#General

1. What is “law”?

• Forcese: “Law consists of rules of action or conduct that restrict

and direct when and how power can be exercised”

2. Why do we have “law”?

• To exist in societies
• To better marshal scare resources to fulfil wants and needs
(Economies of scale and scope)
• Why do we need law for societies?
• To facilitate the pooling of effort based on shared
incentives rather than the application of coercive force
(with law you have cooperation instead of coercion)
• Ensures that human effort is governed by something other
than raw power
• No law = no rules governing how we are to conduct
ourselves in relation to others in society

3. How do we create “law”?

• We create political institutions to give us law

• More specifically:
• Positive law is created by political institutions for the
courts àaffirmative rules given to us by political institutions
• Positive law à Domestic law à Substantive law à Public Law
à Con Law and Admin Law

4. Why do we have constitutional law?

• To provide laws for the law-givers in order to insure that those

political institutions that give us law survive desirable standards
• Historically: The Magna Carta = constraining the sphere of the
king’s de facto power
– Notion that the King could also be bound by the law, that
the law is more than what the King says it is
– Origin of the concept of the Rule of Law: even the most
powerful are bound by the Rule of Law
• In Cdn context, the Constitution (in written and unwritten form)
acts as this constraint though:
– BNA 1867:
1. Division of powers
2. Separation of powers
3. Set up political structures (legislature, executive, judicial
 branch)
– Charter 1982: further limited power of all branches of govt

5. Why Courts?

• Courts perform 3 important functions:

1. Enforce the law introduced by political institutions
• Precedent
• Statutes and Regulations
2. Help develop the law
• CML precedent (see above)
3. Enforce the constitution
Unwritten Rules for Law Givers
Overview of Written and Unwritten Constitution:

• Most of the potent limiters on exec or leg powers are in the form of
the written C
– The Charter is written down.
• It is not always the case that principles of C law are written down.
Some are derived from courts own experience of CML law making.
– These are unwritten principles.
• Our C is a mix of not just written norms and propositions but also
unwritten doctrines, some of which are of high legal significance
and very limiting. Taken together, the written and the unwritten
have the effect of constraining political institutions.

Origin of the Unwritten Rules for Law Givers

• Nothing in BNAA talks about responsible gov

• Unwritten come from the preamble
• No mention of PM or Cabinet (person securing the confidence of
House of Commons and the Monarch having to follow that advice)
• Also states that GG can refuse Royal Assent
• How is then that we have the concept of responsible government
(RG) in Canada?
– Because of the text found at the beginning of the C Act, 1867
that talks about us having a C similar to that of the UK
• Preamble means we are the inheritor of the landmarks of all the
stuff the UK did. Everything imported
– Unwritten C Law!!!

Scope of the Preamble:

1. Judicial independence
2. Parliamentary governance and powers
3. Democratic institutions
4. Ministerial responsibility and parliamentary sovereignty (notion that
P is supreme over all other
levels of gov)
5. Political neutrality of Crown servants
6. Rule of law
7. Separation of powers
8. Implied bill of rights
Kinds of Unwritten Principles

1. Conventions
- Political practices of long standing significance
- Norms or expectations that we have of our political institutions
- Not enforceable by courts (they are political creations)
- To establish a convention:
o What are the precedents
o Did the actors in the precedents believe that they were
bound by a rule
o Is there a reason for the rule

2. Legal rules
- Constitutional law
- Enforceable by courts
- E.g. independence of the judiciary

Quebec Reference Case

Three Questions:
1. Can Quebec unilaterally declare independence under Canadian
Law?
2. Can Quebec unilaterally declare independence under
international law?
3. In the event of a conflict between international and domestic law,
which prevails?
- Answer to all questions = NO!
Holding: Quebec loses
Analysis:
Courts may look to unwritten rules when applying the constitution
Unwritten constitution:
- A. Federalism
à Distributes power to the proper government
à Presumably according to level of government most
equipped to deal with that particular power
- B. Democracy
à Fundamental value
à Must be consistent with the rule of law
à At some basic level in our society, power is
governed with the consent of the governed
à Means more than tyranny of the ballot box: to be
functional, must adhere to the Rule of Law
(elect a government that, in the course of conducting
its affairs, adheres to this principle)
- C. Constitutionalism and Rule of Law
à Rule of Law means citizen’s have a stable,
predictable and ordered
 society in which to conduct their affairs because
there is a law to create
stability and predictability
à Key points for our purposes:
1. Rule of Law is supreme over arbitrary power
2. Equality before the law
3. Rule of Law requires law
**expanded upon below**
- D. Protection of Minorities
With re to Question 1, this means that Quebec can not declare
independence unilaterally
To allow 1 vote to prevail auto would be to allow demo to
trump federalism and this is not constitutional (and
potentially also constitutionalism and the rule of law,
and minorities)
To honour the above 4 principles, there must be:
1. A clear majority vote on a clear question, and then
...
2. Negotiation (beginning of legal separation, but not
the end)
What would obligation to negotiation look like?: has to be in
good faith, outcome can not be pre-ordained
But at the end of the day if the negotiation doesn’t meet
this standard, it is not the role if the courts to supervise
(this is a “political question“)

Significance: Tells us that the SCC is unearthing UW principles of the

C even today! Playing formative as well as interpretive role re
unwritten principles.

Rule of Law Expanded:

Principles
1. Rule of law is supreme over arbitrary power
- Law, if exercised, must be in accordance with the rule of law.
Power must be exercised lawfully (i.e. it must have a legal basis).
Must be able to trace power to some legal authorization,
wherever it comes from (statute, royal prerogative, constitution,
etc.)
2. Equality before the law
- All people are subject to the law no matter what their wealth,
status, etc. Includes the PM
3. Rule of law requires law
- Must have positive law out there that you can point to. Need a
codification of these rules
As demonstrated in the case Law

Roncarelli v. Duplessis
Facts: R kept posting bail for those arrested for work as Jehovah’s
Witnesses; 1946 D initiated process to cancel R’s liquor licence; at
lunchtime of Dec 4 of 1946, police confiscated all alcohol; when
contacted by press, D said, “Mr R has paid the bail... “; R retains Frank
Scott, brings lawsuit and asks by what authority D purports to exercise
this power (don’t have divine right, not above the law - can only do the
law‘s bidding) R wins $8 000; matter appealed to SCC

Holding: for R (D had acted without statutory authority)

Analysis:
• Illustration of 2. equality before the law
• All public officers are subject of the law
• Must act according to statute. Must give statutory justification
for whatever you do

Manitoba Language Reference

Facts: All statutes in Manitoba in question; Supposed to be in French

and English but were in English only; All statutes unconstitutional;
Consequence of declaring them all invalid would be chaos (no rule of
law because there would be no law!)

Holding: SCC delays striking down the legislation. Said they had X
number of months to correct the deficiency. Didn’t do it right away
because it would negate the RL that lies at the basis of C

Analysis:
Illustrates 1. Rule of law is supreme (government must obey
the law)
Illustrates 3. Rule of law needs law (to strike down = no law,
obliges crt to suspend declaration of invalidity)
Written Rules for the Law Givers

Elements of the Written Constitution:

1. Assorted Imperial statutes (C Act, 1867, 1982)

2. Assorted Imperial orders in council
- Exec order issued by Imperial Cabinet pursuant to its prerogative
powers
3. A few Canadian statutes
- Statutes passed within Canada
o Create the provinces of Alberta, Manitoba, Sask for
example. Quasi-constitutional statutes

Constitution Act, 1867

1. Political Institutions
- Exec branch
- Powers of Monarch
- Privy Council
- Parliament
- Anticipates creation of a judicial branch

2. Federal structure (ss. 91 & 92)

- Divides power between federal and provincial government
- s. 91: Federal
- s. 92: Provincial
- Most important power is the catch-all powers (POGG)

3. POGG
- Many new circumstances not listed in s.91 or s.92 (e.g.
Environment). To resolve this, we have POGG
- Use Pith and Substance test to see if something falls within
s.91 or within s.92
- For Feds:
s.91
All matters not assigned to the Provincial Governments:
- For Provs:
s.92(16)
“All matters of local or private nature in the province”
Whatever this means is up to the courts to decide
- Judicial interpretation:
Crts have varied in their enthusiasm for using POGG to favour
the provinces or feds
Historically:
interpreted s.92(15) broadly, giving the provinces
substantial jurisdiction and reading narrow federal powers
More recently:
SCC has reinvigorated federal powers (more pro-fed than
privy council)
Examples where POGG power interpreted in favour of feds
include:
Where there is a gap (ie regulation of offshore mineral
resources)
Matters of national concern not covered by federal
power (national epidemics, narcotics control,
aeronautics, marine pollution)
Matters of national emergency (Emergency Act
enumerates number of powers that Feds can use in
case of emergency that would otherwise violate DOP;
emergency defined as sudden, abrupt, large-scale
and temporary)
Trade and commerce
Criminal law (fed has excl authority to create crim
offences and provide for evidentiary rules but prov
powers includes admin of justice; means provs
actually est many of the crts, and prov prosecutors
engaging in most of the prosecutions; provs can
impose punishment by fine or
penalty/imprisonment...for provincial crimes)
Constitution Act, 1982

• S, 35 recognizes and affirms the existing treaty of Aboriginal

Rights and Aboriginal Peoples
• Also gave us an amending formula for the first time (see
below)
• Also gave us the Charter

Patriation controversy

Facts: Trudeau wanted to patriate the constitution (taking away the

power of the UK à removed our C from further amendments by the UK)

Question to the court: Could Trudeau go to the UK and unilaterally

patriate the country without consent from other provinces?
SCC Answer: No à needed consent

Analysis: convention test

1. Were there precedents? Yes à had gotten majority consent 22
times before when
amending C
2. Did the actors believe they were bound by the rule? Yes
3. Was there a reason for the rule? Yes à Federalism

Patriation Reference

Facts: Trudeau managed to get the support of all the provinces, but
Que; Que argued that their support was a necessary condition for
patriation

Issue: Was lack of Quebec’s consent enough to prevent the Patriation,

to mean the Feds had
acted unconstitutionally?

SCC Answer: One province is not enough to vitiate otherwise

substantial provincial consent.

Holding: Quebec Loses its case

Constitution Act, 1982: Amending Formula

1. S. 38: The general formula; requires the agreement of

Parliament, and the legislatures of at least 2/3rds of the
provinces having at least 50% of the population of Canada
- 7 provinces having at least 50% of Canada
- Meech Lake
o Charlottetown Accord
2. S. 41: Unanimity of Parliament and all provincial legislatures
- Restricted to a short list of changes that you would want
to be made:
 1) To get rid of the Queen
2) To change the number of MPs in the HOC to be not
less than the number of Senators.
3) Use of English and French language
4) Composition of the SCC
5) The rule itself (can’t change the rule itself without
all the consent)
3. S. 43: Parliament, and the legislatures of just those provinces
affected by an amendment
- See Hogan case below
4. S. 44: Parliament alone, with respect to its own institutions
- Looks just like a piece of regular legislation going
through parliament
- Parliamentary privilege
5. S. 45: A provincial legislature alone, with respect to the provincial
constitution

Hogan Case

Facts: NFL religious schools voted to go secular in the 1990s; Term 17

of the Terms of Union brought NFL into the Constitution and
guaranteed existence of denominational schools; To rid themselves of
Term 17 they had to amend the C; Used s.43; all requirements of s.43
met; GG then goes to announce the C change and there are supporters
of the old system who are unhappy; Seek a declaration that the
amendment was unconstitutional (on grounds of respect for minority,
etc.); Said it was violation of unwritten principles

NFL CA Answer: Unwritten are supposed to be used when there is a

gap, not when we have concrete written things that say we should do it
a certain way. Here the govt acted consistently with the amendment
formula. You can’t use the unwritten as a sword to spear the
amendment formula found.

Constitution Act, 1982: The Charter

 • Section 33 (Notwithstanding clause): Parliament…may expressly
declare that the Act shall operate notwithstanding sections 2 or 7
to 15.
– Preserved the idea of absolute P Supremacy
– Can abrogate some Charter rights (s.2, 7 and 15)
– Can’t use s.33 to supersede the right to vote (s.3)
– Other circumstances where s.33 has been used:
• Signs in Quebec (Ford v. Quebec)
• Back to work legislation in Sask

Ford v. Quebec

Facts: French Language signs

Holding: Can’t pass a law that says the Charter does not apply

Reasons: When using the notwithstanding clause to override Charter

guarantees:
1) Governments must be explicit about its enactment (expressly in
legislation);
2) Cannot be used retroactively;
3) Governments have no legal obligation to provide justification for
its use;
4) Can be used to override more than one Charter right;
5) Sunset Provision à 5 year shelf life

Remember: Politicians less popular than the Charter so s.33 may not
get a lot of support
Separation of Powers

Executive Branch:

• On paper: Queen, GG, Privy Council

• By convention, includes:
o PM
o Cabinet and the departments of government
• What makes the PM powerful:
o Party discipline (contol of legislature w majority govt)
O Choose his cabinet members
o Decides when to dissolve P
• GG acts at the request of the PM ALMOST always
o Selection of GG
§ Actually done by the Queen, but on the
recommendation of the PM
o Chooses senators and SCC judges
§ on the recommendation of the PM

Legislative branch:

• s.17, Constitution Act, 1867: House of Commons, the Senate and

the Queen
o Note: Queen (GG) also an exec branch member
o Role in Leg branch is to give Royal Assent (could refuse
statute, but convention = rubber stamp)

Judicial Branch (Courts):

• s.101 Federal Courts

o s.101 says that P may establish and maintain courts to
administer the law of Canada and create the highest COA
(SCC)
§ Supreme Court
§ Federal Court of Canada
· Division between trial (Federal Court) and
Federal COA
· Trial division: Exclusive jurisdiction over certain
issues:
o IP
o Judicial review of administrative action at
the Federal level (i.e. objection to the
way a bureaucrat has acted)
· COA division:
 o Appeal from the Federal Court trial
division
o From here you can go to the SCC
(assuming you can get leave)
§ Tax Court of Canada
· Limited s.101 court
· Focuses on tax appeals (unhappy with revenue
Canada)
§ Military Court
· Small docket
o Note: Some decisions are made by the Exec level on a daily
basis, but they are not courts. They are administrative
tribunals and thus are part of the Exec branch.
§ Exec can be structured in such a way as to look like a
court
§ E.g. Immigration and Refugee Board
§ HR Tribunal à Hears HR complaints in terms of federal
sectors

• s.96 Provincial Superior Courts

o Created by provinces under s-s.92(14), with judges
appointed under s.96
o Default courts: key players on judicial landscape bc do
most of the judicial work
§ Provincial superior courts
§ Created by the Provinces/Provinces charged with
establishing infrastructure
o In Ontario:
§ Ontario Superior Court of Justice
· Appeal to the Ontario COA
o Judges appointed by the Feds
§ Reason: Thought there would be less patronage (Feds
more removed from local concerns)

• “Provincial courts” (inferior)

o Established by provinces; (non-s.96 courts)
§ Unilateral courts that perform different functions
than s.96 courts
§ Provinces appoint judges to these courts
§ Important but fairly limited jurisdiction: infractions of
provincial law, small claims, some family law, some
lesser criminal law matters

Cooper v. Canada (Human Rights Commission)

Facts: Looking at the roles and function of administrative tribunals
Issue: Are they able to invoke the Charter in claims coming before
them?
- Dealt with P providing to the executive court like functions
- Is this appropriate in all circumstances??

Dissent: Canadian Human Rights Commission can apply Charter

- Tribunal is able to apply law and the Charter is law so they
should be able to use it
Majority: Because of Act, Commission cannot apply Charter
- Statute in question does not give them the power so they
do not have it (if it did though they would have no problem
letting them have this power)
- Nothing wrong with the Tribunal applying the Charter so
long as P speaks clearly about statute law
- Lamer: Concurring but for different reasons (See below)

Cooper v. Canada (Human Rights Commission): Lamer’s

Arguments

- Lamer was concerned that the AT would use the Charter to

scrutinize the legislature and that this would curtail and restrain
the authority of the legislative branch (parliament) which is
supposed to be supreme to the Exec (based on PS)
- C status of the judiciary, flowing as it does from the SOP, requires
that certain functions be exclusively exercised by judicial bodies
- Only courts have the requisite independence
- Don’t give the Charter as a sword to the Exec so they can use it
to stab the Leg
- Turns on its head the traditional pattern of the Exec being
subordinate to the Leg
- Is Lamer on to something here or is he being too concerned with
legal formalism?
- Who usually applies the Charter? Judiciary. They are
protected by judicial independence so they can make their
decision free of interference and political manipulation. The
same cannot be said for the AT – they are not independent
- But, so what that they are not independent, because their
decisions can ultimately end up in front of the SCC
- Is Lamer’s concern accommodated?
- Possibly – if we have an AT that is sufficiently independent
– either in its own right or in the appeal process. If we don’t
have that then Lamer’s view-point becomes a lot more
pressing!!

The Relationship between these 3 branches

Some judges articulate strict separation:
“There is in Canada a separation of powers among the 3 branches of
govt...in broad terms, each of them is supposed to serve a different
function...” Dickson
McLachlin reiterates this idea, “fundamental to the working of govt
as a whole that each of them plays there proper parts”

BUT...
Entire Crt, “the Cdn Constitution does not insist on a strict separation
of powers” ...

The point:
There is no robust separation of powers, no bright line in the same
way as American Constitution
Sometimes crts make law - take on role of legislature;
Parliament can give enormous power to executive à ie.
Immigration and refugee board, even to apply the Charter of
rights, might be able to assess whether legislation is
constitutional) - take on role of legislature and judiciary
V few constraints on the ability of parliament to delegate
legislative and judicial functions to the executive
Parliamentary Sovereignty

Parliament supreme: Traditionally...

1. Parliament can make or unmake any law (no check or balance)

2. No body or person has a right to override or set aside Parliament’s
legislation
• Dicey: Parliament has unlimited legislative authority bc. Must
conduct affairs wi zone of the power pie

Canada: Parliamentary sovereignty curtailed

1. Power divided and separated

2. Charter of Rights
3. Other unwritten principles

- SOP is a viable C doctrine, but it is mushy!

- Can bestow powers on Exec that look like court powers
- Can also give Exec Leg powers to make regulations
- How can we let them do this? Goes with PS
- P Constrained only by the Constitution/Charter
- No body or person has a right to override or set
aside P’s legislation unless it violates C (Example –
DOP violation) or the Charter
- Courts can scrutinize the actions of P/legislature but only
on constitutional grounds

à Within that piece of the power pie, the courts have no choice but to
apply that statute as best as possible. Need to unearth what P really
meant

Summary

• Exec à Power granted by constitution (limited) or statute + royal

prerogative
• Some exec powers are C in nature (powers of queen for
example) but most exec powers come from the royal
prerogative or statutes (majority from statutes)
• Leg à Parliamentary sovereignty: can do whatever wishes within
piece of pie
• Within the residual piece, when P acts constitutionally and
does not transcend the DOP, their P is sovereign and the
sole role of the courts in applying the law that P passes is
interpret what P intended and follow those dictates
Parliamentary Structure

The Legislature

• Components of Parliament:
– The Queen (and her delegate, the Governor General)
– The Senate
– The House of Commons

The Queen (and her delegate – the Governor General)

– Nominal governance role is not b/c of the Constitution Act,

but is b/c of constitutional conventions. When they
exercise powers, they do at the behest of the gov
– Functions (mostly dictated by the PM and Cabinet):
1. They exercise power of summoning and dissolving
Parliament;
2. Doing ceremonial things like attending troops;
3. Royal Assent (final stage of enacting bill into law);
4. Speech from the Throne (announce gov policy and
the GG relays that info)
– Appointment of Monarch:
§ Selected through heredity
§ Governed by UK law (Act of Settlement)
§ Act à No Catholics allowed
· O’Donaghue Case
o Issue: Is the Act compliant with our
Charter?
o Judgment: Can’t rule on it because it is
a UK law and binds how the whole
commonwealth system works and if we
were to just change this then there really
wouldn’t be a commonwealth. C can’t be
used to change the C
– Appointment of Governor General
§ No rules, but arguably a few conventions
· Have to be a Canadian Citizen
· Alternative Anglophones and Francophones
· Bilingual
– Tenure of Governor General
· 5 year terms (convention)
· Appointment says they serve “at the
monarch’s pleasure”
 o So at the discretion of the Queen, so
technically they can be in there forever
o Suggests the Queen is free to fire the GG
at her discretion… *usually as a response
to the PM, not the Queen unilaterally

The Senate (General)

o 100 Senators
o Roughly equal to the HOC in terms of passing legislation.
Gives them substantial authority
· NOTE: Money bills must originate in the HOC
o In relation to C amendments:
- When it talks about approval by P (HOC, Senate and
GG), should the senate be equally entitled to bar a C
amendment that the HOC thinks is a great thing? Yes
– but only to a point. 180 day limit. After 180 days
they can be overridden by the HOC. Can only delay.
Can’t block.
- Most ministers are sitting members of the HOC. They
are rarely senators.
- Core arena of ministerial responsibility (that they are
answerable to people) is not shared by the senate
- Reason for S was to afford protection to the various
sectional interests in Canada
- “Voice of the Provinces” in the Fed legislative system

Senate Appointment

- Appointment
o Regional representation à Const Act, 1867 says that the
Senate primary purpose is to ensure that provinces are
represented at the fed level
§ Note: Historical formula codifies past demographics
and we get overrepresentation in some areas and
under representation in other areas
§ Can’t change this without amending the C
o Appointed by the GG on the recommendation from
the PM
o Currently have two Bills that would have the effect of
converting the Senate into a democratic body, but
manages to get around some of the C challenges that
would affect senate reform (see below)

Senate Appointment Changes

 - For a long time PM’s have been appointing their friends to the
senate
- Provincial Senate Selection Laws: Unsuccessful in the court
o Said GG’s power is discretionary and not subject to
legal constraint so the courts will not impose
substantive/procedural requirements in what has to be
taken into account when selecting Senators
- E.g. Alberta
o Put senatorial candidates names on the ballot when they
have prov elections à Name forwarded to GG in hopes that
they would be appointed à GG does not have to obey this à
Has been successful 1 out of 4 times (now 2)!!
§ 1989 – Stan Waters. Appointed by Mulroney… done
because of politics. He was trying to get support for
Meech Lake process
§ 1999 – Brown and Samson – not successful in being
named senator.

Brown

Sued the Fed gov (AG) for not appointing him. Argued that GG’s
unilateral authority in 1867 Act to determine the identity of senator is
unconstitutional because of the democratic principle seen in the
Quebec Reference. He was not successful.
Analysis: Unwritten does not trump written!

Sampson

Sought an injunction from appointing anyone from Alberta unless they

were someone selected by the Senatorial Selection law. Also tried to
invoke the Quebec Secession reference that the unwritten principle of
Democracy Not successful.
Analysis: unwritten principles and said that unwritten does not
trump written!

Tenure of Senators

- Mandatory retirement at age 75

- Allowed to resign
- Over grounds for vacancy (s.31 of the 1867 Act):
1) Absenteeism à miss more than 2 consecutive sessions of P
2) Foreign nationality à If you denounce your Canadian
citizenship you are out
 3) Bankruptcy à Fall below min financial requirements
4) Conviction à Of a bad crime
5) Failure to maintain minimum property requirements
- Who decides when there is a vacancy? The senate itself
- How many times have they used s.31?
o No one has ever been kicked out.
§ One Suspension à Thomson (for absenteeism) à The
Senator from Mexico
§ Cojur and Bunsten – Convicted of corruption. Was not
kicked out though – resigned!

Senate Reform: A Problem with Incrementalism

- If we were to have an elected system for senators, once elected,

the one-time election endures until their 75 years old
- Problem: If you have these people who have a democratic
mandate in senate they would view themselves as
representatives of the people and they would persist in this role
until they are 75 years old even though they were elected by
people from years before
- Issue: Must deal with the tenure issue if we are to begin electing
senators
- Harper’s Approach (Bill S-4):
o Term Limits on Tenure
§ Proposed 8 year term limit (or 75 years old)
§ Means we would have to amend the C. Which
formula do we use?
· S. 44. Subject to sections 41 and 42,
Parliament may exclusively make laws
amending the Constitution of Canada in relation to
the executive government of Canada or the
Senate and House of Commons.(proceeds as a
bill)
· S.44 Need a majority of MPs in the HOC
approving Bill S-4
§ Only limits tenure, has nothing to do with regional
problems, so likely s. 44 would be successful amending
formula

o Consultation on appointment
§ Bill C-43
§ S.12. (1) On issuing a proclamation referred to in
section 57 of the Canada Elections Act for the
holding of a general election, the Governor in Council
may order the consultation of the electors of one or
more provinces in relation to the appointment of
senators to represent those provinces. (2) An order
for the consultation of electors shall (a) specify, for
each province specified in the order, the number of
places in the Senate in respect of which electors are
to be consulted;(b) direct the Chief Electoral Officer
to carry out a consultation in each province specified
in the order; and(c) fix the date for voting, which
shall be the same as that for voting in the general
election.
· Is this a C amendment?
o Would we have to take away the GG’s
powers to appoint senators?
· Have a consultation (referendum process)
o Ask people who they want as their
senators à NOT binding
· Not actually changing the C as it is only a
referendum!
· If we are to be more democratic, this depends
on the PM honouring the outcome of the
“consultations” when making
recommendations to the GG. If we have to
force him to then we’d be changing the C
· Could become a C convention over time that
the PM would only refer to people who have
been selected in this matter to the GG for
appointment
Right to Vote

Chronology of the Right to Vote

• Pre-Confederation
– Restricted to men with sufficient property holding (usually tied
to land ownership)
• Post-Confederation
– Right to vote in federal elections continues to be determined
by provincial laws until 1920
– Exclusions continue to be made on gender, race, and property
grounds
• Franchise greatly restricted by these measures
• Restrictions gradually removed, with restrictions on
status Indian voting lifted in 1960

Constitutional Voting Rights

- Section 3 of the Charter:

o Every citizen of Canada has the right to vote in an
election of members of the House of Commons or of
a legislative assembly and to be qualified for
membership therein.

- Central focus of section 3, for the Supreme Court, “is the right
of each citizen to participate in the electoral process”

- Section 3 guarantees citizens “the right to play a meaningful

role in the selection of elected representatives”
o Gone beyond the mechanics of voting of just putting a
ballot in a box. Right to meaningful participation and
effective representation

- S.3 does not have any qualifiers

o Talks about citizenship only

- Not subject to the notwithstanding clause

- S.3 Rights:
o The right to participate effectively and have effective
representation
o Right to play a meaningful role in the selection of
representatives
 o Right to an informed electoral campaign that is not
drowned out by monetary interests

Figueroa

“participation in the electoral process has an intrinsic value

independent of its impact upon the actual outcome of elections. … The
right to run for office provides each citizen with the opportunity to
present certain ideas and opinions to the electorate as a viable policy
option; the right to vote provides each citizen with the opportunity to
express support for the ideas and opinions that a particular candidate
endorses. In each instance, the democratic rights entrenched in s. 3
ensure that each citizen has an opportunity to express an opinion
about the formation of social policy and the functioning of public
institutions through participation in the electoral process”.

- Importance of this case:

o Intrinsic value in the electoral process
o Opportunity to express opinions in the electoral process
o Political parties enhance the meaningfulness of individual
participation in the electoral process for reasons that
transcend their capacity (or lack thereof) to participate in
the governance of the country subsequent to an election
o S.3 is basically a variation of freedom of speech
§ Element of expression in the section

Harper

“The right to meaningful participation includes a citizen’s right to

exercise his or her vote in an informed manner. For a voter to be well-
informed, the citizen must be able to weigh the relative strengths and
weaknesses of each candidate and political party. … In short, the voter
has a right to be ‘reasonably informed of all the possible choices.’”

- Importance of this case:

o Challenged 3rd party election spending
§ People should be able to be informed and should be
able to have access to a reasonable amount of info
o SCC: If we had no limits the people with money would be
the ones with all the voice
§ Fear is that if you allow unchecked 3rd party
spending then you are giving primacy to money
 interests and we don’t want that!
§ Goes beyond putting a ballot in a ballot box

Statutory Voting Rights: Canada Elections Act

- Canada Elections Act:

o “every person who is a Canadian citizen and is 18 years of
age or older on polling day is qualified as an elector.”
o Every elector is then “entitled to have his or her name
included in the list of electors for the polling division in
which he or she is ordinarily resident and to vote at the
polling station for that polling division.”
- Voting is a right, not a privilege
- Very detailed so that the incumbent executive could not in some
way gain an advantage with it in upcoming elections my making
regulations. Want it to be as transparent as possible and
independent! Want it handled by the legislature. Want it to be
fair vis a vis the opposing parties as well as the parties that are
in power at any given time.

- Note the important differences between Canada Elections

Act and section 3 of the Charter
o Age limit in CEA
§ S.3 says nothing about age à it just mentions
citizenship.
§ Age qualification upheld under s.1

- Other constraints on voting:

o CEO and assistant CEO cannot vote
§ CEO à Officer who administers the CEA
· Want him to be impartial (no partisan vote)
· Would be upheld under s.1
o Live outside Canada for 5 consecutive years
§ Does not include military people
§ Also would have to be defended under s.1 à probably
easier to win this one… hard to be minimally
impairing
o People in correctional facilities:
§ Now struck down
§ Contrary to s.3 and could not withstand s.1 analysis

- Also includes the right not to vote à spoil your ballot

Right to Vote: Age Requirement: The Fitzgerald Case

- Court concluded under s.1 analysis that there was a reasonable

coincidence between 18 years of age and sufficient maturity
o Is this really sensible? Think Kilburger vs. Bubbles J
o 18 is arbitrary, but what is the alternative?
§ Can’t do a case by case basis – that would take too
long. Line has to be drawn somewhere

Statutory Voting Rights: Protecting the Right to Vote

Defensive measures:

- Designed to ensure that people exercising their franchise are not

interfered with in any way that influences their vote
- 1) Secret ballot
o Enables people to exercise their conscious without
influence from anyone else
- 2) Limits on election advertising/partisan activity on
polling day and at polling stations
o Even though this violates FOE
O Illegal to wear or promote partisan interests at polling
booths
O Illegal to publicize voting intentions at polling booths
O SCC has been v generous in apply s.1 justifications on
these grounds

Positive measures:

- Designed to encourage people to vote

o 1) Time off work
o 2) Advance polls

Concept of mandatory voting:

o Subsection 245(1) of the Australian Commonwealth

Electoral Act provides that: ‘it shall be the duty of every
elector to vote at each election’.

The Right to Vote for Representatives

- Section 40 of Constitution Act, 1867 partitions country

into electoral districts
 o Number and geographic scope subsequently modified
pursuant to the Electoral Boundaries Readjustment
Act, creating (roughly) representation proportional to
population
O Currently have 308 electoral districts
o We have a representative democracy. We do not speak
for ourselves

- Preface in C Act, 1867 says P can re-allocate these

districts as populations change
o Supposed to have rough parity between the number of MPs
that come from each province on a per capita basis
o Independent commission now performs
readjustments
o Allowed to deviate from absolute parity for the reasons of
geography and regional differences
O Variation in electoral district population permitted so long
as no more than (+/-) 25% of provincial average

- What does that mean in practice?

o Not only do you have to reallocate MPs between
provinces, but also have to reallocate ridings within
provinces so that urban areas that a lot of people are
moving to have adequate representation. Redeployment
within province.
o If you want your vote to be worth more you should live in
the far north

Electoral Process
Key Actors in Elections

1. Chief Electoral Officer

2. Returning Officer
3. Parties
4. Party Leaders
5. Nomination contestants and election candidates

CEO
- Officer of P (independent of executive) who is charged with
administering the CEA
- Appointed by HOC (multiparty consultation)
- Tenure lasts until 65 yr mandatory retirement
- Can only be dismissed by the GG for cause (not at their
discretion) and has to be supported by an address by the
senate and HOC (a motion/affirmative vote in both HOC and
 Senate)
- Also has financial independence. Salary set in a matter that
allows the salary to be maintained independently of any
position of the Exec
o Paid the same as a Federal Court Judge
- Role:
1. Oversees most of the election administration
2. Heads Election Canada Staff
3. Interprets CEA

Returning Officer
- Reports the official total from a given district
- 308 - One for every riding
- Hires staff to run polling stations
- Also has a substantial amount of discretion in observing where
the polling stations will be put
o Should be reasonable to reflect the distribution of the
population
- Federal Accountability Act – Made returning officers independent
(do not favour either political party)
o Hired by CEO
O Merit-based criteria

Parties
- Canada Elections Act: “an organization one of whose
fundamental purposes is to participate in public affairs by
endorsing one or more of its members as candidates and
supporting their election.”
O “one of whose”à They have more purposes than this one
O very generous definition of a political party
O opening door to potentially an enormous number of parties
O problematic because parties are eligible for public funding
= prospect of creating political parties of convenience

- Certain benefits to being a party:

o Can issue tax receipts
o Tax credit for political donations is 75% for the first $400
§ Can be an official party with just one candidate as
long as you also get the signatures of 250 voters to
support the existence of the party

Figueroa

Facts: Cut off used to be 50 candidates; This was challenged in the

case as violation of s.3; not upheld under s.1; Gov couldn’t prove why
they used 50. It was too arbitrary; SCC implemented the 1 person rule
Issue: Minimum number of candidates for party to exist

Holding: Current rule: 1 candidate

Reasons: “Political parties enhance the meaningfulness of individual

participation in the electoral process for reasons that transcend their
capacity (or lack thereof) to participate in the governance of the
country subsequent to an election. Irrespective of their capacity to
influence the outcome of an election, political parties act as both a
vehicle and outlet for the meaningful participation of individual citizens
in the electoral process.”

Note:
- Forcese says this is a stupid rule:
o Law school could create a party and then issue tax credits
o Also makes it easy to do an end run around 3rd party
advertising rules that limit the capacity of non-party people
to participate in the election process
§ 3rd parties form their own party and get to spend
more than if they were a non-party making the 3rd
party donation

Electoral District Associations

- Store front offices where the MPs have their headquarters
- Admin responsibilities
- Reporting obligations re: money

Party Leaders
- Determined by party rules and party members
- Under regulated by law
- Most important actors in the political system; especially
important due to party transitions
- Power of party leader à potential candidate can only be
certified by the CEO if they bring in papers with the signature of
the party leader
- Get to be PM if your party wins
- Members of the party vote for their leader
o As leadership contestant the first thing you do is sign up as
many new members as you can and hope that they vote
for you (build your own constituency)
- For a long time there was no rule on campaign financing
o Now we have $1000 donation limits
o There are transparency requirements and reporting
obligations
o Still NO spending limits (independently wealthy
 candidates), even after the Federal Accountability
Act (FAA)

Nomination Contestants and Election Candidates

- Can be anyone who is allowed to vote
o Exception: people who hold public office (P of Canada
Act)
- Can’t run in more than one electoral district (but don’t have to
live there)
- Can run as an independent, for themselves, or for an established
party
- To get on the ballot you need:
o 100 signature by electors
O A bond of $1000 (refunded if you adhere to the
reporting obligations from the CEA after the election is over)
- If running for a party, must be endorsed (determined by party
rules)
- For the purpose of electoral financing rules, a person becomes a
candidate from the moment he accepts a contribution or incurs
an election expense

How Elections Are Run

Triggering Elections

- General elections:
o Triggered by proclamation from the Governor
General directing the CEO to issue a “writ” to each
returned officer
O Polling dates set a minimum of 36 days after the writ date
(typically longer)
§ GG usually dissolves P at the behest of the PM
(some cases where the GG can do it unilaterally) à
prerogative power
§ Now fixed election dates
· Bill C-16: from October 19 2009 onwards,
elections will be mandatory every 4 yrs, on the
3rd Monday in October
· Doesn’t preclude confidence measures

- By-elections
o For one seat only
o Held after Commons seat becomes vacant
o Discretion to hold off calling a by-election: specific
 minimum period before calling election, but no maximum
= can have seats vacant for a long time
§ Raises some concerns re: democratic representation
when there is a seat empty for so long

Electoral Financing

- Fact that money can influence elections is indisputable

- Effort to find a fine balance between expression and

fairness
o Trend towards taking electoral financing out of the private
hands and making it more public so that financing is done
through the tax system instead of private actors in society

- New gift-giving provisions under the FAA

o Candidate cannot accept a gift or an advantage that would
appear to a reasonable person to then influence the
candidate if elected as MP
o must disclose a gift worth more than $500

Election Expenses (Spending):

- Formula in CEA that puts a cap on the amount of $ that the

people in an electoral process can spend
- Party limits: No. of electoral districts with party candidates x
$0.70/elector in those districts x inflation index = about $17.5
million in 2004, for a national party
o Depends on the number of electoral districts they have
candidates running in
o Running in all 308 ridings à $17.5 million
- Candidate limits: based on number of electors in the district,
with some adjustment for geographically large ridings = average
of $78,500 in 2004
o Based on the number of voters (electors) in your district
- Candidates for party nomination races: 20% of candidate
spending limit
- Note: All this is only DURING an election! If there is no
election going on these limits do not apply!
- Person’s seeking the leadership of their party à not capped
in terms of spending!
Election Donations (“Contributions”)
- Includes both monetary (money that is not repayable – i.e. not
loans as they are repayable) and nonmonetary contributions
(includes the commercial value of a service other than volunteer
labour or the commercial value of the property used)
- Now limit is $1000 per person per party per year, adjusted
by inflation (can also make equivalent donations to candidates
and riding association) (FAA)
- Ban on corporate and union donations to parties or
leadership candidates (FAA)
o Until recently, these donations were permitted to
candidates (up to $1000 per candidate, adjusted for
inflation), but have been eliminated by the Federal
Accountability Act
Good reasons for the corporations/unions not to be
able to donate:
o They can’t vote
o They are profit making enterprises à maybe violating their
fiduciary duty to employees as there is no way to show
that making donation will increase profits

Public Subsidies:
- Expense Reimbursement:
o Both parties and candidates can benefit
o Parties receive a 50% reimbursement if they win support of
at least 2% of national vote or 5% of votes in electoral
districts in which they ran candidates
o Candidates receive a 60% reimbursement if they win the
support of 10% of the votes in their electoral district

- Quarterly Allowance:
o Parties winning support of at least 2% of votes cast OR 5%
of votes in electoral districts in which they ran candidates
receive on a quarterly basis an annual subsidy of $1.75 x
number of votes party receives, adjusted for inflation

- Tax credits
o Very generous tax credit system for political donations:
§ 75 percent up to the first $400 contributed; 50% of
the amount above $400, up to $750; and 33.3%
percent of the amount above $750, up to $1,275
· Note: This is now capped at $1000
§ Allegation that this opens the door for dubious
practices
· Party gives you $100 for volunteering your
time, you donate $400, you get $300 back in
 tax credits (so you break even) and the party
gets $300
o System works really well because of the disclosure rules
§ Must keep receipts etc.
§ Must be professionally audited
§ Must file financial reports on a quarterly basis

Election Advertising
- Defined in the Canada Elections Act:
o “the transmission to the public by any means during an
election period of an advertising message that promotes
or opposes a registered party or the election of a
candidate, including one that takes a position on an issue
with which a registered party or candidate is associated.”
- Issue with issue advertising:
o At what point do you consider it issue advertising?: party
positions shift so its hard to tell whether a given ad falls
within the definition
o Issue advertising is especially important to third party
advertising

Facilitating advertising:
1) Signage
- Limits on the capacity of landlords to restrict your capacity to put
campaign signs in your window (must be reasonable in terms of
size, etc.)

2) Broadcasting time
- Broadcasters must set aside 6.5 prime time hours for registered
parties during elections
o Time portioned between parties according to a formula
that generally takes into equal consideration the % of total
seats the party has in the HOC and the % of the popular
vote received in the previous election
o Green Party à no seats so accorded no partion of the 6.5
hours
§ Alberta COA: No restriction on FOE (they could still
speak, they just don’t get the prime time hours) and
even it if it was, the legislation could be upheld on
s.1 grounds
- Broadcasters must also set aside free time of 2 minutes for
each party
- Transparency requirement à Must ID the person who is paying
for the commercial (i.e. which campaign) and that it has been
 authorized by that party’s official representative

Restricting Advertising
1) Polling day à no advertising
2) Opinion surveys à can’t be published on election day
- Tend to be partisan à answer people give tends to
depend on the questions they are asked
- Used to be bared 3 days before the vote. Struck down
by SCC in Thompson Newspaper case as a violation of
FOE
3) Foreign advertisers à campaign advertising from outside
Canada is not permitted
- Non-residents who are not citizens or permanent
residents cannot try and influence Canadian voter
preference
4) Third Party Spending Limits
- Current requirements:
o Advertising expenses of an individual third party
during a general election are capped at $150 000
o Not more than $3000 of the $150 000 is to be
incurred to promote or oppose the election of one
or more candidates in a given electoral district
o Advertising can be related to a specific party or a
specific issue
O See case law below
5) Government advertising
o Restrictions on incumbent parties on what they
can spend
o Can’t have partisan messages by the incumbent
gov during the election campaign
o CEA doesn’t preclude the “feel good” advertising,
however
§ “Heath Canada, making the world a better
place”

Third party Election Spending: Case Law

1988 Election: Summerville Case

Facts: Total of $10 million spent by non-parties on advertising

supporting free trade; Persons opposed to free trade spent $1 million;
Conservatives won (wanted free trade); In the wake of this there was a
Lortie Royal Commission which recommended there be some kind
of restriction on 3rd party spending; In response, the CEA was
amended in 1993 and a $1000 cap was imposed; National Citizen’s
Collation brought a Constitutional Challenge on 3rd party spending
(s.2(b) violation) (Summerville case, 1996)

COA: Alberta COA struck down the $1000 limit (not upheld on s.1
because no evidence that election contests are influenced by third
party spending). No appeal to the SCC.

1997 Quebec Referendum: Lidman

Facts: Upset about QC referendum rules; Give primacy to the No or

Yes campaign; If you are not in one of these camps, can’t spend money
at all on ads; Libman wanted to spend money in neither one of these
camps

SCC: Infringement of s.2(b) because you are compelled to associate

with one of the two sides; but suggested that some limits on
spending could be saved under s.1; expressly disapproved of
Summerville

Significance: Feds amended the CEA = s. 350 places $150 000

spending limit

Harper v. Canada

Facts: National Citizens Association (led by Harper) challenged s. 350;

Argued that the limit was a violation on FOE because it gave no
viable means for people to express themselves ($150 000 doesn’t buy
you much)

SCC: Limit is justified; more than that s. 350 ensures that

affluent groups or individuals do not dominate the political
discourse, s. 350 promotes the political expression of those who
are less affluent or less capable of obtaining access to significant
financial resources and ensures that candidates and political parties
who are subject to spending limits are not overwhelmed by third party
advertising
Party of 1 Problem: At present, because you only need 1 candidate
to be a political party, you (as a 3rd party) can arrange a situation in
which you have two candidates running in a densely populated area
and the cap that can be spent will be well beyond the $150 000 à
Incentive for 3rd parties to be political parties so they can get around
this donation cap due to the Party of 1 situation à Can spend much
more as a party than you can as a 3rd party

IN SUM:
(1) $150 000 spending limit on 3rd Party stands
 (2) Not a violation of s.2(b) (promotes political expression)

After the Vote

Reporting on Election Results

- Staggering the times at which polls are open across the country à
Reflects time zones
- Banning of reporting of election results when polls still open
o Problem à not easily enforceable
o Internet (R. v. Ryan)

Challenging the Results

- Recounts
o Automatic if margin of victory is 1/1000 of all votes cast
o Contested Elections: CEA à Any elector can apply to a
superior court or Federal Court to contest an election
when there is fraud or corruption
o Enforcement and Penalties à
– If convicted can be,
– De-registered as a party
– Can be fined
– Imprisonment is rare
– Lose your right to sit as a member of the HOC
Bringing Elements of Parliament Together
Summoning and Prorogation of Parliament
- Constitution Act, 1867 empowers the Governor General “from
Time to Time, in the Queen’s Name, by Instrument under the Great
Seal of Canada, [to] summon and call together the House of
Commons.”
- Summoned parliament divided into “sessions,” separated by a
“prorogation,” or partitioning of sessions, Constitutional
convention: GG acts at the behest of the PM
Bill dies on the order paper (except for private members bill)
Each new session has a speech from the throne - announces
the govt’s policy/priorities for the next session (allows govt
to regroup)
A “recess” is for things like holidays

Dissolution
- Except in times of emergency, maximum of 5 year duration,
under both the Charter and the Constitution Act, 1867
- Timing of dissolution (in circumstances where 5 year limit not
reached) generally at discretion of PM; However, constitutional
convention requires a PM to resign his or her government or seek
parliamentary dissolution in the wake of a non-confidence vote by
the House
- Circumstances in which the Governor General may refuse a
dissolution: the so-called “reserve” powers of the Governor
General
o n/a following a non-confidence vote
o E.g. King-Byng Affair
§ GG can decline to dissolve when it is a new parliament
§Can
 turn instead to the leader of the next largest party in
P, asking its leader if s/he is capable of forming a
government: a chance to try to make a coalition that
would have a majority and enjoy the support of
parliament
§ Only arises when you have two parties making a
coalition govt
- Fixed election dates: Bill C-16 now requires an election once
every 4 years, unless there is a vote of non-confidence

Confidence Vote
- To have a confidence motion you can have 3 main types:
– Explicitly worded motion of non-confidence
• Consequences are clear: “this is a vote of confidence
that...”
 • Almost always done by the opposition
• Usually unsuccessful due to strong party discipline &
majority govts
– Unilaterally declared - Possible to have a scenario where
the government is allowed to unilaterally declare
something a non-confidence vote when there is actually
nothing about confidence in the topic they are voting on
– Implicit votes of non-confidence
• deemed to involve confidence, even though not
declared to be so by a prior statement of the govt
• E.g. Vote on a money measure

– Address and Response to the Speech from the

Throne
• also a kind of implicit vote of confidence
• after the speech there open, fluid debate - the
govt puts forward a motion in support of speech
• the opposition parties move their own
amendments to the motion - if any amendments are
carried then it is an implicit vote of non confidence and
the govt falls

Key Actors in Parliament

Political Parties
- Two legal considerations favour party discipline:
o 1) Decision-making by a majority in the Commons
§ Matters in HOC are decided by a majority of voices
§ Trouble getting agenda through if your party is not
very disciplined
· Extent to which free votes are allowed is
decided on a per party basis
o 2) Confidence convention
§ If you have a party that is disciplined and voting en
masse it is easier to warn off the opposition trying to
get a non-confidence vote

- Concept of “official party” status in the HOC

o Must have 12 MPs sitting in the HOC
o Benefits:
§ Get more money from the HOC itself for research
budget
§ More time during question period, more funding,
allocation of MPs to committees
Speaker
- In the Commons, selected by election by MPs
- Presides over P sessions
- Manages/Chairs HOC sessions
- Selected at the beginning of P
o MP with the longest uninterrupted tenure in the HOC
organizes vote for speaker
o Typically the speaker comes from the governing party
- Does not vote unless there is a tie (then he votes to
preserve the status-quo)
- Roles of the speaker:
o Ceremonial
- Welcomes the GG
- Conveys messages from the HOC to the Senate
o Quasi-Judicial
- Has final say when matters of procedure are
contentious
- Code of operations has detail but there may be
uncertainty as to the application of a particular rule
re: P procedure à speaker rules on this uncertainty
o Administrative
- Can name the offending member when someone is
out of line
- Speaker can eject you from the HOC

Parliamentary committees
- Perform the “detail” work in Parliament
- Six sorts of committees
o Standing Committeesà most important (see below)
o Committees of the whole à plenary session, which is
basically the HOC
§ Mostly done with procreation bills to approve govt
expenditures
o Legislative Committee
§ Special committee established on an ad hoc basis to
deal with a particular bill
§ Relatively uncommon
o Special Committees
§ Aka Task forces
§ Ad hoc basis
§ Examine particular public policy issues
o Joint committees
§ Share membership between Senate and HOC
§ Rare
o Sub-committees
§ Sub divisions of existing committees
 § Sometimes a full committee decides that a task should
be sub-delegated so that the sub-committee can probe
an issue in more detail
§ Relatively common

Standing committees
- Permanent existence
- Have particular mandates that tend to coincide with departments
- Powers set out in Standing Orders
- Review:
o (a) the statute law relating to the department assigned to
them;
o (b) the program and policy objectives of the department and
its effectiveness;
o (c) the expenditure plans and the effectiveness of
implementation of these plans by the department;
o (d) the relative success of the department; and
o (e) other matters, relating to the mandate, management,
organization or operation of the department, as the
committee deems fit.
- Selection of members:
o Mostly done by the party Whip
o Chair determined by the majority of the committee
- Has substantial power
o Can send for persons, papers and records, etc.
o Can hold people testifying against them in contempt. E.g.
RCMP Commissioner
Parliamentary Proceedings (PP)
Purpose of “Parliamentary law” (rules governing proceedings)
- PP à Rules for P to control and discipline membership
- Purposes (4):
- 1) To protect a majority and restrain the improvidence or
tyranny of a majority
- Gives opposition a fair amount of latitude for acting
in the P process
- 2) To secure the transaction of public business in an orderly
manner
- 3) To enable every Member to express opinions within the
limits necessary to preserve decorum and prevent an
unnecessary waste of time
- 4) To give abundant opportunity for the consideration of
every measure; and to prevent any legislative action from
being taken upon sudden impulse.”
- Due deliverance that leads to transparency

Source of “Parliamentary law” (rules governing proceedings)

– Preamble of Constitution Act, 1867 and (in relation to
parliamentary privilege) its substantive sections
– Unwritten and written norms
– British P tradition incorporated into our laws by the
preamble of the C Act
– Substantive section creates PP
– Parliament of Canada Act
– Standing Orders
– Rules of procedure that govern conduct in HOC and Senate
– E.g. P itself decides how a bill becomes a statute
– Rulings of the Speaker, assessing usages, customs and
precedents
– Looks at circumstances that were not anticipated by the
standing orders

Concept of Parliamentary Privilege

- Privileges are those rights “necessary to ensure that legislatures
can perform their functions, free from interference by the Crown
and the courts.”

- Examples include:
– 1) The parliamentary power to control and discipline
membership
2) Freedom of speech:
- immunity from what they say in P proceedings
 o Roman Corporation à Trudeau announced a
deal that fell through. At trial the judge said
that since it happened in the HOC it is
immunized so Trudeau cant be sued for
inducement of breach of K
o Ouellet à Privilege is designed to protect FOE,
but only during P proceedings (HOC and
Committees). Does not include statements
made to the media in the lobby outside the
context of any P proceedings
– 3) Immunity from being summoned as witnesses
during Parliamentary sessions
- Extends to 40 days before and 40 days after a
session of P
- Has been reduced in some cases because this is
antiquated
– 4) Control over Parliamentary proceedings
- P can decide where budget speech will be given for
example
– 5) The parliamentary jurisdiction over the
parliamentary precincts, facilities and personnel
- P supposed to have jurisdiction as to what goes
on in its buildings.
- Can not deny access to MP (violates PP)
- New Brunswick Broadcasting Case
- Issue: Could NS Legislature control
access by media to their sessions
(violated s. 2(b))
- Ratio: Charter did no apply bc NS
legislature was exercising constitutional
privilege; one part of the constitution can
not be used to beat down another
- Jurisdiction over P personnel
- PP to decide how to treat them
- Raised the question as to whether PP is free to
discriminate on racial grounds? Can they act in
a manner we would consider is inappropriate
for anyone else?
- Case law below tells us that not ALL employees
are subject to sole jurisdiction of Parliament
(Vaid Test)
- Thomson case
- Facts: former ee of former Speaker
claims sexual harassment; ON AG claims
PP on behalf of ON l egislature; claims PP
protects absolutely anything
 - Ratio: PP doesn‘t protect absolutely
anything - “it cannot be clear without a
full blown trial” whether or not PP protects
Speaker in these circumstances
- Vaid case
- Facts: Speaker of federal parliament
fires chauffeur after some conflict;
chauffeur claims dismissal was motivated
by racism; complains to Canadian
Human Rights Commission;
Commission’s jurisdiction is contested
- Issue: whether a past Speaker’s
alleged behaviour is i immunized by PP
- Ratio: the privilege alleged by
Speaker does not extend as far as
would wish; have to analyse privilege very
carefully to see how far it reaches;
test =
(1) Look to jurisprudence: is privilege
one that has been
recognized?
(2) If can’t establish the it has been
authoritatively in existence, is it
necessary for the functioning of
parliament? (necessity test)

Concept of Parliamentary Privilege: Constitutional Nature of

Privilege
- Note Article 9 of the Bill of Rights, 1689: The freedom of
speech and debates, or proceedings in Parliament, ought not
to be impeached or questioned in any court of place out of
Parliament”
- Constitution Act, 1867: The privileges, immunities and
powers held by Parliament and by its members, shall be as
defined by Act of Parliament but these privileges cannot
exceed those held by the UK Parliament at the time of the
passage of the Act

Parliament’s Legislative Jurisdiction

- Parliament’s legislation stands, so long as the law is constitutional

(respects DOP and Charter)

Case law illustrating Parliament’s legislative jurisdiction

Turner
Facts: P passed changes that hurt his case

Federal CA: Charter does not apply here. NO cause of action. No

DOP issue, no BOR problem, so basically is argument is that “law is
stupid.”

Bacon
Facts: Provincial gov replaces the old crop insurance program with a
new one that says any contractual claims you had under the old
program would now be cancelled; Bacon said it violated the unwritten
principle of the Rule of Law

CA: The Rule of Law cannot be used as a sword; can’t use it to

beat down other constitutional principle of Parliamentary supremacy;
Public’s protection from the arbitrary use of power from the Leg is
protected only by the ballot box

*** But Parliament is not presumed to be so ill intentioned ***

Wells
Facts: Legislation passed and Wells job ends 6 months short of him
having a pension available à Sues for breach of K

Holding: P can vitiate K and there is no constitutional violation as long

as the govt acts in accordance with the Constitution (no presumption
that the gov intended to vitiate the K)

Rule: Presume that P intends to preserve K rights; if want to vitiate, P

must provide -
• Very clear language (presume they didn’t have that ill-
intention in their mind)
• Must be sufficiently empathetic in the legislation
*rule of statutory interpretation

Authorson
Facts: Funds weren’t being invested/growing so the pension
entitlement of the Veterans was not growing as much as it could have
been; Veteran's sued, saying the govt had violated the fiduciary duty in
administering the funds; Seeking billions of dollars in damages; P
passed a law in relation to this claim; “No claim allowed for anything
prior to 1990”; Barred by statute the claims that the veterans had
made

Issue: Is the current process by which a bill becomes a statute

mandatory, or would changes to that process be constitutionally
insulated by parliamentary privilege?

Holding: There is nothing in the BOR or any exterior law that

allows us to critique the process by which a Bill becomes a
statute. P is free to determine this.

Parliamentary Functions

1. Ensuring Probity in Government

– Concept of Collective Responsibility
 – Confidence convention à P supposed to keep an eye on
the exec branch as they are accountable to P
– Speech from the Throne à Announces the govt agenda
in the HOC à if you can’t carry your speech from the Throne
without having the amendments added on after debate
then this is a non-confidence vote. Ensures more
accountability
– Financial Controls
a) Ways and Means
HOC ultimate provider of money for exec’s
agenda
In principle, can exercise substantial control, but
not customary
b) Business of Supply

2. Legislative Function
– Terminological Issues
– Act/Statute à Written law that has gone through the
appropriate procedures in P
– Bill à Law project that is tabled in P that will become a
statute if it makes it thought the process of enactment
– Money bills à can only be introduced in the HOC
– Other bills à can start in the HOC or Senate
• Most start in HOC à viewed as the most democratic
part of P
– Private vs. Public Acts
• Private à statute that confirms powers on a
particular group or individual.
Narrow ambit
Process: bill à encourage Parl to intro bill through
petition à bill -à legislative process à act
Tend to start off in Senate
Not very important, few
Ie. incorporation
• Public à statute dealing with public policy
Broad ambit, general law
Two subspecies:
– Gov Bills (tabled by MPs)
– Less than 200
– PMB (tabled by someone other than an MP)
– 1000s
– Very low success rate due to restricted
time of the legislature (1%)
– Success rates go up in minority contexts
– New or Amending Acts
• New à Acts that never existed before. Have an act
 that is internally coherent from s.1 to its final section
• Amending à Amending an existing statutes
The Legislative Process
Step 1: IDEA
- General public à voice concerns to gov or MPs à Grassroots origin
- Minster à in response to proposals coming out of the public
service
o Cabinet ministers champion the project at the Cabinet level
o Discussion papers à “here are things we are thinking about,
what’s your opinion?”
o Press release and Speech from the Throne can also give
ideas about what is brewing
o Public service ideas à two times a year from departments
- Committees à Can propose new law ideas
o Standing orders of HOC in 1994 were amended to facilitate
law making ides being generated out of the HOC itself
o MP can now refer an issue to a committee and tell them
how to draft a bill
- MPs à Gov bills can pre-empt PMB
o Gov doesn’t want to see the PMB enacted so it develops its
own bill that deals with the issue in a way that the gov
wants to approach it as opposed to the way the PMB is
approaching it
- Courts à e.g. Gov has one year to respond to courts by drafting a
new law to correct the C deficiency

Step 2: Cabinet Approval

- Usually sought by the Minister of the sponsoring department
- Done via Memo to Cabinet (MC)
- RD à Record of the decision of Cabinet

Step 3: Drafting by DOJ

Section Function
Legislation Section - Provides advice on legislative
writing
- Other specialists: Jury linguists
- All bills have to be bilingual and if
you’re going to have this you both
versions to mean the same thing!
Regulations section - Specialize in
secondary/subordinate legislation
- If you are proposing to introduce a
regulatory power in the Bill you talk
to these people
Human rights law section - Any bill that would have to do with
International law HR, etc.
- Also anything having to do with the
Charter
- Esp. important for things in the
Criminal area!
Constitutional and admin law - Consulted when there is questions
section about if the law falls within the
appropriate DOP for example
International law section - Obligations that go beyond HR
obligations
- E.g. Compliance with international
copyright law

Criminal law policy section

Judicial affairs unit - Changing federal courts law or law

pertaining to the appointment of
judges
Information and privacy law - Any proposed laws that have to
section deal with how information is
collected/distributed/disclosed

Native Law section - Things pertaining to aboriginal

people

Others also involved: - The sponsor department

Step 4: Cabinet Approval of Bill

Step 5: Leave to introduce Bill in HOC (automatic)

- MP gives 48 hours notice to fellow MP’s that they are going to
table a bill and then they seek leave to table a bill, which is
automatically granted
- Bill then becomes Gov property
- Sponsoring group cannot then amend it without going
through the amending process governed by P’s rules.
Can’t unilaterally amend it anymore

Step 6: First reading (automatic, no debate)

- Doesn’t involve someone reading the bill out loud
- Announcement that the reading has occurred
- Automatic adoption on 1st reading
- No debate
Step 7(a): Traditional process: Second reading (with debate)
- Log jam for PMB
- Limited time
- Once you run out of time debating something, the bill
you are debating gets bumped to the back of the order
papers if it hasn’t been decided
- Debate on the purpose of the bill as a whole and debating its
merits
- P sometimes employs closure rules which truncate debate (for
gov bills)
- Rules of debate:
- To speak you much catch the Speaker’s eye
- Cannot engage in irrelevant/repetitious debate
- Must relate to the purpose of the bill as a whole
- Generally don’t debate matters that are before the court
(Sub-judici rule)
- Can’t talk to the person directly, must speak to the
speaker
- Can’t insult the Queen
- Vote. Purpose then locked in and sent to Committee

Step 7(b): Sent to Committee and vote

- Will have hearings and consider viewpoints from people, such
as public, interest groups, etc
- Suggested amendments made
- In Majority context, the committee is made up of mostly
majority people so if the gov doesn’t want an amendment to
be accepted it probably wont be
- Cannot amend the purpose at this point!

Step 7(c): Report stage

- Gov can revoke any amendments made by the committee
- Also the sponsored member’s opportunity to make changes (must
give notice to propose amendments). Must be something not dealt
with in committee
- Then get a motion to concur with the bill in its entirety and then
moves to third reading

Step 8 (a): Alternative process: Sent to committee

- Allow committees to weight in on a bill much easier
- Advantage of this: Scope of possible amendments that could
be brought up is much broader
- No constraint on amendments not related to the purpose, etc.
seen above
- Committees have greater latitude
Step 8(b): Joint report and second reading stage

Step 9: Third reading

- Last change for HOC to pronounce on the merits of a bill
- Can’t amend (Last opportunity to amend was in the report
stage)
- All that is left here is to vote up or vote down the bill

Step 10: Three Readings in the Senate (if approved in HOC)

- First à second à committee à third
- Assume then that the senate wants to make changes to the bill
that has been approved by the HOC à for this to happen it has to
go back to the HOC
- HOC then will be asked if it agrees. If it agrees with the
amendments we are fine. If they disagree it then goes back to
the senate and if the senate agrees with the disagreement then
we are fine. If the senate doesn’t agree with the disagreement
then we have a conference between HOC and Senate (this
doesn’t happen often à last time was 1947)
- If they can’t come to resolution in the conference, the bill dies

Step 11: Royal Assent

- Classic form: A ceremony where the GG or deputy GG (often SCC
justice) gives a formal blessing/signature
- C requirement for a bill to become a statute
- Implications of GG refusing:
o C Act, 1867 à looks like the GG has a lot of authority to
refuse royal assent, but really, there is no basis for royal
assent not to be given
- Once you have royal assent the bill is now officially a statute
- When does the bill then become law?
o Default à if you look at the Interpretation Act, the view is
that Royal Assent brings the provision of the Act into force
o However, it is possible for the statute itself to indicate that
the coming into force will be at a certain date, or
announced by the GIC (Fed Cabinet)
§ Statute delegates Cabinet to decide when the law
will come into force

Aside: ROYAL CONSENT à if something entrenches on an existing

Royal Prerogative you need to get approval

Step 12: Publication

- Assented Act Service
o Mail order service
- Part III, Canada Gazette
- Annual Statutes of Canada
o Consolidated version of the statutes passed each year by P
- This year: SC 2007
PASSING LEGISLATION: A HEATHER MODEL!
Elements of a Statute

Section Explanation
Regnal year Session of P related to how long the
Queen has been sitting. No legal
effect.
Act Number Reference to the order in which it
SC 1988 C-20 was introduced. i.e. 20th Act to get
Royal Assent in this particular P
Long Title Purpose of the statute
Gives indication of where to look to
see if amendments are consistent
with the purpose
Date of Royal Assent When the act becomes legally
operative
Enacting Words No legal significance
Short title Handle we used to refer to the
statute (s.1)

Headings Legal significance: ambiguity in a

provision? Can look to the headings
to see what they meant
Marginal Notes What the section deals with. No
legal significance
Definition Clarifies and adds precision to
ambiguous words
Preamble Not required. Used when P wants to
enunciate the reason for the statute.
Provides further certainty as to why
the Act exists
Purpose Section Used to amplify the purpose. “the
purpose of the statute is…”
Table of Contents No legal significance
Parts and Divisions Operational tool. Partitions sections
via a common element. Used to help
clarify ambiguous terms
Schedules Detailed information that doesn’t fit
elegantly into the statute. E.g. How
to calculate damages in a civil
proceeding
Finding Statutes
- Canada Gazette
- SO (Ontario)
- Amending statutes are usually just individual sections that have
been amended so its hard to read the entire statute (need a
consolidated version)
- Revised statutes of Canada à Consolidated versions of the
statute including the amendments that were made
- Most recent à 1985

Executive Branch
Structure of the Executive Branch
• Monarch/GG
– Give Royal Assent
– Head of State (head of Exec branch)
– S.9 of the 1867 Act

• Ministry:
– Not the same thing as the Cabinet, necessarily
– Not the same thing as the Privy Council
– Ministry is just the generic term for everyone who is a Minster
– No requirement that ministry overlaps with cabinet (BC PM
chooses; however usually the same)
– Cabinet
– the collective decision making body (Ministers selected
by the PM)
– not anticipated by law (the constitution)
– instead there are references to the governor in council
– Federal Interpretation Act: governor general acting in
association w Queen’s Privy Council
– Queen’s Privy Council:
• The GG of Canada acting by or with the advice of
or in conjunction with the Queen’s PC (QPC)
• What’s the Queen’s PC?
• Found in the C Act, 1867
• Body that advises on the Gov of Canada
• How does that help us in understanding what
Cabinet is?
• All cabinet members when sworn in become
a member of the QPC (“the Honorable”)
• How is it that these powers of the QPC are
exercised exclusively by sitting Cabinet
members? Means the sitting cabinet
 members are advising the GG and therefore
acting as GIC
• GIC à short hand for the GG acting at the
behest of the Cabinet
• The powers of the QPC are exercised exclusively
by sitting Cabinet Members (1867 Act)
• Every time you see a federal statute that
talks about GIC that is code for the Federal
Cabinet
• Provincial Level: Lieutenant GIC

• Prime Minister
– First among equals in the Cabinet system
– Key power: to select and fire ministers themselves
– Primus inter pares
– Appointed by the Governor General on the basis of whether
can secure confidence of Commons
– Resigns when incapable of retaining this confidence (usually
after an election in which another party obtains more seats in
the Commons; however, possibility of coalition)

• Ministers
– Appointed by the Governor General on the advice of
the Prime Minister after you get elected
– Dismissed by the Governor General on the advice of
the Prime Minister
– Different types of Ministers:
• Most common/important à one that heads up a
department
• Responsible theoretically for everything that goes
on in the Dept
• Sub Ministers à Ministers of State
• Assist the ones that head up a department
• Abandoned after the last election
– Selection process
– Typically members of Parliament (however no firm
requirement)
• Don’t want that situation to last for long because then
you have the head of the exec branch without any
connection to the leg branch
– Political considerations in selecting ministers:
• At least one minister for each province (exception: PEI)
• Adequate Anglophone/francophone representations
• Gender and Ethnic representations
– No security of Tenure
PM resigns à ministry also expires
 No wrongful dismissal if the PM decides to let you go.
Totally at his discretion.

• Public Service
– Appointment: Appointed in keeping with the merit
principle in the Public Service Employment Act
• PSEA designed to create a reasonably independent
Public Service
• Appointments must be made on the basis of merit and
free from political influence
De-politicized by:
1. Admission tests: preserves emphasis on merit
2. Restricting dismissal
– Tenure: Dismissed according to employment law rules
• Can have different statutes (indeterminate has the
longest tenure, contract, etc.)
• Subject to union rules so it makes it hard to dismiss
them
• Special rules on dismissal/discipline for overt
political activity: Osborne
• Three scenarios:
• 1) You are a janitor at the DOJ and you are going
to run for liberal nomination in Toronto Centre.
Minister of J finds out. Can he fire you?
• Osborne à s.3 claim à case that engaging in
partisan work leading to dismissal was a
violation of C guarantees such as FOE, etc.
Court concluded that it was not upheld on
s.1 since it was an absolute provision. It
didn’t matter what your job was. SCC was
not persuaded that the neutrality of the
public service (PS) was in jeopardy every
time anyone did something
• They distinguished between sorts of
public servants. Under the new rules,
most PServants are allowed to engage
in partisan activity (there are some
constraints though – not an absolute
right)
• Rules must stricter for those in higher
up positions (Scenario 2)
• 2) Deputy Minister of DOJ and you are going to run
for liberal nomination in Toronto Centre. Can the
minister fire you?
• Can only engage in voting… can’t engage in
any other partisan activity
 • 3) What if as a PServant I provide the Globe with
some inside info (whistle blowing)? To what
extent can you be disclosed for wrongdoing?
• Fraser:
• Issue: Comments made about Trudeau
implementing the metric system. Got fired.
Ended up at SCC. Could he be dismissed for
violating their duty of loyalty?
• Holding: Outer limit on the duty of loyalty.
It is not reached by the meritic system, but
it might be reached by info that the gov
engaged in illegal acts or the gov
jeopardized someone's safety/heath/life
then you do have the opportunity to voice
your views (implicit whistle blowing
protection)
• Pre-Charter case
• Your ability to release info about your safety,
etc. is basically a constitutional right (FOE)

• Governor in Council Appointments

– Formerly, appointment not closely regulated by law,
producing claims of political favouritism
– Appointments to boards, agencies, tribunals, etc.
– Changes made by the FAA
– Public Appointments Commissioner - Public Service
Commission
• Exclusive authority to make appointments to public
service for govt of Canada
• Supposed to set out the ground rules for appointments
of GIC appointees
• Also supposed to review/appoint/oversee these
appointees
• Some difficulty in actually getting this commission off
the floor and into existence
– Tenure
• Dismissal process depends on whether “good
behaviour” appointees or “during pleasure”
appointees
• “During pleasure” à traditionally office is held at the
discretion of the GIC
• In proactive we see “due process” and “good
behaviour” in the appointing instrument
• Due process
• However, in practice though CML procedural
fairness the courts have grated on certain due
 process standards, so even though you retain the
job at the pleasure of the GIC they cannot
dismiss without giving notice and giving the
person the chance to present their views
(don’t have to have cause)
• Because of this grafting on there have been
a number of cases of late where people
sued after they were dismissed and were
successful in all cases
• Good Behaviour
• May also have the situation where you stay
in office for good behaviour
• If the GIC is going to fire you then they
have to have cause. Can’t just be on a
whim
• GIC has to examine the conduct of the
individual to see if it was consistent with
what we expect of a GIC appointee

GIC Appointment Independence: Ocean Port Case

*** Independence seen in the public service vis a vis the executive.
When the Tories take over they can’t fire all the public service because
they think it is tainted with liberals ***

*** Get even more robust independence where for various reasons P,
when it designs a certain agency or branch of the Exec, they say they
want to give it even more autonomy ***
- E.g. Human Rights Commission à want more independence
because the litigants are often a complainant and the
gov… so want them to be impartial to the gov so you get a
fair hearing and so their actions are subject to
manipulation by the gov
- E.g. Immigration and Refugee Board à Same situation as
above. Don’t want the person hearing the case to get a call
from the Immigration minister trying to influence him

Create independence by:

- Creating security of tenure so they can stay in office for a long
period of time (good behaviour appointments so they are fired
only with cause)
- Provide administrative independence so the person that will hear
the case is not chosen by the Minister (Minister has little ability
to influence)
- This case: Federal Human Rights Tribunal adjudicated this issue
 - Even outside any C obligation there is a duty to create
independence. So where does it stem from? Approaching on PS

Issue: Whether there is an administrative law or C obligation that

these agencies be independent. Is this just a choice P makes or is there
a broader imperative that drives this independence?

Facts: Alleging that the HR tribunal is not independent

Holding: Structure laid out by P and it said that it didn’t have to be

independent à Said that there was no constitutional basis so there was
no ground to make a claim à Reaffirming the notion of PS à If you are
going to take a strike at something done by P you have to find a C
obligation and here there were no C obligations à Court’s engaged in
judicial review of admin decisions must defer to the legislator’s
intention in assessing the degree of independence required of the
tribunal in question (It is the legislature that determines the degree of
independence required of tribunal members)

Note: One case where there is a C obligation to create an

independence:
- S.7 in the Charter à where you have life, liberty or security of the
person at issue at a tribunal hearing you might argue that this
imports an obligation to be independent
- E.g. Parole Boards
- E.g. Immigrant Refugee Board

GIC Appointment Independence: Campbell case

Facts: Concerns the tension between accountability and independence

in the context of enforcement (police) à Part of the Exec, but unusual
because they have the power to exert substantial force and authority à
Want police to be accountable to the electorate and to P à On the other
hand, we don’t want the Minister to dictate them à Don’t want
command control exercised over politicians to the point where police
independence is impaired à Here, the police violated the law when
issuing the reverse sting à Crown said they are immune because the
Crown is immune

Holding: SCC said they don’t get to enjoy the crown’s immunity
because cops are at arms length from the Crown à Police are
independent when it comes to conducting their work à Very important
because you don’t want the police to respond to political direction in
the way they conduct their affairs

Outcome: SCC said cops don’t enjoy the crown’s immunity. Gov’s
response was to give statutory provisions so the police can break the
law (s.25 of the Criminal Code)
Powers of the Executive Branch

– Federal executive is not a sovereign body

– It has limited powers:
• Issued to the executive by the Constitution (very limited)
• Royal prerogative (also very limited)
Most important is conduct of Foreign Affairs and Defence
• Delegated to it by Parliament in the form of a statute
(very expansive)
– Same goes for the provincial executive

Royal Prerogative & Constraints

• Residue of monarchical power that has survived being extinguished
by the legislature
• Can be limited or displaced by statute
• Can be limited by the courts: not all prerogative power are immune
from judicial review

Black v. Canada
Facts: Conrad Black à Appointed a peer in the UK HOL over the
resistance of JC à Chrétien called up the Queen and told her not to do it
à Relied on Nichols resolution (not binding law, just a resolution) said
that a Canadian citizen should not accept foreign honour without
Canadian permission à Black sued
Issue: Is the exercise of the prerogative subject to any controls from
the courts?
Holding: Black loses because the source of the PM’s power was
prerogative. Court said the PM’s use of power RP was not amenable to
judicial scrutiny à The source of power (RP or statute) does not
determine what is reviewable by the courts à controlling
consideration is the subject matter, not the source! à amenable
to judicial process if it affects the rights of individuals
Note: Some powers are subject/amendable to judicial scrutiny (e.g.
Passport stuff)

Delegated Power & Constraints:

- Parliament has expansive capacity to delegate power to the
executive, via statutes
- Can do this bc it is an exercise of parliamentary supremacy
- Limits on what parliament can delegate:
1) Must comply with Constitution
- The power delegated must be one the legislature
possesses
- Thus, cannot transgress the constraints imposed by the
Charter and division of powers
 2) Parliament cannot delegate its powers to provincial
legislatures; vice versa
- However, P can delegate to provincial officials and vice
versa though à E.g. Fed P might say it makes more sense in
terms of regulating Fed fisheries that the provincial
fisheries agent do it
- Can regulate a law that gives the provincial
enforcement officer those powers (works vice-versa à
Provincial legislatures can also delegate to federal
officials)
- Attorney-General of Nova Scotia v. Attorney-General
of Canada (1951), SCC

3) The legislature cannot delegate to the executive the powers to

set taxes.

- Constitution says taxing law must originate in the H of C

4) Parliament cannot surrender its powers to the executive

(Delegation, Not abdication)
- Exception: War Measures Act (established by Re Gray,
1918)
- SCC: “Parliament cannot, indeed, abdicate its
functions, but within reasonable limits at any rate it
can delegate its powers to the executive
government. Such powers must necessarily be
subject to determination at any time by
Parliament…”
- Outer limit à P must be in the position to revoke that
bestow of powers

5) Delegated powers must not be unconstitutionally vague (s.7)

- Must have an intelligible standard so that citizens know
when they are violating the law

Key example of delegated power (Regulation Making):

Delegated Legislation
– Most famous form is regulation
– Process is determined by Statutory Instruments Act and government
policy
Not a very robust procedure
Gov policy is mutable à Does not have to be followed if gov does
not want to follow it
– What is a “statutory instrument” subject to the Statutory
 Instruments Act?
• Basically, all delegated legislation of importance:
1. Everything described as a regulation in an Act;
• SIA defines what we mean by regulations or
instruments that are subject to the SIA

2. Instrument made in the exercise of legislative power

conferred by or under an
Act
delegate legislation that is general rather than
specific to an individual

3. Instruments that if you violate them there is a

penalty fine or imprisonment that is prescribed by
or under an Act

Delegated Legislation: Procedure:

– 1. Cost/benefit study
Obligation under gov policy to do a cost-benefit study when
making regulations
– 2. Regulatory proposal
Summarizing cost/benefit analysis, among other things
– 3. Examination of proposal
By, most important, the DOJ
And Clerk of Privy Council
Ask, is it in fact permitted by Statute, Charter, etc.
– 4. Pre-published in Canada Gazette I
In Govt periodical
General public has 30 days to respond
– 5. Regulation made
Executive order is signed
– 6. Regulation registered: CIF (coming into force)
Generally within 7 days of being made, registered with clerk
of Privy Council
When registration occurs, the reg comes into force and in
theory is therefore binding law
– 7. Regulation published
Published within 23 days of being registered in the Canada
Gazette II
Person can’t be penalized for violating the reg until it has
been published

Controlling the Exercise of Delegated Power (cont.)

- Admin Law:
 “In a system of responsible government, once legislatures have
made political decisions and embodied those decisions in law, it
is the constitutional duty of the executive to implement those
choices. Re Remuneration of Judges, [1997] 3 S.C.R. 3
Policing the bounds of the delegated power and ensuring that the
executive remains onside is usually the job of the courts, and is
the subject matter of an area of public law known as
administrative law.
2 broad classes of admin law (2 different ways courts can police
exec):

1. Procedural Fairness
– A common law due process standard for administrative decision
makers
– Even where statute is silence, courts are grafting on due process
obligations
– What is due process:
1.Notice + opportunity to comment
2.Before and unbiased decision-maker
– Test for trigger: Knight v Indian Head
1) The nature of the decision is being made by the administrative
body
a. if final decision, it is more likely that procedural fairness
is required
b. if administrative decision (narrowly focused on
individual), “”
i. Legislative decision by exec à general decision that
applies to a large number of people
ii. Admin à applies to a more narrowly defined
group
2) The relationship between the body and the individual affected
by the decision [impact of Dunsmuir?]
a. Must be a public power that is being exercised
3) The effect of the decision on the individual’s “rights”
a. Does the decision have a severe impact on the individual?
b. Rights shouldn’t be read too narrowly: means interests,
property or otherwise. Not right as in the C sense or a right
in terms of a tort cause of action
– Test for content: Baker v. Canada
Highly variable and depends on the facts
Factors to consider:
1) Nature of the decision being made
more alike to a judicial process, more due process
awarded
2) Nature of the statutory scheme
is there an appeal route?
 3) Importance of the decision to the people affected by it
4) The legitimate expectation of these people etc.
5) The choices of procedure made by the agency itself
especially where the statute leaves to the decision maker
the ability to choose its own procedures or when the
agency has an expertise in determining what
procedures are appropriate in the circumstances
At core, courts are pre-occupied with ensuring that you get robust
due process in light of the consequences (the more serious the
consequences, the more due process)

1. Substantive Mistakes
– Courts have capacity to review “jurisdictional” errors by the executive (errors re:
what is within govt’s piece of the pie)
– Culture of restraint and deference influenced how willing courts were to intervene
– Ultimately produced a tripartite test to determine standard of review
Established 3 different types of deference:
correctness (right or wrong)
patently unreasonable (most extreme form of deference - only intervene
when we think your decision is clearly irrational)
reasonableness simpliciter (ambiguous; akin to patently unreasonable)
– Impact of Dunsmuir: threw out tripartite standard review
Now only: correctness (aggressive) or reasonableness (deferential)

Cases

Knight v Indian Head

Facts: School board created by statute so his employer was a public
body (branch of the Exec) à Knight is fired and is given a bit of notice à
Argued his dismissal was inappropriate and there wasn’t sufficient due
process applied
Court: This was a special employer/employee relationship that falls
within admin law à laid out the test to be followed to determine if there
is a CML duty of procedural fairness
Remedy for Knight: Gets notice and an opportunity to respond or
make his views known before the decision is made

Baker v. Canada
Facts: Baker was a citizen of Jamaica à overstayed visa by 10 years à
kids born in Canada à she’s ordered deported à kid was sick so she was
worried about this if she got deported. Also worried she wouldn't’ get
back into Canada if she tried to re-enter à Seeks Humanitarian and
Compassionate Relief so she can apply for residency inside Canada à
turned down by senior immigration officer à responds with judicial
review à said the member of the admin branch did not act properly à
argued procedural fairness à said she should have been given
substantial reasons for the denial along with an oral hearing
Issue: Does procedural fairness apply here? How much due process
are you entitled to?
SCC: Procedural fairness was owed here. She was facing someone
holding procedural power. Meets the Knight v. Indian Head test.
Keeping the Legislative and Executive Branch Honest:
Ethics Rules
- Ethics rules regulate the private interest in the public interest
o Decisions should be made because they are in the public
interest, not because they are good for the decision maker
• Federal Accountability Act (FAA) is about codifying ethics
rules for the senior officials
• Theme of impartiality
• Must not make decisions for personal gain. Can still have
partisan objectives though.

1. Conflict of Interests
- Avoid real, potential and apparent conflicts of interest
Real à Some private interest that does exist that CAN/HAS
driven COI
Potential à COULD impair your decision making, Not so
directly related that it IS driving your DM (Could influence
your decision but has not yet)
Apparent à What does the PUBLIC perceive (setting aside what
the reality is) à reasonably well-informed persons could
probably have an apprehension that a conflict of interest
exists
- Economic and non-economic COI
Economic à Pecuniary interest. Make decision X and get money
for it
Non-Economicà non-pecuniary benefits (ie good exposure)
- Present and future private interests giving rise to a conflict
Present private interests à Present in time and immediate in
benefit (e.g. Here is a gov K because you paid my kids tuition)
Future à After you leave yore job with the govt
Governed by: Parliamentary Code, Criminal Code (special rules
about public office holders), Conflict of Interest Act

2. General Features of Ethics Rules

- Requiring public officials to submit both confidential and public
statements disclosing their personal holdings and investments
- Requiring public officials to divest from certain holdings and
investments or place them in trust (depending on the office held by
the official);
- Requiring general avoidance of situations of real or potential
conflict of interest;
- Regulating the solicitation or acceptance of gifts by public
officials and employees;
- Regulating the post-government employment of public officials
and employees.
3. Criminal Code
- Bribery of MPs
- Breach of trust by “officials”
- Influence peddling
Penalty: imprisonment for max 5 yrs for selling or offering to sell
influence with the govt for a fee
Ability is irrelevant
Classic manifestation is the Cogger Case: “[w]hat is required is
that the accused intentionally commit the prohibited act with a
knowledge of the circumstances which are necessary elements
of the offence. Thus, to be guilty of an offence under this section,
the accused must know that he or she is an official; he or she
must intentionally demand or accept a loan, reward, advantage
or benefit of any kind for himself, herself or another person; and
the accused must know that the reward is in consideration for
cooperation, assistance or exercise of influence in connection
with the transaction of business with or relating to the
government.”

4.Conflict of Interest Act

- Applies to parliamentary secretaries, ministers and their political
staff, and some, but not all, Governor-in-Council appointees (eg,
doesn’t apply to judges)
- s. 4 à “A public office holder is in a conflict of interest when he or she
exercises an official power, duty or function that provides an
opportunity to further his or her private interests or those of his or
her relatives or friends or to improperly further another person’s
private interests.”
- s. 6 à a public office holder is not to make a decision that would put
them in a conflict of interest (recuse self)
- Various other specific prohibitions:
1. No preferential treatment
Can’t make decisions driven by the identity of an individual
2. No use of inside information
Can’t deploy info you have access to
3. No influence peddling
Can’t seek to influence the decision of another person by
deploying your personal authority in gov
4. No treatment motivated by outside employment
Reference to post-employment situation
Can’t make present decisions with an eye to future
employment prospects
5. No gift-accepting that might be perceived as influence
6. No contracting with public sector entities under which they
receive benefits
with the exception of pension benefits) or possession of an
 interest in a partnership or private corporation that has a
contract with a public sector entity
- Rules on disclosure and divestment
- Rules on post-employment
1. Absolute ban on some activities
Can’t represent someone on an activity you were actually
working on for example
Using insider information (info only obtained due to political
position)
2. Cooling off” period for other activities
2 years for Ministers, 1 year for everyone else
Can not accept service contracts or employment with an
entity with which you had direct and detailed dealings
- Enforcement by Conflict of Interest and Ethics Commissioner
selected jointly by all parties (non partisan)
Has substantial power (superior court judge)
Power to investigate based on complaint from parliamentarian
or on own initiative
Appointed by GIC after consultation with all official
parties in the HOC
Security of tenure
§ Only dismissed with cause
Certain qualifications:
§ Must be former judge or member of some admin
tribunal somewhere in Fed or Prov tribunal that dealt
with matters of ethics or like issues
Reports to PM
§ Not obliged to do anything
§ BUT transparency aspect: political price to pay if it turns
out that the PM didn’t do anything about a negative
finding on part of the Conflict of Interest and Ethics
Commissioner

Ethical Codes of Conduct

- MP Ethics Code: Specific rules on:

Prohibiting the exercise of public powers in response to private
interests
Prohibiting efforts to influence the MP’s conduct of public
business
Requiring the disclosure of MP assets
Enforcement
Cases

Cogger
Facts: Accepted money from two businessmen for trying to get
something passed through Senate
SCC: Gave us language to understand influence peddling in the
criminal code
Mens Rea requirement: have to intentionally commit the act with
knowledge of the circumstances (have to know you are an official),
intentionally demand compensation, and know that the compensation
is in exchange for influencing the gov a certain way; don’t need a
corrupt state of mind
Keeping the Legislative and Executive Branches
Honest: Lobbying
Lobbying as a Public Policy Issue
• “Lobby”: to seek support, to attempt to influence government
decisions either directly or indirectly
“Lobbyist”: someone who is employed to direct the exercise of
power without bribing
• The dilemma of lobbying: public service or suspect practice?
It is what makes democracy function (breaks isolationism of
decision makers)
But moneyed interests can dominate
With lobbying, it is not a private interest that is being affected on
the part of government (public authority has no private interest
in oil sands, for example)

History of Federal Government Lobbying

• Growth of lobbying since the 1980s
• Many failed attempts to regulate industry

Should Lobbying Be Regulated?

• Lobbyist Registration Act (now Lobbyist Act)
• Registration helps increase transparency in the process and
promotes the legitimacy of lobbying
Begs the question: how much transparency is there, and is it
enough?

Components of the Lobbyist Act

• Requires public registration of persons paid to community with
public office holders in attempts to influence government
decisions
• Don’t have to register if you are doing it on a volunteer
basis
• Note that definition of public office holders (anyone
working in the Federal Public Service) in this Act is broader
than the equivalent term in the Conflict of Interest Act
• Must disclose a substantial amount of information:
• What are you lobbying on
• Who are you lobbying
• How are you paid
• Who is your client
• Are you using a grassroots technique

Components of the Lobbyist Act

• Four basic principles set out in the Act’s preamble:
 • Free and open access to government is an important
matter of public interest;
• Lobbying public office holders is a legitimate activity;
• It is desirable that public office holders and the general
public be able to know who is attempting to influence
government; and
• The system for the registration of paid lobbyists should
not impede free and open access to government.
• Workings of the Act:
– Geared towards registration and transparency
– Registration is required where lobbying, with lobbying
defined as “communicating with federal public office
holders, whether formally or informally, in respect of
either the making, developing or amending of federal
legislative proposals, bills or resolutions, regulations,
policies or programs; or the awarding of federal grants,
contributions or other financial benefits”
– Mandatory Code of Conduct for Lobbyists
Lobbying is to be conducted according to the
highest standards with a view to conserving and
enhancing public confidence and trust in the
integrity, objectivity and impartiality of
government decision making
Focus on integrity and honesty, openness and
professionalism
Standard of behaviour is mandatory but not
enforceable
Consequence is bad publicity through report to
Parliament

Does the System Work?

• Not according to Gomery:
• The Fact Finding Report concluded that certain individuals
were paid to contact and influence public office holders on
behalf of advertising firms and other companies, without
being registered as required under the Act
• The Government’s duty to enforce the requirements of the
Act has not been fulfilled, and public speculation that there
is no political will to enforce compliance is justified.
Justice Gomery specific comments:
No one has ever been fined or charged
Actual limitation period has been quite short: if comes to
light few years down the road, then you are immune
(should be increased to 5 yrs)
Official should have more independence, at arms length
from exec govt
 Should be reporting more readily and transparently
In wake of Gomery, a number of changes have been passed,
but not in force yet

Changes with the FAA

• Replace the Office of the Registrar of Lobbyists with an
independent Office of the Commissioner of Lobbying;
• Grant the new Commissioner of Lobbying increased
investigatory and reporting powers as well as some
enforcement measures;
• More transparency in terms of Commissioner’s reports
• Prohibit any contingency fee arrangements by lobbyists;
• Five-year lobbying ban on designated public office holders
(that is ministers, ministerial staffers or senior execs down to the
associate or assistant deputy minister level);
• Greater disclosure requirements on lobbyists, particularly
in relation to dealings with designated public office holders (must
id self, and whether you were a public office holder in the past)
• Increase the monetary penalties for offences under the Act;
and
• Provide longer limitation periods for the commencement of
summary conviction proceedings under the law.

Keeping the legislative and Executive Branches

Honest: Access to Info
Justification for Access to Information
• Information as the currency of democracy
• LaForest J. in Dagg: “[t]he overarching purpose of access to
information legislation … is to facilitate democracy. It does so
in two related ways. It helps to ensure first, that citizens have
the information required to participate meaningfully in the
democratic process, and secondly, that politicians and
bureaucrats remain accountable to the citizenry.”
• Allows for transparency and for us to hold the gov accountable
Unless you have access to info, you can’t assess performance
of govt
• Essential not just to citizens who want to know what gov is
doing, but also to back bench MPs (esp. opposition) to see
what gov is doing and make sure they are doing it correctly

Scope
• Applies to listed government institutions
Problem: when govtal structures change, requires prompt and
accurate updating
FAA now covers crown corps, but not in robust way
Includes very important “exclusions” from the Act
Material entirely outside scope of act (not to be confused with
exemption)
Cabinet confidences (memo to cabinets)
2001: certain info related to national security can be carved out
Controversial: why do we need to exclude when we already
have exemptions?
Materials in museums and libraries reserved for public viewing
Purpose
“To extend the present laws of Canada to provide a right of access to
information in records under the control of a government institution
in accordance with the principles that government information
should be available to the public, that necessary exceptions to the
right of access should be limited and specific and that decisions on
the disclosure of government information should be reviewed
independently of government.”

The Right to Access: Section 4

Quasi-constitutional in nature à constitutional bc trumps other
competing statues as the right exists even when it comes in
contradiction to any other statute; quasi bc Act of Parliament can
alter it
Every Canadian citizen and permanent resident “has a right to and
shall, on request, be given access to any record under the control of
a government institution,” subject to other sections in the Act.
• Basic Mechanics of the Act
Must request info in writing, form published on Treasury
Board Website
Response within 30 days (sbj to letter of extension with
justification)
• “Exemptions” under the Act
Exemptions mean the info IS amendable to disclosure under
the AIA but there is a justification as to why that
information cannot be released
Should be construed narrowly
Includes :
“injury based”: info would cause some injury
“class based”: falls into classification that is
exempted (need not injure)
“mandatory”: don’t get it period (sbj to public
interest test)
“discretionary”: may fall within class or injury, but
we as a govt ultimately have the choice to release it
anyway
 Class Test Injury Test
Mandat · Information received in · Information that
ory confidence from other reasonably could be
governments or an expected to result in
international material financial loss or
organization. gain to, or could
· Personal information as reasonably be expected
defined in the Privacy to prejudice the
Act. competitive position of, a
· Trade secrets of a third third party
party.
Financial, commercial,
scientific or technical
information that is
confidential information
supplied to a government
institution by a third party
Discreti ·Information obtained or ·Information that could
onary prepared by listed reasonably be expected to be
investigative bodies injurious to the conduct of
pertaining to crime federal-provincial
prevention, law enforcement affairs·Information that could
or threats to the security of reasonably be expected to be
Canada, if less than 20 years injurious to the conduct of
old.·Information on international affairs or to the
techniques or plans for defence of Canada or an allied
specific lawful state, or the prevention or
investigations.·Trade secrets suppression of subversive or
or financial, commercial, hostile activities.·Information
scientific or technical that could reasonably be
information that belongs to expected to be injurious to law
the Government of Canada or enforcement ·Information that
a government institution and could reasonably be expected
has substantial value ·Advice to facilitate the commission of
or recommendations an offence·Information the
developed by or for a disclosure of which could
government institution or a reasonably be expected to
Minister.Information that is threaten the safety of
subject to solicitor-client individuals.·Information that
privilege. could reasonably be expected
to prejudice the competitive
position of a government
institution.Paragraph 18(d) –
Information that could
reasonably be expected to be
materially injurious to the
financial interests of the
government or its ability to
manage the economy or could
reasonably be expected to
result in an undue
Enforcement by the Information Commissioner/ Government
Performance under the Act

Government Performance under the Act

Annual Report (evaluate different departments in terms of
compliance)
Complaints:
commissioner can only recommend that info should be
released
 only recourse is Federal Court review (Commissioner can
appeal for review on your behalf also)
Federal court is only body that can order disclosure
Problems with backlog
Triage system now implements
Still, inadequate funding prevents timeliness

Commentary on Government Performance

Information Commissioner: “Nothing undermined the right of
access more, in the past twenty years, than the disdain shown
for it by two long-serving Prime Ministers. Their destructive
example spread like a cancer through successive PMOs, PCOs
and the senior bureaucracy. For twenty years, Canadians seeking
information – especially about any subject the government
considered “sensitive” – have been met by a wall of obstruction,
obfuscation and delay.”
Gomery: “The Commission was given reason to believe that the
Government’s response to access to information requests does
not always respect the spirit and intent of the existing
legislation.”
The Judiciary

The Courts: Background and Structure

Constitutional basis:
• “Federal” courts
• 101. The Parliament of Canada may, notwithstanding
anything in this Act, from Time to time provide for the
Constitution, Maintenance, and Organization of a General
Court of Appeal for Canada, and for the Establishment of any
additional Courts for the better Administration of the Laws of
Canada.
• Federal Responsibility :
(1) Create Court structure
(2) Appoint judges (by Fed Exec)
• s. 96 “Provincial” Courts:
• 92(14). The Administration of Justice in the Province,
including the Constitution, Maintenance, and Organization of
Provincial Courts, both of Civil and of Criminal Jurisdiction, and
including Procedure in Civil Matters in those Courts.
Provincial responsibility
(1) create the structure
BUT do not appoint judges...
• 96. The Governor General shall appoint the Judges of
the Superior, District, and County Courts in each
Province, except those of the Course of Probate in
Nova Scotia and New Brunswick.
• Framers of constitutional reserved appointment for
the federal govt to ensure that qualified judges were
selected (so the argument goes)
• Distinguishing between s.96 and non-s.96 provincial courts
• Non-s.96 courts (inferior courts) à judges appointed by the
province
• Test: Residential Tenancies Reference (1996)
1. Power conform to that of superior court in 1867?
Historical analysis. If yes...
2. Does provincial body exercise a “judicial power”?
(Do things that look like adjudication today. If yes...
3. Is Judicial function central or incidental?
is adjudicating function something they do on
occasion, or the core of their job? If latter...
Then it is a s. 96 crt; judges have to be appointed by
the Feds
Ontario Court Structure
• Ontario Court of Appeal
– s. 96 court
– hears appeals from:
Superior Court of Justice
Divisional Court (with leave)
Superior Court of Justice
– s. 96
– Broad trial jurisdiction
– Was called Ontario Court (General Division) before April
1999
Divisional Court
– Panel of 3 Superior Court of Justice judges (so a s.96
court)
– hears appeal from Superior Ct of Justice of < $25000
• Ontario Court of Justice
– non-s.96
– has jurisdiction over those things assigned to it by statute

The Judiciary: Appointment

• Different possible models:

1. Executive appointment
• Exec branch names the person and they are
 appointed to the bench
The classic way Canada appoints SCC (up until
Rothstein)
• Flaw: Fear is that there is no checks and balances
2. Executive appointment + nominating committee of
some sort
• Appointment preceded by a nomination process (a
vetting)
• Exec appoints from resulting pool of candidates
• Non-SCC Fed appointments (s.101 aside from the
SCC and s.96 courts)
3. Executive appointment + legislative branch
confirmation (Am approach)
• Exec gets to appoint but that is conditioned
on/influenced by P
• Had this for the first time with the Rothstein
appointment
• Flaw: Fear is that this will become about political
process
4. Direct election
• Some US states
Flaw: highly political
Federal Appointment Process
s. 96 Courts
Governor General in Council (GG at behest of cabinet)
Mix of law, policy and convention
s. 101 Courts
Governor General in Council (GG at the behest of cabinet)
appoints to:
1.SCC
2.Federal Cts
3.Tax Cts
Basic Criteria for appointments to s. 96 and s.101:
Legislated
1.Lawyer in a Canadian jurisdiction
2.Member of Bar in good standing for a min of 10 yrs
(Judges Act)
Conventional
SCC ACT
3 Ontario
2 West
1 Atlantic
3 Que (civil code)
Fed COA
4 Que

Issues of Patronage and Politics

- Concerns that appointment may be manipulated by the Exec
(cabinet)
- CBA 1949 Report
1932 à PM Bennett raised concerns about political patronage in
bench appointments
Pre WW2 à most appointments had held political office or ran
for it prior to the bench
1949 à Consulting committee to advise Cabinet on elections
Uncovered As of that date, 54% of the SCC are former
politicians
- 1967 à system began to change
o Trudeau was justice minister
o Agreed to a committee by the CBA
o Consulted and advised the Justice Minister on appointment
o Four rankings by the committee: Very well qualified, well
qualified, qualified, not qualified
- 1984 à Trudeau retired à successor was John Turner
o Trudeau promised 6 liberals on the bench on his way out.
Turner said he didn’t have a choice but to do this
o At least one of these bypassed the CBA committee
entirely!
 - 1985 à CBA study on patronage in the bench
o Political favoritism not a factor in SCC selection, but it is
egregious at the Federal Court Level
- 1988 à Mulroney's changes
o Political favoritism continued to have an impact in his first
term (Report from studies)
o In 1988 we got a permanent committee in each province
comprised of the bench, bar and public who would make
recommendations
§ Still have this today
§ Supervised by a Federal body
§ Three criteria for ranking: Recommend, Highly
recommend, could not recommend
- 1994 à Only person who went through this vetting and got
recommended or highly recommended would be
appointed

Federal Appointment Process (non SCC Judges)

- Appointed by the Governor-General in Council

§ 1. Expression of Interest
§ 2. Committee vetting
§ 3. Assessments
§ 4. Cabinet approves on recommendation of Justice
Minister
o Controversy over the process

- Independent advisory committees

o 8 members (Harper added a law enforcement official)
o Balance of powers lies with the Fed Gov
o Issue with law enforcement appointment to the committee
o CBA and Law Society has been very vocal. The Canadian
Judicial Council (CJC) has also weighed in on the issue:
§ Advisory committees don’t seem to be fully
independent of the gov

- Step 1: Application comes in and the committee does the

vetting
o Assessment is confidential

- Step 2: Confidential assessment: what should they look at:

o Professional competence
o Social awareness
o Personal characteristics
o Etc.
 - Step 3: Committee then comes out with recommended, highly
and not
o Tories have reportedly fused recommended and highly so
now you get thumbs up and thumbs down
o CJC à this change raises questions about if the most
qualified individuals will be appointed
o MOJ ultimately calls the shots

- What other criteria might drive the choice?

o Seems that political considerations play a factor since the
pool of “recommended” and “highly recommended” is so
large
o One study indicated that 50% of the people appointed
were connected to a political party
§ Donations à Most were small donations and were an
indication of political affiliation

The Judiciary: SCC Appointments

• Traditional Process
– Closed-door consultation followed by GIC appointment
– No one knew how it worked unless you actually
participated in it
– No committee system
– Two steps:
• 1) MOJ supposed to identify candidates somehow
(thought his devices or though nomination)
• The candidates are always on the COA and
sitting judges
• 2) Look at consideration such as professional
capacity, personality, jurisprudential profile (looking
at their judicial writings and assessing their
precedent setting value i.e. how many times have
their decisions been turned over, etc.). Minster then
discusses candidates with the PM and the candidate
is selected and the GIC makes the appointment
– Problem: No checks and balances that assess the
appointment of goods judges
• Reforming the Process
– Failed constitutional amendments
• Meech, Charlottetown
• Would have entrenched the regional and 10
year requirements and gave the provinces
more power in the selection process
• Since that time most debate is about
transparency, not the provincial role
– 2004 Parliamentary Committee
 • Martin: Question to the Commons Justice Committee
à How should the appointment be done
• Wanted greater transparency
• Report à Recommended there by participation in the
vetting of candidates by a committee and the
committee would include members of each official
party, provinces, bar and the public (like the
independent advisory committee for non SCC judges
except the Parliamentarians would also play a role)
• MOJ would then appear before the court after the
appointment to justify it
• NDP called for the minister to appear before the
justice was appointed
• Conservative and the Bloc said the short list should
be publicly viewed and there should be public
ratification (US style confirmation process)
– 2004 Appointment Process
• Ad hoc
• MOJ appeared before a P committee to discuss the
candidates
• Decision finalized by GG
- 2006 Appointment Process
- Harper Gov à Justice Rothstein
- Took a hybrid approach. Built on Liberal system of
2004 and added in political feeder (chat with the
candidate themselves)
- Parliamentarians had no control
- Vetting + nominee appearing in front of P
- CBA not happy à question of judicial independence

The Judiciary: Independence

Why judicial independence?

- Independent adjudication essential in a free and democratic
system
- Ethical Principles for Judges:
o “An independent judiciary is indispensable to impartial
justice under law. Judges should, therefore, uphold and
exemplify judicial independence in both its individual and
institutional aspects.”
o "Judicial independence is not the private right of judges but
the foundation of judicial impartiality and a constitutional
right of all Canadians."
What is judicial independence?
- Ethical Principles for Judges:
o "Judicial independence thus characterizes both a state of
mind and a set of institutional and operational
arrangements. The former is concerned with the judge’s
impartiality in fact; the latter with defining the relationships
between the judiciary and others, particularly the other
branches of government, so as to assure both the reality
and the appearance of independence and impartiality"

1) State of Mind: Personal independence of the judge in

performing his or her duties
- First qualification of judges is to render impartial positions on
merits, not their own pre-dispositions

Tobias:
Facts: No way they could have gotten citizenship unless they lied
about it à because they had lied about their past affiliation with war
crimes à the gov was trying to revoke their citizenships à Counsel for
gov wrote a letter to the court administrator saying that it was a slow
case and they were unhappy about it à Chief Justice of the Federal
Court then had a chat with gov about how horrible these waits were.
Tobias lawyer not present à then tells the Associate Chief Justice who
was overseeing the case to speed up and he did! à Crown had
disproportionate access
SCC Holding: Independence was compromised à undue influence by
the gov à “As a general rule, counsel for one party should not discuss a
particular case with a judge except with the knowledge and preferably
with the participation of counsel for the other parties to the case.” BUT
can be limited by statute (e.g. Terrorist and CSIS)
Remedy: Slap the Fed Court on the wrist. Matter must be assigned to
another judge and that judge has to ignore the previous handlings and
the case will proceed in this way
Test: The test for determining whether the appearance of judicial
independence has been maintained is whether a reasonable observer
would perceive that the court was able to conduct its business free
from the interference of the government and of other judges.”

2) Institutional arrangements: Insuring that independence is

not impaired by the structural arrangements between the
branches of government

* who determines when judges fired, who determines what paid, which
cases they take
* 3 pillars given profound recog by SCC
- Talking about three things:
o 1) Security of tenure
§ Can’t be fired for an unpopular decision
§ Also, before a judge can be removed for just cause
there must be a judicial inquiry to establish the cause
exists and the judge must be given the opportunity
to be heard
*don’t want judge to tailor ruling so as not to be fired...
o 2) Financial security
§ Crime to accept bribes
§ Salary not related to decisions
*don’t want...pay cut...
o 3) Institutional/Administrative independence of the
court
§ Can’t play games with the judges
§ Financial independence has been the most
troublesome in the last decade
· Budget cuts à Many made at Provincial level
that affected the provincial inferior court levels
o Courts sued in the PEI Reference Case
*don’t want judge shopping

*1980s and 90s cases winding way through on these pillars

* SCC weighed in on all these pillars...
* concerned dispute bw inferior prov crt judges and several provs as
to their pay
* at core, protesting judges took view that judicial independence
was constitutionalized (s. 11(d) )
*I: whether prov govt could restrict pay wo impairing judicial
independence
*Maj:

Why have it?

*jud independence fundamental precept (public confidence)

Where does judicial indep come from?

* s 11(d); constrained only to circs where dealing w crim offence
* s. 96-100: fed govt to appoint judges of prov sup crts, other
guarantees ie sec of tenure, by GG, good behaviour
* unwritten principles of C 1867: covers 101 Fed crts (have no crim
jurisdiction)
= richly constitutionalized norm

What does Const req for jud indep to be met?

*not just actual indep but also objective from perspective of
external observer
 * 3 chars, goes on and says has 2 dimensions: individual and
institutional (under at least 2st two)
Ind = is a given judge penalized by having their pay cut?
Ins = independent agency that interposes self bw govt and crt in
determining pay (vet gov), any changes in pay that are not
vetted are not constitutional
Dec of body: rec should not be set aside lightly, to disregard
must justify = subs autonomy

PEI Reference Case

Question: Why have judicial independence?

Answer: Serves important societal goals, including the maintenance of
public confidence. Protects the rule of law: exercise of public power
must find as its source a legal rule

Question: where doles judicial independence come from?

Answer:
- Sections 96-100 of the Constitution Act, 1867: protect superior
court judges
- Section 11(d) of the Charter: Any person charged with an offence
has the right (d) to be presumed innocent until proven guilty
according to law in a fair and public hearing by an independent
and impartial tribunal
- Unwritten principle recognized in the preamble of the
Constitution Act, 1867

Question: What is judicial independence?

Answer: Requires not only actual independence, but the reasonable
perception of independence on the part of a reasonable and informed
person

Test of independence à Asking whether the reasonable person who

is fully informed of all the circumstances would consider that a
particular court enjoyed the necessary independent status
- Has 3 core characteristics:
o Security of tenure
o Administrative independence
o Financial security

Financial Security:

- Independent and institutional dimension

- Independent à Judge acts wit]rout influence
- Institutional à Separate judiciary from other levels of gov
-
o Three aspects before salaries can be changed:
§ 1. Salaries can be changed for judges as a class, but
there must be a salaries committee
· Government must establish these bodies
· Salary changes must be reviewed by these
bodies to be constitutional
· Not binding, but to ignore these bodies’
recommendations, there must be a rational
reason. Question as to if they are rational can
be adjudicated in the courts
§ 2. Judiciary cannot negotiate over remuneration with
the executive
§ 3. Salaries can’t go below a minimum level
The Judiciary: Dismissal

A. Retirement

• Federal Court Act, s.8(2), Supreme Court Act, s.9(2): A judge shall
cease to hold office on attaining the age of seventy-five
years.
• Constitution Act, 1867, s.99: "A judge of the superior court shall
cease to hold office upon attaining the age of 75 years"

B. Appointment during “good behaviour”

• Act of Settlement, 1701

• Constitution Act, 1867, s.99: Judges of the superior courts shall
hold office during good behaviour, but shall be removable by
the Governor General on address of the Senate and
House of Commons
• To be removed for cause you need the exec and leg to agree
– Hard to get over this threshold
• S.101 courts àprovisions in the statute governing this
• C Act, 1867 à s.99
• Since confederation there have been 5 petitions to remove a
superior court judge
– None actually came down to vote à 4 of them in the 19th
century à Not a busy area

Appointment during “good behaviour”: Landreville case

Facts: Judge in Ontario à Mayor of Sudbury prior to appointment à took

some dubious payments à Royal Commission appointed to look into
this case

Test: "Would the conduct, fairly determined in light of all the

circumstances, lead such persons to attribute such a defect of moral
character that the discharge of the duties of the office thereafter would
be suspect? Has it destroyed unquestioning confidence of uprightness,
of moral integrity, of honesty in decision, the elements of public
honour?"
Holding: Launderville had not acted properly. He resigned so there
was no formal vote in P

Consequence of this case: Decided that an independent body was

needed to deal with these questions à Created the Canadian Judicial
Council

Canadian Judicial Council

- Established by Judges Act

- Chaired by Chief Justice of Canada
- Chaired by CJC (McLachlin)
- Staffed by Chief justices of all superior courts
- Most significant function is to consider complaints about
federally appointed judges
- Not complaints about the merits in terms of a particular
case
- If the case doesn’t go like you want it to the recourse is
through the appeal chain to the SCC if leave is granted
Steps in the dismissal process
 - Takes a long time to get someone fired (and would ultimately
have to be done by a vote in P due to s.99 or its equivalent
depending on the court)
- Before a judge can be removed for cause, “there must be a
judicial inquiry to establish that such cause exists, at which the
judge affected must be afforded an opportunity to be heard”

Step 1 à Complaint received by CJC

Step 2 à Complaints reviewed

- If they see it is frivolous or you’re complaining about the actual
outcome and that it should go to the appeal route à step 2(a) à
dismiss
- If they decide there is some merit to this, the file is not closed
and is instead referred to a panel of 5 judges à Step 2(b)

Step 3aà Panel then decides if it is frivolous. If it is they close the

matter (dismiss it)
- Write a letter to the judge though as a slap on the risk à a
warning given in any case even if it does get dismissed

Step 3b à not frivolous

- Recommend an investigation which goes up to the full council
who then decides to proceed with the investigation or not

Step 4a à Full council can dismiss is frivolous

Step 4b à Complaint is serious enough so they hold an inquiry

- Inquiry referring to the conditions/grounds under which a judge
can be dismissed according to the Judges Act (JA) à see below

Step 5 à Inquiry

Step 6 à Inquiry committee reports to CJC

- With or without recommendations
- Can recommend that the judge be dismissed

Step 7à Council as a whole takes up the matter and can have

additional supplemental hearings in which the person being questioned
can be asked to make submissions

Step 8 à Report to minister (s.65 JA)

- May recommend the dismissal on grounds enumerated in s.65 of
the JA
- Council takes a vote to decide if they should recommend
dismissal
 - Grounds for dismissal:
o Age
o Infirmity (Gone crazy)
o Misconduct
o Having failed in the due execution of office
o Having been place din a position incompatible with the due
execution of office (COI)
- CJC has gone this far to recommend dismissal on these grounds
in one case only!!
- Number of cases where the process has started off and in the
passage of time the judge has resigned

Step 9 à Minister considers

Step 10 àVote in Parliament

Example of the Complaint Process: Bienvenue’s Case

“It has always been said, and correctly so, that when women -- whom I
have always considered the noblest beings in creation and the noblest
of the two sexes of the human race -- it is said that when women
ascend the scale of virtues, they reach higher than men, and I have
always believed this. But it is also said, and this too I believe, that
when they devide to degrade themselves, they sink to depths to which
even the vilest man could not sink…”

“Alas, you are indeed in the image of these women so famous in

history. The Delilahs, the Salomes, Charlotte Tardif, Mata Hari and how
many others who have been a sad part of our history and have
debased the profile of women. You are one of them, and you are the
clearest living example of them I have seen.”

“At the Auschwitz-Birkenau concentration camp in Poland, which I once

visited horror-stricken, even the Nazis did not eliminate millions of Jews
in a painful and bloody manner. They died in the gas chambers,
without suffering.”

Facts: 1985 à Superior Court Quebec Judge à Overseeing a murder

case à Verdict à guilty à Sentence of 10 years (min time) recommended
by jury à Bienvenue sentenced her to life and made the comments
above à Gender issues! à Said the jury was idiotic and incompetent à
Bienvenue was then accused of sexism and anti-Semitism

CJC Inquiry:
“...the judge=s remarks about women and his deep-seated ideas
behind these remarks legitimately cast doubt on his impartiality in the
execution of his judicial office.”

“...it seems unthinkable that a judge would, after serious thought,

make remarks about women made by Mr. Justice Bienvenue in a
sentence, repeat them the following day in the media, make a later,
rather meaningless apology to >all women who may have been
shocked or offended by his statements= and, finally, restate before
this Committee, and expand on, the statements the judge had already
made.”

- Inquiry committee believes that Bienvenue had breached his

duty of good behaviour
- Applied the Justice Rand standard
o Said he couldn’t be impartial and act with independence

Council recommendation: Majority recommended dismissal. Minority

view: 1. Judges should be encouraged to speak their minds 2. The
question is whether judge impartial

- Full council then looked at it. Voted 22-7 that justice Bienvenue
be dismissed
- Minority view:
o Judges should be encouraged to speak their mind à want
them to be transparent in their views
Court Functions: Statutory Interpretation

• Courts breathing meaning into words of statutes:

– Statutory interpretation: determining Parliament’s will
– Operating in the piece of pie where Parliament sovereign

Old view:

Judges simply discover and give effect to the intention of the

legislature
• Using the rules of language as supplemented by the rules of
statutory interpretation, the court applies the law the legislature
intended to enact and determines how the law was intended to
apply to the facts facing the court
• Judges are just discovering giving effect to the intention of the
legislature
– Fits nice with PS
– Also consistent with the notion of the rule of law
• Code of law applied (positive law à everyone knows
what it is)
– Also consistent with SOP
• P is passing statutes and the court is enforcing the
statutes
– This view is a myth!! Cases often come up where the
facts are unique!!
• Cases where the courts have never turned their mind
to the issue before.
• “True meaning” is a myth because this true meaning
doesn’t always exist
• There is creativity involved in SI

“New” view:

*** The task of the court is to give effect to the intention of the
legislature in so far as that intention can be discovered in the
language of the text, with the language of the text being analyzed
with reference to certain rules of statutory interpretation ***
– If the intent is still fuzzy after application of the rules of
statutory interpretation, the judge must rely on his or her
own judgment
- Give primacy to the words, to unearth their meanings, but
if the words are still ambiguous even after you’ve looked
the grammar and applied the words of SI, then the judge
 just has to judge, and do their best
- Does not follow the marching orders of the legislature
- New view is more realistic but it does violence to the
theoretical constructs that we apply in terms of our C order

Rules of SI

- Not binding legal rules

- Exception: Some rules of SI are in fact rules
- English and French text equally valid
- Some codified (Interpretation Act)
- For the most part, courts are relying on CML habits of
interpretation
- Begs the question: Does that mean they are binding?
- Go to the appeal court and say that the trial court
got the meaning wrong. Don’t argue that the court
got the rule applied wrong

SI: Examples:

R. v. Davie

Facts: 2 men + accused à 2 men said they were counseled on how to

start fire by accused à Accused preempts by approaching RCMP where
Cst tells him to do a polygraph à goes to get the test done à card given
explaining the function of the machine à told him to read it and then
the two RCMP leave the room to go watch him through the mirror and
the room is wired à Davie doesn’t know that the RCMP are watching his
every move à Record what is going in the room à see and hear Davie
slide out of the chair and said “Oh god, let me get away with this just
this once”

Issue: is the statement by Davie admissible in court? Was Davies

prayer to god a private communication subject to the rules without one
of the exemptions stated in the Code?

Criminal Code Provision: 178.17 (1) a private communication that

has been intercepted is inadmissible as evidence against the originator
of the communication or the person intended by the originator to
receive it unless
(a) the interception was lawfully made; or
(b) the originator thereof or the person intended by the
originator to receive it has expressly consented to the admission
thereof;
 - "private communication" means any oral communication or any
telecommunication made under circumstances in which it is
reasonable for the originator thereof to expect that it will not be
intercepted by any person other than the person intended by the
originator thereof to receive it

COA:

- Looked at definition of private communication

- No reason to believe that Parliament intended to exclude
people who were praying
- “It cannot have been the intention of Parliament to exclude
from the protection of the provisions of the Protection of
Privacy Act theists who believe that their private prayers
are heard and considered. To hold otherwise would not only
violate what I perceive to be the purpose of the Act, but
would also, in my opinion, be repugnant to all who hold
religious beliefs and thus contrary to the public interest.”

Importance of this case:

- When P made these provisions on what private communication

was, how many of the MP’s and Senators were thinking about
conversations with god and if this should apply? ZERO!
- Here is an example where the court is confronted with a
unique factual circumstance, is left with language crafted
by people who never considered this scenario and the
question is if the facts apply to this!

Paccar v. Canada

Facts: Excise act à tax on A/C in vehicles à Definition of vehicles à

Autos, station wagons and trucks à Paccar makes 18 wheelers and
doesn’t want to pay 100 per 18 wheeler so they said it was a highway
truck tractor! à Counsel argued that the truck bared a load and that the
18 wheeler pulled so it wasn’t the same so they shouldn’t have to pay
the 100 à Paccar: trucks carry things; tractors haul things

COA Holding: Using rules of statutory interpretation, court concluded

that a “highway truck tractor” was a subset of “trucks”

Note: Again, an illustration to come up with the intent of P who never

had an intent in this manner to start with
Approaches to SI

Old Approach:

- Many approaches to statutory interpretation:

o 1) Plain meaning/ordinary meaning rule
§ Where the words are plain/unambiguous the court
must construe them in their ordinary sense even if
the end meaning is stupid
o 2) Golden Rule
§ Ambiguous statute? Adhere to it unless the result is
absurd (inverse of plain meaning rule à the “golden
rule”)
o 3) Mischief Rule
§ Heydon’s case
§ What mischief did the leg seek to cure
§ Driven by intent of legislation
- These are all contradictory so there has been an effort to make a
modern rule of SI

“Modern” or “Words in Total Context” approach:

- “Today there is only one principle or approach, namely, 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.”

Driedger’s 5 steps:

• (1) The Act as a whole is to be read in its entire context so as to

ascertain the intention of Parliament (the law as expressly or
impliedly enacted by the words), the object of the Act (the ends
sought to be achieved), and the scheme of the Act (the relation
between the individual provisions of the Act).

• (2) The words of the individual provisions to be applied to the

particular case under consideration are then to be read in their
grammatical and ordinary sense in the light of the intention of
Parliament embodied in the Act as a whole, the object of the Act
and the scheme of the Act, and if they are clear and
unambiguous and in harmony with that intention, object and
 scheme and with the general body of the law, that is the end.

• (3) If the words are apparently obscure or ambiguous, then a

meaning that best accords with the intention of Parliament, the
object of the Act and the scheme of the Act, but one that the
words are reasonably capable of bearing, is to be given them.

• (4) If, notwithstanding that the words are clear and unambiguous
when read in their grammatical and ordinary sense, there is
disharmony within the statute, statutes in pari materia, or the
general law, then an unordinary meaning that will produce
harmony is to be given the words, if they are reasonably capable
of bearing that meaning.

• (5) If obscurity, ambiguity or disharmony cannot be resolved

objectively by reference to the intention of Parliament, the object
of the Act or the scheme of the Act, then a meaning that appears
to be the most reasonable may be selected.
Doing the Driedger 5-Step:

Step 1 à Read the act and its entire context

- Words are important in deciding the outcome of a case
- Words on which you will rest part of your case over which you
want to argue

Step 2 à Give the words their ordinary meaning

- Many sources
- E.g. Dictionary

Step 2(a) à If the words are clear and there is no disharmony à apply
the ordinary meaning à end of analysis

Step 2(b) à if the words are clear but in applying them there would be
a disharmony between the meaning and the broader context
- Then you choose a non-ordinary meaning (one which is more
consistent with the overall thrust of the statute

Step 3(c) à if the words are unclear

- Driven by the understanding of the broader context
- Look for the meaning that sits with the broader context
SI: Extra Notes

Ordinary meaning

NB: Interpreters are to take into account the ordinary meaning of the
words. Where there is no reason to modify or reject this ordinary
meaning, the ordinary meaning should prevail.

1) Dictionary meaning

- Could be regular or legal dictionary

- Peril to using a dictionary à many words in English or French are
capable of bearing multiple meanings depending on the
context
o Can’t be used to determine a meaning in isolation. Have to
understand how the word is being used in the context
before the dictionary is useful at all. Must understand
immediate grammatical context
- Used by Cory J in this case à word “capable” in oxford dictionary
includes an aspect of compatibility for conversion
- Broader context really drives this in this case

2) Bilingual legislation

- Both equally valid in law

- May actually have differences between the two
- Daoust case
o Facts: Sting operation à undercover cops tried to sell stolen
goods to store owners à assistant said “we cant always be
helping you to steal” à then charged with intent to transfer
(laundering) à “Transfer” à what does that connote? To move à
Who was doing the transferring? The cops à Doust was
“receiving”
o Issue: Does the word transfer also encompass “receipt”
o Holding: English provision said “transfer and otherwise deal
with”. French version didn’t have this à Court said that both
versions are equally valid so we will take the French version as
it was more narrow. They preferred the common element
between the French and English
- Chartrand Case
o Facts: Adult takes off with child to take photos of him à
Charged with abduction of a child under 14 à S.281 in the
 English version said you have to be “unlawfully” taking the
child à French version didn’t have “unlawfully”
o Holding: Court concluded that again, applying the logic
above, the common element was the “enticing” and that
unlawful therefore was an error in the English version and was
not relevant. That is bad for the accused in this case

3) Plausible meaning rule à must be a meaning that the text can bear
given the grammar context

4) Technical meaning rule à In many cases the legislation is directed

towards a specialized area so maybe the meaning should be given the
specialized meaning
- Re Witts
o Facts: Regulation governing horse racing à Word “sex” in
play à In the horse industry this refers to a broad
array/status of genders (stallion, colt, etc.)
o Holding: Court said it was a specialized regulation and the
term sex has a specialized meaning due to this industry so
we can look to the technical meaning to see what the word
means

5) Drafting conventions
o Binding obligation à “Shall”
o Non-binding (discretionary) à “May”

Example: Hasselwander case:

Facts: Had a mini machine gun à Gun was seized under the Code à
Looking at the term “prohibited weapon” as described on the side à
“any firearm . . . that is capable of firing bullets in rapid succession
during one pressure of the trigger” à The actual gun, in the state it was
purchased, was sold in a manner in which you couldn’t shoot multiple
bullets on a single press à Problem was, that it could be converted in a
moment into a weapon that could shoot multiple bullets

Issue: Can the weapon be seized for being a prohibited weapon

If arguing for D:

- Look to the legislation and definition to find uncertainty that the

weapon should not have been seized
- Focus on the word “Capable”
o What is important about its immediate context? The word “Is”
 àpresent sense of “To Be”… not “can be capable”
o Argue that at the time the weapon is seized it must be
capable of firing multiple bullets. Here it was not so its not a
prohibited weapon and he should not be found guilty

If arguing for the Crown:

- Broader context is more important

- Starting point à “Capable”
o There is a capacity for it to fire in succession
o Dictionary à capable can mean a POTENTIAL capacity
(amendable to)

Immediate context: Associated Words

- Can draw inferences from this that help unearth meanings of the
word

Noscitur a sociis rule

Says that the meaning of an uncertain word can be ascertained

à
by looking at the meaning of the words that surround it
o Doust case
§ Apply the Noscitur rule à “Transfer” is surrounded by
a lot of other terms. Can look to those other terms
and their common element. That common element
can then inform the meaning of the word “transfer”
§ Said all words do not talk about “purchase”
§ For that reason, the term transfer does not include
the factual situation we have in Doust

Ejusdem generis

à Look to words surrounding you word and the meaning of you

uncertain word is based on the words that PRECEED it
o Order requirement
o “this act applies to any tribunal, court or other body”
o Lets assume you’re trying to see if the act applies to an
agency. Is it capable of being part of “other body”
§ How do you figure out what “other body” means
§ Right away you know it is not talking about a human
body due to the modifying terms before it
§ Common element à a judicial or quasi-judicial
 function

Implied Exclusion (Expressio unius est exclusion alterius)

à If the leg expresses one thing but fails to express another then it
potentially excludes that other thing
o “All vehicles must register with the ministry…. And motor
boats must also register”
§ Issue: Do you have to register your sail boat?
§ Is your sailboat a vehicle? Look at dictionary à it is
possible
§ What argument would you make to suggest you
don’t have to register your sailboat? Implied
exclusion of sailboats. If the leg felt the need to
expressly include “motor boats” that impliedly
excludes things like sail boats

Broader Context & Meaning

NB: interpreters are to read the legislation in context, including in the

context of the rest of the Act and the legal context generally.
Generally, an interpretation that is consistent with the context is
preferred over one that is not.

Internal: Act context: Relationship to the Rest of the Act

- Relationship to rest of Act: i.e. preambles, long titles etc.

- Provisions that deal with similar context matter are usually
grouped together
- Very thrust of the statute might tell you what the purpose of that
statue is

Hasselwander case (cont.):

Facts: Had a mini machine gun à Gun was seized under the Code à
Looking at the term “prohibited weapon” as described on the side à
“any firearm . . . that is capable of firing bullets in rapid succession
during one pressure of the trigger” à The actual gun, in the state it was
purchased, was sold in a manner in which you couldn’t shoot multiple
bullets on a single press à Problem was, that it could be converted in a
moment into a weapon that could shoot multiple bullets
Issue: Can the weapon be seized for being a prohibited weapon

If arguing for D:

- Look to the legislation and definition to find uncertainty that the

weapon should not have been seized
- Focus on the word “Capable”
o What is important about its immediate context? The word “Is”
à present sense of “To Be”… not “can be capable”
o Argue that at the time the weapon is seized it must be
capable of firing multiple bullets. Here it was not so its not a
prohibited weapon and he should not be found guilty

If arguing for the Crown:

- Broader context is more important

- Starting point à “Capable”
o There is a capacity for it to fire in succession
o Dictionary à capable can mean a POTENTIAL capacity
(amendable to)

External: Related statutes (statutes in pari materia)

- E.g. ATIA and Privacy Act

- May also have a “uniform statute”
o So you get consistency across the statutes

External: Case law interpreting other statutes

External: Model statutes

External historical, cultural and economic context

- Legislative history: materials brought to the legislature’s

attention during enactment or considerations discussed by
the legislature
- Debate: Is legislative history admissible?
- Morgentaler, SCC, 1993
o Legislative history has usually been held inadmissible in
Canada under ordinary rules of statutory interpretation.
But the interpretation of a particular provision of a
 statute is an entirely different process from the
characterization of the entire statute for purposes of
judicial review. There seems to be no good reason why
legislative history should not be resorted to for the
latter purpose, and, despite some earlier authority to
the contrary, it is now established that reports of royal
commissions and law reform commissions, government
policy papers and even parliamentary debates are
indeed admissible.
o Court: Can use legislative history à Some people’s
arguments more persuasive than others (minister has a
lot of persuasion)

“Presumed intention”

- Constitutionality à if you have two provisions (one C and one

non-C) then you take the C one, assuming the words can bear
that meaning
- Aboriginal/private rights à presumption that the legislature
will be emphatic
- International law à presumption that the leg does not intend to
violate Canada’s International obligations
- Extra-territoriality à P does not intend to make a statute reach
outside Canada unless there is an emphatic basis for it
- Retroactivity à not meant to apply retroactively
- Strict construction where individual rights affected à
presumption that says where an act is remedial we give it a
broad and generous meaning
- large and liberal construction where remedial
o Criminal law à strict
o Remedial law à broad analysis (e.g. HR Law)

Summarize:

1. Statutory interpretation is the process courts are supposed to follow

to breathe meaning into the words of the legislature

2. Because under the doctrine of parliamentary sovereignty, the

legislature view trumps that the courts (where the statute is
constitutional), the courts must strive to determine the intention of the
legislature
o Only where this intention is uncertain in all the context are
to courts to make their own decisions on what the words
should mean
3. In practice, courts apply a modern canon of statutory interpretation,
reading words in an ordinary sense in their entire context

4. Courts read the whole act, then they determine the ordinary
meaning of the words from their immediate context and then, if this
ordinary meaning is clear and consistent with the broader context,
they stop.
o but if the words are unclear or they conflict with this
broader context, then a reasonable meaning that accords
with this broader context is generally to be preferred

Applying the SI: Rizzo Case

- Read the words with a broader eye to the thrust and meaning of
the statue

Facts: Bankrupt firm. Employees lost jobs à Did this give rise to
severance pay under provincial laws à Provision in statute said you get
severance when the employee terminates the employment à Problem
here: it was an involuntary termination

Holding:

• Look at the presumed intentions à It’s a remedial thing. Must give it

a large and liberal construction
• Look to legislative history à Words in Employment Standards Act
were meant to include situations when the employees lose their job
due to bankruptcy
Judicial Review of Legislative Action

- Courts policing the lines of power:

o Police the boundaries of power (in terms of the written
constitution, via Charter of Rights of Freedoms)
o Police the division of power, with reference to the
Constitution Act, 1867

- Want to make sure they don’t violate the Rule of Law and that
the PS is met
- Courts play an important role in policing the bounds of
power
- Courts also play an interpretive role
o In the SI context the interpretive role is used so we know
how to follow Leg’s dictates
o In the C context, the courts have been less concerned with
intent
- Courts are not only policing the legislature, they are also defining
the scope of the power pie (reigns in exec, etc)

Amax case, SCC:

“A state is sovereign and it is not for the Courts to pass upon the
policy or wisdom of the legislative will. As a broad statement of
principle that is undoubtedly correct, but the general principles must
yield to the requisites of the constitution. The Courts will not question
the wisdom of enactments which, by the terms of the Canadian
constitution are within the competence of the legislatures, but it is the
high duty of this Court to insure that the legislatures do not transgress
the limits of their constitutional mandate and engage in the illegal
exercise of power”

Issue 1: How do constitutional challenges get before the

courts?

- 1. Reference cases à GIC refers a C question to SCC for its

consideration
- 2. Legal disputes à DOP, etc.
- 3. Constitutional challenges
o Standing:
§ 1. Serious issue to be tried
§ 2. Does plaintiff have a genuine interest in the
matter
§ 3. Is there any other reasonable or effective way to
 get the issue before the court

Issue 2: Remedies

- s. 52: constitution is supreme and any law that is inconsistent is

of no force and effect to the extent of the inconsistency
- s. 24: anyone who’s rights have been violated can seek a remedy
that the court feels is just
o Exclusion of evidence in the crim law context

What impact does the Charter have on Parliamentary

sovereignty?

- Charter is a vague document whose words need to be

interpreted
- Hogg: "the Charter is for the most part couched in such broad,
vague language that in practice judges have a great deal of
discretion in applying its provisions to laws that come before
them.”
- Hogg: "The process of applying the Charter inevitably involves
‘interpreting’ its provisions into the likeness favoured by judges.
This problem has been captured in a famous American aphorism:
‘We are under a Constitution, but the Constitution is what the
judges say it is’.”
- Hansard Debate: Eric Lowther (Ref.) in the House moved the
following in 1998, in response to a court ruling on same sex
partners in the Income Tax Act:
o “That, in the opinion of this House, federal legislation
should not be altered by judicial rulings…”

The Rule of Law or Rule by Lawyers?: The Vriend Case

- McClung J. in Vriend v. Alberta

o “Adopting the maxim ‘All silent, all condemned’ as a
constitutional tool available to judges to reject a perfectly
valid statute because they believe it does not go far
enough in their view of the ideal society, breaks new, and
in my view, undesirable ground. Is it constitutionally
inexcusable for the Alberta government to decline to
choose between the platforms of the divinely-driven right
and the rights-euphoric, cost-scoffing left, by refusing to
order people of either sexual base to listen to government
as to when they must forget that sexuality and contract
together?”
 o “The Order Paper of the Alberta Legislature is not to be
dictated, even incidentally, by federally-appointed judges
brandishing the Charter. While any legislative product
touching governmental activity is, of course, now subject
to Charter scrutiny, the practice of judicially upgrading that
product should be strictly disciplined. This is because of
the spectre of constitutionally-hyperactive judges in the
future pronouncing all of our emerging rights laws and
according to their own values; judicial appetites, too, grow
with the eating.”
- Iacobucci J. in Vriend v. Alberta
o Though the courts may in fact be invalidating legislation
and thereby negating the will of the majority, the concept
of democracy is broader than the mere notion of majority
rule
o Democracy includes respect for the inherent dignity of the
human person, commitment to social justice and equality,
accommodation of a wide variety of beliefs

“Dialogue” between Court and Parliament

- Wilson J.:
o “We can no longer rely on the doctrine of the supremacy of
Parliament as a reason for staying our hand. We have to
examine any impugned legislation to see whether it
interferes with the fundamental rights of the citizen and, if
it does, strike it down. …”
o “I think the conclusion is inescapable that the scope of
judicial review of legislative and executive acts has been
vastly expanded under the Charter and that, indeed, the
courts have become mediators between the state and the
individual.”
o “I think that the new role under the Charter represents a
fundamental reordering of the political balance of power. ...
The judicial role under the Charter ... has, in my opinion,
effected a major change in the relationship between the
three branches of government. It challenges the right of
government to enact certain laws at all and makes the
courts the watchdogs over the rights of citizen.”

What is the source of the court’s power do to this admin law

judicial review function?

- Courts have concluded that because of the overarching C

 norms of Rule of law, PS, etc. there has to be some C
valid reasons for them to do it
- Courts have breathed meaning into s.96 to conclude that the
section also preserves the inherent capacity of the superior
courts to review exec action and make sure it is in the
boundaries of their delegated power
- Federal Courts Act à Specifies that the Federal Court will
review all Federal boards, tribunals, etc

Grounds for Review

- Error of jurisdiction à if the statute says one thing and you do

something else you have no jurisdiction and the courts should be
able to step in
- Error of law à deals with the circumstance in which the admin
decision maker made an error in interpreting the law.
Misconstrued the statute you were supposed to apply for
example
- Abuse of discretion à Circumstances where the exec official
does something to abuse their discretion. When the P gives you
the discretion to make a decision one way or the other and you
make the decision in a discriminatory manner, or in bad faith,
etc. we are going to assume you are outside your power pie

- Error of fact à When you render a finding of fact that is wrong

- Procedural fairness à See below

Pragmatic and Functional Test: CUPE

Facts: Looking at if the courts should be deferential to the exec

decision making à Want the exec to maintain its integrity

Importance of this case: Pragmatic and Functional Test

- Series of variables that the court will look at to see how

much defence the courts will give to the exec decision
maker
- Three answers to this test:
o Maximum (the most deferential you can possibly be) à
only intervene if the decision is “patently
unreasonable” (standard of review)
o Intermediate defence à Standard of review you apply is
reasonableness simpliciter
§ Clearly wrong!
 o No defence owed at all à Courts are just as equipped.
Apply the “correctness” standard of review (do I come to
the same conclusion you do?)
- Procedural fairness is the only thing that has not been swallowed
up by the pragmatic and functional test
o Procedural Fairness
§ Right to notice
§ Right to be heard

Traditional remedies where grounds for judicial review made

out

1. Certiorari

- Send it back to be looked at again

- Basically a re-trial
- Most common remedy/order
- Quashing the decision and then sending it back
- Can send it back with instruction

2. Prohibition

- No decision has been made yet by the delegate and the courts
decide that the delegate is not in a position to make that
decision

3. Mandamus

- Order requiring the delegate to actually do something

- Met all the criteria for doing something and then didn’t do it
- Not available if the exec can choose something to do it and then
didn’t. They must have to
- E.g. if you pass the driving test they HAVE to give you the
license

4. Quo warranto
- Important when you have uncertainty as to whether an official
was a bona fide officer
- Come to court to show you are actually the one entitled to
executive the functions
 5. Habeas corpus

- Upon being detained the gov has to show cause as to why your
detention is illegal
- Designed to prevent arbitrary decision (detention without legal
basis)

Note:
- If the determination you are challenging is made by provincial
exec you go to the Ontario Divisional Court
- If you have a grievance with the Fed Exec you go to the Federal
Courts under the Federal Courts Act

***********************************************************************
*********************************

PEI REF CASES

Financial Security
Institutional dimension has 3 aspects
1.Salaries can be changed for judges as a class, but
there must be a salaries committee
Must convene at times to make sure being increased
at regular rate
To counter effect of inflation
2.Judiciary cannot negotiate
3.Salaries can not go below a min level
Significance
3 core chars, individual and institutional dimensions
Ind/Inst matrix on slides
Relationship bw core and chars and dimensions

Focus on secutiryt of tenure: how do you rid us of a judge

1) die
2) retire

A. Retirement
Fed Crt Act, S.8(2), SC Act s.9(2): A judge shall cease to hold
office on attaining the age of 75 yrs
Const ct of 1867, s.99: specific same for judge of sup crt
v. Hard to get out any other way*

B. Appointment during “good behaviour”

Act of Settlement, 1701
Stems from this settelemt: tied to notion that must be protected from
arbitrary dismissal
Need cause
Only 1 has been removed in over 300 yrs
Const Act, 1867, s.99: “Judes in sup crt shall hold office
during good behaviour, but shall be removable by GG on
address of the Senate and House of Commons”
Other crts must meet same standard imposed by statute

Landreville case
Justice Rand: “Would the conduct...public honour?”
Facts: inept law student, political involved in Sudbury, involved in gas
projects in mid-1960s, bunch of ON mayors offered free shares...etc,
only after got municipal rights; he got shares and made substantial
amnt of money; before details emerged, appointed to bench;
commission recommended that Landreville be removed from bench
Rand proposed standard by which to measure whether good
behaviour has been met or not
If answer yes - violated good behaviour
Recs considered by Parl, and Landreville resigned (no formal vote on
removal)
Why would there have to be formal rule?
Not enough that violated gb standard

Act of Settlement, 1701

Constitution Act, 1867, s.99: “Judges of the sup crts shall
hold office during good behaviour, but shall be removable by
the GG on address of the Senate and House of Commons”

In wake of Landreville...
Canadian Judicial Council
Established Judges Act
Chaired by Chief Justice of Canada
Purposes includes considering complaints against
federally appointed judges
Set up as standing Royal Commission
Walk briefly through complaints system (see slides)

1. Complaints made
judge has in some way failed to meet standard of good behaviour -
also includes being incapacitated)
In writing, from public, sent to council
Mins of justice and govt can also make complaint (some can short-
circuit process)
Bw 1971 and late 1990s = 1678 complaints
A lot of complaints are bounced bc not supposed to complain in circs
where dislike outcome (should appeal); supposed to complain about
conduct of judge
Over last decade = 165 (keep in mind over 1000 fed judges), so not
that many all things considered

2. Complaint reviewed by Chair of Conduct Committee

3. Reviews and dismisses

Vexations
Or improper but not serious enough

4. Referred to Panel
5 members of council (excl judges from same crt as judge
complained of)
They decide to ...

5. Dismiss (end), or

6. Recommend Investigation
Complaint has some validity
Conduct is quite serious
Provides report that specifies grounds that judge acted improperly
Council considers...

7. Dismiss (end), or

8. Inquiry
Federal justice min and AG can compel and inquiry (circumvent all
steps before)
Inquiry hearings
Typically public and independent councils
V much formal proceeding
Report to Council (w or wo recommendations)
Recs will indicate whether judge should be removed or not
Since 1971, there have been 9-10 inquiries (not common at all)

9. Council hearings
If judge so requests, can appear before council or make written
submissions
Council then votes on its position
Reports to Min and may recommend dismissal
4 grounds = age or infirmity, misconduct, having failed in due
execution of office, or having been place in a position incompatible
with due execution (conflict of interests)
Council recommended dismissal once (Justice Bievenue case)

10. Minister considers

11. Vote in Parliament

Justice Bienvenue Case (slides)

7 decided shouldn’t be dismissed ‘
1. Judges should be encourage to speak their minds
if discourage judges from expressing those views, they will just
disguise them)
2. The question is whether judge impartial
No proof that bias effected his decision-making

Court functions: Statutory Interpretation

Courts breathing meaning into words of statutes:
2 broad theo views about what crts are about when interpretation
Role of crts is to look at law and try to give meaning (not strict
dictionary meaning - can have 6 or 7 meanings - so process of
definiting words and understanding what they say is contextual;
have to read them and interpret them as part of statute as a
whole)
Statute is how P expresses its view - provide marching orders to
crts
Begs Q: how do crts apply statute?
Rules of interp = how crts are to interpret
Statutory interpretation: determining P’s will (old view)
Apply doctrines to statute to determine exactly what P wished
Fits nicely into doctrine of parliamentary sovereignty
Also consistent w rule of law (certain, consistent, even-handedly
applied)
Problem w this view: assumes P had an intent*; P can not predict
all the circs that might come before the crt in a dispute; crts now
take a more nuanced view on their role in statutory interpretation
Operating in the piece of pie where P sovereign (new view)
To give effect to intention of legislature in so far as possible
Then, after looking at these words and applying these rules, if
intent is still murky, apply more complex rules of interp; and if
still murky, rely on own good judgement
Less responsive to Parliamentary sovereignty
Less consistent with rule of law
On other hand, closer reflection of reality: at end of day, this is the
correct view (there is always ambiguity)

What then are the rules?

500 yrs of inconsistent, sometimes ambiguous and inconsistent
doctrines
Some of them have been codified in Constitution (ie all statutes are
to be bilingual and equally valid as law)
But for most part, they are Claw
Think of them as a series of tools that crts deploy to find meaning of
statute
Open individual for good advocacy in terms of which tools to use
They are not binding: failure to follow rule x is not an appealable
error à instead, if you are unhappy w crts decision, you appeal on
basis that it got law wrong (appeal outcome, not tool used)

2 examples on slides