Public Law NotesPart I: Setting the StageChapter Two: Nature, Divisions, and Sources of Law

The aim of this chapter is to show the competing approaches to understanding the nature of law and its relationship to social and political factors that affect juidicial decision making.

Legal systems are built around ideas that are historically and culturally specific

A)Legal Theory in Relation to Public Law

1) Positivism and Natural Law: Legal positivism reflects the belief that the law is nothing more than the rules and principles that actually govern or regulate a society. There is a separation between law and morality- it focuses on explaining law without reference to justness or legitimacy. Natural law is not all the rules and principles that govern us, but only those that adhere to certain moral truths.

Ex. Of a Natural law Case: Drummond Wren (1945) HC This concerns the Workers Education Association’s desire to buy land, build a

house and raffle it off, but the land of interest is restricted by a covenant pronouncing that it was “not to be sold to Jews or persons of objectionable nationality.” WEA applied to get rid of this covenant on the grounds that it was racially restrictive and against public policy, and it contravened the provisions of the racial discrimination act designed to combat the “Whites only,” “no jews allowed” signs.

Mackay J: Applicant bases argument on legal principle that “any agreement which tends to be injurious to the public against the public good is void as being contrary to public policy.” This covenant if allowed could potentially affect more people and more groups. This will create and deepen divisions between existing religious and ethnic groups. This policy is unlikely to be a legislation measure as evident from the contrary intention of the enactment of the racial discrimination act.

There is a moral duty to at least lend aid to all forces of cohesion and repel all tendencies that would imperil national unity.

The covenant is void because it is offensive to the public policy of this jurisdiction. This is reinforced further by the wide official acceptance of international policies and declarations frowning on the type of discrimination in the covenant. His opinion doesn’t depend on the terms of the racial discrimination act.

Ex. Of Positive Law Case: Re Noble and Wolf (1948) HC There is a covenant on cottage lots not to be sold, or transferred to any persons of

“Jewish, Hebrew, Semitic, Negro or colored race or blood.” Relying on Drummond Wren, an interested purchaser applied to have covenant rendered invalid. The “Defendants” argue the community would lost its cottage value if there is a change to its character and the congenial summer community among its members.

Shroeder J: He disagrees with Mackay on the following reasons: In Drummond Wren, the issue was not a summer colony but a residential subdivision where residents sought shelter rather than recreation.

Public policy is an ambiguous issue that should be left for the state to decide what is best for public policy, not the lawyer. We’re not authorized to establish as law everything which we may think for the public good and prohibit everything which we think otherwise.

Mackay arbitrarily extended the rules because there is no public policy in Ontario that prohibits the use of and renders void any covenant like the one under review. There are no established principles of law or any principles recognized in the courts or by the state as part of our public law which enables me to conclude the covenant under review should be struck down as offending against the public policy of the law.

Covenant is said to be valid and enforceable.

Appeal: SCC struck down covenant on technical grounds, no discussion on public policy implications of restrictive covenants. But the legislatures in later years acted to correct the deficiency that some judges didn’t want to correct.

2) Feminist Perspectives on Law: Early feminist movements in law centered on gaining the voting rights for women and reform for marriage laws, Then they started attacks on discriminatory employment practices and criminal laws.

Early on, feminist sought formal equality with men, this required examination the law to determine if there was any express bias against women. The goal was to get neutral laws ex. Suffrage movement.

Despite political advancements, women were barred from the senate. They relied on section 24 of BNA act which stated that only “qualified persons” were eligible for the senate. The SCC found that “qualified persons” didn’t include women. Appeal was launched to the Judicial committee of the privy council.

Edwards v. AG Canada (1930) PC Do the words “qualified persons” include a woman, and consequently are women

eligible to be summoned and become members of the Senate of Canada? To determine the meaning of a particular word in a particular act, two points must

be considered: 1) The external evidence derived from extraneous circumstances like previous legislation and decided cases. 2) The internal evidence derived from the act itself.

Based on the first point of consideration: the exclusion of women from public office is a relic. The necessity of the times often forced on man, are customs which in later years were not necessary. The word “person” is ambiguous- the word itself includes both sexes but back then it could not include females b/c females weren’t allowed to serve in public office. It is not right to apply such standards to Canada today.

Based on the second point of consideration: The BNA act is a living tree capable of growth and expansion within its natural limits. The Privy Council said the law

must treat provisions of the BNA by the same methods of construction and exposition that apply to other statutes.

If parliament wanted to limit the world “person” to males, they would’ve expressed this intention as they did in S.4 and 84. They don’t say must be “male” to qualify for senate.

Summary of decisions: 1) object of act was to give Canada a constitution. 2) “Person” is ambiguous and includes members of both sexes. 3) there are sections in the Act which show the word “person” must include females. 4) In some sections the word “male persons” is expressly used. 5) “Persons” doesn’t include males and females, women are eligible to be summoned and become senators.

Contemporary Feminists: We now have various forms of feminists now ranging from a liberal to radical perspectives. Implicit in many of feminism’s central themes is that women, given the ability to reconstruct society could do better.

R v. Morgentaler (1988) SCR Facts : 3 doctors charged with the offense of procuring a miscarriage contrary

to s. 251 (1) of the Criminal Code. Acquitted at trial, at appeal from the crown, a new trial was ordered. The accused appealed to SCC arguing that section 251 of the CC was unconstitutional on the basis that it offended the guarantee to life, liberty and security of the person in section 7 of the charter.

Wilson J : Question before the court is whether pregnant women can as a constitutional matter be compelled by law to carry the fetus to term.

Wilson says we must first look at whether the procedural requirements for obtaining or performing an abortion are constitutional. Doe S. 251 of the CC which limits the pregnant woman’s access to abortion violate her right to life, liberty, and security of the person within the meaning of S. 7? Charter founded on the idea of human dignity, and one aspect of this is the right to make fundamental personal decisions without interference from the state- this is a critical component of the right to liberty.

Wilson believes (from a previous ruling she cites) the framers of the constitution in guaranteeing “liberty” as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his own potential to the full, plan his own life to suit his own character and make own choices. So the decision of a woman to terminate pregnancy falls within this class of protected decision.

This decision has a tremendous impact on a woman’s life. Men can’t imagine this b/c they can’t be pregnant. The right to produce or not is a right and is properly perceived as an integral part of modern women’s struggle to assert dignity and worth as a human being. S.251 violates this right. Allowing a committee to make that decision is a great violation of women’s right to personal autonomy in decisions of an intimate and private nature.

S. 251 also violates her right to security of the person, not just liberty- b/c her capacity to reproduce is subject to the control of the state- interfering with her personal autonomy in decision-making.

3. Law and Economics Law and economics theories look at law as grounded less in moral theory and

more in ideas about efficiency. The traditional approach applies economic methodology to legal rules in order to assess whether the rules will result in outcomes that are efficient. Efficiency- an ideal where the welfare of each of the relevant parties can’t be maximized except at the expense of other parties.

The economic theory of regulation or public choice theory applies basic economic theory to understand public policy. This theory seeks to understand why some government programs seem to run counter to the public good, or don’t maximize the public good- policy makers are assumed to act in order to maximize political support.

Duncan Estate v. Baddeley (1997) Alta CA Issue is whether a claim in tort for the loss of future earnings survive the death of

the victim and if it does, how to calculate such a claim. Judge sats: I disagree with Trial judge who: dismissed claim, said it didn’t survive the death of Duncan, and said that any claims should be limited to a calculation of what Duncan would’ve left to his heirs at the end of his normal life span.

CA judge: Looks at S.2 of survival of actions act- which states that personal cause of action survives the death of the victim. S. 5 limits the rule to “only damages that resulted in actual financial loss to the deceased or his estate.

The question here is Does the loss of the capacity to earn income create an “actual [here and now] financial loss?”

The logic in the statutory denial of such an ward in a case where the victim cannot enjoy the consolation is about awards for non-pecuniary loss. Some argue that because the award won’t go to the victim, it shouldn’t be made; they’re troubled that the award will be a “windfall” to the estate. Judge says the test for the validity of the award is whether the fruits of the suit shall go to the personal account of the victim; it souldn’t matter whether the claim for Duncan is for the loss of his ability to earn or the loss of his car. This issue becomes not whether the idea of compensation has been offended but whether the loss of the ability to earn is pecuniary.

Judge states not awarding compensation for loss of future earnings would not be fair b/c a rich man can invest in property for ex that goes to his estate if he dies, while a “working man” must rely on his ability to earn.

The judge looks at the intent of the legislation and concluded that there was no actual intention on the part of the commissioners to employ the words under review to remove claims for future loss of earnings. Judge says the purpose of S. 6 is to extinguish claims for loss of enjoyment of life not claims for the loss of ability to earn.

Decision: claim of Duncan survived his death.

Bhadauria v. Board of Governors of Senecc College (1979) CA The Appellant is a well-qualified woman who claims she was denied employment

at Seneca due to discrimination. Appellant issued a writ claiming damages for discrimination and for breach under S.4 of the OHRC.

She alleges that deprivation of the opportunity to join the respondent’s teaching staff and to earn her livelihood as a teacher and she has suffered mental distress, frustration and loss of dignity and self esteem.

The issue: whether or not the discrimination claim of the appellant could give rise to a civil cause of action.

The Appellant makes two causes of action based on the same set of facts: 1) the respondent was in breach of its common law duty not to discriminate. 2) Raises the question of whether a violation of s. 4 of the OHRC gives rise to a civil cause of action.

Common law claim: Mackay J: they give rise to a cause of action at the common law.

OHRC claim: the code doesn’t impede the appropriate development of the common law. It is not necessary that a cause of action exists at common law to determine whether or not the code gives rise to a civil cause of action. Appeal is allowed.

Bhaduaria SCC Issue: Whether the court should affirm the recognition by the Ontario Court of

Appeals of a new intentional tort. The tort was recognized to protect a plaintiff against unjustified invasion of his or her interest not to be discriminated against in respect of a prospect of employment on grounds of race or national origin.

Laskin: the attempt of the respondent to hold the judgment in her favor on the ground that a right of action springs directly from a breach of the OHRC cannot succeed.

The Code forecloses any civil action based upon a breach thereof but It also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondents did not see fit to use.

Appeal allowed.

B. Canadian Legal Inheritancesa) Law from History, Custom, and Tradition- Our current legal system depends on the common law and a series of British imperial statutes. However, later on aboriginal interests and concepts have emerged as a source law in Canada. 1) Law and Aboriginal Peoples:

Some early Canadian cases did not erase aboriginal legal systems, but this did not prevail and being the original inhabitants of Canada has not conferred upon aboriginal peoples a legal status sufficient to protect their cultural, political, and economic rights.

BNA Act (1867)- the feds had the power over the natives in order to “protect” them. By 1982, with the patriation of the constitution, aboriginal rights were constitutionally entrenches in S. 35-> this restored some aboriginal interests in Canadian law even though they’re still disadvantaged relative to other Canadians.

Mitchell v. Canada (Minister of National Revenue) 2001 Upon the colonization of North America, the Crown asserted sovereignty over the

land and ownership of its underlying title. With this assertion arose an obligation to treat aboriginals fairly and to protect them from exploitation- fiduciary.

European settlement didn’t terminate the interests of aboriginals, their interests and customary laws were presumed to survive this assertion of sovereignty and were absorbed into the common law as rights unless: 1) They were incompatible with the crown’s assertion of sovereignty 2) they were surrendered voluntary from the treaty process. 3) the government extinguished them. So really, their rights were dependent on the good will of the sovereign, but this changed in 1982 when s. 35(1) elevated existing common law aboriginal rights to constitutional status and extended beyond aboriginal rights recognition at common law. 35(1) could not be unilaterally abrogated by the government- but the government retained jurisdiction to limit rights for unjustifiable reasons, in the pursuit of substantial and compelling public objectives.

Delgamuukw v. British Columbia (1997) Issue : what is the nature and scope of the constitutional protection afforded by s.

35(1) to common law aboriginal title? Facts : aboriginal tribes claimed aboriginal title (an intent in land that arises by

virtue of an aboriginal group’s historic association with those lands) in BC. BC counterclaimed for a declaration that the appellants have no right or interest in territory OR the appellants’ cause of action ought to be for compensation from the government of Canada.

So what is the content of the aboriginal title, how is it protected by S. 35 (1), and what is required for its proof?

Content: 1) Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes; which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures. 2) That those protected uses must be irreconcilable with the nature of the group’s attachment to the land.

Aboriginal title under 35 (1): protection flows from the express language of the section. On a plain reading, the section didn’t create aboriginal rights but accorded constitutional status to those rights which were “existing” in 1982. Constitutionalized rights aboriginals possessed at common law since those rights existed at the time s. 35(1) came into force.

Requirements for proof: test- to make a claim for aboriginal title, must satisfy the following: 1) Land must’ve been occupied before sovereignty. 2) Has to be continuity between present and pre-sovereignty occupation. 3) At sovereignty, that occupation must’ve been exclusive.

2) Canada’s Common and Civil law traditions Reception of European law: Canadian law remains a largely European

inheritance. Canada’s dominant common law traditions were received from their

European origins through concepts of “reception.” The law in force depended on whether the colonies were settled and conquered or were ceded by the aboriginals. If ceded, the aboriginals pre-existing laws were left in force but subject to modification or replacement by the Crown or parliament when necessary to operate government. Settlement: legal vacuum existed that must be filled: some form of law was needed to govern the colonies. It was a mixture of common and statutory laws.

Cooper v. Stuart (1889) PC –general overview of how British colonies adopted English law.

Lord Watson: in introducing English law to colonies, there is a difference between a colony that is conquered or ceded-> established system of law and between a colony that was practically unoccupied without inhabitants or law when it was annexed by the Brits.

Colony of South Wales belongs to the latter category. Until the Crown, Parliament or legislature of that colony (when it has one) declare what parts of common and statute law of England shall have effect within its limits, the law of England must become from the outset of the law of the colony and be administered by its tribunals. Law of England must prevail until it is abrogated or modified either by ordinance or statue. As the colony develops, its legislature begins to remodel its laws.

In New south wales- no land or tenure existing in the colony at the time of its annexation to the crown, therefore, the colonial land became the subject of settlement and commerce governed by English law.

------------------------------------------------------------------------------------------------------------ The case discussion here suggests the rules of reception varied between

conquered and “settled” colonies. The problem of determining which of these rules of reception would apply was compounded by 2 facts: 1) aboriginal peoples were already present so true “settlement” wouldn’t apply. 2) France had an interest in North America and claimed much of its territory, the English conquered this territory in 1759 and France ceded it to Britain in the Treaty of Paris 1763. So, rule of conquest was applied to central Canada and the rule of settlement everywhere else.

The rules of reception dictated that the entire body of English law, both statutory and common was imported into the settled colony. Local exceptions and variances were allowed where the received laws would be unsuitable to the circumstances of the colony.

In the case of statute law, the date of reception was important because it was used to determine which English statutory law applied: all statutes passed prior to such date were automatically “received” and remained in force. Those passed after didn’t apply unless expressly intended to apply. Even a statue that was repealed in England after the reception date would still be in force in the colonies unless it was clearly intended to be repealed in a colony.

In Canada, the dates of reception are not clearly demarked, the courts beame the arbiters of settlement dates and determined the date of statutory reception to be the date of the institution of a local legislature in a colony.

Common law decisions operated retrospectively and applied to all colonies equally. Once a decision was made by the PC or HL on a common law principle, all common law jurisdictions at least in the formative years would accept that decision as binding.

Nature of the Common and Civil Law : Common law is judge made law, developed through the common law courts. Two fundamental ideas permeate common law theory: 1) judges do not make the law but merely declare it 2) all relevant past decisions are considered as evidence of the law and judges infer from these precedents what is the true law in a given instance.

In 18th century view, the common law was perceived as a set of fixed rules, unearthed by judges from cases through deductive legal reasoning, analogy and application of precedent. Contemporary understanding has changed but some of the simplicity of it has remained. Although common law jurisdictions no longer rely exclusively on case law, statutory sources of law are ubiquitous in all provinces- it is largely true that cases remain a key source of law, while statues are seen as incursions into the common law.

Civil law: established laws generally written as broad legal principles. It includes doctrinal writings and interpretations written by learned scholars. They rely on civil codes, and have different methodological approaches than common law. Legislation is seen as the primary source of law, judgments normally rely on the provisions of codes and statues from which solutions in particular cases are derived. Judicial reasoning is based extensively on the general principle of the rule or code. On the other hand, common law methodology employ analogical reasoning from statutory provisions to fill gaps.

Canada has a mixed-law jurisdiction (bijuralism). British common law is the basis of private law in all provinces except Quebec. Quebec’s private derives from its civil code, its provincial statutes, and from federal private law.

The Civil Code of Quebec reflects the bijural nature of Canada’s legal systems: it relies on civil law jurisdictions such as France and Germany to preserve its civilian integrity, but marries that with common law rules to endure better harmonization with the rest of Canada and the US. Ex. Quebec’s legislative, judicial, executive and administrative institutions and processes belong to the English tradition, while the content of many of its private laws are civilian based.

The Operation of Common law and precedent: How does the common law work in practice? Common law makes adherence to legal principles established on past cases a foundational principle that inevitably leads to a more or less stable and certain legal structure. Reliance on past cases- stare decisis-formal term to describe how common law relies on precedent.

In common law systems, precedents are usually made up of principles from previous cases; the principles however may arise from the interpretation of a statute or constitutional provision, or through the common law reasoning employed by a previous judge or judges.

Precedent helps in categorization, it serves a variety of purpose: it aids in the stability and coherence of the law, making it more predictable, it provides fairness

in decision making, it promotes efficiency and eliminates sources of error, such as judicial bias; and it fulfills a symbolic role by recognizing the relationship between courts and the legislature.

Not everything the judge says is binding, what is binding is the “decision” and even this is an ambiguous concept. The actual facts of the case never arise in an identical form, a general rule is given to explain the particular result of a case- the ratio deciendi- this is the binding rule for purposes of precedent. The ratio is only as wide as a subsequent court will concede it to be. Sometimes a judge will find herself unable to distinguish a former case on any rationally acceptable ground.

Every case has to be looked at from two points of view: 1) that of the narrowest rule that a subsequent unkind court will concede has been laid down. 2) the widest rule that a later friendly court could use to support a more novel position.

Canada Trust Co. v. Ontario Human Rights Commission (1990) CA- In this case the Tarnopolsky takes a much narrower reading of Bhaduaria- “distinguishing” that case and contrasting it to its facts- in order to allow the claim for discrimination in the context of a trust claim.

Concern of this case is with whether the terms of a scholarship trust established in 1923 are contrary to public policy. If they are, then can the cypress doctrine be applied to preserve the trust. The terms of the trust restricted the scholarship funds to white Christians of British Nationality or British parentage.

Did the judge (McKewon) have the jurisdiction to determine this matter or should he have deferred to the jurisdiction of the Ontario Human Rights Commission? Ontario Human Rights Commission submitted that the judge should have deferred to the Commission to exercise its jurisdiction under the Human Rights Code.

Jurisdication- human rights commission or court? Tarnopolsky: yes it was under the courts jurisdiction for the following reasons: 2) the state of law dealt with and by this court and the SCC in Bhaduaria court attempted to advance the common law in filling a void by creating a new tort of discrimination. The SCC held that it wasn’t necessary b/c of the comprehensive scheme of the OHRC. Here, we are concerned with the administration of a trust over which superior courts have had jurisdiction for centuries esp. with respect to charitable or public trusts. Seconldy, we’re concerned with a typical proceeding under the OHRC, where an allegation against respondent is brought against a respondent. The Commission’s first mandate is to effect a settlement, a settlement in this case is not applicable. Finally, the fact finding role of the commission and a brad of inquiry is not required.

Tarnopolsky invoked the cy-pres doctrine to bring the trust into accord with public policy by removing all offensive restrictions, thus permitting it to remain a scholarship.

Common Law and Equity: “common law” has a variety of other “internal” meanings according to context. Ex. Common law must sometimes be distinguished from the body of law produced from the chancery court-known as equity. Equity is defined as the body of law developed by the Court of Chancery

before the court was dismantled. Courts of Chancery were originally separate from the common law courts. Its function was to provide a corrective to the perceived harshness of the common law. The equitable jurisdiction was a conscience based system of law, profoundly anti-formal and anti-establishment. Cases were decided according to the rules of equity and good conscience; there was no abstract, formal methodology and no strict doctrine of precedent.

Law as a body of rules and principles is by its nature concerned with generalities- groups or classes of persons and events, rather than individuals and discrete happenings. Because of this, law sometimes fails to achieve adequate justice in the particular case. Equity is a supplementary system that allows for the exigencies of the special case. In its idea form, its principles are more clearly tied to considerations of conscience, morality and the conduct of particular persons than those of the law.

In Canada, equity has provided some of the more progressive decisions in the area of private law in disputes relating to property, contracts, procedure, guardianship and commercial matters.

In 1873, the administration of the equitable and common law system was fused through the adoption of the judicature acts. Since then, equitable principles have continued to develop alongside common law principles: the rules of common law and equity are now applied concurrently in all superior courts with equity prevailing in cases of conflict.

The modern view of the equitable jurisdiction is that of a body of rules, principles maxims, and doctrines that originated in the Court of Chancery but that has continued to evolve and develop since its abolition. Now it is part of our law.

Re DeLaurier (1934) –example of a case in which the equitable doctrine of fiduciary was invoked to protect the religious upbringing of a child.

Case of parents whose child had been under the care of the respondent for 10 years. The biological parents and the respondents are of a different denomination.

Hughes: The parents relied on S. 24 of Infants act- nothing in this act shall change the law as to the authority of the father in respect of the religious faith in which his child is to be educated.

Under S. 21 of the judicature act- paraphrase, when common law and rules of equity are at conflict with reference to the same matter, the rules of equity shall prevail.

In equity a principle was early established that the court might control or ignore the parental right but in so doing it should act cautiously, and should act in opposition to the parent only when judicially satisfied that the welfare of the child required that the parental right should be suspended or superseded.

The orders of dismissal were in the nature of discretionary orders. Appeal should be dismissed.

Crocket: Kid has been out of touch with her parents. The authority in S. 24 that appellants are relying on is wide under common law, but now must be measured by the rules of equity. If the general welfare of the child requires that the father’s rights in respect of the religious faith in which his offspring is to be reared, should be suspended or superseded, the courts in the exercise of their equitable

jurisdiction have undoubted power to override them, as they have power to override all other parental rights.

Guerin v. Canada (1984) - the equitable fiduciary obligation applying to the public realm. Here, the Crown may be under a fiduciary obligation to particular individuals or groups.

Issue : whether the appellants, chiefs of Musqueam Indian band representing other members are entitled to recover damages from the federal crown in respect of the leasing to a golf club of land on the Musqueam Indian Reserve.

Judge says, the crown has an equitable obligation, enforceable by the courts to deal with the land for the benefit of the Indians. This is a fiduciary duty. If Crown breaches this duty, it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect.

Add more- if necessary pg. 66-68

b) International LawLaw Commission of Canada, Crossing Borders: Law in a Globalized World

Two different species of law exist: international and domestic. Domestic: Domestic law exists as legislation enacted by the legislatures or made

as regulations by the executives. Domestic law also comes in the form of the common law. At the pinnacle of domestic law is constitutional law- written and unwritten. Written is entrenched legislation incapable of amendment without special procedures, and given pre-eminence over conflicting statutory law. Unwritten is the product of judicial decision-making.

International: two significant sources of international law are treaties and “customary international law.” Treaties are law-making contracts between states, they affect a state’s foreign policy without necessitating changes to domestic law. Others require states to change their internal policies, practices and often laws in order to meet obligations set out in the treaty.

Chapter Three: Recurring Constitutional Themes in Canadian Public Law Public law concerns the relationship between the state and civil society. The state

holds all authoritative power and may impose its dictates on persons without their consent. But it can’t do that arbitrarily and to be legitimate, it has to do it lawfully. To see if the state is acting within the law to see if it adheres to the rule of law, one must look at the constitution.

The Constitution establishes the foundational law through which this “rule of law” can occur. It does this in two ways: first, it establishes as a matter of law who can make the “ordinary law” of the land and also spells out any limits on the content of this ordinary law- this is called a “rule of recognition”- a constitution allows us to recognize ordinary law and determine whether it is proper. Second, a constitution establishes the respective relationships between the institutions or branches of the state that perform the functions necessary to “operationalize” law in society. For ex. Under our constitutional system, the role of the legislature is to make law, the role of the judiciary is to interpret the law, and the role of the executive is to implement the law.

Principles derived from Canada’s constitutional history and structure that help to explain the shape and operation of public law in Canada: 6 of these principles appear in this chapter:

1) Rule of law: all exercise of legitimate public power must have a source in law, and every state official or agency is subject to constraint of the law.

2) Constitutional supremacy: the constitution is the supreme law of the society, and any ordinary law that is inconsistent with the constitution is of no force of effect.

3) Parliamentary supremacy: subject to the constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and delegate any of its power as it deems fit.

4) Statutory authority: the executive branch of the state derives all its authority to act from statutory grants of power from the legislative branch, save and except for certain powers derived from “royal prerogative” and constitutional convention.

5) Judicial independence: the judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional law functions.

I. Constitutionalism in Canada- this section addressed the nature of Canada’s constitution and the principles of “constitutional supremacy” and the “rule o law.”

A) The Principle of the Rule of Law Rule of law all exercise of legitimate public power must have a source in

law and every state official or agency is subject to constraint of the law. How is the law the governing principle in society when that law is made

by human beings, and must respond to their democratically expressed wishes to change it? Canada resolved the dilemma by placing a supreme constitution overtop of “ordinary” law and state functions. The constitutions serves as “a law to make law”- the ground rules for law making and governance.

Therefore, constitutionalism principle is similar to the rule o law. Constitutionalism- the constitution of Canada is the supreme law of Canada and any law that is inconsistent with its provisions is of no force or effect. So all gov’t action has to comply with the constitution.

The rule of law principle requires that all government action must comply with the law including the constitution.

Roncarelli v. Duplessis (1959) Duplessis- AG and PM of province, took away Roncarelli’s restaurant liquor

license forever b/c he bailed out Jehova witnesses. The director of the province’s liquor commission, acting under the express direction of Premier Duplessis revoked the license of a Montreal restaurant owner b/c he posted bail for several Jehova witnesses. The director purported to be acting under the commission’s unqualified statutory power to cancel permits at “its discretion.”

Issue: when the de facto power of the executive over its appointees at will to such a statutory public function is exercised deliberately and intentionally to destroy the vital business interests of a citizen, is there legal redress by him against the person so acting?

A decision to call or cancel such a privilege lies within the “discretion” of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration. No such thing as absolute “discretion”- the action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative act an without express language be taken to mean an unlimited arbitrary power exercisable for any purpose. “Discretion” implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate.

To deny or revoke a permit b/c a citizen exercises a right, is irrelevant to the sale of liquor. The respondent breached an implied public statutory duty toward the appellant it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the province.

B.) What comprises the constitution of Canada?

Canada’s written constitution: the Constitution Act 1867, and the Constitution Act 1982. The 1867 one’s main achievement is federalism: the division of legislative powers between parliament and the legislatures of the provinces. 1982 act- guarantees a set of individual and minority rights. 1982 provides an express definition of the constitution and its legal status in S. 52(1) and (2)- it is the supreme law of Canada, any law that is inconsistent with it is of no force or effect. It includes, the Canada Act 1982, acts and orders referred to in the schedule, and any amendment to any act referred to in paragraph (a) or (b).

In Secession reference the SCC confirmed that the constitution also contains unwritten principles. Court describes unwritten constitutional principles as being part of the structure or “architecture” of the constitution. The court describes

unwritten principles as having the force of law and imposing substantive limits on the power of the government.

Reference re Secession of Quebec (1998)- SCC expanded judicial authority in the constitutional sphere, but stated that unwritten principles do not override written text, their role is to fill the gaps in the text.

The constitution embraces “unwritten” as well written rules. There are four fundamental and organizing principles of the constitution which are relevant to addressing the question before us: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. These principles inform and sustain the constitutional text, they are vital unstated assumptions upon which the text is based. These defining principles can’t be defined in isolation from the others, and not one principle trumps another. The individual elements of the constitution are linked to the others, and must be interpreted by reference to the structure of the constitution as a whole. The principles dictate major elements of the architecture of the constitution itself and are as such its lifeblood.

The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of political institutions. The court insists on the primacy of the written constitution, because it promotes legal certainty and predictability and it provides a foundation for the exercise of constitutional judicial review. Underlying principles may sometimes give rise to substantive legal obligations which constitute substantive limitations upon government actions.

Notes by authors- The SCC’s discussion of the principles in this case raises the possibility of making arguments that each of these principles, and any other that might later come to be recognized has a substantive content that directs and limits state action.

British Columbia v. Imperial Tobacco Canada Ltd (2005) BC enacted the Tobacco damages and health care costs recovery act in 2000,

creating a civil cause of action for the BC govt against tobacco manufacturers for health care costs incurred by govt for tobacco related illnesses. They made claims for health care expenses.

McLachin stated the issue: is the tobacco damages and health care costs recovery act constitutionally invalid, in whole or in part, as offending the rule of law?

The appellants were sued by BC pursuant to the act, challenge its constitutional validity on the basis that 1) it violates territorial limits on provincial legislative jurisdiction 3) it violates the principle of judicial independence 3) it violates the principle of the rule of law.

Analysis: court described the rule o law as embracing 3 principles: 1) the law is supreme over govt officials and private individuals, so it precludes the influence of arbitrary power. 2) requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order-means legislation must exist (means- legislation must exist) 3)requires that the relationship between the state and the individual be regulated

by law- state officials’ legal action must be legally founded (requires state officials action to be legally founded).

It is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the act based on its content because none of the principles that the rule of law embraces speak directly to the terms of legislation.

The appellants conception of the rule of law, they say the rule of law requires the legislation to: 1) be prospective- the BC legislation didn’t just apply going forward, it also applied prior costs incurred by healthcare system before the date of enactment of this legislation 2) be general in character- legislation targeted tobacco companies, specific segment of BC society 3) not confer special privileges on the government except where necessary for effective governance- legislation shouldn’t privilege the gov’t in any way 4) ensure a fair civil trial. Argue the act breaches each of these requirements rendering it invalid. There should be a fair civil trial and changing evidentiary criteria is contrary to the rule of law b/c it doesn’t allow for a fair trial.

Crt says that a jurisprudence review reveals that none of these requirements enjoy constitutional protection in Canada, and acknowledging the constitutional force of anything resembling the appellants’ conceptions of the rule of law would seriously undermine the legitimacy of judicial review of legislation for constitutionality: 1) many of the requirements of the rule of law proposed by the appellant are simply broader versions of rights under the Charter. The appellants’ conception would render many of our written constitutional rights redundant, and in doing so undermine the delimitation o those rights chosen by our constitutional framers. 2) appellants’ arguments overlook the fact that several constitutional principles other than the rule of law have been recognized by this court- like democ and constitutionalism- very strongly favor upholding the validity of legislation that conforms to the express terms of the constitution. So the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust lies not in the underlying principles of the constitution but in its text and the ballot box.

Prospectivity in the law- there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of our constitution.

Generality in the law: two decisions of this court defeat the appellants’ submission that the constitution through the rule of law requires that legislation be general in character and devoid of special advantages for the gov’t.

Fair civil trial- this is governed by customary rules of civil procedure and evidence. There is no constitutional right to have one’s civil trial governed by such rules. Just because the Ds regard that the act is unjust, doesn’t render their trial unfair.

Court concludes that the act doesn’t implicate the rule of the law in the sense that the constitution comprehends that term. It follows that the act is not unconstitutional by reason of interference with it.

------------------------------------------------------------------------------------------------------------ Conventions are another species of unwritten constitutional norms- they represent

accepted understandings of how organs of government operate. In the Patriation

reference, the court made several findings about the nature and effect of conventions of the constitution including:

1) Conventions come into existence on the basis of: a practice or agreement developed by political actors. 2) recognition by political actors that they’re bound to follow the convention. 3) the existence of a normative reason- that is a purpose for the convention.

2) Conventions are not “law” and thus can’t be enforced by the courts. They acquire and retain their binding force by agreement.

From notes: Conventions are principles and values that get formed over time but aren’t expressed anywhere. Yet the fed and prov govt follow along b/c there was agreement over history. The SCC talks about the idea of constitutional conventions- they’re not enforceable ideas, can’t go to court and enforce them- they’re not matters that have a legal outcome, but the court can still pronounce on it. The court can’t step in however and prevent someone or enforce them, they’re not matters that have a legal outcome.

The Patriation Reference (1981) – this was a resolution to amend the constitution. The Court affirmed the existence of an unwritten dimension to the Constitution and the majority held that by constitutional convention, amendments to the Constitution require a substantial degree of provincial consent. The majority located a normative reason for a convention of “substantial provincial agreement” in the federal nature of Canadian democracy.

The Nature of Constitutional Conventions A lot of the rules of the Canadian constitution are written, they’re contained in a

variety of statutes. Another part of the constitution consists of the rules of the common law- rules

court developed over centuries. Statutory rules and common law rules are referred to as the law of the

constitution. The law of constitution is administered/enforced by the courts- they decide what the law is and if it was breached, and apply sanctions as contemplated by the law.

A lot of important parts of the constitution are not in the law of the constitution ex. If opposition gets majority at polls, go’vt must resign or PM must have the support of the elected branch of the legislature these are called “conventions of the constitution.”

The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period.

Constitutional conventions are not enforced by the courts b/c they’re not judge made rules, they’re not based on judicial precedents but on precedents established by the institutions of government themselves. They’re not in the nature of statutory commands, also, to enforce them would mean to administer some formal sanction when they’re breached. But the legal system from which they’re distinct doesn’t contemplate formal sanctions for their breach. maybe one of the main reasons why they can’t be enforced by the courts is that they’re generally in conflict with the legal rules which they postulate and the courts are bound to

enforce the legal rules- this results b/c legal rules create wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner if at all.

Whether the conventions exist: Ont and NB submitted that there is no constitutional convention requiring agreement of all provinces before the H of C and Senate of Canada can request a constitutional amendment from the queen affecting federal-provincial relationships, or powers, rights or privileges granted or secured by the constitution of Canada to the provinces, their legislatures or governments? Man, NF, Que, NS, BC, PEI, and Alta- such a convention does exist. Sask- convention does exist and requires a measure of provincial agreement. Court agrees with Sask.

Requirements for Establishing a convention: Requirement resembles requirements that apply to customary law. Precedents and usage are necessary but don’t suffice, they have to be normative (create standards).

3 part test developed by Jennings:1) what are the precedents?2) Did the actors in the precedents believe they were bound by a rule.3) Is there a reason for the rule Justices applied the test: 1) precedents- in all previous 22 instances of amendments to the Cdn. Constitution,

there had been approval by affected provinces. 2) The PMs and premiers on those earlier occasions of amending the constitution

appeared to have acted on the basis that provincial agreement was necessary. 3) A reason for the rule- the reason is the federal principle, it would offend the

federal principle if unilateral action of the fed. Authorities can modify the provincial legislative powers.

Purpose of conventional rule is to protect the federal character of the Cdn constitution and prevent the abnormality that the H of C and Senate could obtain by simple resolutions what they couldn’t validly accomplish by statute.

Canada would be a different federation made different at the instance of a majority in the houses of federal parliament acting alone.

Conclusion: agreement of provinces is constitutionally required for the passing of the “proposed resolution for a joint address to her majesty the queen respecting the constitution of Canada” and passing of resolution without such agreement would be unconstitutional in the conventional sense.

II. The Exercise of Public Power in Canada A) The Separation of Powers Doctrine

The separation of powers doctrine refers to the division of governmental functions between the legislative (makes the law), executive (implements the law) and judicial (interprets and applies the law) branches of state.

The distinction between the legislature, executive and judiciary is important to Canadian public law. It serves two principle purposes: 1) a functional purpose of identifying the institutional homes of each of the

three major forms of public power. 2) A normative purpose of providing general boundaries for the operation of each institution.

B) Legislative Power The legislative branch is divided between the federal legislature (or parliament)

which consists of the elected house of commons and an appointed senate, and the elected legislatures in each province. Both levels derive their powers to make laws from the constitution. The division of authority between them is a feature of federalism. I) The Principle of Parliamentary Supremacy: Canada was transformed to a great extent from a system of parliamentary supremacy to one of constitutional supremacy. The principle of parliamentary supremacy is and was the basic constitutional rule of British constitutional law that Canada’s founders adopted. Canada was founded on the basis of federalism, the divisions of power answered the question of who has law making authority.

The principle of parliamentary supremacy remained predominant, qualified only by federalism- Canada’s fed and prov. Legislatures were understood to be the sole sovereign holders of state authority.

With 1982 constitutional act, Canada adopted an express declaration of constitutional supremacy. Charter imposed new limits on laws that can be passed by fed and prov legis- limited what laws can be enacted. The notwithstanding clause was put in place to maintain some of the parliamentary sovereignty- so it still retains some utility and explanatory power.

While the constitution has been made supreme over parliament and the prov. Legislatures, the latter remains supreme vis a vis the executive branch

Babcock v. Canada (AG) 2002-recent example of how the court has approached parliamentary sovereignty as a principle in Canadian constitutional law.

Facts: Vancouver staff lawyers brought an action in the Supreme Court of BC, saying that by failing to pay them the same salaries as Toronto lawyers the gov’t breached their contracts of employment and the fiduciary duty toward them. The parties exchanged lists of relevant documents as required by BC SC rules. A supplemental list of documents was delivered by the gov’t, the govt listed a number of documents as producible.

Two years after delivering the documents, the gov’t changed its position and delivered a certificate of the Clerk of the Privy Council pursuant to s. 39(1) objecting to the disclosure of 51 documents and examination as they contained “information constituting confidences of the Queen’s Privy Council or Canada.” The Ps brought an action to compel the production of such documents, chambers judge ruled against them and said that it was constitutional if the clerk of the Privy Council filed a certificate- end of matter and court had no power to set the certificate aside. CA majority reversed decision and ordered production of documents claiming that because the gov’t waived this decision and ordered production of the documents on the ground that the gov’t had waived its rights to claim confidentiality by listing some of the documents as producible and by disclosing selective info.

Gov’t appeals this decision.

Issues: what is the nature of cabinet confidentiality and the process by which it may be claimed and relinquished? Is s. 39 of the Canada Evidence Act constitutional?

Cabinet confidentiality is important for good government. S.39 of the Canada evidence act is canada’s response to the need to provide a

mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings. Sets up a process to protect info under the act. It permits a clerk to certify info as confidential thereby gaining protection under the act.

The respondents in this case challenge the constitutionality of s. 39 and argue that it is ultra vires Parliament because of unwritten principles of the Canadian constitution: the rule of law, the independence of the judiciary, and the separation of powers.

The court finds that unwritten principles in this case do not limit the government’s actions. Unwritten principles must be balanced against the principle of parliamentary sovereignty. S.39 doesn’t offend any of these unwritten principles mentioned by respondents (rule of law etc…). It is within the power of the legislature to enact laws as long as it does not fundamentally alter or interfere with the relationship between the courts and other branches of the government.

The government sought to rely on a statutory right of non-disclosure of Cabinet documents despite the documents having already been disclosed in the course of litigation. The applicants sought to invoke unwritten principles such as the rule of law to support an argument that disclosure should be required despite the clear statutory statement to the contrary.

The court found that parliamentary sovereignty decided that issue.

The Principle of Federalism: The basis for confederation in 1867 was to divide sovereign legislative power between a federal and provincial govt. The court recognized “federalism” as an unwritten principle of the Canadian constitution, describing it as the means of recognizing regional cultural diversity at the founding of Canada, particularly with respect to the nature of Quebec as a predominantly French speaking society.

Reference re Secession of Quebec (1998)-Federalism In a federal system of government, political power is shared by two orders of

government: fed and provinces. Each is assigned jurisdiction by the CA 1867. In interpreting the constitution, the courts have always been concerned with

the federalism principle. The underlying principle of federalism has exercised a role of importance in the interpretation o the written provisions of our constitution. Federalism is a political and legal response to underlying social and political realities.

The principle of federalism recognizes the diversity of the component parts of confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The fed structure of Canada also facilitates democratic participation by distributing power to the

government thought to be most suited to achieving the particular societal objective having regard to this diversity.

Federalism also facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular provinces like Quebec.

The textual source of this division of power is in s. 91 and 92 of CA 1867- lists fed and prov. Powers. Since Hodge (1883) national and provincial legislatures have equal sovereign status derived from the constitution.

S.91 & 92- set out “subject matters” or areas of legislative concern that fall within the exclusive jurisdiction of the respective legislative bodies. Matters within federal jurisdiction include criminal law in, trade and commerce, banking etc. prov legislature- hospitals, municipalities, property and civil rights. Therefore, provinces have the more extensive jurisdiction over regulation of economic matters in Canada,

The charter placed limits on both legislative levels (feds and prov). Federalism and Human Rights legislation: b/c of federalism, all 11 legislatures

as well as territories have enacted human rights to govern those areas subject to their regulatory authority. Most private activities fall within prov authority under “property and civil rights.” But certain sectors o the economy fall within ed authority like banking, military etc. within these sectors employment relationships and other important aspects of activities are subject to fed. Authority as being incidental to their regulation. That’s’ why prov. Legislatures are unable to enact laws dealing with discrimination in those areas.

C) Executive Power Executive branch replicates the duality created by federalism with execs at the

fed and prov. Levels. Executive includes all ministries of gov’t and their employees- the civil service. Also includes the armed forces and crown corporations. It could include statutorily created bodies that are used to carry out governmental functions.

Commentators argue that Canada is dominated by the executive branch, that the PM and premiers exercise an authority over their parties and legislatures that is unusual among Western democracies. If true, this is largely a matter of politics not law.

In law, executive branch is subordinate to the legislature. The relationship between the legis and exec branches has two important features:

1.) the exect branch derives any power it has solely from the laws or statutes passed by the legislature (subject to minor sources o power found in royal prerogative and constitution). So execs must locate authority it has from a statutory source, so exec in Canada is almost wholly dependent on and subordinate to the legislative branch for its authority to act.

2.) By constitutional convention, the exec is responsible to the legislature. This is the essential meaning of “responsible government” in the parliamentary

tradition. Convention requires that the PM and his ministry command the support or “confidence of a majority of elected legislatures, if they lose confidence, the PM and his gov’t must either resign or seek a dissolution of parliament and new elections.

D.) Judicial Power CA 1867 contains provisions on “judicature” in s 96-101. S. 96 provides that the

fed executive shall appoint the justices of the country’s superior, county, and district courts. But even though the feds appoint the judges, the provinces exercise their authority over the “administration of justice” in s. 92(14).

Superior courts are section 96 courts b/c judges are appointed under this section, provinces also have a system of non-section 96 courts to which the province has the authority to appoint judges.

Under s. 101- parliament has authority to create courts for the “better administration of the laws of Canada”- understood to mean laws passed by Parliament itself. Using this authority, parliament enacted the Federal Courts Act which establishes the trial level federal court of Canada and the Federal court of appeal. S. 101 also authorizes parliament to create a general court of appeal for Canada. In 1875, Canada enacted the Supreme Court Act creating the SCC. Charter entrenched changes to the SCC’s composition and appointment process, but otherwise it doesn’t have constitutional status. SCC created for itself an indispensable position in Canada’s constitutional system. This position as the “core jurisdiction” of superior courts encompasses two crucial public law powers.

1.) the jurisdiction to rule on the constitutional validity of all ordinary laws in Canada. “constitutional law jurisdiction.”2.) the jurisdiction to supervise the activities of exec government and other statutorily delegated actors to ensure that the act within their statutorily authority. “administrative law” jurisdiction.

The Judiciary’s Constitutional Law Jurisdiction The principle of constitutional supremacy presupposes a role for an adjudicative

institution to rule on whether ordinary legislation has violated the limits on legislative power set out in the constitution. The judiciary can declare laws invalid and of no force as a remedy. Since the charter the question of remedies became more complex, s. 24 of the charter authorizes the courts of competent jurisdiction to give remedies in individual circumstances for charter breaches, including the exclusion from the criminal process o evidence. The question of what scope s.24 may give for remedies in damages has received little elaboration by the courts to date.

The Judiciary’s Administrative Law Jurisdiction In Canada, superior courts exercise a supervisory jurisdiction with respect to

exercises of executive government authority. This is a subject of administrative law. Exec government derives authority to act from statutes. Just as the judiciary acts as the “umpire” with respect to claims that legislatures have exceeded their constitutional mandate, superior courts have historically assumed the role of ensuring that executive government acts within its delegated statutory authority. This role is performed by allowing all persons adversely affected by govt action

to petition the superior courts seeking “judicial review” of whether the executive official has acted within the bounds of his or her statutory power. This admin law or judicial review jurisdiction is understood to be a matter of common law development and therefore, not itself dependent on being granted by legislatures.

SCC has stated that this supervisory jurisdiction is important, and is a hallmark of s. 96 jurisdiction and can’t be withdrawn from those courts by provincial legislatures.

However the fed gov has power to create courts and confer administrative law powers on a new court under s. 101. It did this in 1970 by creating the Fed courts and conferring on them exclusive jurisdiction with respect to the supervision of federal statutory delegates. Since then, administrative law jurisdiction has been divided between the fed courts and prov sup. Courts on basis of whether the delegate in question is empowered under a fed or prov statute.

The Principle of Judicial Independence Judicial independence is an elemental constitutional doctrine closely tied to the

separation of powers. It is essential to the achievement and functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law. Judicial independence ensures that “judges” are at complete liberty to decide cases on their merits without interference. It insulates judges from retaliation from other branches of government for their decisions and guarantees that “the power o the state is exercised in accordance with the rule of law and the provisions of our constitution. The courts act as a shielded against unwarranted deprivations by the state of rights and freedoms of individuals.

Judicial independence preserves the separation o powers between the 3 branches of our democracy by “depoliticizing” the relationship between the judiciary and the other two branches. Legis and exec can’t exert pressure on the judiciary and the judiciary should exercise reserve in speaking out publicly on issues of general public policy that do not relate to the proper administration of justice.

III. The Process of Constitutional Amendment A.) Judicial Interpretation and the Living Tree Important for the constitution to evolve with the needs of society. There are many

different tools for textual interpretation of the constitution, and few judges or lawyers employ one.

There are two general approaches used: 1.) Historical or originalist approach: constitutional text should be understood as having a single, unchanging meaning, meaning intended by those who wrote and ratified the text. This provides the constitution with stability. 2.) Progressive “living tree” approach: favored by the SCC of Canada. This conceives of the text as not being frozen in meaning to one time and place- partly b/c much of the text may never have had a single agreed on meaning. Rather it seeks to give a reasoned reading of the text that makes sense of it at the time it is being interpreted. This approach may on occasion remove the necessity for constitutional amendment.

B.) The Amending Formula in Part V of the Constitution Act, 1982 The process for amending the constitution is set out in part V of the CA, 1982

which actually sets out five different amending formulas applying to different circumstances:

1.) The general formula for all amendments not falling within formulas (2) through (5) which requires the agreement of parliament and the legislatures of at least 2/3 of provinces having at least 50% of the population of Canada (s. 38)

2.) Unanimity of parliament and all provincial legislatures (s. 41).3.) Parliament, and the legislatures of just those provinces affected by an amendment

(s. 43). 4.) Parliament alone, with respect to its own institutions (s. 44).5.) A provincial legislature alone, with respect to the provincial constitution (s. 45). The amending formula turns on federalism in that parties to the amendment are

the fed and prov legislatures. No role for popular initiatives, referenda, or constitutional conferences.

Contitution Act 1982 part V pg. 132-134.C.) Unwritten Principles of the Constitution Fed gov’t sought to rely on part V when it initiated a reference to the SCC on the

issue of whether Quebec has the power under the constitution to secede unilaterally. Government says, secession involves amendment to the constitution and it has to be done through part V, referendas don’t matter.

SCC in Secession reference affirmed much of this position, while at the same time establishing that the constitution has depth beyond the text and comprehends legal obligations not found in the text. Court identified four unwritten principles that are apart of the architecture of the constitution: democracy, federalism, constitutionalism and the rule of law, and protection of minority rights.

The court rejected idea advanced by sovereign position that democracy alone could justify a lawful secession on a referendum vote, and found that democracy must be qualified by each of the other principles, which together meant that secession could be achieved only in accordance with Part V. the court added that a vote representing a clear majority on a clear question in favor of secession would be sufficient to create a legal duty to negotiate on the part of the other parties to the federation. In this way, the court recognized a constitutional role for a referendum that appears nowhere in part V.

Reference re Secession of Quebec (1998) Secession is the effect of a group or section of a state to withdraw itself from

the political and constitutional authority of that state, with a view of achieving statehood for a new territorial unit on the international plane.

Court asked to rule on the legality of unilateral secession “under the constitution of Canada.”

The secession of a province must be considered in legal terms to require an amendment to the constitution.

Although the constitution neither expressly authorizes nor prohibits secession, an act of secession would purport to alter the governance of Canada inconsistently with our current constitutional arrangements. The fact that those changes would be profound, or that they would purport to have a significance with respect to international law, does not negate their nature as amendments to the constitution of Canada.

Court interprets right to secede unilaterally as the right to effectuate secession without prior negotiations with other prov and the fed govt. At issue is the legality of the final act of unilateral secession. The argued juridical basis or this act is said to be a clear expression of democratic will in a referendum in the province of Quebec. This claim requires the examination of the possible juridical impact, if any, of such a referendum on the functioning of our constitution, and on the claimed legality of a unilateral act of secession.

A referendum undoubtedly may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion. The democratic principle identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada. An expression of the dem. Will of the people of a province carries weight, in that it would confer legitimacy on the efforts of the gov of Quebec to initiate the Constitution’s amendment process in order to secede by constitutional means. In this context, we refer to a “clear” majority as a qualitative evaluation. The referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves.

The amendment of the constitution begins with a political process undertaken pursuant to the constitution itself. IN Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participations in confederation. Those reps may of course take their cue from a referendum, but in legal terms, constitution making in Canada is undertaken by the democ elected reps of people. If one participate in the confederation seeks an amendment to the constit. There is an obligation on all parties to negotiate. The repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on other provinces and the fed. Gov’t to acknowledge and respect the expression by entering into negotiations and conducting them in accordance with the underlying constitutional principles.

The conduct of parties in negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities.

The democ principle can’t be invoked to trump the principles of federalism and rule o law, the rights of individuals and minorities, or the operation of democ in the other provinces or in Canada as a whole. No negotiations could be effective if their ultimate outcome secession, is case as an absolute legal entitlement based upon an obligation to give effect to the act of secession in the constitution.

However, the crt is equally unable to accept the reverse proposition that a clear expression of self-determination by Quebec would impose a legal obligation upon the other provinces or the feds. But Canada can’t remain indifferent to demands of people of Quebec-This would amount to the assertion that the other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the ppl of Que. Such a

proposition fails to give sufficient weight to the underlying principles of democracy and federalism. The rights of other provinces and the federal gov’t cannot deny the right of the govt of que to pursue secession. Negotiations would be necessary to address the interests of the fed govt, of Que and other provinces.

So other parties can’t exercise their rights in a way that would amount to an absolute denial of Quebec’s rights, and similarly that so long as Que exercises its rights while respecting the rights of others, it may propose secession and seek to achieve it through negotiation.

The negotiation process must be conducted with an eye to the constitutional principles.

We have interpreted the questions as relating to the constitutional framework within which political decisions may ultimately be made. Within that framework, the workings o the political process are complex and can only be resolved by means of political judgments and evaluations. The crt has no supervisory role over the political aspects of constitutional negotiation. Equally, the initial impetus for negotiation (namely a clear majority on a clear question in favor of secession) is subject only to political evaluation.

A right and corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities. Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which and the circumstances in which those ambiguities are resolved one way or the other.

To the extent that the questions are political in nature, it is not the role o the judiciary to interpose its own views on the different negotiating positions of the parties, even were it invited to do so. Rather, it is the obligation of the elected reps to give concrete form to the discharge of their constitutional obligations which only they and their electors can ultimately assess.

The non-justiciability of political issues that lack a legal component does not deprive the surrounding constitutional framework of its binding status, nor does this mean that constitutional obligations could be breached without incurring serious legal repercussions. Where there are legal rights there are remedies, the appropriate recourse in some circumstances lies through the workings of the political process rather than the courts.

Accordingly, the secession of Que from Canada can’t be accomplished by the National Assembly, legislature or gov of Que unilaterally- that is to say w/o principled negotiations, and be considered a lawful act. any attempt to effect the secession of a province from Canada must be undertaken pursuant to the constitution of Canada or else violate the Canadian legal order. However, the continued existence and operation of the cdn constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada.

Hogan v. Newfoundland (AG) (2000)- crt of appeal concluded that where an amendment is agreed to by the govts cited in the applicable part of the amending

formula (in that case, the federal govt and the govt of NF under s. 43), they need not take any additional measures.

GG proclaimed into force an amendment to term 17 of the terms of union between Canada and NF. This appeal examines the validity of that amendment. Appellants claim the amendment is unconstitutional and is in breach of contract.

The procedure for Amendment of the Constitution : 3 arguments submitted by the appellants:

1) The Constitution Act: Hogg says the procedures in Part V of CA 1982 provides a complete code of legal rules.

The wider the focus of the amendment or the more critical the subject matter, the more complex the procedure

To amend term 17, the method in s. 43 was used (Parliament and legislature of provinces affected). Appellants argue that the procedure should’ve been s. 38 to amend term 17 as it requires a resolution from senate and commons, and 2/3 of provinces that have at least 50% of the population before a change in constitution can take place.

Respondent: this means it can be amended without approval of NF, Appellants say then use 2 procedures.

Court looked at s. 93 which is used to protect denominational rights of 6 other provinces. In reference re education act, the SCC interpreted the s. to be a comprehensive code of denominational school rights. Term 17 performs the same function for NF- it grants special rights to certain classes of individuals but these can’t be described as fundamental rights that are basic to all people. Freedom of religion is a fundamental right but removal of state support for denominational schools (result of term 17 under consideration) is not an interference with freedom of religion.

Appellants say that even fundamental rights may be amended, and to determine which amendment approach is best, he has to examine how the constitution will be affected after the amendment. Court says this case doesn’t need such an analysis b/c on reading part V, it is clear that the framers of the constitution intended to create alternative methods of amendment no cumulative methods.

Chapter Four: Parliament and the Legislative Process Focus is on law making and law makers. Important law making institutions- fed parliament and provincial legislatures.

I. Structure and Operation of Parliament: this describes the separate institutions that comprise parliament- the monarch, her delegate GG, Senate, and House of commons. Also, describes how parliament is called into session, prorogued, and dissolved. A) Constituent parts of the Parliament of Canada

S. 17 of the constitution Act of 1867creates a “parliament of Canada” consisting of the queen, senate, and the house of commons.

1. The monarch and Governor General: the monarch has a double role in the constitution, part of the parliament under the CA 1867, and the official head of state. In practice, many of the queen’s powers are exercised by the GG. The monarch is not elected, it is based on birth. GG depends on appointment.

Selection of the monarch: determined in the UK, according to rules of heredity and laws of succession.

Act of Settlement of 1701- bars catholics from assuming the crown, and precludes the monarch from marrying a Catholic. This has been challenged in Cdn courts as a violation of the charter.

O’Donohue v. The Queen (2003) CA Facts: Tony O’Donohue is a Cdn citizen and Roman Catholic, he believes that

certain provisions of the Act of Settlement are discriminatory against Roman Catholics and offensive to the Roman Catholic faith. He brings the issues of standing and justiciabiltiy. He says the Act breaches s. 15(1) of the Cdn Charter of Rights and Freedoms.

Justiciability- to decide if it is or not- normative enquiry into the appropriateness as a matter of constitutional judicial policy of courts of deciding on an issue or deferring it somewhere else. Judgment about whether court should look at certain issues depends on the appreciation by the judiciary of its own position in the constitutional scheme. Constitutional scheme of our democratic government consists of 4 branches: the crown, legislative body, the executive and the courts.

if the sections of act that are under question have constitutional status, then the matter is not justiciable because the charter can’t trump another part o our constitution.

The AG- even if section is not part of the constitution, it is still part o the rules of succession- and finding these rules justiciable would be against Parliament’s intent and constitutional convention of commonwealth, and beyond the proper role of the courts within our constitutional framework. Canada was established under a constitutional monarchy, preamble of CA 1867 confirms that Canada is a constitutional monarchy and is united under the UK of GB. Constitutional monarchy is the root of our constitutional structure, the queen is a fundamental part of our constitutional structure and changes to the constitution with regards to the queen’s office requires unanimous consent o feds and provincial govts.

AG says b/c the queen is so important in the Cdn constitution, the rules of succession are themselves essential to the proper functioning of this breach of our

constitutional scheme. One can’t accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected.

Outside of the court’s jurisdiction- if court changes rules of succession, it would be contrary to settled intention, as demonstrated by our written constitution and we’d see the courts changing rather than protecting our fundamental constitutional structure.

Rules of succession are a part of our constitutional fabric- further supported by the way these rules have functioned within the commonwealth.

Statute of Westminster- affirmed that the monarch would continue to be monarch of commonwealth countries (including Canada). Also, that UK would no longer impose British statutes on the dominions. This statute is a part of our constitution (listed in the schedule) and it stated that for the rules of succession to be changed all members of the common wealth would have to agree.

So Canada as a sovereign nation can withdraw but it can’t change the rules for everyone. Portions of the Act challenged are an integral part of the rules of succession that govern the selection of the monarch of GB- by virtue of our constitutional structure, rules of succession must apply.

The rules of succession and the requirement that they’re the same as GB’s are necessary for the proper functioning of our constitutional monarchy, so the rules are not subject to charter scrutiny.

Court here is being asked to disrupt the core of how the monarchy functions, this would make the constitutional principle of union under the british crown with commonwealth nations unworkable, it would defeat a manifest intention expressed in the preamble of the constitution and make the court overstep its role in our democratic structure.

Dismissed, not justiciable. Selection of GG: monarch appoints GG, but Cdn constitutional convention,

Queen follows “instrument of advice”- letter by PM choosing someone for position, PM not constrained by legal criteria in the selection. It is a political decision.

2. Senate: Unelected upper chamber of federal legislature. S. 24- anticipates the appointment of senators by GG. GG follows the advice of

the PM as requirement by constitutional convention- often means for party to reward supporters may want reform.

Alberta enacted a Senatorial Selection Act (2000) SSA- providing or the direct election of candidates. Once selected, province submits their names to federal government as people who may be summoned to the senate to fill Alberta spots.

Chretien reused to appoint the Alberta candidates, one of them sued.

Brown v. Alberta (1999) Alberta CA Brown claims that s. 24 is contrary to democratic principle and to conform with

those principles, senators must be appointed in a manner consistent with the Alberta Senatorial Selection Act. He didn’t challenge the constitutionality of either statute, and he didn’t assert a violation of the charter, he acknowledged that he wasn’t claiming interference with any legal right. TJ found no legal issue, therefore the court has no jurisdiction. In response, Brown says we should allow

his appeal and grant the declaration of current senatorial appointment system as undemocratic because of statements made by the SCC in the secession reference. His claim rests on two pillars: 1) the statements of the SCC on political institutions and democratic principles- in light of secession reference, this case now raises a legal issue. 2) His status as “senate nominee” elected through a democratic process. From these, he asks court to find a legal issue.

The court says: ya in the secession reference, court talked about interpretive canons underlying the constitution but Brown doesn’t show how or where those statements about democratic principles would change the law as to what constitutes a legal issue or allow this court to find his case raises a legal issue. He seems to think he doesn’t need to show a legal issue for the kind of remedy he wants. Remedy he wants is for crt to declare that senators from Alberta “must be appointed” consistent with process of the senatorial selection act. This must be followed for an appointment to be “consistent with democratic principles.”

He doesn’t say appointments made inconsistently with SSA are unconstitutional, he just wants the court to declare it undemocratic. He wants crt to ask about the dem. Nature of senatorial appointment.

Crt says- appellant wants declaration to confer dem. Legitimacy on the Alberta act. they don’t see comments in secession reference as modifying the existing jurisprudence on what constitutes a legal issue. Secession reference doesn’t change the law on the scope of the court’s jurisdiction to grant declaratory relief, nor does it overrule existing authorities that set out what constitutes a “legal issue.”

No legal issue, therefore, no declaratory relief.

Samson v. AG of Canada They want an injunction that restrains GG from appointing to the Senate a

qualified person from Alberta unless that person has been elected pursuant to the provisions of the SSA.

S. 24 and 32 of CA 1867 give GG power to appoint senators. Under these 2 sections’ terms, the GG’s power to appoint is discretionary- aka- no

procedural or other limitations to restrict the GG’s discretionary constitutional power of appointment.

A limitation could only be imposed on GG’s power to appoint by a means of a constitutional amendment to the sections in accordance with procedure under part V of CA 1982.

Crt can’t impose procedural or other limitations on GG, also, the GG’s power to appoint is purely political in nature. Court can’t interfere in a political decision.

Nothing in the secession ref supports that a court may ignore the express provisions of the CA 1867. Also, the secession reference dealt with a situation involving a constitutional void. In this case, there is express constitutional provisions that govern the appointment process to the senate.

Counsel for the applicants also said since one Alberta senator was already appointed, this is a “precedent” or “convention” which can alter the express terms of the CA 1867. Crt doesn’t accept that argument and says it was one occasion, where the GG was advised by the PM- it was a political decision made by the

gov’t of the day. Therefore, the matter is political, not legal, and the relief which the applicants seek in their application may only be attained in the political arena by means of a constitutional amendment.

In 2006, Harper agreed to think about the matter, and proposed term limits on new senators restricting their tenure to 8 years. So, PM might honor provincial senatorial selection laws, opening the door to a senate with regular elections.

3. House of Commons: members are elected, required under s. 37 of CA 1867. Elections Canada, Canada’s Electoral System Representation in the House of commons: is based on geographical divisions

known as electoral districts, constituencies or ridings. Each riding elects one member to the house and the number of ridings is established through a formula set out in the constitution.

Riding boundaries are established by independent commissions taking into account population, social and economic links.

New commissions are set up following each 10 yr census to make any necessary revisions to existing boundaries following criteria defined in the electoral boundaries readjustment act.

The process of redefining electoral boundaries is called redistribution, and the results are recorded in a representation order.

First Past the Post: Canada’s electoral system- in every electoral district, the candidate with the most votes wins a seat in the house and represents that riding as its MP, this means candidates don’t need more than 50% of the vote to be elected. Each candidate can run in one district only, either independently or under a registered or eligible party. Each party may endorse one candidate/riding only.

Pol. Party- group of people who together establish a constitution and by-laws, elect a leader and other officers, and endorse candidates for election to the house. To get party name on ballot, under the name of the candidate it endorses, a political party must register with the chief electoral officer.

Party with most elected representatives- becomes governing party, its leader is the MP and chooses people (usually from party) to head various government departments. Party with second largest number of MPs “official opposition”- seats in HC and they vote on bills so they have an influence on government policy.

S. 3 of charter every Cdn citizen has the right to vote for MP and be qualified for membership.

Canada election act (CEA)- governs the precise manner in which MPs are elected. Until recently the CEA required a registered party to run candidates in at least 50

electoral districts. This was struck down by the SCC in 2003 in Figueroa.

Figueroa v. Canada (2003) SCC Appeal focuses on the purpose and the meaning to be given to s. 3 of the charter

which confers in each citizen the right to vote in the elections of members of the house of commons and the provincial legislative assemblies.

The issue is whether federal legislation that restricts access to certain benefits to political parties that have nominated candidates in at least 50 districts violate s. 3?

Issue (again): does election act infringe on s. 3 o the charter by withholding from candidates nominated by pol. Parties that have failed to satisfy the 50 candidate threshold the right to issue tax receipts for donations received outside the election period, the right to transfer unspent election funds to the party and the right to list their party affiliation on the ballot papers, and if so, is this infringement reasonable and demonstrably justified under s. 1 of the charter?

Analysis: 1 st question: whether the restriction on the right of candidates to issue tax receipts for donations received outside the election period to transfer unspent election funds to the party and to list their party affiliation on the ballot infringe s. 3 o the charter? 2nd question: evaluate the 50 candidate threshold in light of that definition in order to determine whether it violates s. 3 of the charter?

1 st question: on its face, the section is relatively narrow- it grants each citizen the right to vote and run for office for federal and provincial legislative assemblies. Analysis of charter requires looking beyond the words of the section. To determine the scope of section, one must first look at the purpose- SCC has stated that the purpose of s. 3 is effective representation, this crt says that it also includes the right of each citizen to play a meaningful role in the electoral process. It should be understood with reference to the right of each citizen to play a meaningful role in the electoral process, rather than the election of a particular form of gov’t b/c it is found that the rights of s. 3 are participatory in nature.

s.3 only talks about right of citizens to a certain level o participation in the electoral process- therefore, the central focus of s. 3 is the right of each citizen to participate in the electoral process- this signifies that the right of each citizen to participate in political life is of fundamental importance in a free and democratic society and suggests that s. 3 should be interpreted in a manner that ensures that this right of participation embraces a content commensurate (proportionate) with the importance of individual participation in the selection of elected representatives in a free and democratic state.

Therefore, they define s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process rather than in the composition of parliament.

Also, elections lead to important debates, besides the formation of government, elections provide the primary means by which the average citizen participates in the debate, and gets 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 (formation of public policy, functioning of public institutions).

Fundamental purpose of s. 3 is to promote and protect the right of each citizen to play a meaningful role in the political life of the country, without this, we wouldn’t have democracy.

2 nd question: does the 50-candidate threshold violate s. 3? Whether the 50 candidate threshold interferes with the capacity of individual

citizens to play a meaningful role in the electoral process? Must answer 2 questions: 1) do the members and supporters o political parties that nominate fewer than 50 candidates play a meaningful role in the electoral process?

Pol parties have a much greater capacity than any one citizen to participate in the open debate that the electoral process engenders. By doing so in a representative capacity, on behalf of their members and supporters, political parties act as a vehicle for the participation of individual citizens in the political life of the country. Political parties ensure that the ideas and opinions o their members and supporters are effectively represented in the open debate. If those ideas and opinions are not adopted by the government of the day, it is not because they have not been considered but b/c they received insufficient public support.

Likely that only large parties will be able to play a larger role in the open discourse of the electoral process but it doesn’t follow that the capacity of a political party to represent the ideas and opinions of its members and supporters in the electoral process is dependent upon its capacity to offer the electorate a government option. Large or small parties can introduce unique interests and concerns into the pol. discourse, and act as a vehicle for the participation of individual citizens in the public discourse that animates the determination of social policy.

It is better that a person has an idea introduced in public debate of the electoral process by a party with limited geographical base support than not to have his or her ideas and concerns introduced into that debate by any political party at all.

The participation of political parties in the electoral process also provides individuals with the opportunity to express an opinion on governmental policy and the proper functioning of public institutions.

A vote for a candidate nominated by party is an expression of support for the platform and policy, this participation enhances the capacity of individual citizens to express an opinion as to the type of country that they would like Canada to be through the exercise of the right to vote.

The capacity of pol parties to provide citizens with an opportunity to express an opinion on governmental policy and the proper functioning of public institutions is not dependent upon its capacity to participate in the governance of the country. Participation as a voter is not just about the selection of representatives, it is an expression of support for a particular approach or platform. Whether that vote contributes to the election of a candidate or not, each vote in support of that approach or platform increases the likelihood that the issues and concerns underlying that platform will be taken into account by those who ultimately implement policy, if not now then perhaps at some point in the future.

As a consequence, there is no reason to think that pol parties that have not satisfied the 50 candidate threshold don’t act as an effective outlet for the meaningful participation of individual citizens in the electoral process.

Therefore, members and supporters of political parties that nominate candidates in fewer than 50 electoral districts do play a meaningful role in the electoral process. They’re both a vehicle for the participation of individual citizens in the open debate occasioned by the electoral process and an outlet or the expression of support or political platforms that are different from those adopted by political parties with a broad base of support.

Electoral process not dependant upon its capacity to offer the electorate a genuine “government option.” Political parties enhance the meaningfulness of individual

participation in the electoral process for reasons that transcend their capacity to participate in the governance of the country subsequent to an election. Political parties act as both a vehicle and outlet for the meaningful participation of individual citizens in the electoral process.

He concludes that the 50 candidate threshold does infringe s. 3 of the Charter. It undermines both the capacity of individual citizens to influence policy by introducing ideas and opinions into the public discourse and debate through participation in the electoral process, and the capacity of individual citizens to exercise their right to vote in a manner that accurately reflects their preferences. The threshold req is inconsistent with the purpose of s. 3 of the Charter: the preservation of the right of each citizen to play a meaningful role in the electoral process.

Is the infringement saved by s. 1 of the Charter? To justify infringement of the charter- gov’t must demonstrate that the limitation

is reasonable and demonstrably justifiable in a free and democratic society. This involves a two step analysis (pursuant to Oakes): gov’t must first demonstrate that the objective of the legislation is sufficiently pressing and substantial to warrant violating a charter right. The objective can’t be trivial or discordant with the principles integra to do a free and democratic society. After this is established, the govt must then demonstrate that the infringement is proportionate, and that the legislation is rationally connected to the objective that it minimally impairs the charter right in question, and that the salutary benefits o the legislation outweigh the deleterious effects.

AG submits that the objective of the 50 candidate threshold is “to enhance the effectiveness of Canadian elections, in both their process and outcome.” He says the 50 threshold advances three goals: i) to improve the effectiveness of the electoral process. ii) to protect the integrity of the electoral financing regime. Iii) ensure that the process is able to deliver a viable outcome for our form of responsible govt.

Concludes that the 50 candidate threshold is inconsistent with the right of each citizen to play a meaningful role in the electoral process, and that the government has failed to justify this violation.

B.) Bringing the Constituent Elements of Parliament Together Federal parliament is not permanent, parliaments have been “prorogued”

between different “sessions” of parliament. Summoning: s. 38 of CA 1867 empowers the GG to summon and call together

the House of commons. By constitutional convention, the GG calls parliament to session on the advice of the PM. This convention is codified in the writ of election. The writ empowers the monarch (and thus the GG) to set the date for a new parliament by and with the advice of the PM.

House of Commons (2003) Formal opening of a Parliament- distinguished from normal opening by the taking

and subscribing of the Oath of Allegiance by members and the election of a Speaker.

House receives the Usher of the Black Rod who reads a message requesting the immediate attendance of the House in the Senate chamber. The meeting of

parliament in the Senate follows. The speaker addresses the GG by an established formula stating that he has been selected by the Commons as speaker and for the commons.

Speech from the throne- GG reads the speech from the throne imparting the causes of summoning Parliament (before this neither house can proceed with any public business). The speech formally opens on the first session and any subsequent sessions of a parliament and marks the first occasion of “Parliament Assembled” in its three constituent parts: the Sovereign or the Sovereign’s representative, the Senate, and the House of Commons. After this, the speaker and members return to the house where the speaker reports the claim to privileges and the reply as well as the causes of the summoning of parliament.

Address in Reply to the Speech from the Throne: when house returns from the throne, business includes a routine motion by the PM that the throne speech be considered either that day or on some future day. The address in reply to the speech from the throne begins when a govt member not of the ministry moves that an address be presented to the GG. Following the speech of another govt private member who seconds the motion, the house adjourns to the first of six days for resuming debate on the motion and on any amendments. Debate is wide-ranging, providing opportunities for private members to speak on topics of their choice. Normal rules of debate apply.

On the first o the six days of formal debate, the first speaker is the leader of opposition who may conclude by proposing an amendment to add words to the original motion, the PM speaks next followed by leader of 2nd largest opposition party.

Opposition amendments to the address in reply to the speech from the throne constitutes direct questions of confidence in the government, thus a failure by the government to carry an unamended address in reply could constitute a vote of no confidence causing the govt to fall.

Prorogation: once summoned, parliament is divided into several sessions separated by a prorogation. Prorogation is the prerogative of the GG, acting on the advice of the PM. A prorogation (or that matter, a dissolution of Parliament, pending an election) may not endure indefinitely, s. 5 of Charter provides that there shall be a sitting of parliament and of each legislature at least once every 12 months. Parliament cannot be entirely sidelined (under s. 5).

House of Commons (2003) Prorogation ends a session, but doesn’t dissolve Parliament, the Speaker is

still in office, PM, ministers and parliamentary secretaries remain in office and all members of the house retain their full rights and privileges.

Prorogation like dissolution abolishes all pending legislation and quashes further committee activity. Thus, no committee can sit after a prorogation and any bill of a previous secession to be proceeded with must be introduced again as a new bill. Standing order 86 however makes special provision for reinstating private members’ bills at the same stage they had reached at the end of a previous session or it could be done by way of a motion, at the same stage they had reached in the previous session.

Committee work may also be revived either by motion in the House, or if a study was undertaken under the authority of a committee’s permanent mandate as established in the standing orders, by motion in committee.

Address of the House for returns or papers are not; rather, they are brought down during the following session without renewal of the order. The same is true, for example, for government responses to committee reports where requested and for responses to petitions. These are in force from one session to another, but are ended by dissolution.

Parliament can be prorogued through a speech by the GG in the Senate chamber, although this is merely a convention and not required by an standing order or statute.

Parliament can be prorogued by proclamation published in the Canada Gazette. Between a prorogation and the next session of the same parliament, the house is said to be “in recess.” Unlike dissolution and prorogation, adjournment does not quash all pending proceedings. At the next sitting, the House transacts the business previously appointed and all proceedings resume at the stage at which they were left before adjournment.

Dissolution : Both the constitution act 1867 (s.5) and the Charter (s4(1)) limit the duration of a commons to five years (except in times of war or insurrection). These provisions mean that parliament must be dissolved and elections must happen at least every five years. The dissolution prompts a new electoral cycle, governed by the Canada Elections Act. There are instances where the PM might be forced by constitutional convention to seek a dissolution from the GG without his choice. This happens when there is a vote of “no confidence’ in the house, so PM has to resign his government or seek parliamentary dissolution.

Special Committee on the Reform of the House of Commons The confidence of the house lies at the heart of what we call a responsible

government. This form of government requires that the cabinet be responsible for its actions to an elected legislature. It implies necessarily that there be a policy-making body of ministers bound to provide unanimous advice to the Sovereign; that the public service be under the control of political leaders responsible to the legislature; and that both the executive and the legislature be responsible to the people.

Ministerial responsibility along with the fusion of the executive and legislative branches, are distinguishing features of responsible government. The rules relating to these features are not set down in the constitution. They are governed by convention precedent and common sense. There is no single definition of ministerial responsibility, there are, in face three parts to the doctrine:

1) There is responsibility of a minister to the queen or the GG, gov’t are not elected but appointed, and ministers serve not for a term, but until they die, resign or are dismissed.

2) There is the individual responsibility of a minister to the house. This revolves around the questions of when a minister should offer his resignation and when should it be accepted or asked for. Where there is personal culpability on the part

of a minister, in the form of private or public conduct regarded as unbecoming and unworthy of a minister of the Crown, the minister should resign.

3) Third responsibility is that of the ministry collectively to the House. If the confidence of the House is lost, it spells the end for the ministry unless the government is granted a dissolution and is sustained by the electorate.

Confidence from an Historical Perspective In the 19th century, political parties gained importance, the leaders appealed for

votes in an enlarged and increasingly pluralistic electorate. The task of the house of commons was reduced to voting on the legislation and estimates presented to it by the government.

The rarity of defeats of governments led rapidly to the development of a constitutional myth that every vote was a test of confidence. Any dissenting or cross-voting members on the government side were seen to be replacing the government in jeopardy or risking dissolution of the house. Even with the large government majorities in recent years, there has not been a return to the inflexibility of the executive that marked earlier administrations. This kind of flexibility is not unlike what existed in early parliaments in the time of John A. Macdonald when government measures were defeated a number of times without the government falling.

The minority government of Trudeau lost eights of eighty one recorded votes between 1972 and 1974. setting aside the vote of may 8, 1974, which brought down the government, four of the lost votes were on government bills, two were on motions pertaining to parliamentary committees and one was on a supply item, specifically on a supplementary estimate of 19gs for information Canada.

The minority government of Pearson lost three votes, two were on appeals of a ruling made by the speaker. It is clear from both British and Canadian experience that a government that has lost a vote in the house on a matter of confidence faces the choice of resigning or asking for dissolution. A government that has lost a vote on some other matter may remain in office and may choose to ask for a vote of confidence.

Since every vote in the house is not a matter of confidence, it is not true that a government that loses a vote in the house can simply have the house dissolved. Useful to place the government in 3 categories, noting that each one invites a different response from the government:

1)A government defeated on a vote of confidence is expected to resign or seek a dissolution. Three types of votes can be termed confidence votes. First, there are explicitly worded votes of confidence. These states expressly the House has or has not confidence in the government. next are motions made votes of confidence by a declaration of the government. the government may declare that if defeated on a particular motion before the House, even one that is not an explicitly worded vote of confidence, it will resign or seek a dissolution. Then there are implicit votes of confidence. Traditionally, certain matters have been deemed to involve confidence even though not declared so by the prior statement of the government. Falling within this category is the granting of supply. Failure to grant supply is regarded as the established means by which the house can demonstrate its lack of confidence in the ministry.

2)The second category is lost votes on items central to government policy but not made matters of confidence prior to the vote. The government in this case can either seek an explicitly vote of confidence from the House or resign or request a dissolution. If the government opted for resignation or asked for dissolution, this would make the lost vote one of confidence retrospectively. 3)The last group is votes on items not at the heart of government policy; these are obviously the most numerous during any parliament. Although a lost vote on second reading of a major bill might fall within the second category mentioned above, a loss on one or more of the many divisions during the committee and report stages would usually within this third classification.

In conclusion: a government should be careful before it declares or designates a vote as one of confidence. It should confine such declarations to measure central to its administration. While a defeat on supply is a serious matter, elimination or reduction of an estimate can be accepted. If a gov’t wishes, it can designate a succeeding vote as a test of confidence or move a direct vote of confidence. 3rd, defeats on matters not essential to the government’s program do not require it to arrange a vote of confidence, whether directly or on some procedural or collateral motion. 4th, temporary loss of control of the business of the House doesn’t call for any response from the gov’t whether by resignation or by asking for a vote of confidence.