FOUNDATIONS OF CANADIAN LAW

CASE & Articles LIST = précis

1. BASIC THEORIES OF LAW
>Positivism and Natural Law
Positivism (HART) In Hart's opinion, the validity of law is a matter of the customary and
collective practices of the courts. Propositions and the use of words must be examined in order to
understand reality. Inductive method: i.e., proceeding from observation of particular facts to
generalisations concerning all such facts. Law and its authority is seen as source-based; i.e., the
validity of a legal norm depends not on the moral value attached thereto, but from the sources
determined by a social community's rules and conventions. Rule of recognition (finding source of
law in sacred books or sayings of ruler). Re Noble and Wolf 1948.

1. laws are commands of human beings

2. there is no necessary connection between law and morality, that is, between law as it is and
as it ought to be.
3. analysis (or study of the meaning) of legal concepts is worthwhile and is to be
distinguished from history or sociology of law, as well as from criticism or appraisal of
law, for example with regard to its moral value or to its social aims or functions
4. a legal system is a closed, logical system in which correct decisions can be deduced from
predetermined legal rules without reference to social considerations
5. moral judgments, unlike statements of fact, cannot be established or defended by rational
argument, evidence, or proof ("noncognitivism" in ethics)

Natural Law. Dworkin. Aspirational, only those laws that adhere to certain moral truths (of
universal/immutable nature) are laws. Drummond Wren. Mackay J, ‘proceeding from the general
to the particular” common law of public policy Re Drummond Wren 1945. "...It appears to me to
be a moral duty, at least, to lend aid to all forces of cohesion, and similarly to repel all fissiparous
tendencies which would imperil national unity...”

Feminist Perspectives on Law. Address how women are at a disadvantage (Edwards v AG

Canada 1930, Person case). Sct said women not “qualified persons”. Privy Council, ‘BNA
planted in Canada “living tree”. By legal rules/institutions in societies and fail to take women’s
interests into account (Morgental, Wilson J comments, “takes decision away from woman at all
stages of her pregnancy, deprives her of right to security of the person as well as her right to
liberty). Paternalistic and male-centered. Contemporary feminism – abortion. Liberal Fem –arg
possible to have general equality within liberal conceptual framework. Rad Fem. Division wo/men
seen as fundamental and attributable to the very notion of a liberal society. Charter would be
viewed as inadequate.

Critical Legal Studies rejects any kind of “natural legal order” discoverable by objective means,
main focuses on law far from symbolizing justice, just institutionalizing and legitimizing authority
and power of a particular social class (rich). Rule of law is indeterminate, full of subjective
interpretation and large degree of incoherency. CLR arg function of western legal systems not to
promote justice reproduce privilege and power over oppressed. CLS adherents reject that there is any kind of 
“natural legal order” discoverable by objective means
 CLS is a direct descendent of Legal Realism, an approach that rose to prominence in the 1920s
and lasted until the 1940s.
 Legal Realism attacked two fundamental axioms of the traditional, formalist understanding of
the common law:
a) that common law legal rules were neutral and objective, and
b) that the rules themselves could be determined with sufficient certainty.
 Realists maintained that all legal rules were indeterminate in the sense that any articulation of
a rule was subject to multiple interpretations…. the result would reflect the unstated public
policy preferences of the judge.

R. S(RD) 1997. Black judge, to Sct. Trial J mentioned systemic bias of police against black (m)
youths, Historical discrimination against visible minorities and women abused by men, not untrue.
No ‘reasonable apprehension of bias” by black judge against white policeman. 2 judges, we find
them to reflect an entirely appropriate recognition of facts in evidence and context.  
Facts
 A white police officer arrested a black 15­year­old who had allegedly interfered with the 
arrest of another youth. The accused was charged with three offences dealing with 
unlawfully assaulting and unlawfully resisting a police officer. 
 The police officer and the accused were the only witnesses and their accounts of the 
relevant events differed widely. 
 The Youth Court judge weighed the evidence and determined that the accused should be 
acquitted. 
 Judge made statement saying that Police have been known to mislead the courts. Crown said 
this raised reasonable apprehension of bias.  Crown appealed to Appeal Court, new trial 
ordered b/c agreed reasonable apprehension bias. 

Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be allowed.
 Held­the crown challenge on reasonable apprehension of bias and filled appeal ­appeal 
allowed. A new trial was ordered it was held that the trial judge's decision was not based on 
factors which were not in evidence. All judges must be impartial. Police cannot always be 
favored this would lead to bias. Therefore, they restored the trial court decision and restored 
the acquittal. 
 Another judge also restores the acquittal but with different reasons. He outlines that judges 
can never been fully impartial and objective, but they must strive for this goal. A judges own 
stereotype can impact a judgment, but as long as it does not prevent a fair and just 
determination of the case via facts, it is fine. 
 Dissent pg 33: we shouldn’t look at discrimination, just facts and evidence. 

Law and Economics. Bank of America Canada v Mutual Trust Co. : time value of money, Simple
interest rate v compound interest. Value of money deceases with time. Opportunity cost; risk and
inflation cause depreciation of money over time. Restitution damages when efficient breach of
contract leaves $ in Def hands after compensation P.loss.

ISLANDS OF EMPOWERMENT: (Bhabha) CRITICAL RACE STUDIES: subjective experiences

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

HART-DWORKIN DEBATE: (Shapiro) the relation between legality and morality. Hart – Judicial
Discretion determined by social practice, never moral issues; Dworkin- legality determined by
moral facts as well as social facts. D and H looking for purpose behind legal system. H
(positivists) must look to social facts, while D (natural law) look to morals, S arg that by not
valuing the ideology of the designers of the legal system, they are unsettling the law. Empirical
social facts v moral and political philosophy. Q how to change system designed with morally
corrupt goals (like slavery). Positivists must concede that proper methodology is a function of
systemic purpose which is a matter of social fact. H Judicial discretion is a necessary byproduct of
inherent indeterminacy of social guidance. “open texture” of language. H judges must sometimes
exercise strong discretion b/c he takes law to consist in those standards socially designated as
authoritative. D. legal interpretation is “constructive” – process of “imposing purpose on an
object/practice to make it the best possible example of form/genre”. Determination of legal
“grounds” as a process of Constructive Interpretation, D accounts for theoretical interpretations of
law.

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

(Rothstein, J) in the Labour Trilogy of cases. Rothstein (dissent) and majority accused one another
of allowing politics to influence decisions of law. “Ideology manifests itself in the “work” that
judges do to make legally plausible arguments.” Open textured phrases like “freedom of
association” require interpretive choices untethered to legal certainty. Act of choosing which
“work path” to choose is primary locus of the infiltration of ideology. Ideology in work does not
create wrong answers or failure to follow precedent, but informs the “work” – to take interpretive
positions and make arguments to define their content. Narrow (distinguish) or loose (incorporate
language w/o base) use of precedent. Should acknowledge /confront inevitability of political and
moral choices in adjudication. Not lose faith in legal process, but develop understanding, ideas,
about when, by what approaches and under what disciplines the exercise of this discretion can be
legitimate in a democratic society.

2. INDIGENOUS PEOPLES AND THE LAW

>Indigenous Self-Government Aspirations (UNDRIP, C-262)
>The Modern Treaty Making Process : First Nation of Nacho Nyak Dun v Yukon, 2017 In 2009,
after more than four years of intensive and broad stakeholder, expert, and public consultations, the
Commission submitted a Recommended Plan that suggested 80% of the Peel Watershed be
protected and 20% be open for mineral exploration. (Beckman v Little Salmon) treaties should be
interpreted “in light of the treaty text as a whole and treaty’s objectives” (Yukon,headnote). A
modern treaty should not be interpreted “in an ungenerous manner or as if it were an everyday
commercial contract”; the purpose of modern treaties is to advance reconciliation, and
reconciliation is found in the respectful fulfillment of modern treaty terms. An unconstrained
authority for the Yukon government to modify the Final Recommended Plan at its very last stages
would render reconciliation and this process meaningless as it would provide the Yukon
government with free rein to essentially rewrite the Final Recommended Plan at the end

A. READING
Constitution Act 1867, s. 91(24), 30 & 31. c.3
Constitution Act 1982, s. 35.
Indian Act Section 88 makes AB subject to provincial laws of general application.

SUMMARY OF TRC: Calls to Action: revise info kit for newcomers, Oath of Citizenship. Role of
recognizing force of Indigenous legal orders = tool for self-determination. Call to Action 92:
UNDRIP with PFIC. Art 3 right to self-determination. TRC, though, product of settlement of class
action lawsuits on residential schools, but provisions in Indian Act prevent enforcement of bank
security on most Indian reserves,:- no mortgages, no land planning autonomy. Still allowed by Ct
to infringe on Aboriginal rights if it can demonstrate that it is in the broader public interest
(Delgamuukw) to do so (development of agriculture, forestry, etc. p 350) Key opportunities for
action p. 351. 4 principles to move forward p 352. including “sharing benefits fairly” Sustainable
reconciliation on the land involves realizing the economic potential of Indigenous comities in a
fair, just and equitable manner that respects their right to serlf-determination.””.353.
Reconciliation must become framework for resolving conflicts and building constructive
partnerships.

SEVEN GIFTS: REVITALIZING LIVING LAWS THROUGH INDIGENOUS LEGAL PRACTICE.

(Borrows) law schools should do more to cultivate ethical learning, using Anishanaabe law as one
example. Establish law camp? Tribal courts. Constitutions impacting health and welfare of
communities. Legal Education.

UNDRIP IMPLEMENTATION: BRAIDING INTERNATIONAL, DOMESTIC AND INDIGENOUS LAWS-

SPECIAL REPORT (Fitzgerald & Schwartz): how to implement UNDRIP as soft law? Common
law accepted by community of nations as legally binding – can enter Can. Jud. Decisions. Can –
review of internal laws to see if they already meet standard. Van der Peet 1996 needs
reconsideration as it viewed Ab rights as frozen in time (1867). Says “duty to consult” is
framework for infringement or rights without safeguards, whereas UNDRIP has PFIC.
Consultation speaks of burden instead of about participation in decision making processes.
Framework for reconciliation should be about AB peoples’ own laws and languages and be treated
with legitimacy and respect. Borrows, “constitutional originalism” should replace constitutional
distinctions based on pre and post contact, as UNDRIP is focussed on peoples and rights vested in
peoples. Gunn said requires resetting relationship recognizing and protecting IN peoples’ rights
according to their own legal traditions, and find a more appropriate way to articulate scope of
s.35(1) than Van der Peet’s “central and integral to the distinctive culture” test. Nichols said
remove Doctrine of Discovery from Canadian Law (repudiate it?).

UNDRIP: BRAIDING THE INCOMMENSURATE (Morales)

Duty to Consult (Haida) does not have a duty to agree. Only to a meaningful process of
consultation. (also to Treaties under Mikisew Cree, but on lower end as treaty is already product of
negotiation). Haida said “meaningful consultation” may require Crown to “make changes to its
proposed action”. Failures a result of power imbalance inherent within this framework, and failure
of these consultative processes to adequately consider and rely upon IN legal traditions. No right
to say “no”. AB consent only in case of established rights and then by no means in every case
(Haida). Mikisew Cree says that in Treaty rights there may be case for a veto in circumstances in
which an IN community cold be left with “no meaningful right to hunt”, but other than this
(extinguishment) no veto. Ct not precluded from “hard bargaining” (only sharp dealing not
permitted – Haida). Vast disparity of resources. Right to FPIC flows from right of self-
determination. When states determines consent not necessary, it remains “bound to respect and
protect rights of IN peoples and must ensure that other safeguards are implemented, to minimize
or offset limitation on rights through impact assessment, measures of mitigation, compensation
and benefit sharing (quoting Anaya), and should be subject to review by objective impartial
judicial authority.

Current Status of Bill c-262 - on Second Reading in Senate (two sittings, last one 11/29/2018)

IMPLEMENTING UNDRIP IN CANADA: CHALLENGES WITH BILL C-262 (Isaac and Hoekstra),
“unworkable” repeats sophisticated legal regimes for protecting AB and treaty rights. (Peel River
Watershed 2017) constraint on Crown acts. Veto creates overlap of authority unintended and
incompatible with “principles of federalism”..human rights description “may not be helpful”,
states IN consent requested whether or not a traditional right is impacted. Pretends this may inhibit
IN peoples from advancing their own economic interests on their traditional territories. Legal
regime “consistent with principles of a free and democratic society”. Says C-262 will introduce
“substantial uncertainty” in the pursuit of “opaque objectives”. Needs predictability. Move
forward with “certainty” Q of application to non-s.35 bearing IN people (Daniels v Canada)
Metis../”Objectives” undefined. Deliberately general document into sophisticated Canadian IN
rights regime. S 5 of s-262 develops a national action plan.. annual reports for 20 years.

MEETING OF STANDING CMTE ON INDIGENOUS AND NORTHERN AFFAIRS Consent is the

essence of treaty-making between self-determining nations. First nations already have the right to
participate in decisions that can affect our rights, property, cultures, and environment, and our
capacity to exercise our right to self-determination.
We already have the right to determine our own priorities, and we cannot be denied our own
means of subsistence. What's needed is a better process, one that is designed with first nations and
involves our people from the start. There is no need to reinvent the wheel here. Free, prior, and
informed consent exists around the world. There is already a lot of international jurisprudence to
draw on.
A lot of people want to focus on that V-word, “veto”, but the word “veto” doesn't appear in the
declaration. It isn't in this bill. The declaration acknowledges the interrelationships between the
rights of all people and peoples. To those concerned about free, prior, and informed consent, I
would say this: you simply cannot tell a people that they have no right to say no to what happens
to them in their own territories.
Imagine a system where you can't say no. That's what we have had for more than a century
under the Indian Act, and that's what has led us to this mess we're in today. First nations must be
part of the regulatory processes and all the decision-making respecting anything that affects us.
Working with us to figure out what that looks like is not only unavoidable and not only the
right thing to do, but it's the smart thing to do. It will lead to more balanced, fewer acrimonious
and better decisions, fewer court battles, more timely decisions, and better outcomes for us all. If
you want economic certainty and economic stability, embrace the UN Declaration on the Rights of
Indigenous Peoples and embrace the support for Bill C-262 going forward.
Canada has repeated four principles to guide the approach to working with first nations:
recognition of rights, respect, co-operation, and partnership.
Section 88 of the Indian Act is about “laws of general application”. Why do the provinces
always...? Here's my push for first nations jurisdiction, and I've always said this publicly: if we
don't want federal or provincial laws to apply, then we create our own laws. We occupy the field
and exert our jurisdiction, whether that be child welfare, education, health, matrimonial real
property, or whatever the case may be. We as first nations, if we're going to be truly recognized as
having the right to self-determination, as being here, then we exercise and occupy the field. That
will take care of section 88 and the laws of general application because our laws will apply. That's
where we need to keep going.

MEMO TO CANADA: INDIGENOUS PEOPLE ARE NOT YOUR INCOMPETENT CHILDREN (Elliot)
Wants Canada to say that Band Councils are not required for our people to have discussions with
their leaders. Nation-to-nation relationship.To acknowledge the IN nations of this land are
soverign nations, respect them as sovereign nations and consul and negotiate as such. Anything
less is politically correct posturing. Right to Consent, Right to say no, even if that “no” interferes
with Canadian politicians and power companies plans. Assurances C wont pull community
funding if we say no. wont punish us with third party management as it continues to underfund
essential services, will gove opportunity to develop our economies and communities so they don’t
need to rely on Canada for anything. View IN as equal partners, not incompetent children.

B. ABORIGINAL RIGHTS

DUTY TO CONSULT: f the Crown contemplates a decision that might adversely affect the
exercise of an aboriginal right – whether recognized or with the potential to be (through
negotiations, litigation, etc.) – the duty to consult kicks in. (Haida Nation, Rio Tinto (2010
SCC))
a. The Crown will be deemed to have knowledge or constructive knowledge of a
right if it is a treaty right or when the government is aware of an Aboriginal group’s
traditional occupation of an area. (Mikisew Cree (2005 SCC))
b. The duty to consult isn’t engaged unless the decision has a new impact on rights.
“The claimant must show a causal relationship between the proposed government
conduct or decision and a potential for adverse impacts on pending Aboriginal
claims or rights. Past wrongs, speculative impacts, and adverse effects on a First
Nation’s future negotiating position will not suffice.” (Rio Tinto)
 c. Legislative exemption doesn’t appear to apply to decisions affecting aboriginal
rights. The duty to consult must be discharged after a bill is tabled in Parliament.
But that consultation must happen before legislative process begins that would then
shield the decision under the Federal Courts Act. (Mikisew Cree First Nation v.
Canada (Minister of Aboriginal Affairs) 2014 FC 1244)
i. Who does this duty rest on? Ministers responsible? MPs? Speaker? How?
Hearings? In the UK it’s a convention that parliament is open and people
can participate and be given notice.
2. Content of duty to consult is variable as with PF. The scope of the duty to consult is
proportionate to a preliminary assessment of the strength of the case supporting the existence
of the right or title, and to the seriousness of the potentially adverse effect upon the right or
title claimed. (Haida Nation, Taku River) Ultimate questions is what will maintain honour
of the Crown?
a. The government will not necessarily be required to develop special additional
consultation methods outside the legislation. (Taku River)
b. Similar to lower end of PF – right to notice and to be heard in some way.
3. Accommodation – there are two ways to understand when accommodation may be required:
(1) You can understand accommodation as a freestanding duty based the outcome of balancing
the seriousness of infringement and prospects of realization of a right. (This approach taken in
Taku River) (2) You’ll only have to accommodate when you’ve gone through consultation
process. (This approach was also suggested in Taku River)
4. Content of duty to accommodate is to seek compromise through good faith efforts to
understand concerns and address them, it does not have to result in agreement, but it can
include a veto for Aboriginal groups in rare cases of proven rights (EX: consent was required
in Delgamuukw in relation to the regulation of harvesting activities on Aboriginal title land).
Standards of Review:
1. Questions of law that have to be assessed on the basis of correctness: what is the seriousness
of the impact and likelihood the right will be recognized? (Haida Nation)
2. Reasonableness review when you are considering what consultation is appropriate given the
balancing of the seriousness of the impact and strength of the right. (Haida Nation)
3. Accommodation… (1) If the duty to accommodate stems from a balancing of seriousness and
prospects of realization of a right, then whether the duty was discharged could be reviewed on
a standard of correctness. (2) If accommodation is understood as the outcome of the
consultation process, then whether the duty was discharged would have to be assessed as
question of mixed fact-and-law on a standard of reasonableness.
Remedies:
1. If the Crown fails to discharge its duty to consult, various remedies are available including
injunctive relief, damages, or an order that consultation or accommodation be carried out. (Rio
Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 37)

Rio Tinto Alcan v Carrier Sekani Tribal Council 2010

In the 1950s, the government of BC authorized the building of a dam and reservoir that altered the
flow of the Nechako River without consulting the First Nations of the Carrier Sekani Tribal
Council affected by this project. Excess power generated from the dam has been sold by Rio Tinto
Alcan to BC Hydro under Energy Purchase Agreements (“EPAs”). Since the initial EPA in 1961
there have been regular renewals of these agreements. At the time of the 2007 EPA the First
 Nations asserted to the BC Utilities Commission (the “Commission”) that these agreements should
be subject to consultation under Section 35 of the Constitution Act, 1982.
1. The Crown must have real or constructive knowledge of a potential Aboriginal claim or
right. Potential being the key; it is not proof that the claim will succeed.
2. There must be Crown conduct or a Crown decision. This conduct or decision include
government exercise of statutory powers or to decisions or conduct which have an immediate
impact on lands and resources and extends to “strategic, higher level decisions” that may have an
impact on Aboriginal claims and rights.
3. There must be a possibility that the Crown conduct may affect the Aboriginal claim or
right. There must be shown a causal relationship between the conduct and the potential for future
adverse impacts on the claim or right. Past wrongs and speculative impacts are not sufficient.
The Court further stated that the duty to consult is confined to the adverse impacts flowing from
the specific Crown proposal at issue – not to larger adverse impacts of the projects of which it is a
part. Where the resource has long since been altered and the present government conduct or
decision does not have any further impact on the resource, the issue is not consultation, but
negotiation about compensation for the failure to have been properly consulted in the past.

Chippewas of the Thames First Nations v Enbridge Pipelines, 2017. Confirms the ability of
governments to rely on regulatory processes to fulfill the Crown’s duty to consult with Aboriginal
groups, including in cases where the Crown itself is not involved in the process.
The Duty to Consult. Following a number of its earlier decisions, the Court decided that an
independent regulatory body with the statutorily delegated executive responsibility to make final
decisions on project applications (and specifically, the NEB) is acting on the Crown’s behalf. NEB
decisions therefore amount to Crown action that can trigger the Crown’s constitutional duty to
consult. The Crown can, in some circumstances, also rely on a regulatory body (or its process) to
partly or completely fulfill its duty to consult - but only if:
 Power. That body has the statutory power in its enabling legislation necessary to do what
the duty to consult requires in the particular circumstances.
 “Notice”. The Crown makes clear to affected Indigenous groups, in a timely fashion, that
it will be relying on the regulatory body’s process to fulfill its duty to consult affected
Indigenous groups.

The Supreme Court decided the NEB does have the procedural powers necessary to engage in
consultation and the remedial powers to, where necessary, accommodate affected Aboriginal
and treaty rights. Consequently the Crown could rely on it to fulfill its duty to consult. But the
Court reached different conclusions about whether the NEB met that duty in each case: in
Chippewas of the Thames, the Court decided the NEB’s consultation was “manifestly
adequate” in the circumstances and upheld the NEB’s approval; in Clyde River, the Supreme
Court quashed the NEB’s approval because of its “significantly flawed” process in the
circumstances. The key differences between the cases: the scope of the projects, the nature of
the rights involved and the process the NEB undertook.

Canada v Mikisew Cree First Nation 2016

In December 2016, the Federal Court of Appeal ruled against Mikisew Cree First Nation (MCFN),
determining that the Crown does not have an obligation to consult when contemplating changes to
legislation that may adversely impact treaty rights. The Court rested its findings on case law
surrounding the doctrine of the separation of powers.
The Court found that MCFN’s interpretation amounted to an “artificial” deconstruction of the
Minister’s functions. The Court maintained that the law as set out in Criminal Lawyers’
Association provides that “making policy choices and adopting laws are explicitly recognized as
functions of the legislative branch.” It follows that at all stages of the law-making process,
Ministers act as legislators and not statutory decision-makers.”
The Court concluded that the Crown’s actions in this case were legislative in nature and,
accordingly, fell outside of the Court’s jurisdiction under the FCA.
The Court determined that the doctrine of the separation of powers also prevented the Court from
providing relief in this case. The separation of powers, which limits the courts’ oversight over the
executive and legislative branches, is not a constitutionally entrenched principle. However, the
Federal Court reiterated that separation of powers and parliamentary sovereignty are “well-
established pillars of our Constitution” that the Supreme Court has repeatedly recognized.
The Court stated: “If there is one principle that is beyond any doubt, it is that courts will not
supervise the legislative process and will provide no relief until a bill has been enacted.” The
Court relied on Sopinka J.’s findings in re Canada Assistance Plan, where Sopinka held that ‘[a]
restraint on the executive in the introduction of legislation would place a fetter on the sovereignty
of Parliament itself.’” The Court found that the separation of powers allows for the Court’s
oversight only after legislation has been enacted.
The Court observed that “it is good politics to engage stakeholders such as Aboriginal groups on
legislative initiatives which may affect them or regarding which they have a keen interest, before
introducing legislation into Parliament.” The Court also noted that although there is no free-
standing right to be consulted on legislation that might affect one’s Charter rights, this legislation
might be more difficult for the government to justify under section 1 of the Canadian Charter of
Rights and Freedoms without consultation. The question of whether the duty to consult extends to
the development of legislation has significant implications for the scope of the Crown’s
obligations to First Nations in the Parliamentary process.
The Supreme Court will now likely have to define the relationship between the longstanding
doctrine of separation of powers and the constitutional duty to consult. Such an analysis will
require the Court to consider the separation of powers in light of our modern understanding of the
Constitution and the purpose of section 35. This purpose includes the reconciliation of Aboriginal
peoples with the Crown’s assertion of sovereignty. The separation of powers doctrine has not
historically contemplated a role for Aboriginal peoples, and the Court’s review of this gap is long
overdue.

C. ABORIGINAL TITLE
Delgamuukw v. British Columbia [1997] : Inherent Limit: Lands Held Pursuant to Aboriginal
Title Cannot Be Used in a Manner that Is Irreconcilable with the Nature of the Attachment to the
Land Which Forms the Basis of the Group’s Claim to Aboriginal Title
 The content of aboriginal title contains an inherent limit that lands held pursuant to
title cannot be used in a manner that is irreconcilable with the nature of the
claimants’ attachment to those lands.
 re source of aboriginal title - aboriginal title arises from the prior occupation of
Canada by aboriginal peoples.
  The relevance of the continuity of the relationship of an aboriginal community with
its land here is that it applies not only to the past, but to the future as well. That
relationship should not be prevented from continuing into the future.
 As a result, uses of the lands that would threaten that future relationship are, by
their very nature, excluded from the content of aboriginal title.
 Occupancy is determined by reference to the activities that have taken place on the
land and the uses to which the land has been put by the particular group
 if occupation is established with reference to the use of the land as a hunting
ground, then the group that successfully claims aboriginal title to that land may not
use it in such a fashion as to destroy its value for such a use (e.g., by strip mining
it).
 It is for this reason also that lands held by virtue of aboriginal title may not be
alienated.
 It is also, again only in part, a function of a general policy “to ensure that Indians
are not dispossessed of their entitlements”

The Test for the Proof of Aboriginal Title

In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the
following criteria:
D. the land must have been occupied prior to sovereignty,
E. if present occupation is relied on as proof of occupation pre-sovereignty, there must be a
continuity between present and pre-sovereignty occupation, and
F. at sovereignty, that occupation must have been exclusive.

Tsilhquot’in Nation V. BC 2014

The court held that Aboriginal title constitutes a beneficial interest in the land, the underlying
control of which is retained by the Crown. Rights conferred by Aboriginal title include the right to
decide how the land will be used; to enjoy, occupy and possess the land; and to proactively use
and manage the land, including its natural resources. But, the court set out a Sparrow-style
mechanism by which the Crown can override Aboriginal title in the public interest:
A. the Crown must have carried out consultation and accommodation;
B. the Crown's actions must have been supported by a compelling and substantial objective;
and
C. the Crown's action must have been consistent with its fiduciary obligation to the Aboriginal
body in question
This case got rid of the narrow, site-specific intensely occupied areas requiring proof for good.
To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation
is relied on) and exclusive. In determining what constitutes sufficient occupation, which lies at the
heart of this appeal, one looks to the Aboriginal culture and practices, and compares them in a
culturally sensitive way with what was required at common law to establish title on the basis of
occupation. Occupation sufficient to ground Aboriginal title is not confined to specific sites of
settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise
exploiting resources and over which the group exercised effective control at the time of assertion
of European sovereignty.
Where Aboriginal title has been established, the Crown must not only comply with its procedural
duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed
government action is substantively consistent with the requirements of s. 35 of the Constitution
Act, 1982 . This requires demonstrating both a compelling and substantial governmental objective
and that the government action is consistent with the fiduciary duty owed by the Crown to the
Aboriginal group. This means the government must act in a way that respects the fact that
Aboriginal title is a group interest that inheres in present and future generations, and the duty
infuses an obligation of proportionality into the justification process: the incursion must be
necessary to achieve the government’s goal (rational connection); the government must go no
further than necessary to achieve it (minimal impairment); and the benefits that may be expected
to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest
(proportionality of impact). This s. 35 framework permits a principled reconciliation of Aboriginal
rights with the interests of all Canadians.
The issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property
rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s
ownership right amounting to an infringement that must be justified in cases where it is done
without Aboriginal consent.

Daniels v Canada (Indian Affairs and Northern Development) 2016

Declaration that Metis “Indians”, no need for third part of Powley Test (“community acceptance”
test) 1st Declaration, Metis are Indians. The second declaration sought is to recognize that the
Crown owes a fiduciary duty to Métis and non-status Indians. Delgamuukw v. British Columbia,
[1997] 3 S.C.R. 1010, accepted that Canada’s Aboriginal peoples have a fiduciary relationship
with the Crown and Manitoba Metis Federation accepted that such a relationship exists between
the Crown and Métis. As a result, the declaration lacks practical utility because it is restating
settled law. The Court rejected – in the section 91(24) context - the criteria in Powley that had
been developed specifically for purposes of applying section 35. More specifically, the Court held
that there was no principled reason for excluding any Aboriginal people from the federal
government's authority on the basis of a "community acceptance" test as outlined in Powley.

Brown v Canada (AG) 2017. This ruling is a major victory for Sixties Scoop survivors in Ontario
and across Canada who continue to seek justice and restitution for the great harm that was done by
destructive provincial child welfare policies. The ruling comes after 8 years of protracted legal
proceedings which saw Canada try to prevent the hearing of the class action on several occasions
through various motions, appeals and 11th hour settlement offers. The class action may now
proceed to the next phase where the damages Canada is liable for as a result of the breach will be
determined.
This decision provides a pathway for justice and restitution for Sixties Scoop survivors in Ontario
and across Canada. While Canada has indicated its intention not to appeal the decision, it is
possible that it may still choose to take a narrow reading of the decision in order to limit its
implications to the class of Sixties Scoop survivors in Ontario affected by the 1965 Agreement.
However, in this era of Truth and Reconciliation, Justice Belobaba’s decision provides greater
impetus for Canada to answer to the numerous Sixties Scoop class actions in other jurisdictions
and provide fair redress to thousands of others Sixties Scoop survivors still seeking justice and
restitution.
Finally, if further litigation is required it may be that Canada will be held liable for breach of
fiduciary duty if the evidence in another case meets the test. The Court had earlier held that
‘culture and identity’ is a specific cognizable interest that may give rise to a fiduciary duty.
On the first question, Justice Belobaba found that Canada had owed a common law duty of care
but not a fiduciary duty. On the second question, Justice Belobaba found that Canada did breach
its common law duty of care.

G. ABORIGINAL TREATIES

R v Marshall; R v . Bernard 2005 . Delgamuukw requires that in analyzing a claim for

aboriginal title, both aboriginal and European common law perspectives must be considered. Court
must examine the nature and extent of pre-sovereignty aboriginal practice and translate that
practice into a modern common law right. Aboriginal title to land is established by aboriginal
practices that indicated possession similar to that associated with title at common law. Evidence
must prove “exclusive” pre-sovereign “occupation” of the land by their forebears. “occupation”
means physical occupation and “exclusive occupation” means an intention and capacity to retain
exclusive control of the land. However, evidence of acts of exclusion is not required, just
demonstration of effective control of the land by the group, from which a reasonable inference can
be drawn that the group could have excluded others had it chosen to do so. Continuity is required,
showing group’s descent from pre-sovereignty group whose practices are relied on for the right.
Oral history is admissible (that meets standard of usefulness and reasonable reliability) (R. v
Marshall). Trial Judges applied proper test requiring proof of sufficiently regular and exclusive
use of cutting sites by Mi’kmaq. Protected Treaty right includes not only a right to trade by a
corresponding right to access to resources for the purpose of engaging in trading activities. In
order to be protected, must be modern equivalent or a logical evolution of the use of forest
products at the time Treaties were signed. Patters and nature of Ab occupation should inform
the standard. “physical occupation proof of possession” remains but not governing criterion. Proof
of Ab title relates to the manner in which the group used and occupied the land prior to Crown
Sov., mere fact that group traveled within its territory and did not cultivate land doesn’t take away
from title claim. Semi/nomadic. Premised on notion that specific land was of central significance
to the group’s culture. Occupation proved by tradition and culture that connects group with land.
This case, two Mi’kmaq – logging not logical evolution of activities traditionally engaged in by
them.

3. SOURCES OF CANADIAN LAW

>The Common Law and Civil Law Traditions

-Much of our current legal regime depends on the common law and a series of British imperial
statutes, which were received into Canada upon its acquisition as territorial possession of the
British Crown -Quebec is different due to its French history. It remains a civil law jurisdiction
which is influenced by common law.-Aboriginal interests and concepts have emerged as a source
of law in Canada.
1. Law and Aboriginal Peoples-Aboriginal peoples = Indians, Inuits, and Metis
-Some early Canadian cases recognized that the assumption of control by the British Crown during
the colonial period did not automatically erase aboriginal legal systems:
Connolly v Woolrich [1867] where validity of an 1803 marriage under Indian custom
between an European and Indian was upheld a the assertion of English sovereignty it did not
annul “the territorial rights, political organization, such as it was, or the laws and usages of
Indian tribes”)-However, this approach did not prevail is subsequent Canadian case law
-For years, there has been little or no place in our legal system for the original inhabitants.
-In Canada, by virtue of s.91(24) of Constitution Act 1867, the federal Parliament has power over
“Indians” and “lands reserved for Indians”.
-In 1982, aboriginal rights were constitutionally entrenched in s.35 of Constitution Act 1982 which
protects “existing aboriginal and treaty rights of the aboriginal peoples of Canada”
-A significant amount of jurisprudence in Canada expanding on aboriginal rights since 1982 has
contributed to this debate.
-Although many economic, social, and health indicators continue to show that Canada’s aboriginal
peoples are much worse off than other Canadians, and the paternalistic nature of the Indian Act
continues to control many aspects of their lives, the constitutionalization of aboriginal rights has
restored at least some recognition of the aboriginal interests in Canadian law.
 Reception of European Law
Rules of Reception: Cooper v Stuart Privy Council:
 Bijuralism
 Common Law Method: Precedent and Equity
>Statutory Law

SOME THOUGHTS ON BIJURALISM IN CANADA AND THE WORLD : Gervais & Seguin-

TAX - Grimard v Canada 2009: Employee v Independent Contractor. Used common law as
advisory for Quebec Civil Law. Parliament decided to take a stance two years later. By
enacting section 8.1 of the Interpretation Act, R.S.C., 1985, c. I-21, using the Federal Law-Civil
Law Harmonization Act. No. 1, S.C. 2001, c. 4, it acknowledged the principle of complementarity
of Quebec civil law to federal law when the conditions in section 8.1 are met. In so doing, it
allowed for differences in the treatment of Canadian litigants under federal legislation.

PRECEDENT REVISITED: CARTER V CANADA(AG) AND THE CONTEMPORARY PRACTICE OF

PRECEDENT: (Parkes) Bedford/Carter SCC approach authorizing lower courts to revisit
precedent in limited circumstances. (“anticipatory overruling”). 1) where new legal issue is raised;
and 2) where there is a change in the circumstances or evidence that “fundamentally shifts the
parameters of the debate. ? In BEDFORD, Asper Centre suggested non-exhaustive list to assist in
determining whether a change in social and leg facts is significant and material:

(1) the length of time that has passed since the earlier decision;
(2) the breadth of the new evidence that was not available to the court in the earlier
decision;
(3) evidence that the social, political, or economic assumptions underlying the earlier
decision are no longer valid;
(4) evidence of a shift internationally in approaching the problem;
(5) any difference in adjudicative facts between the two cases; and
(6) and difference in the perspective of the claimants in the two cases
STARE DECISIS AND THE RULE OF LAW: A LAYERED APPROACH : (Waldron) principle of
constancy, principle of generality, principle of institutional responsibility, and principle of fidelity
to law. We have to give REASONS for decisions (Cadi metaphor just signalling not saying why
to execute the bread merchant).
Rule of law generates a distinctive perspective on Stare Decisis; 2) Best to understand impact
of rule of law on Stare Decisis in layers.
1) One principle, the principle of constancy, counsels against lightly overturning such
precedents as we have.
2) Another principle, the principle of generality, requires all judges to base their decisions on
general norms and not just leave them as freestanding particulars.
3) Another principle, the principle of institutional responsibility, requires subsequent judges
not to give the lie to the use by precedent judges of certain general norms to make their
decisions.
4) And, finally, a fundamental principle of fidelity to law requires the precedent judge to
approach her decision as far as she can by trying to figure out the implicit bearing of such
existing law as there is on the case in front of her.
She figures out the bearing of the law, she formulates it into a general norm, a subsequent judge
takes note of the general norm that she has used, he plays his part in establishing the norm as
something whose generality is more than merely notional, and judges try to maintain the
constancy and stability of the body of law that emerges from all this by not overturning precedents
lightly or too often.

CONSCIENCE AS THE ORGANIZING CONCEPT OF EQUITY: (Hudson) Objectively constituted

conscience (what an honest person would have done in the circumstances)- measure def by
objective standard of behaviour. LIKE fiduciary not benefitting from conflict of interest, EQUITY
as methodology, using general principles to guide decision making and detailed rules developed as
part of a doctrine of precedent (family law and finance). “consequentialist” (developing meaning
of principles through successive cases). Deontological (central moral principle established which
governs all decision making). Weaker form of Aristotelian “discretion” the correction of the
application of formal legal rules in particular cases in line with precedent and in line with clear
principles setting out the way in which deviation from those formal legal rules is possible. As
Nietzsche put it, the greatest artists in abstraction are in fact the people who create the
categories.116 That is, the purportedly value-free, apolitical rigour of taxonomic thinking actually
conceals a deeply political, abstract project in law-making. That project is political in that judges
are effectively being lobbied to change the law and in that the law is being remodelled to prefer
the needs of commercial people over the rest of society by taking concepts and models from
contract law in particular. Rigid systems cannot serve all of our needs in the modern world
because unanticipated events will require us to be able to react quickly and to create novel
solutions for novel circumstances. Equity Specialists goal to work sensitively to prevent
unconscionable advantage being taken of claimants so as to achieve just results in a case. The
Court stands for an objective statement of the values which chould have been input into a person’s
conscience.

International Law: Baker v Canada Justice L'Heureux-Dubé : Duty of fairness

required in the context of judicial review, she outlined the following
factors as those that should be taken into consideration
MUST BE FAIR
1. The nature of the decision being made and process followed in
making the decision;
2. the nature of the statutory scheme and the terms of the statute
pursuant to which the body operates;
3. the importance of the decision to the individuals affected;
4. the legitimate expectations of the person(s) affected by the
decision;
5. the agency or administrator's choice of procedure.

After the Baker decision, there appears to be a trend towards treating all international law, 
whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the
same manner – as relevant and persuasive, but not determinative (this comes implicitly from
the decision, not explicitly)

What does the duty of fairness require in the circumstances?

1. Common Law: “The concept of procedural fairness is eminently variable and its content is to
be decided in the specific context of each case.” (Knight v Indian Head School Division No.
19, [1990] 1 SCR 653)
a. Following Knight v Indian Head, that what is required is not procedural perfection
but a balance between all the factors that ensures people are treated,
b. Following Nicholson, fairly not arbitrarily.
2. Constitutional: “Insofar as procedural rights are concerned, the common law doctrine
summarized in Baker properly recognizes the ingredients of fundamental justice” in s.7
(Suresh)

TEST: The Baker Five

1. The nature of the decision being made and the process followed in making it.
a. Decisions that are considered more “judicial”, as opposed to “administrative”, will
generally require a higher degree of PF closer to a trial model.
b. Stacey’s definitions: A judicial decision deals with rights, interests, or legitimate
expectations that may be compromised (e.g. LSUC licensing hearing). On the other
hand, an administrative or ministerial decision can only confer benefits or rights on a
person.
2. The nature of the statutory scheme and the terms of the statute pursuant to which the
body operates.
a. The requirements for PF may be minimal when a decision is preliminary to a formal
decision-making process.
b. However, a decision need not be final for a high degree of fairness to attach. For
example, the existence of a right of appeal is an important consideration in deciding
whether and to what extent reasons are necessary following a first-level decision.
3. The importance of the decision to the individual affected.
a. The more important the interest/right to the person affected, the more procedural
protection will be required.
 b. International obligations and commitments in Charter and human rights legislation will
help establish the importance of a right/interest (See: Suresh and Baker)
4. The legitimate expectations of the person challenging the decision as to the procedure or
outcome may result in extended PF requirements.
a. The legitimate expectations must be based on a statement/promise that is “clear,
unambiguous and unqualified”. No requirement to prove reliance. (Mavi)
b. “If a public authority has made representations about the procedure it will follow in
making a particular decision, or if it has consistently adhered to certain procedural
practices in the past in making such a decision, the scope of the duty of procedural
fairness owed to the affected person will be broader than it otherwise would have been.
Likewise, if representations with respect to a substantive result have been made to an
individual, the duty owed to him by the public authority in terms of the procedures it
must follow before making a contrary decision will be more onerous.” (Agraira)
5. The choices of procedure made by the agency itself.
5. Reasons behind procedural choices and institutional constraints are to be given
“important weight” per L’Heureux-Dube in Baker.
There will be greater willingness to accept that the duty of PF has been discharged when the
choices made are formalised into written policies and guidelines, rather than applied on an ad-hoc
basis.

De Guzman v Canada 2005 International Human Rights instruments do not prevail over
conflicting (local) provisions. The direction that the IRPA “must be construed and applied in a
manner that complies with international human rights instruments to which Canada is a
signatory” does not give priority to them. Expanding role intnl common law has given in
interpretation of domestic law. “must be construed” = instructs courts to give more than
persuasive or contextual significance. Even non-binding Ct thought should be persuasive /
contextual, and binding ones, more than that. Ct considers provision in context of entire legislative
scheme. If regulation and is held to make IRPS non-compliant, Ct then has to determine whether
the relevant enabling section of the IRPA authorizes the Governor in Council to enact a regulation
which renders IRPA non compliant with a binding Intern HR instrument to which Canada is a
signatory. Only a clear legislative intention to the contrary will warrant a conclusion that
regulation making power could be lawfully exercised in this manner.

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

Reference re Supreme Court Act ss5 & 6, 2014

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

4. FUNDAMENTAL PRINCIPLES OF CANADIAN LEGAL SYSTEM

>Constitution of Canada

>Principles Underpinning Public Law

 Rule of Law
 Constitutional Supremacy
 Parliamentary Sovereignty (s.33 Const.)
 Federalism (Ottawa v Provinces) s.91 and s.92 of Const 1867.
 Separation of Powers
 Judicial Independence (overview)

>Constitutional Amendment

Singh v Canada (AG) 2000. Canada Evidence Act. From 1970 s 41(2) of Federal Evidence Act.
No transparency or accountability!  Parliamentary Sovereignty. 20 year limit!
The appellants argued that section 39 was contrary to the common law and therefore implicitly
unconstitutional. Under current common law a judge can examine a document to see if the claim
that it was a Cabinet confidence was well-founded and if so, whether the public interest in its
disclosure would outweigh the public interest in its continuing secrecy. Legislation cannot,
however, be presumed unconstitutional simply because it alters the common law. The rationale for
such legislation is to give an absolute assurance to members of Cabinet and their advisors that the
classes of documents specified in section 39 will not even be subject to review by a judge for
confidentiality, and therefore the continued secrecy of the document is assured. The common law
was even more restrictive of disclosure until 1968 when, in Conway v. Rimmer, the House of
Lords held that the Court could examine documents which were the subject of a minister's claim
for immunity, although a majority were of the view that Cabinet documents as a class should not
be disclosed. At about this time, when the predecessor to section 39 was first enacted in Canada, it
applied the principles of Conway v. Rimmer to most documents, but provided absolute immunity
without examination by the Court for documents whose disclosure was claimed to be injurious to
international relations, national defence or security, or to federal-provincial relations or as
constituting a confidence of the Queen's Privy Council. In 1982 the absolute claim for non-
disclosure without examination by the Court was limited to confidences of the Queen's Privy
Council, which was defined for the first time and a time limit was placed on the continuation of
that status.

5. PARLIAMENT AND ITS COMPONENTS

>Monarch and Governor General

>Senate

>House of Commons

REFORMING THE SENATE OF CANADA: FAQ: Barnes et al-:

Singh v Attorney General of Quebec, 2018. Kirpans: Parliamentary privilege, principle of

constitutional law, merits beyond reach of Judiciary under separation of powers. Right to exclude
strangers.National Assembly passed resolution approving exclusion, within Freedom of expression
by Assembly and likewise beyond judicial review.

6. FUNCTIONS OF PARLIAMENT
>Summoning
>Prorogation
>Dissolution
>Key Actors
>Parliamentary Procedure and Law Making

7. EXECUTIVE AND ITS FUNCTIONS

>Functions of the Executive
>Sources of Executive Power
>Executive Institutions and the Political Executive

8. COURTS AND JUDICIARY

>Structure of Canadian Court System
>Judicial Appointments
>Judicial Independence

JUDGING SEXUAL ASSAULT TRIALS: SYSTEMIC FAILURE IN THE CASE OF REGINA V BASSAM
AL-RAWI: (Craig)

RESIGNATION OF ROBIN CAMP: BACKGROUND AND REFLECTIONS: (Woolley) Camp removed

23-4, Wagar subsequently acquitted, but judge’s remarks beyond reprehensible.

9. STATUTORY INTERPRETATION PP 436 -450 TABLES

>Approaches to Interpretation. Every province has an Interpretation Act w rules applicable to

statutes in general. Federal Act too (rules respecting corporations, offences, evidence, appointment
of civil servants, exercise of administrative powers, reports to Parl., etc each Act directs
interpreters to give “such fair, large and liberal construction and interpretation that best ensures the
attainment of its objects”. S12 Fed Act. Legislation that interferes with individual rights or
freedoms is considered “penal” and attracts a “strict” construction. Legislation that cures mischief
or confers benefits “remedial” and attracts “liberal” construction. If liberally construed, focus is on
achieving benevolent purpose of Legislation. General principles are applied as fully as their
wording permits, while exceptions and qualifications are strictly interpreted. S.12 Fed Act deems
all leg, to be remedial, and Cts less likely to invoke strict. Presumptions of legislative intent.

>Modern Approach to Interpretation

1. Approaches to Interpretation

Static: original intent legislators had in mind, “artifact of history” unresponsive to

temporal change.

Dynamic approaches are eveolutionary and responsive to changes, understand context

as elastic, so context can broaden and stretch. Inherently pluralistic in method and
scope, pragmatic practical reasoning. Includes modern “contextual and purposive”
approach.

2. Modern Approach: Purposive interpretation is used when the courts use extraneous
materials from the pre-enactment phase of legislation, including early
drafts, Hansards, committee reports, and white papers. The purposive interpretation
involves a rejection of the exclusionary rule.”
3. Sullivan on the construction of statutes: Textual Meaning (grammatical and
ordinary sense of words): legislative intent (ID Leg goals and means devised to
achieve those goals); compliance with established legal norms. “Intention of Parl =
expressed;implied;presumed; declared intention. Primary source of legal norms–
common law.
4. The Original Case: Re Rizzo and Rizzo Shoes Ltd: Iacobucci, J “ the words of an
Act are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and the
 intention of Parliament. Ont Interpretation act, “Every Act shall be deemed to be
remedial ... and shall accordingly receive such fair, large and liberal construction
and interpretation as will best ensure the attainment of the object of the Act
according to its true intent, meaning and spirit.”
5. Dynamic and Static Approaches in the Supreme Ct Act Reference
6. Modern Approach in the midst of a Sea Change in meaning? Agraira v Canada
2013.

AGRAIRA “national security” defined by Minister. H&C (Humanitarian and compassionate) Def
says overly narrow. Standard of Review: “national interest” defined by Minister is use of
discretion, entitled to deference (Alberta Teachers) = reasonable. Justifiable, Transparent and
Intelligible reasons. Made clear the process followed. Decision falls within “range of possible
acceptable outcomes which are defensible in light of the facts and the law”. Ct reviewing
reasonableness of Minister’s exercise of discretion is not entitled to engage in a new weighing
process (Suresh). M. had reviewed and considered (all factors set out in application) which were
relevant to determining what was in “the national interest” in light of his reasonable interpretation
of that term. Here, statutory interpretation by Minister of “the national interest” .The Minister’s
decision was not unfair, nor was there a failure to meet A’s legitimate expectations or to discharge
the duty of procedural fairness owed to him.
Even though the court is careful to couch its analysis in the language of reasonableness because
this is a Minister interpreting his home statute, it doesn’t seem like deference was actually paid.
The Court looked at the interpretation in light of plain meaning, legislative history, purpose of the
Act, and context.

Schnarr v Blue Mountain Resorts 2018. The issues in the case clustered around the dual
application of both the Occupiers’ Liability Act (“OLA“) and the Consumer Protection Act(“CPA“) to
agreements between skiers and ski resorts.
As an occupier of premises, ski resorts are subject to the OLA. To encourage landowners to make
their property available for recreational activities, the OLA allows for landowners to limit their
liability through waivers of liability. However, as a consumer agreement, these ski resort contracts
are also governed by the CPA. The CPA requires services supplied under a consumer agreement to
be of a reasonably acceptable quality and deems waivers purporting to limit resultant liability to be
void.
The concurrent governance of the OLA and the CPA thrust two issues before the Court of Appeal:
(1) whether the two provisions could be interpreted to find a state of harmony; and (2) if not, what
effect should be ascribed to each provision?
The Court of Appeal answered the first question by finding a conflict between the two provisions.
It rejected the argument – accepted by the trial judge – that harmony could be established by
limiting the application of each provision to a specific cause-of-action. The trial judge had held
that the OLA provision allows waivers to limit liability in tort, while the CPA provision voids
waivers attempting to limit liability under contract.
The Court of Appeal denied this attempt at harmony by noting that each statute deals with a duty
of care, not a particular cause-of-action. The provisions of each statute therefore extend across the
same range of liability, encompassing both tort and contract. The OLAallows liability to be
waived, while the CPA does not. Conflict cannot be avoided.
To answer the second question, the Court of Appeal relied upon five principles of statutory
interpretation to hold that the OLA provision – enforcing waivers of liability – prevails. The
principles of statutory interpretation urge an approach that allows both statutes to maintain their
maximum application and effectiveness. The principles affecting the analysis with respect to
which statute should take precedence include:
(i) where a class of things is modified by general wording that expands the class, the
general wording is usually restricted to things of the same type as the listed items
(ejusdem generis);
(ii) when one or more things of a class are expressly mentioned, others of the same
class are excluded (expressio unius est exclusio alterius);
(iii) the exhaustiveness doctrine;
(iv) the provisions of a general statute must yield to those of a special one (generalia
specialibus non derogant); and
(v) the absurdity doctrine.

10. CONSTRAINTS ON LEGISLATIVE AND ADMINISTRATIVE ACTION

>Judicial Review in a Democratic Society

>Judicial Review of Administrative Action. Pragmatic and Functional approach, weighs factors
regarding question of exacting review / significant searching/testing or left to near exclusive
determination of decision maker. Posture of deference v standard of correctness. Reasonableness
simpliciter/patent unreasonableness (past). Interpretation by Tribunal under its own Statute,
closely connected to its function – reasonableness (deference). Correctness only in 4: 1) Const. Q;
2) JXN lines mixed btwn competing tribunals; 3) Q of central importance to legal system as a
whole; 4) true Q of JXN or Vires.

Canada (AG) v Bri-Chem Supply 2016. Tribunal found CBSA – abuse of process by failing to
apply Tribunal’s earlier decision in Frito-Law. FCA – deference, reasonableness test. Most
Favored Nation (MFN) to NAFTA. CBSA repeatedly conflated tariff treatment with tariff
classification. Tribunal has expertise and familiarity with Customs. He explained that the principle
of stare decisis operates in a nuanced way in the administrative setting: Stratas: panels are not
bound by previous decisions, but in the interests of finality, certainty and redictability, “later
panels should not depart from the decisions of earlier panels unless there is good reason” (at
para. 44). From the point of view of a front-line administrator, the decisions of those who sit in the
higher echelons of the administrative hierarchy should generally be respected, but can be
challenged in some circumstances. For if they were obliged to accept all decisions unthinkingly, “a
serious error might persist, possibly perpetually”
In my view, an administrator can act or take a position against an earlier tribunal decision only if it
is satisfied it is acting bona fide in accordance with the terms and purposes of its legislative
mandate and only if a particular threshold has been crossed. This threshold should be shaped by
two sets of clashing principles discussed above: the principles of certainty, predictability,
finality and tribunal pre-eminence on the one hand, and, on the other, ensuring that
potentially meritorious challenges of arguably wrong decisions can go forward.
What is the threshold? In an administrative regime like the one before us, the administrator must
be able to identify and articulate with good reasons one or more specific elements in the
tribunal’s earlier decision that, in the administrator’s bona fide and informed view, is likely
wrong. The flaw must have significance based on all of the circumstances known to the
administrator, including the probable impact of the flaw on future cases and the prejudice that will
be caused to the administrator’s mandate, the parties it regulates, or both.
This is something far removed from an administrator putting essentially the same facts, the same
law and the same arguments to a tribunal on the off-chance it might decide differently. Tribunal
proceedings are not a game of roulette where a player, having lost, can just hope for better luck
and try again.
When the administrator tries to persuade the tribunal that its earlier decision should no longer be
followed, the administrator must address at least the matters discussed above, offering submissions
that are not simply a rerun. They must go further than just a modest modifying or small
supplementing of the earlier submissions. The tribunal may then decide whether its earlier
decision remains good law after considering the evidence before it, the terms and purposes of the
legislation, and any other legal standards that properly bear on its decision (at paras. 50-53).

A PLEA FOR DOCTRINAL COHERENCE AND CONSISTENCY : (Stratas) In the seminal case of
Dunsmuir, the Supreme Court instructs us to determine the standard of review in every case,
deciding between correctness review and reasonableness review.12 This is consistent with the
importance of the standard of review, explained above. Dunsmuir gave us certain presumptive
rules to assist us in determining the standard of review. It also gave us factors to consider when
determining whether the presumptive rules are rebutted.
But Dunsmuir never explained when we should resort to the factors rather than the presumptions.
Early on, by and large, the Supreme Court used the presumptions and ignored the factors. Now,
suddenly, the Supreme Court has gone to the factors, without instructing us when we should do
this.19 So what should we follow? Presumptions or factors? Legislation sometimes signals that the
standard of review should be correctness—no deference at all to the administrative decision-maker. In
some cases, the Supreme Court reads these signals and properly carries out the legislator’s intent,
reviewing the decision for correctness. But sometimes not. In cases where the legislator has enacted a
full, untrammelled right of appeal from the administrative decision-maker to the reviewing court, the
legislator is instructing the reviewing court to interfere as it would in any appeal. This means, for
example, that errors by the administrative decision-maker in interpreting legislation would be legal
errors that the reviewing court can correct. Yet, that is not the case. Even where the legislator has
granted a full right of appeal, there is a presumption that administrative interpretations of legislation
are subject to deferential reasonableness review.

More questions about legislative supremacy arise in the area of the jurisdiction of administrative
decision-makers to consider “values” inherent in the Canadian Charter of Rights and Freedoms. The
Supreme Court has held that administrative decision-makers can import “Charter values” into any
matter before them, even where the legislative provision setting out the decision-maker’s powers is
limited and even where that provision seems inconsistent with the proffered Charter values. This
conflicts with earlier holdings based on the constitutional principle of legislative supremacy to the
effect that the Charter does not add to or affect the subject-matter jurisdiction of subordinate bodies.
Doré also conflicts with the seminal Charter case of Slaight Communications Inc. v. Davidson. In
Slaight, the Supreme Court said, in accordance with the principle of legislative supremacy, that in such
cases the administrative decision-maker must follow the legislative provision and a litigant must
constitutionally challenge the provision directly, either by asking the administrative decision-maker to
disregard the provision or, where permissible, through court proceedings for a declaration of invalidity.

In Doré, the Supreme Court, disparaging Slaight, suggests there is a growing departure from “Diceyan
principles,” in other words the principle that legislation governs the scope of authority of
administrative decision-makers.32 This is contrary to the constitutional principle of legislative
supremacy, is unsupported by authority, and conflicts with many authorities, including the
foundational case of Dunsmuir.
In Dunsmuir, the Supreme Court told us that reasonableness review is to take place on the basis of the
reasons “which could be offered” in support of a decision Later, in Newfoundland Nurses, the Supreme
Court in effect doubled down on this, saying that a reviewing court operating under the reasonableness
standard should strive to uphold the outcome reached by the administrative decision-maker and “seek
to supplement [its reasons] before [seeking] to subvert them.” SUGGESTIONS: Appellate standard
of review and administrative law review distinguished.
This animating concept is a tension between two constitutional principles, both of which are deeply
rooted in our history and our democratic and constitutional arrangements:
● On one side is the constitutional principle of legislative supremacy; 73 the legislature has vested
jurisdiction over a subject-matter to an administrative decision-maker, not the courts—sometimes with
a privative clause to boot;
● On the other side is the constitutional principle that the judiciary must sometimes enforce minimum
rule of law standards—things such as rational fact-finding, procedural fairness, and (at least)
acceptable and defensible interpretations and applications of law.
Margins of appreciation and what makes them vary: the intensity of review
In Dunsmuir, among other things, the Supreme Court aptly defined reasonableness as a range of
“acceptability and defensibility. The evidentiary record, legislation and case law bearing on the
problem, judicial understandings of the rule of law and constitutional standards help to inform
acceptability and defensibility.95 As well, certain indicia, sometimes called “badges of
unreasonableness,” can help to signal that an administrative law decision might not be acceptable or
defensible. Be attentive to the need to enhance access to justice and minimize the cost of litigation.
First, the more an administrative decision-maker explains its decision and invokes expertise and
specialized understandings in explicit reasons, the more the reviewing court is likely to find the
administrative decision-maker acted within its margin of appreciation. Administrative decision-
makers must provide a proper, transparent account of themselves and their decision-making to both the
parties and the public at large. Reviewing decisions by Ministers of the Crown. But some delegates
and many Ministers in their personal capacity simply decide without expressing an actual
interpretation of the relevant legislative provision, nor signalling any implicit or explicit adoption of an
interpretation made elsewhere, such as in a policy statement. In short, just as the intensity of review
of substantive decisions should vary according to the circumstances, procedural decisions should also
be subject to the same flexible approach. The approach discussed above—arriving at a sense of what
the margin of appreciation should be in a particular case—is apposite to procedural decisions as well.
Reviewing municipal by-laws, regulations and orders in council. Public bodies that enact municipal
by-laws under municipal statutes and regulations and orders in council under a statute often do so for
policy reasons based on their appreciation of the needs of the community. 120 Thus, in accordance with
the above analysis, they often enjoy a very broad margin of appreciation in their decision-making.
Related to this is the introduction of issues in the reviewing court that were not raised before the
administrative decision-maker. Quite consistent with the above discussion, the Supreme Court has
rightly placed stringent restrictions on the introduction of new issues. Personal predilection must never
be translated into enforceable law. There is a clear line between decrees founded upon the whims of
individual lawyers who happen to hold a judicial commission and the considered pronouncements of
judges relying upon doctrine that is objective and settled.

DUNSMUIR- PLUS CA CHANGE REDUX: (Sossin) Fidelity to democracy is represented in the idea
that where the legislature, representing the will of the majority, has authorized administrative
decision-makers to make important decisions based on their expertise and particular role in
advancing policy objectives of legislation, courts should defer to that legislative choice, and hence
to the decisions of these decision-makers. This deference is particularly important where the
legislature has expressly provided for it in a privative clause.
Fidelity to the rule of the law requires intervention by independent courts in the actions of the
executive branch to safeguard the boundaries of legitimate statutory authority for executive action
– for example, by ensuring decision-makers do not stray from the jurisdiction provided to them by
their empowering statutes, or otherwise engage in unreasonable exercises or abuses of that
statutory authority. In almost all cases, these twin pillars mandate that courts defer to some extent
when executive action is challenged, but can never defer completely. The logic of including the
impact on the party and the context of the decision-maker in the analytic framework for
procedural fairness is that the accountability of executive action under administrative law in a
constitutional democracy is best understood as holistic. New Zealand “Whether a reviewing Court
considers a decision reasonable and therefore lawful, or unreasonable and therefore unlawful and
invalid, depends on the nature of the decision: upon who made it; by what process; what the
decision involves (ie its subject matter and the level of policy content in it) and the importance of
the decision to those affected by it, in terms of its potential impact upon, or consequences for,
them.”
The final argument for focusing on who makes decisions and who is affected by them in the
standard of review analysis is transparency. While the Dunsmuir Standard of Review analysis
glosses over these lived realities of administrative decision-making, it is clear that in the realities
of judicial review, facts actually do matter. I should add that facts matter in ways that are not one-
dimensional. Vulnerability will sometimes militate for additional deference; while in other
contexts, this factor will justify intervention. My point is not that facts matter to the
determination of the standard of review in the same way in every case, but rather that, in every
case, facts matter. Without the ability to talk about how those facts might legitimately affect the
rationale for deference, courts will simply bend existing doctrines to fit the necessities and equities
of particular cases. In my view, recognizing the complexity of de facto considerations in a more
authentic de jure doctrinal analysis would be a good thing for the administration of justice and
ultimately enhance public confidence in the justice system.

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

REASONABLNESS

1. Questions of fact, discretion and policy as well as questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of reasonableness
2. Reasonableness is concerned mostly with the existence of justification transparency and
intelligibility within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law

CORRECTNESS:

3. Constitutional questions regarding the division of powers between Parliament and the
provinces
4. determinations of true questions of jurisdiction or vires
5. the question at issue is one of general law "that is both of central importance to the legal
system as a whole and outside the adjudicator’s specialized area of expertise"
6. questions regarding the jurisdictional lines between two or more competing specialized
tribunals

Beyond those categories, context would determine when correctness would be applied, and
expertise would play a key role in those determinations.

DUTY TO CONSULT:
DEFERENCE AND LEGAL FRAMEWORKS NOT DESIGNED BY, FOR OR WITH US: (Metallic ) The
overall purpose of administrative law is to “assure the proper functioning of the machinery of
government” (Martineau v Matsqui Institution) and hold government actors accountable to the
“rule of law, … fundamental values of Canadian society, and the principles of the Charter”
(Baker). Consequently, administrative law holds out a lot of promise for assisting Indigenous
peoples in resolving disputes with public decision-makers. These legal frameworks almost
inevitably tend to be skewed to the interests and goals of settler Canadians over those of
Indigenous peoples. Although prepared to and that development of the Jumbo Valley ski resort
would drive out the Grizzly Bear Spirit from Qat’muk and infringe Ktunaxa Nation’s s. 2(a) rights,
Moldaver J.’s application of the Doré/Loyola justification test reveals that a fair balancing for
Indigenous people is difficult where legal frameworks vests all lands and control in the province.
The relevant statutory objectives, supplied by British Columbia’s Land Act and the Ministry of
Lands, Parks and Housing Act, were identified as the duties to administer and dispose of Crown
lands in the public interest, as well as to encourage outdoor recreation. There is nothing in these
laws calling on the Minister to consider or attempt to reconcile Indigenous groups’ title or
Aboriginal rights claims in performing his duties under these acts. Thus, when it came to
determining whether the Minister acted reasonably in approving the ski development on Jumbo
Mountain, it is not surprising that the judge agreed that accommodating the Ktunaxa’s religious
rights and protecting the mountain from development would undermine the Minister’s statutory
objectives of administering Crown land and disposing of it in the public interest. The federal
government announced the creation of a Working Group of Ministers on the Reviews of Laws and
Policies Related to Indigenous Peoples in February 2017. Similar processes need to happen within
the provincial and territorial governments. Until there is such reform, administrative law’s call for
deference to existing frameworks need to be questioned as to whether they unfairly advantage
settler-Canadian interests above those of Indigenous people. This should not necessarily preclude
a finding that a decision-maker may be owed deference; only that we should not accord blanket
deference by presuming the decision-maker is an expert simply because she is interpreting her
home statute or, on the other hand, because of the presence of discretion or policy decisions
existing in the absence of statutory provisions.
Other potential interim solutions could be amendments to federal, provincial and territorial
Interpretation acts to explicitly read in a requirement that all decisions-makers carrying out their
functions under legislation must balance their statutory duties with the requirement to achieve
reconciliation with Indigenous peoples. Theses amendments should also provide a definition
of ‘reconciliation’ and this should be consistent with how the term is defined by the TRC as
“establishing and maintaining a mutually respectful relationship between Aboriginal and
non-Aboriginal peoples in this country” (at 7-8). Such directives in legislation would make it
beyond debate that decision-makers are required to consider Indigenous interests any time such
interests are affected by administrative action.

Martin provides a clear statement of the current law: "Administrative tribunals which have
jurisdiction -- whether explicit or implied -- to decide questions of law arising under a legislative
provision are presumed to have concomitant jurisdiction to decide the constitutional validity of
that provision." Moreover, administrative bodies with such authority which do not apply the
Charter, or do not apply it properly, now open their decisions to determinations of reviewable
error.

Loyola:
Under Doré, (this substantive review, deference = reasonableness) where a discretionary
administrative decision engages the protections enumerated in the Charter -- both the Charter's
guarantees and the foundational values they reflect -- the discretionary decision-maker is required
to proportionately balance the Charter protections to ensure that they are limited no more than is
necessary given the applicable statutory objectives that she or he is obliged to pursue.

(1) it must first consider what are the statutory objectives at play; (2) it must
then ask how the Charter value or values at issue will best be protected in
view of the statutory objectives (this is at the core of the proportionality
exercise, and requires the administrative body to balance the severity of
the interference of the Charter protection with the statutory objectives);
and (3) in the Charter balancing exercise, the proportionality test will be
satisfied if the measure selected by the administrative body "falls within a
range of reasonable alternatives".
IF REASONABLENESS (deference) reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.

Duty to give reasons: Generally the duty is a procedural right that can be easily discharged, but
under s.7 where the Baker framework is applied, it may amount to a substantive duty to give
adequate reasons that are “responsive” and demonstrate the decision-maker’s reasoning (Suresh).