,
shrinking Parliamentary Supremacy? VRIEND Dialogue (Iacobucci, J)
between court and legislature under Charter. READING IN of “sexual
orientation” into s. 15 of Charter. (1) Built in deference- Parliamentary
SAFEGUARD remain, as it can pass exceptions and defences that it feels
can be justified under s. 1 of the Charter, or always turn to s. 33, the
override provision. (2) dialogue.
 Respecting Democratic Roles – McLachlin – defends against four attacks
on “judicial activism”; Courts decide with all necessary deference to
legislative and executive expertise in weighing competing demands on the
public purse, and competing perspectives on public policy. Deference has
limits. Judicial branch’s rile is to interpret the law and resolve disputes
arising from the law. Deliberate choice of Legislature in adopting the
Charter to assign an interpretive role to the Courts and to command them
under s. 52 to declare unconstitutional legislation invalid.” (Iacobucci)
 Ref re Remuneration of Judges of PEI: LA Forest, J (Dissent): Guarantee of judicial
independence (ss 96-100 of Constitution act 1867) and power of judicial review (s. 52
Cont. 1982), not from implied rights in preamble.
 Judicial Review of Administrative Action: three bodies of common law rules:
o Limits on the Exercise of Delegated Authority
 Sole source of power is from statutory delegation (apart from bodies
exercising prerogative powers or Const powers). Shell Canada Products v
Vancouver – municipalities (admin bodies) must stay within the powers
conferred on them by provincial statutes. Rule against unauthorized sub
delegation, unless “merely administrative” matters (which do not involve a
substantial amt of discretion), or explicitly authorized by statute.
o Controlling Procedures : The Duty to be Fair
 Procedures, not fair outcome. Procedural fairness. Rules of natural justice
only applicable to decision makers carrying out a “judicial or quasi-
judicial” function (admin decisions on determination of legal rights of a
person, but not matters of policy).
 Baker v Canada (Min CI). L’Heureux-Dube: Four factors that should be taken into
consideration (*duty of fairness):
 Nature of decision being made and process followed in making the
 Nature of statutory scheme and terms of the statute pursuant to
which the body operates
 Importance of decision to individual affected
 Legitimate expectations of person affected by decision
 Agency or administrator’s choice of procedure.
1. Substantive Judicial Review: Justification, Transparency and Intelligibility are central to
1. Dunsmuir v New Brunswick: First, courts must ascertain whether the jurisprudence
has already determined in a satisfactory manner the degree of deference to be
accorded with regard to a particular category of question. Second, where the first
inquiry proves unfruitful, courts must proceed to an analysis of the factors making it
possible to identify the proper standard of review.

Determining the appropriate standard: standard of review analysis,

(1) The presence or absence of a privative clause or right of appeal in the statute (note that these
are not determinative and other factors need to be considered); Existence of a privative or
preclusive clause gives rise to a strong indication of review pursuant to the reasonableness
standard. This is not determinative
(2) The purpose of the tribunal as determined by interpretation of enabling legislation;
(3) The nature of the question that is under review;
(4) The expertise of the tribunal

a. Questions of fact, discretion and policy as well as questions where the legal
issues cannot be easily separated from the factual issues generally attract a
standard of reasonableness
b. Reasonableness is concerned mostly with the existence of justification
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law
c. Constitutional questions regarding the division of powers between Parliament
and the provinces
d. determinations of true questions of jurisdiction or vires
e. the question at issue is one of general law "that is both of central importance
to the legal system as a whole and outside the adjudicator’s specialized area of
f. questions regarding the jurisdictional lines between two or more competing
specialized tribunals
g. Beyond those categories, context would determine when correctness would be
applied, and expertise would play a key role in those determinations.
PRESUMPTION OF REASONABLENESS now in effect! In addition, the ruling has effectively
ensured that most forms of public employment are best viewed through the lens of private
employment law principles, irrespective of whether the affected person may be categorized as a
public office holder. Therefore, appeals on grounds of procedural fairness will be available only
to a few categories of public employment, and reinstatement procedures will occur even less

Agraira v Canada (Public Safety and Emergency Preparedness). A court deciding an

application for judicial review must engage in a 2-step process to identify the proper standard of
review. 1ST, it must consider whether the level of deference to be accorded with regard to the
type of question raised on the application has been established satisfactorily in the
jurisprudence. The 2ND inquiry becomes relevant if the first is unfruitful or if the relevant
precedents appear to be inconsistent with recent developments in the common law principles of
judicial review. At this second stage, the court performs a full analysis in order to determine what
the applicable standard is. The standard of review applicable in the case at bar has been
satisfactorily determined in past decisions to be reasonableness. The words of the statute, the
legislative history of the provision, the purpose and context of the provision, are all consistent
with the Minister’s implied interpretation of this term (national interest). Minister’s reasons were
justifiable, transparent and intelligible. The Minister’s decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the law. The
Minister’s decision was not unfair, nor was there a failure to meet A’s legitimate expectations or
to discharge the duty of procedural fairness owed to him.
Reasonableness (Deference) standard applied to Administrative Tribunal, especially if it is
interpreting its own implementation statute. Existence of a PRIVATIVE clause – purports to
make all decisions final and not subject to judicial review.

Canada (AG) v Bri-Chem Supply Ltd 2016. Administrators HAVE to follow prior Tribunal
decision (Frito-lay) and NOT relitigate same question. Abuse of process to not follow prior
Tribunal result.
With respect to tribunals, although later panels are not bound by the decisions of earlier panels,
later panels should not depart from the decisions of earlier panels unless there is good reason –
particularly where certainty, predictability and finality matter (such as in the context of
commercial importation and international trade).
Subject to at least two exceptions.

First, if an administrator is acting bona fide and in accordance with its legislative mandate, it can
assert that an earlier tribunal decision does not apply in a matter that has different facts.

The second and more controversial exception applies where an earlier decision cannot be
distinguished. The Court held that this should only happen where an administrator can identify
and articulate with good reasons one or more specific elements in the tribunal’s earlier decision
that, in the administrator’s bona fide and informed view, is likely wrong. The flaw must have
significance based on all of the circumstances, including its probable impact on future cases and
the prejudice that will be caused to the administrator’s mandate, the parties it regulates, or both.
In trying to persuade a tribunal that its earlier decision should not be followed, an administrator
must address these issues – and not simply offer a rerun of earlier submissions.

“margins of appreciation”/”intensity of review” to be afforded Admin decision-makers. Law of
Judicial Review animated by tension between legislative supremacy and the rule of law. McLean
says there may be many possible/acceptable outcomes, or a few or just one (in/correct). Doesn’t
like Dore (where Ct allowed to “supplement” reasons to uphold an outcome of an Admin DM)
Newfoundland nurses told lower cts to restrain themselves in finding additional reasons. “Badges
of unreasonablenss” – indicators something wrong w/dec.