University of Alberta Faculty of Law Blog

Purposive Dancing With The Stars - Part 4

This part continues the "article" that started in PDWTS - Part 1.

Purposive Dancing With The Stars - Part 3

Cam

Thank you very much for your comments. I think that, at least here, your dispute with the Court comes down to this. You say that the was no room for any meaning other than that which you say was the clear meaning. The Court didn't agree. You say, then, that the purposive dancing dance is not appropriate in this case because, in the broad sense, what it does to the Rule of Law.  I agree, if you are right about how the statute had to be interpreted.

Purposive Dancing With The Stars - Part 2

Hi Cam,

In the old days, way back in the last millennium, when online access was very expensive and modems were very slow, people used what were called OLRs - Off Line Readers - for discussions on bulletin boards. The beauty of the OLR was that it linked all messages in a conversation chronologically to make reading easier: like a good email program does but with a party line capacity. Every person's contribution to the same converstion was included in the linked chain in the appropriate chronological slot. That meant the contributions of multiple people were included in the same thread one saw on one's screen. You didn't have to cut and paste to link, or use multiple screens. 

Purposive Dancing With The Stars - Part 1

Dear Readers:

This post is the first of a series of posts that, together make up an article that Professor Hutchinson and I intend to use to discuss various issues raised in the article and anything else that comes to mind as we discuss those issues.

There will be a series of daily posts until the article is completely posted. We are aiming for a school week's worth.

 

 

Purposive Dancing With The Stars

A Response to Professor Hutchinson and on the process of judicial judgment writing, the contents of some reasons for judgment, and advocacy in the courts ​

Preface

I had intended this to be a brief(ish) - by real standards, not mine - reply to Professor Hutchinson's very succinct, very accurate, very true critique, on SLAW of the SCC's recent decision in Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53. see Cameron Hutchinson, The Supreme Court’s Doctrine of No Construction in Alberta v. University of Calgary.* However, as is often (some would say, with some merit too often) the case with me, the piece "grow'd".

*See <http://www.slaw.ca/2016/12/21/the-supreme-courts-doctrine-of-no-construction-in-alberta-v-university-of-calgary/>

So, I've made this a stand-alone posting, here, albeit in the form of a letter to Professor Hutchinson. It is posted with his permission in the sense that he has read it and told he has no objection to me posting the contents in this form. I have mentioned  this because an acquaintance recently reminded me of my tendency towards the sardonic. That's intended in this article. I've also intended the flippancy or wryness which, in some ways, is a milder form of sardonicism not amounting to the belittling mockery which sardonicism sometimes apes.

At least for me.

So, please understand that nothing in this document is in any sense intend to mock Professor Hutchinson. He is not my target. If you want to read what I have written otherwise, that’s your right. But you will be wrong to do so, even more now that I’ve told you specifically not to do that.

In any event, as I’ve indicated, Professor Cameron read it before I released it and promised that, should I ever set foot again in Alberta, he'd do nothing worse than subject me to an evening of his impressions of Ezra Klein speeches as might be delivered by Professor Lewis Klar, channeling the spirit of the late Jack Layton to an audience including both Professors Yahya and Klar and former professor now Mr. Justice Brown of the Supreme Court of Canada.

There could be easier punishments.

Existential Questions and Internet Search Engines: Why are the results of this search different?

praying mantis emoji

On different search engine image pages - I tried Google and DuckDuckGo

But more importantly what is the relationship between some of the image hits and the search terms?

How To Think Like A Lawyer for 1Ls and Up: Existential Questions and Casuistry*

*in its original, non-pejorative meaning: "The resolving of moral problems by the application of theoretical rules."

 

see https://en.oxforddictionaries.com/definition/casuistry

 

There is supposed to be humour in what you'll read below. It is also an example of the analytical approach you will have to learn in order to analyze questions of law.  There were at least 3 qualified lawyer types, and a gaggle of PHDs from various disciplines, involved in the discussions relating to these deep existential questions.

 

 

City v Scholar

For those of  you enjoying your well-earned holiday vacation. March 1601 wasn't that long ago, from the sequoias and redwoods perspective; even some oaks.

From "The Workhouse:  The Story of an Institution"  http://www.workhouses.org.uk/Oxford/

Robert Phillis, weaver, shall be delivered unto him twenty powndes towards the settling on worcke in spynning of lynnen and in carding and sorting of wollen with the cytty and suburbes, wherein specyall regard must bee had that the idle and loytring sort be sett on workce, and yf they refuse and doe their worcke amysse, that they be punnyshed by whipping

That probably wouldn't work under today's labour laws in Canada. 

1601 is an important year in UK social history: "... the 1601 Act for the Relief of the Poor has come to be regarded as a milestone in British social legislation. It created the framework for poor relief in England that was to last until ... [1834]."

See http://www.workhouses.org.uk/poorlaws/1601intro.shtml

But, in any event, the "idle and loytring sort" mentioned in the except would never have been the University of Oxford scholar seated in, for example, the Christ Church Meadow or an All Souls Quad ceaselessly contemplating the eternal ineffable. That scholar couldn't, officially, have been an earlier version of me for long stretches in Oxford's history:see http://www.jstor.org/stable/29777111

That's part of a story for another day, part of which is hinted at by the name of part of path along Merton College's south wall: "Dead Man's Walk.

 

Being Christy Clark

Or, rather, the "designated crime" of "Being Christy Clark", unlike, say, the state of "Being John Malkovich" which was a very good movie.  On the other hand, the "crime" of "Being Christy Clark" should, at best, be an issue of morals, manners, and, dare we say, good breeding, at least in the better parts of British Columbia. However, it may be more than that. It seems to be a state which has the capacity? potential? to be defined as a crime to which the British Columbia Profits of Criminal Notoriety Act, SBC 2016, c 24, in force 19 May 2016 applies. (BC Dippers, somewhere, who get a note of this might be saying to themselves, if not based on this legislation, yet: so? this is new? we told you so!)

With that in mind, I offer what starts after the break for the holiday season. (No, I haven't yet started celebrating.) It's somewhat longish (about 7000 words) and filled with my seeming asides and tangents but I think it'll light up some spirits. There's even poetry (loosely).

 

 

 

Writing for CanLII Connects

Consider this a clarion call for those of you who enjoy writing case comments, and are prepared to take the time to research and write a worthwhile case comment for CanLII Connects, to at least consider doing a few a year, even though it's probable that there will be no present or future professional value to you other than whatever pleasure you derive from a job well done.

A Canadian Scholar in Oxford's Heart

This first part of this posting is a story that Bart Simpson would say is exactly what I should have expected and one for which both he and Homer would both award me D'OHs for expecting something else. The rest? What any good bibliophile (Oxonphile?) would do.

Supreme Court of Canada Appointments

Dear Sir or Madam,

Yesterday we  outlined the structure of Canada’s court system. Today we move on to Canada’s highest judicial authority, the Supreme Court of Canada (SCC).

Sections 4-6 of the federal Supreme Court Act specify the composition of the SCC. The Governor in Council (the governor general, on advice from the Prime Minister’s Cabinet) appoints an individual who has been a judge of a provincial superior court—the Court of Queen’s Bench of Alberta or Supreme Court of British Columbia for example—or who has been a lawyer for at least ten years standing at the bar of any province.[1] Three of the SCC judges must be from Quebec, which  is likely to ensure that the SCC bench is sufficiently experienced with Quebec’s civil law system. It is also customary to include judges from across Canada’s geographical regions: three from Ontario, one from British Columbia, one from the Prairie provinces, and one from the Maritimes.

In August this year, Prime Minister (PM) Justin Trudeau announced a new nomination process for selecting SCC judges in an attempt to ensure that the process is “transparent, inclusive, and accountable.”[2] Before the new selection process, the PM appointed SCC judges through a simpler but arguably less transparent process. Before August 2016, the Prime Minister’s Office could nominate any superior court judge or lawyer in accordance with the SCA and the Constitution Acts, 1867-1982.[3] Customarily, this included conferring with provincial Attorneys General and with the Chief Justice of the SCC. Usually, this process resulted in a bench comprised of Justices with similar political and social values to the sitting government’s views. The nominees will probably continue to be politically aligned with sitting governments, but PM Trudeau’s intention is to demonstrate to the public that the nominees are selected for more than their political views.

The new Independent Advisory Board for Supreme Court of Canada Judicial Appointments, chaired by Rt. Hon. Kim Campbell, convened to “provide non-binding, merit-based recommendations” to the PM.[4] By August 24, the Board had received 31 applications. It provided a short-list of 5 candidates to the PM, who nominated Hon. Malcolm Rowe. The Minister of Justice and Attorney General of Canada, Hon. Jody Wilson-Raybould, explained that the PM chose Rowe J. from the short-list “because of his legal and judicial acumen, public service background, ability to work in French, and ‘depth of understanding’ of Canada’s ‘diversity.’”[5] It also helped that Rowe J. fills retiring Justice Thomas Cromwell’s Atlantic region seat. As a result of this more transparent process, the public can review Justice Rowe’s application questionnaire here.

On October 25, 24 parliamentarians convened in Ottawa in a new question-and-answer session to determine Justice Rowe’s proficiency in French, his attention to diversity in Canada, and his commitment to access to justice. Inquirers included the leaders of the NDP, Green Party, and Bloc Quebecois, senators (including Hon. Murray Sinclair, first Manitoba Indigenous judge and former chair of the Indian Residential Schools Truth and Reconciliation Commission), and other members of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs. You can view the question-and-answer session here.

Section 41 of the Constitution provides the standard procedure to amend the “composition of the Supreme Court of Canada”.[6] It is the same as amending the office of the Queen or the Governor General and Lieutenants General of the provinces. In 2014, former PM Harper nominated Justice Marc Nadon from the Federal Court of Appeal, the Governor General appointed him, and he was sworn in according to the SCA.

Unfortunately, despite Nadon J.’s experience, expertise, and suitability to sit as puisne justice of the SCC, he was ineligible to be appointed.[7] The SCC decided with a 6-1 majority in Reference re Supreme Court Act, ss. 5 and 6 that the correct interpretation of ss. 5 and 6 of the SCA excludes current judges of the Federal Court of Appeal from sitting on the SCC.[8]

The Supreme Court Act does not state that a Military Court judge, a Tax Court judge, Federal Court judge, or a Federal Court of Appeal judge can be appointed to the SCC. Other sections in the act do refer to judges of the Tax Court, Federal Court, and Federal Court of Appeal,[9] so it is unlikely to be an error in drafting.

The new process for selecting SCC judges does not change the ultimate appointment process, so it is not necessary to amend the SCA or the Constitution. It merely suggests appropriate candidates to the PM and, hopefully, would prevent an incident like that in 2014 because there are more experts reviewing the candidates.

Humble regards,

The Dominion

 

[1] RSC, 1985, c S-26 [SCA].

[2] Justin Trudeau, Prime Minister of Canada, “New process for judicial appointments to the Supreme Court of Canada”, News (Ottawa: 2 August 2016), online: <pm.gc.ca/eng/news/2016/08/02/new-process-judicial-appointments-supreme-court-canada>.

[3] 30 & 31 Victoria, c 3 (UK), s 41(d) [Constitution].

[4] “The Independent Advisory Board for Supreme Court of Canada Judicial Appointments”, Office of the Commissioner for Federal Judicial Affairs Canada (2 August 2016), online: <www.fja-cmf.gc.ca/scc-csc/index-eng.html>.

[5] Tonda Maccharles, “Supreme court nominee’s sex assault ruling no concern for Kim Campbell”, The Toronto Star, online: <https://www.thestar.com/news/canada/2016/10/24/supreme-court-nominees-sex-assault-ruling-no-concern-for-kim-campbell.html>.

[6] Constitution, supra note 3.

[7] Justice Thomas Cromwell, as quoted by Laura Stone and Sean Fine, “Nadon appointment rejected on technicality, Justice Cromwell says”, The Globe and Mail (Ottawa: 14 September 2014), online: <www.theglobeandmail.com/news/politics/nadon-appointment-rejected-on-technicality-justice-cromwell-says/article31891826/>. For more information see <www.cbc.ca/news/politics/marc-nadon-s-failed-journey-to-the-supreme-court-1.2636403>.

[8] 2014 SCC 21, [2014] 1 SCR 433 at para 4.

[9] See, for example, SCA, s 30.

We Will Remember Them

Dear Sir or Madam,

We have nothing to say today but "Thank you".

If you would like to join us in expressing our gratitude, here is a list of Remembrance Day ceremonies in Edmonton today.  It is worth noting that one of the largest ceremonies in the province takes place on our very own campus.  Please be at the Butterdome and seated by 10:00am if you would like to attend.

Lest We Forget,

The Dominion

 

 

 

 

Breaking Bad Brexit News: Ms May May Not, At Least Not Yet

 

The UK QB ruled unanimously (3-0) this fine English morning that the Tory gov’t cannot use the Crown’s prerogative to initiate the UK’s withdrawal from the EU. The decision to withdraw or not – the decision whether to give notice under the applicable EU treaty – is for Parliament to make, not the party in power in Parliament; aka the “gov’t” or the Crown.

[111] for the reasons we have set out, we hold the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

R (Miller) v Secretary of State for Exiting the European Union 2016 EWHC 2768 (Admin)

see http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.pdf

A spokesperson from the Crown – or UK gov’t – or the Tory party, pick your poison, announced, as one might expect, that the decision will be appealed.

 A speaker, yesterday, at a lecture I attended, used the line Henry 2 v Henry 8 line to describe the possible results, saying that, of course, the decision wouldn’t be put quite that way. Under that description, the score is now H8 2, H2 1 at the end of the 2nd period. As much as I’d love to be able to claim it, it’s not my concoction.

In a “I’m not sure how it’s related but he’ll eventually grope towards an explanation development”, Donald Trump’s campaign spokestwitter has twittted that the Donald, hisself, blames “this tragic interference by unelected, wig wearing, black dress wearing elites with the will of the true representatives of the pure wool people in the United Kingdom on ‘Crooked Hillary’" and that he and Vladamir Putin remain ready, willing, and able to assist the British people in the protection of their "precious bodily fluids".

In the audio version of the twit, it's possible to hear what sounds like goats an and sheep in the background.

In Scotland, substitute "water of life" for precious bodily fluids, even if it's (shudder) Laphroiag.

 

Halloween on the Plains of Abraham: Québec Tourism and History

Joyeux Halloween, Mesdames et Monsieurs!

This week, we focus on how the BNA Act and the Constitution Act, 1982, affected Québec. The Dominion team chose this week to focus on Québecois history under Confederation because Friday, November 4th, marks the 35th anniversary of “la nuit des longs couteaux”, or “the night of the long knives”, when Minister of Justice Jean Chrétien (as he then was) met with all the provincial premiers… except Québec Premier René Lévesque.

That’s a scandalous story for later this week, but today, we kick off Québec week by reviewing the Battle of the Plains of Abraham of 1759. Incidentally, every year the City of Québec throws a spooky Halloween party in the Joan of Arc Gardens at the Plains of Abraham. The Plains are Canada’s oldest national historic park, likely named for Abraham “the Scot” Martin, a sailor and fisherman friend to Samuel de Champlain.[1] If you’ve visited Québec City, you’ll likely agree it is aesthetically impressive. Because of its coveted geographic position, France had built up remarkable fortifications around the city to prevent the inevitable British invasion.

During the Seven Years’ War from 1756 to 1763, the British and French colonial forces were vying for economic and territorial expansion in many areas, including North America.[2] The battle at Québec City was for a strategic position in the region. Québec City was the cornerstone of what was known as New France at the time. Recognizing its importance in international ship trade, its access to waterways, and its significance in the fur trade, British forces attempted to siege the city several times.[3] The 1759 Battle of the Plains of Abraham and the 1960 Battle of Sainte-Foy nearby sealed the fate of New France’s subordination to British rule, leading to Québec’s subordination to British confederation 100 years later.

It is estimated that up to 20,000 men rallied to fight for the French Army, which was approximately one third of the population in New France at the time.[4] Unfortunately, despite the high numbers of French fighters, the majority were unprofessional militiamen, with only about 3,700 troops (including approximately 1,800 Indigenous allies) regularly manning the fronts. The British Army’s well-trained professional soldiers only needed about 4,400 regularly placed troops to defeat the French in less than half an hour on the Plains.[5] Both the French and English Generals died from their injuries in the battle.

The French Army surrendered the City just a few days later. Despite the city’s strong fortifications, the French were not confident that the city could withstand British attack. Pressure from residents to surrender was enormous.[6] The French Army decided that it was better to negotiate a surrender than to risk more casualties and destruction to the city. One third of private residences had already been burned down and many more needed drastic repair. Almost all public buildings had been damaged. The formerly French citizens now had to swear allegiance to the British Crown and struggled to maintain their religious freedom.

Compared with most cities in Canada that developed over the last 150 years, Québec boasts a history evident in its architecture. Beautiful stone and brick structures remind one of centuries-old European cities. The fortified walls leave a legacy of the battles for control of this strategic city on the St. Lawrence River. If you have the chance to visit, check out Halloween on the Plains of Abraham from October 1st to November 6. There are Halloween decorations in the parks, haunted tours for families, spooky stories for older children, and scary historical legends and tours for adults.[7] The tours are available in English upon request.

Cordialement,

Le Dominion du Canada 2017

 

[1] “Plains of Abraham (Battlefields Park)”, National Battlefieds Commission, online: <www.quebecregion.com/en/historic-sites/plains-of-abraham-battlefields-park>; “The Tale of a Toponym”, National Battlefields Commission, online: <www.ccbn-nbc.gc.ca/en/history-heritage/site-history/illustrious-park>.

[2] “Plains of Abraham”, National Battlefields Commission, online: <http://www.ccbn-nbc.gc.ca/en/>.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] “Halloween”, Plains of Abraham, National Battlefields Commission, online: <www.ccbn-nbc.gc.ca/en/activities/halloween/>.

Stop trying to make Prohibition happen, it's never going to happen.

Dear Sir or Madam:

Can you imagine a glass of wine at the end of a long work week being not only frowned upon, but outlawed? Can you imagine having a wine and cheese, but the wine had to be non-alcoholic? What about a society where wine tours, and craft beer tastings were banned by the government? Consuming alcohol is very much the status quo in our society, with many people choosing to consume alcohol in moderation. Though if we flashback to the late 1800s and early 1900s, the practice was not as widely accepted.

Prohibition is often associated with the United States’ decision to completely bar alcohol consumption, sales and distribution. The prohibition movement was an international phenomenon beginning in the late 19th century, with countries ranging from long-standing periods of prohibition (i.e. The United States) to more moderate regimes (i.e. Canada).¹ Canada was actually the first country to have a referendum regarding alcohol prohibition.² Prime Minister Laurier called the referendum in 1898, with 51% of the population voting in favour of prohibiting alcohol sales and consumption in the country.³ Although a narrow majority was in favour of prohibition, the government decided against passing a prohibition law because Quebec was vehemently against it.⁴ In fact, national prohibition only occurred as a war measure during the First World War.⁵ Today’s post will examine a brief history of the prohibition movement in Canada, and discuss why prohibition failed.

Prohibition first began with a movement towards alcohol temperance. The temperance movement was an international campaign promoting abstinence from alcohol, with proponents believing alcohol consumption was responsible for “society’s ills.”⁶ In Canada, “temperance societies" (collections of individuals who believed in the movement) formulated around 1827, with members tolerating moderate consumption of beer and wine.⁷ The main temperance advocates during the 19th century were the Dominion Alliance for Total Suppression of the Liquor Traffic and the Woman’s Christian Temperance Union.⁸ Gradually these societies shifted their values, advocating for a total prohibition.⁹

The Dunkin Act, 1864 was one of the first pieces of legislation to address prohibition. The Dunkin Act allowed municipal governments within the Province of Canada to prohibit retail sales of alcohol.¹⁰ The Canada Temperance Act of 1878 extended this local retail prohibition option to the entire Dominion after Confederation.¹¹ Therefore, prohibition implementation was left largely to local governments in the early stages.

Provincially, the first attempt at prohibition occurred just before the First World War.¹² Provinces banned alcohol at this time as a social sacrifice to help the war effort across the pond.¹³ A few years later, the federal government followed the provinces and enacted national prohibition in 1918 under the War Measures Act, 1914.¹⁴ The federal government believed that prohibiting the manufacturing and importation of alcohol would help the war effort by promoting the economy and conserving financial resources.¹⁵

Although there were small victories for prohibition supporters in Canada, the concept largely failed. Prohibition was more difficult to implement in Canada than the United States due to jurisdictional conflicts over alcohol regulation.¹⁶ The federal government has jurisdiction over the manufacturing and trading of alcohol, whereas the provincial governments have power over the sale and consumption.¹⁷ Further, Quebec rejected prohibition from 1919 because the province was making huge profits from alcohol related sales.¹⁸ Throughout the 1920s, the remaining provinces began to advocate for liquor sales, and voted to become “wet” provinces.¹⁹ Prince Edward Island was the last province to give up the prohibition movement during the 1940s, but some communities remained dry out of personal preference.²⁰

Social gatherings and situations would be significantly different today if prohibition continued to gain traction after the 1920s. You can not seriously tell me you actually enjoy talking to your great uncle Fred at family functions without a little alcoholic pick-me-up. Further, the alcohol industry is expected to be worth C$42 billion by the end of 2016.²¹ Consider the revenue the government would be losing by banning alcohol sales; and here in Edmonton we thought Rogers Place was a big investment.

Your Humble and Obedient Servants,

The Dominion

 

 

¹ Benoit Dostie & Ruth Dupré, “The people's will: Canadians and the 1898 referendum on alcohol prohibition” (2012) 49 Explorations in Economic History 498 at 498.

² Ibid at 499.

³ Ibid at 499.

⁴ Gerald Hallowell, “Prohibition in Canada” (12 August 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/prohibition/>.

⁵ Dostie & Dupre, supra note 1 at 499.

⁶ Graeme Decarie, “Temperance Movement in Canada” (23 July 2013), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/temperance-movement/>.

⁷ Ibid.

⁸ Hallowell, supra note 4.

⁹ Decarie, supra note 6.

¹⁰ Hallowell, supra note 4.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

¹⁴ Jack S Blocker Jr, David M Fahey & Ian R Tyrrell, Alcohol and Temperance in Modern History, 2nd ed (Santa Barbara: ABC-CLIO, 2003) at pg 229.

¹⁵ Ibid at 229.

¹⁶ Hallowell, supra note 4.

¹⁷ Ibid.

¹⁸ Ibid.

¹⁹ Ibid.

²⁰ Ibid.

²¹ Agriculture and Agri-Food Canada, Consumer Trends Wine, Beer and Spirits in Canada, Market Indicator Report September 2013 (Ottawa: Agriculture and Agri-Food Canada, 2013) at 3. 

Oh Canada! Your home's on Native Land!

Dear Sirs and Madams:

Did you know that Canada’s parliamentary buildings sit on unceded Algonquin land?[1] “The House of Commons, the Senate, and the Supreme Court of Canada make laws for all Canadians while situated on land that was never lawfully purchased”.[2] This contravenes formal legal rules established for encroaching on Indigenous lands. Today’s post reviews significant Aboriginal jurisprudence from the Supreme Court of Canada (SCC) that interpreted the BNA Act and the Constitution Act, 1982 with respect to the Crown’s negotiations with Indigenous groups.

On Monday, we discussed the Royal Proclamation of 1763. It essentially allowed the Crown to encroach on “Indian Territory” through negotiations or treaties. Because the Crown retains sovereignty, the Royal Proclamation established an orderly transition of control rather than assured Indigenous sovereignty over “Indian Territory”. At Confederation, s. 91(24) of the BNA Act gave Parliament exclusive jurisdiction to make laws respecting “Indians, and Lands reserved for the Indians” but did not recognize inherent or existing Indigenous rights. Section 35 of the Constitution Act, 1982 protects existing “aboriginal and treaty rights” and s. 35.1 guarantees aboriginal participation in the discussion respecting Indigenous rights.

Canadian common law jurisprudence has attempted to solve some of the conflict arising when federal and provincial legislation affects Indigenous land or interests in land. In Calder et al v. Attorney-General of British Columbia, the SCC held that Indigenous land rights survived European settlement unless a treaty extinguished such rights.[3] In Guerin v. The Queen, the SCC determined that the Crown’s fiduciary duty arises from the nature of Indian title and that Indian land interests are only transferable to the Crown.[4] However, the Court in R. v. Sparrow also asserted that rights could be extinguished by the Crown without consent by clearly expressed legislation before the 1982 Constitution and with consent or by constitutional amendment after the 1982 Constitution because s. 35 entrenched those rights[5].

The Court in Sparrow also held that the government could infringe on indigenous rights and title to land with a “compelling and substantial” rationale. The SCC maintained that the Crown still has to act in accordance with the fiduciary duty it owes Indigenous groups and must act honourably in light of the historical and future relationship with Indigenous peoples. The Court expanded on the principle in R. v. Van der Peet that pre-contact Indigenous claims are not frozen in time.[6] Indigenous rights are flexible in that they are not simply the same as rights were in the 1700s. This means that that the Crown has to consider needs that are unique to Indigenous peoples in today’s society.

In Delgamuukw v. British Columbia, the SCC held that Indigenous land rights and the Crown’s obligations are unique because they predate Crown sovereignty.[7] It also allowed a more flexible evidentiary standard to accommodate oral history traditions that were more prominent in Indigenous cultures than in the English common law system. The Court specified that Indigenous perspectives needed equal weighting to Canadian common law perspectives on property ownership. However, this “equal weighting” did not amount to giving a veto power to indigenous voices and there is a broad range of legislative objections that can justify infringement. The Court held that indigenous rights involve exclusive use and occupation but, again, the Crown can infringe on these rights if they exercise their duty to consult and accommodate affected communities. This is necessary even where aboriginal title is asserted but not yet proven. The duty to consult is flexible: its intensity increases with significant infringement and with a strong indigenous claim to title.

The Court also expanded on the principle of the honour of the Crown in negotiations regarding resource development in areas where aboriginal title and rights are asserted but not established. The honour of the Crown requires consultation and accommodation in good faith and actual consent, not just consultation, may be required in some circumstances where title is officially established.

Most recently, in 2014, the Tsilhqot’in Nation v. British Columbia decision made headlines for several reasons.[8] The Court declared indigenous title to off-reserve lands for the first time. It extended the title to a large area that an Indigenous group used regularly and exclusively at Confederation. It asserted that Indigenous rights are exclusive to all others including provincial and federal legislation.[9] Pam Palmater, a lawyer and chair of Indigenous Governance at Ryerson University, suggests that there remain large areas in Canada that have never been ceded, negotiated, or compensated for.[10] Palmater further asserts that indigenous human rights have suffered as a direct result of being subject to government control over their lives and territories.[11] The Tsilhqot’in decision, she points out, clarified that consent, versus mere consultation, is required.[12]

Treaty negotiations are not just part of Canada’s colonial history. Concerns about Indigenous land rights and title are currently at issue in Ontario. The provincial and federal governments’ consultation process with members of the Ontario Algonquin nation affects a land claim that includes Canada’s capital. Despite an Agreement-in-Principle ratified by the Algonquins of Ontario, some scholars argue that this is a continuation of the government’s colonial management of a group of people.[13] The Agreement-in-Principle is not binding but forms the framework for negotiations.[14] The region under dispute is approximately 36,000 km² with a population of about 1.2 million. Both Indigenous and non-Indigenous Canadians could be affected in the short term and the long term. By revisiting the errors made under colonial practices, Canada will be in a better position to address Indigenous claims.

Your humble servant,

The Dominion

[1] “Chiefs say Proposed Algonquin Land Claim Deal Illegal, Fraudulent” (3 Mar 2016), CBC News, online: <www.cbc.ca/news/indigenous/algonquin-land-deal-illegal-1.3475359>; Lynn Gehl, “‘Oh Canada! Your Home is Native Land’: The Algonquin Land Claims Process”, Atlantis 20:2 (2005), online: <www.lynngehl.com/uploads/5/0/0/4/5004954/51.pdf>.

[2] Robert Potts, “Algonquin Land Claim, a Journey of Reconciliation” (28 Jun 2013), The Hill Times, online: <https://www.hilltimes.com/2013/06/28/algonquin-land-claim-a-journey-of-reconciliation/25205>.

[3] [1973] SCR 313, 34 DLR (3d) 145.

[4] [1984] 2 SCR 335, 13 DLR (4th) 321.

[5] [1990] 1 SCR 1075, 70 DLR (4th) 385 [Sparrow].

[6] [1997] 3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw].

[7] [1996] 2 SCR 507, 137 DLR (4th) 289.

[8] [2014] 2 SCR 257, [2014] 2 SCR 257

[9] “Pam Palmater on Court Rulings Impacting Aboriginal Rights” (2 Jun 2015), CBC

[10] Ibid.

[11] Ibid; Pam Palmater, “Canada’s State of Emergency” (10 Mar 2005), TedxRyersonU, Tedx Talks, YouTube, online: <https://www.youtube.com/watch?v=lrd4848Q064>.

[12] Lynn Gehl, “Canada’s Interim Comprehensive Land Claims Policy is No More than Colonial Policy” (27 Nov 2014), Anishinabek News, online: <anishinabeknews.ca/2014/11/27/algonquin-chiefs-say-tsilhqotin-supreme-court-decision-is-no-more-than-colonial-policy/>.

[13] Lynn Gehl, “Why I’m Hoping the Algonquin Land Claim Proposal is voted Down” (23 Feb 2016), Ricochet Media, online: <https://ricochet.media/en/970/why-im-hoping-the-algonquin-land-claim-proposal-is-voted-down>; Potts, supra note 2.

[14] Algonquins of Ontario Agreement-in-Principle Executive Summary (2016), Indigenous and Northern Affairs Canada, online: <www.tanakiwin.com/wp-system/uploads/2015/06/Frequently-Asked-Questions-and-Executive-Summary.pdf>.

Section 15: Indigenous People Challenge Sex Discrimination in the Indian Act

To whom this may concern:

TL;DR the Indian Act continues to discriminate against women when giving individuals status under ss. 6(1) and 6(2). In 2015 the Quebec Superior Court struck down offending provisions that violate the s. 15 Charter right to equality on the basis of, inter alia, sex. The government is at present reassessing.

As we wrap up this week’s blog posts on notable sections of the Charter, we introduce next week’s topic: Indigenous rights and history vis a vis the BNA Act. As mentioned during our inaugural week of introductory posts, the BNA Act was a “product of its time [and] failed to address indigenous peoples in a meaningful way, entrenching a disregard for aboriginal law that persists today.”

Indigenous issues in Canadian politics and jurisprudence are complex and often poorly balanced due to historic systemic and legislative discrimination toward Indigenous people in Canada.[1] On the one hand; we must recognize the unique position of Indigenous peoples whose ancestors predated Confederation and colonization. On the other hand; by singling out certain groups of people, we risk deepening the chasm among people and making it difficult to reconcile systemic discrimination. Indeed, certain legislation in Canada’s history may have created a deep divide between Indigenous and non-Indigenous people.[2]

Unfortunately, our small team of five students includes only European-heritage people (both Canadian-born and immigrants) with no North American Indigenous roots. Therefore, our analysis of these issues comes from a specific perspective: a modern, settler-heritage and/or recent immigrant-heritage, with liberal-ish (or straight up libertarian, for one of us!) legal perspectives. What does this mean for you, the reader? It means that we might make mistakes in our understanding of Indigenous issues and concerns. We try our best to be aware of issues, but ultimately it is impossible for us five students to perfectly reflect the variety of Indigenous peoples lived experiences and history.[3]

Disclaimer aside, we feel that we have a strong basis for awareness and respect for Indigenous communities and a decent understanding (for wet-behind-the-ear law students) of Indigenous legal issues to spend a week talking about Indigenous-Canadian jurisprudence (known as Aboriginal Law). Today, we address a section 15 equality violation in the Indian Act.[4]

Sex discrimination in the Indian Act is not a new phenomenon. Next week we will discuss more legislation that discriminated against Indigenous people of this land. In the interest of brevity, please see the following links for the history of Charter challenges that Indigenous women have been fighting, notably McIvor, Bedard, Lovelace, and Lavell: ablawg.ca and rabble.ca.

The relevant subsections in the Indian Act are 6(1) and 6(2). If you are Indigenous, you would likely agree that s. 6 is highly problematic. Section 6 gives people legal status as “Indians”. Status is important to many people because it comes with various rights and responsibilities. More importantly, it allows people to be included with other members of their specific cultural community. While it might not seem like an obvious connection, Indigenous people sometimes report that the official “status” can have a significant effect on their sense of identity. One example is that people might not have the right to live on a reserve where their family lives.[5]

To make a complicated story short, ss. 6(1) and 6(2) give individuals equal Indian status. However, if a person with 6(1) status has children with a non-status person, the children can apply for 6(2) status. If a 6(2) person has children with a non-status person, the children cannot apply for s. 6 status. If two 6(2) people have children together, their children can apply for 6(1) status. It’s like math; the more you divide genetics in half, the more watered down a person is, no?[6] However, culturally, some Indigenous people find that their status does not match their identity. Therefore, Indigenous people have brought s. 15 Charter challenges to court to obtain s. 6 status.

Dr. Lynn Gehl is an Indigenous woman without status.[7] Her mother is not Indigenous and her father was granted 6(2) status posthumously in 1985; he spent his life feeling disconnected from his community.[8] Gehl’s father’s mother (who qualified for 6(1) status) did not know the identity of Gehl’s grandfather. In the absence of a father, Gehl’s father could not obtain 6(1) status because in the absence of his identity, Indigenous and Northern Affairs Canada presumes him to be a non-status person.[9] The onus to prove status rests upon the applicant.[10]

Although the government of Canada has repeatedly attempted to rectify patrilineal discriminatory laws, Dr. Gehl asserts that the current system still discriminates against mothers and children. Dr. Gehl has been tirelessly fighting a Charter challenge for 31 years. When the government disregards the cultural or legal identity of an absent father, the outcome is that the government assumes that the father is non-status. Because the applicant cannot prove a father’s status, the government assumes that, therefore, there must be no status. If Gehl’s grandfather could be identified and if he qualified for either 6(1) or 6(2) status, Gehl’s father would have been granted 6(1) status and Gehl would qualify for 6(2) status. In the absence of positive proof of status, Gehl’s grandfather is presumed to be a non-status individual. The trickle-down effect is that Dr. Gehl, an integrated member of her ancestral community, remains without status. Below is a graphic designed by Dr. Gehl for easier understanding. She also provides a resource to clarify the four “un”-paternity situations.  

To get back to s. 15, let’s face it: due to the biological difference between men and women, a man can be absent at his child’s birth. It is impossible for a woman to be absent at her child’s birth. At birth or shortly thereafter, parents have to sign the birth certificate. So, it is much easier for a person applying for status to trace paperwork and find the identify of a later absent mother (or grandmother) than an absent father (or grandfather). Take this situation and supplant it half a century ago, on an Indian reserve. Who is Gehl’s grandfather? Gehl argues that it shouldn’t matter. Section 6 discriminates against women who cannot avoid birth-parent identity when men can avoid birth-parent identity. Refusing status to a child on the basis that the absent father is presumed to be a non-status individual assumes that women carry a heavier burden to prove their children’s identities than do men. In the absence of a father, Gehl’s father’s status should have been assessed only on the basis of his mother’s identity.

A similar s. 15 challenge was raised in Descheneaux c. Canada (Procureur General) in August 2015.[11] The lawyers for the three Indigenous plaintiffs distributed a document illustrating actual family tree charts and hypothetical family tree charts (on the advice of Dr. Lynn Gehl, published by the Assembly of First Nations) to assist the court in understanding the blatant discrimination in s. 6. The Quebec Superior Court declared that paragraphs 6(1)(a), (c), and (f), and subsection 6(2) of the Indian Act “unjustifiably infringe section 15 ... and are inoperative” or of no force or effect.[12] The Attorney General did launch an appeal, but withdrew it after the Conservative government gave way to the Liberal government in the November 2015 election. The government has a two-step plan to address “known” sex discrimination in the Indian Act.[13]

The Dominion applauds this major step towards dismantling the ongoing systemic legal discrimination against some Indigenous people. However, one might well be cautiously optimistic because government reform to sex discrimination in the Indian Act is not new and does not always resolve the issues. After major legislative changes in 1951, Indigenous Canadian women campaigned for almost 25 years before the Indian Act was amended in 1985, due to s. 15 Charter challenges.[14] Another 26 years passed before the government rectified persistent discrimination against Indigenous women resulting from the 1951 amendment of the Indian Act.[15]

Thanks for reading! We’ll be back on the statutory holiday Monday, October 10, with our “anti-Thanksgiving” week: Indigenous Week.

With most humble regards,

The Dominion

 

[1] Wendy Moss & Elaine Gardner-O'Toole, “Aboriginal People: History of Discriminatory Laws”, Government of Canada Publications (Nov 1987), online:  <publications.gc.ca/Collection-R/LoPBdP/BP/bp175-e.htm>.

[2] Ibid.

[3] Moreover, we are unable to interview any Indigenous people according to the University’s research ethics principles. It sounds unfair, but there is a good policy behind it. Next week we’ll write a blog post about this issue.

[4] RSC 1985, c I-5.

[5] Janet Silman, Enough is Enough: Aboriginal Women Speak Out (Toronto: Women’s Press, 1992).

[6] This is sarcasm. People are not math equations and one’s culture and identity is not determinative solely on the basis of genetics or legal status.

[7] We confirm that we did not interview her as a research participant; we researched her peer-reviewed academic article, her blog, and the court decisions of her Charter challenge.

[8] Lynn Gehl, “The Queen and I: Discrimination Against Women in the Indian Act Continues”, Canadian Woman Studies: An Introductory Reader (Toronto: Inanna Publications and Education Inc) at 162-171.

[9] Some Indigenous communities had matrilineal rules of descent before colonization, such as the Maliseet of the Tobique First Nation located in New Brunswick. Silman, supra note 5.

[10] Indian Act, supra note $$, s 14.2(4).

[11] 2015 QCCS 3555, 2015 CarswellQue 13424 [Descheneaux].

[12] Ibid at para 245.

[13] The Government of Canada’s Response to the Deschenaux Decision, Indigenous and Northern Affairs Canada (Ottawa), online: <https://www.aadnc-aandc.gc.ca/eng/1467227680166/1467227697623>.

[14] Mary C Hurley & Tonina Simeone, Legislative Summary of Bill C-3: Gender Equity in Indian Registration Act, Library of Parliament Research Publications (Ottawa, 18 March 2010), online: <www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=c3&Parl=40&Ses=3&source=library_prb>; Silman, supra note 5.

[15] Pam Palmater, “Frequently Asked Questions about Bill C-3 (Simplified)”, Legislating our Extinction, Non-Status Indians (3 Feb 2011), online: <nonstatusindian.blogspot.ca/2011/02/frequently-asked-questions-about-bill-c.html>.

Freedom of Expression: From the BNA Act to the Westboro Baptist Church

Dear Sir or Madam,

In our last post we introduced the Canadian Charter of Rights and Freedoms, which, along with the BNA Act, makes up the bulk of our written constitution. Though implied constitutional rights existed before the Charter, it explicitly set out for the first time Canada’s guaranteed constitutional rights and freedoms.[1] This was a major shift from the BNA Act’s approach, which was silent on individual rights.[2]

Each day this week we’ll look at some individual rights and freedoms. Today, we begin the freedom that Chief Justice McLachlin described as “the indispensable condition of nearly every other freedom”,[3] section 2(b), the freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication (such as online social media).

Courts have consistently characterized freedom of expression as essential in a free and democratic society.[4] The provision is also worded broadly to protect any activity intended to convey meaning.  Anything from a political satire to parking your car in a particular spot can be an activity that conveys meaning and is protected under s. 2(b).

Where did this freedom come from you ask? In 1938 the Supreme Court of Canada established that “the right of public discussion… existed at the time of the enactment of The British North America Act.”[5] Even before the charter guaranteed freedom of expression, the BNA Act’s declaration that it was a Constitution similar in principle to that of the United Kingdom implicitly protected freedom of expression.

Freedom of expression is not usually controversial in and of itself and individuals rarely need protection when their views are widely held in society. It is when expression becomes a nuisance in the street or radically offensive to others that citizens pressure governments to stifle unpopular perspectives. The question then becomes, what expression can the state reasonably limit under s. 1?

The Supreme Court has determined that violent expression and threats of violence are not protected under s. 2 (b).[6] The line becomes harder to draw when free expression may put other fundamental values at risk. Certain expressions may incite violence, undermine fundamental governmental institutions, or undercut racial and social harmony.[7]  While Canada does not protect certain forms of hate speech, other countries like the United States have taken a different approach.

In R v Keegstra, the Supreme Court grappled with the limits of protecting hate speech.[8] James Keegstra was a high school teacher in Alberta who expressed hateful anti-Semitic comments in his classroom. During classes, he describes Jews as "sadistic", "money-loving" "child killers" who had "created the Holocaust to gain sympathy." He was prosecuted under s. 319(2) of the Criminal Code of Canada, which prohibits publicly and willfully promoting hatred.

The Supreme Court of Canada determined that even though the legislation infringed Mr. Keegstra’s freedom of expression, it was a reasonable and justifiable limitation in a free and democratic society in order to protect target groups from hate propaganda.

In contrast the United States has traditionally protected hate speech beyond Canada’s reasonable limit.

In a recent US case, Snyder v. Phelps, the United States supreme court upheld hate speech protection for members of the Westboro Baptist Church.[9] Members of the church regularly picketed military funerals to communicate its belief that God hates the United States for tolerating homosexuality, particularly in America’s military. In this case, they picketed the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty.

Ultimately the court concluded “Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”

What are your thoughts on Canada’s limitation of expression compared with that of the US? Leave us a comment below!

Respectfully submitted,

The Dominion

 

*Special thanks to Professor Eric Adams and the Centre for Constitutional Studies for the informative recent Downtown Charter Series presentation on s. 2(b): What Expression does the Charter Protect?

 

[1] Kent Roach & David Schneiderman, “Freedom of Expression in Canada” (2013) 61 SCLR (2d) 429 at 431-32.

[2] Ibid at 431.

[3] R v Sharpe,  [2001] 1 SCR 45, 194 DLR (4th) 1 at para 23.

[4] Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at 1336.

[5] Reference Re Alberta Statutes - The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act, [1938] SCR 100.

[6] R v Khawaja, 2012 SCC 69, [2012] 3 SCR 555.

[7] Ibid. 

[8] [1990] 3 SCR 697, [1991] 2 WWR 1.

[9] 562 US 443 (2011), 131 S Ct 1207.

Gone Up To Oxford To Read ...

Law.

In my continuing quest to eliminate, or at least avoid, the need to shovel or walk in snow unless I've chosen to be (1) on or near enough to mountains and high enough that snow is to be expected (2) in winter on ice that badly needs a scraping, I've relocated to Oxford. (England.) It's also true that Oxford's decision to admit me as a candidate for an Mst in Legal Research had at least something to do with that decision. The residence requirement for first-year graduate students is: have one's residence within 25 miles of the city centre, absent appropriate permission or unless required by one's course.

I will, over the course of the next year plus, report irregularly on life, in Oxford or in the United Kingdom, usually as a mature (let us concede at least by age, so as to avoid argument at this stage) Canadian graduate student in Oxford's Faculty of Law. Or something at least marginally related to that. 

I will make no attempt to keep my observations above or below the PG levels.

In that vein, my first report is on the quality of the toilet paper in the Examination Schools. Let's just say that it's a good thing that, based on Oxford's recent ranking as the overall best university in the known world, we know at least one quality that wasn't taken into account. It is, one might say, stern on the stern. My second is the reminder that in medieval cities it doesn't hurt, and is less likely to be part of the cause of hurt, if one is shorter than the current average. There are still many doors which make one (almost) feel tall.

My college? St. Hilda's: a 10 minute walk from where I live, unless I stop to eat at any one of the very eclectic, very good, choices on the way. Getting to the college the fastest way requires that I cross a ROUNDABOUT. Capitalization intended. I'll write about that bit of topography in due course. There are certain survival skills that one needs to acquire sooner rather than later. 

Why Oxford? For now, other than that I didn't apply any where else AND Oxford accepted me? It's my belief that Oxford has better gargoyles and grotesques than does Cambridge. It's also closer to the Stratford: Stratford-upon-Avon. It has nothing to do with HarryPotterIsm. 

Canadians looking to live in Oxford's weather can acclimatize by spending a fall/winter/spring in Vancouver. One difference is that Oxford doesn't have Vancouver's awnings. (Nor, so far at least, yawnings, but that's an issue for another day.)

The law faculty building and the law library? They're about 20 minutes at an amble from where I live, usually by a route that requires me walk along a long wall on a street called, rightly, Longwall. (The wall is on the right, too, as I walk to school from home.)

The Bodleian, itself? 10-15 away.  

The first week of Michaemas term - "fresher" week a.k.a. orientation week a.k.a. "zeroeth" week starts tomorrow: Sunday, Oct 2. That's a small ha-ha to all of you who have been slaving away at your courses since early September; perhaps even late August. 

And yes: I do consider it ironic, and humorous, that I gave up a life of regularly (enough) wearing one sort of medieval robe to switch to another which I'll have to wear even more often. On the other hand, the new version isn't yet as ostentatious as the old; nor did it cost as much. On the third hand - Larry Niven fans will get the reference - I'm required to wear a dark suit, white shirt, black shoes and (usually) a black tie when wearing that robe. It's like being in court again but wearing a version of one's lawyer's gown over one's suit.

In the UK, one drives on the left and, on escalators, walks on the left. That makes the UK more consistent than North America on that front.

Finally, for now, I have literally gone up to Oxford. Afula, Israel, where (I'm told) I made my first appearance on the planet is at 32.6105°N latitude; after that, I lived farther south for a few years. Toronto, where I lived for most of my life in the last millennium, is at 46.635°N. Vancouver, where I lived the past few years, is at 49.2827°N and Oxford is at 51.7520°N. I point that geographical tidbit out as a current rejoinder to those who have suggested that, all things considered, I might be (ultimately) destined to travel in the other direction. They weren't referring to Australia.

Cheers from near Cowley Road, a few minutes walk south south-east of the Magdalen - not entirely pronounced in any logical sense approaching how the name is spelled, beyond taking int account 4 of the 5 consonants - Bridge. But, then, anyone familiar with how I pronounce my surname may say that I ought not to be heard to complain. (Too loudly.)

DC 

 

 

 

 

Convenient Conventions: Underlying Rules of Constitutional Interpretation

Dearest Reader,

The BNA Act is comprised  of “black-letter law” (the actual words on the page that prescribe the law) and unwritten principles or customs that supplement the black-letter law.¹ Today’s post reviews the unwritten constitutional conventions that are not technically laws but are mandatory.² These conventions assist the courts in applying the Living Tree Doctrine.

Courts use conventions to interpret laws in keeping with judicial history and the rule of law.³ With the except of Quebec’s civil system, Canada’s common law system is based on the United Kingdom’s, where current judicial decisions look to precedent cases to determine the appropriate application of the law. Commonly used principles of statutory interpretation guide judges to interpret legislation in similar manners as their colleagues and predecessors. This allows the justice system to be somewhat predictable.

Conventions are unwritten principles that guide courts in deciding how to best approach a constitutional question. They are considered part of the subtext of the constitution, similar to the Preamble of any legislation. Neither are actual laws, but give courts context to respond to constitutional questions. Conventions form when a typical custom becomes hardened into a formal practice.⁴ Political conversation, negotiation, and past governmental practice often shape conventions.

Legislation is often written in broad terms to allow courts some flexibility in applying laws.Canada’s constitutional law tends to be written in “broad, vague language that rarely speaks definitively to the cases that come before the courts.⁵ Conventions can assist courts in narrowing a question that arises from a broad law. Alternately, legislation can be written more specifically to ensure a narrow interpretation and application. In such a case, conventions provide  courts with the ability to interpret a law with more flexibility, if necessary.

Many of the BNA Act provisions work in harmony to demonstrate underlying conventions. Early conventions guided the constitution and they continue to guide constitutional interpretation. Here are some important examples:

Constitutional Continuity: the idea that we maintain many of the same constitutional practices that the government of Canada was founded upon, as a former colony of Britain.

• Preamble: “a Constitution similar in Principle to that of the United Kingdom”⁶
• S. 9: the authority of and over Canada continues and is vested in the Queen
• S. 11: establishment of the Queen’s Privy Council, similar to that of the UK
• S. 12: English law continues until it is abolished by Canadian law
• S. 55: the Queen must give approval to all Orders in Council (a.k.a. laws)

Federalism: provinces have authority over some activities (s. 92) but the federal government reserves residual power (s. 91).

• Preamble: respects the provinces’ authority because the four provinces desired to unite to create the federal government
• S. 22: respects regional interests in the federal government senate appointments
• Ss. 91 & 92: enumerated powers of federal and provincial governments
• S. 93: gives the provinces large power over education
• S. 94: assumes that the common law provinces would want to pass uniform laws while Quebec maintains its civil law system
• S. 95: provinces cannot enact laws relating to agriculture and immigration that are repugnant to any federal act

Democracy: the Constitution aims for a free and fair society led by a government responsible to its citizens

• Preamble: “responsible government” requires a majority of the House of Commons to pass laws
• S. 36: a clear majority (50% + 1 vote) rules in the Senate
• S. 37: representation of the Members of Parliament is based on population
• S. 40: regional distribution of electoral districts
• S. 50: each session of parliament can sit for no longer than 5 years
• S. 53: bills relating to appropriation of funds and tax impositions must originate in the House of Commons (not the unelected Senate)

Rights protected by the Constitution

• S. 92(13): property and civil rights
• S. 93(2) minority religious education rights
• S. 133: language rights of both official languages

In Re: Resolution to Amend the Constitution, the Supreme Court of Canada officially determined that conventions are appropriate principles to consider when deciding a question of constitutional law.⁷ The Court considered whether the federal government can amend the Constitution without provincial approval. The federal government could not unilaterally amend the Constitution due to an underlying constitutional convention of “substantial” provincial concurrence that the federal had established in political negotiations.⁸ To determine “substantial” provincial concurrence, the Court relied on past government decisions that required “substantial provincial support” as well as international examples from other Commonwealth countries that did not require unanimity from its provinces.⁹ Ultimately, the Court determined “that it could properly recognize conventional rules … notwithstanding their political aspects”.¹⁰

Importantly, the Court noted that although conventions are appropriate to help determine questions of law and interpretation of constitutional questions, they cannot be enforced by the court in the same way courts can enforce laws.¹¹ Some conventions are in direct conflict with black-letter laws. For example, the BNA Act required the Governor General to give assent to every Order in Council passed by Parliament but convention and political custom limits the Governor General’s power.¹²

 The Patriation Reference case is one of the major Supreme Court decisions that ruled on the use of conventions in constitutional law. There are many more (constitutional law demi-god Peter Hogg reviewed about 65 in 1997¹³). Tomorrow we’ll review a few of the heavy-hitters.

With our most sincere regards,

The Dominion

 

1 Elise Hurtubise-Loranger, “Constitutional Conventions”, Topical Information for Parliamentarians (Library of Parliament, 11 Jul 2006), online: <www.lop.parl.gc.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf>.

2 However, “it is generally accepted that the penalty for breaching a constitutional convention is political, not legal” Ibid at 1.

3 Re: Resolution to amend the Constitution, [1981] 1 SCR 753, 1 CRR 59 [Patriation Reference].

4 Ibid at 883.

5 Peter Hogg & Allison Bushnell, “The Charter Dialogue between courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing after All)”, Osgoode Hall Law Journal 35.1 (1997): 75-124, online: <http://digitalcommons.osgoode.yorku.ca/ohlj/vol35/iss1/2> at 77.

6 Constitution Act, 1867, Preamble at para 1.

7 Ibid.

8 Ibid at 902; Hurtubise-Loranger, supra note 1 at 1.

9 Ibid at 902.

10 Hurtubise-Loranger, supra note 1 at 1.

11 Ibid.

12 Ibid at 2.

13 Hogg, supra note 5.