foundation law

7/28/2019 Foundation Law

1/185

BASIC THEORIES OF LAW Creik Readin Background

Competing approaches/theories affect judicial decisionmaking and legal outcomes- They each offer compelling

arguments as to the basic nature, origin, authority and

responsibility of the law

Positivism and Natural Law

Both legal positivism and natural law are descriptive theories,

in that they are principally concerned with identifying what

law is, as opposed to what the law ought to be. Both

positivism and natural law are concerned with concepts of

law and justice, even if they diverge as to how the two relate

to one another. Both are largely based on Western, liberal

ideas about law and society.- Legal positivism reflects the

belief that law is nothing more than the rules and principlesthat actually govern or regulate society (laws are made by

human beings);insists on separation between law and

morality; focuses on describing laws without reference to

justness/legitimacy/fairness. Legal positivism is only

concerned with what is legally valid, not what is morally

valid. The common slogan of legal positivists is the existence

of a law is one thing; its merit or demerit is another.

Thus,on this view, the Nazis had a legal system used for evil

ends and the British had a legal system used for good ends;

both, however, were legally valid. See, e.g,


2/185

Nobleand Wolf

And note how judge appeals to the CERTAINTY of positivism,

and the lack of certainty of relying on public policy and

morality- Natural law theory is aspiration, in that laws are

only those rules which adhere to certain moral truths, most

often of a universal and immutable nature; i.e. laws legal

authority depends upon an external moral standard that

holds across all societies. See Drummond Wren, And note

how judge appeals to our moral conscience Feminist

Perspectives on Law: critical legal theory

A normative theory, seeking to describe how existing

laws fail to achieve an external objective.

Feminist perspective on law reflects a critique of liberalism as

a political ideology; laws that existed from 17th century did

not normally respond to the needs of women and even aided

in their oppression. Feminism takes issue with the liberal

basis of law and its relationship to justice, and attempts to

establish a different vision of what justice might be- Early

formalist feminism attempted to replace laws that favoured

men w/ more gender neutral laws -Contemporary feminism

consists of different sects with different beliefs. It is a more

complex movement, relying on various disciplines such as

criminology and sociology the general gist of feminism is

that the legal system is seen as paternalistic and male

centred.- The subject of abortion provides a good forum to


3/185

examine how feminist theory may translate into practice (see )

Morganteler:

In this case on the constitutionality of the abortion restrictions, the

majority found them unconstitutional on procedural grounds.

Justice Wilson, however, wrote a concurring opinion focusing on

much more feminist topics, such as rights in a wider social

context, the female experience, and far more emotional issues)

Critical Legal Studies:

critical legal theory - Like some forms of feminism, critical legalstudies is a radical alternative to established legal theories; rejects

that there is any kind of natural legal order discoverable by

objective means.- CLS is a direct attack on traditional legal theory,

scholarship and education.- The CLS movement can be very theory-

driven and densely philosophical.- CLS, like the feminist

perspective, takes issue with the liberal basis of law and its

relationship to justice, and attempts to establish a different vision

of what justice might be- The liberal belief that law should be

certain and natural is, for CLS scholars, illusory. Law reproduces

the oppressive characteristic of contemporary Western societies- 3

stages governing the application of CLS ideas:(1)

Hegemonic consciousness:

: Western laws are maintained by a system of beliefs that have their

foundation in a liberal, market driven economy, which reflect

interests of a dominant class(2)


4/185

Reification:

The beliefs that maintain Western laws are presented as essential

and objective, and the laws that prop up this belief system

necessary follow suit, becoming equally incontrovertible(3)Denial:

Laws and legal thinking aid in the denial of real truths- See

R v R.D.S:

Compare how the judges in this case dealt with the issue of race

with the judges in

Re Drummond Wren

And

Re Noble and Wolf Law and Economics

Law and economics theories look at law differently, less grounded in

moral theory and more in ideas about efficiency (as opposed to

feminism, which deals with producing equality); law and economics

scholars have applied economic analysis to explain various areas of

law. The traditional law and economics approach applies economics

methodology to legal rules in order to assess whether the rules will

result in outcomes that are efficient.- The economic theory of

regulation, or public choice theory , applies basic economic theory

in an attempt to understand public policy . It attempts to explain

government intervention as a corrective to market failure. The

theory seeks to understand why some government programs seems

to run counter to the public good, or at least do not maximize the

public good. This theory says that policy makers (e.g. legislators) act


5/185

in order to maximize political support; they are not necessarily

attempting to maximize social welfare and are motivated by self

interest- See

Duncan Estate v Baddeley:

(This case dealt with the issue of how to calculate damages for an

estate arising out of a negligence action for wrongful death. Should

future earnings be included or not? While the court did not do any

explicit calculations or economic reasoning, there was a clear

subtext that the judge had to consider the wider social-economic

implications of allowing for recovery of future earnings or not);

Bhadauria v Board of Governors:

(Public choice theory behind the Court of Appeals decision; the

Court recognised, on public policy grounds, a new tort of

discrimination. But, at the Supreme Court level, this idea was

rejected this idea of anew economic tort- Note: One of the themes

in public law is to show how common law has been displaced by

policy formation (in the form of legislation) as the primary means of

social regulation. A number of important questions lie at the heart

of this analysis: (1) What, in economic terms, is the problem that a

legal rule or structure is attempting to resolve? What effect does

this rule have on society? Why do we have the laws that we have?

Should we have different laws?

Cases


6/185

Hill v Church of Scientology

FACTS:

Hill is a prosecutor in Toronto suing the Church of Scientology as a

private individual. Hill brought a common law libel action based on

allegedly false statements the church made about him.

ISSUE:

Is the Charter applicable to a private action based on a common law

tort? Is the common law tort of defamation inconsistent with the

Charter (s. 2b)?

REASONING:

Feminist perspective on law reflects a critique of liberalism as a

political ideology; laws that existed from 17th century did not

normally respond to the needs of women and even aided in their

oppression. Feminism takes issue with the liberal basis of law and

its relationship to justice, and attempts to establish a different

vision of what justice might be- Early formalist feminism attempted

to replace laws that favoured men w/ more gender neutral laws -

Contemporary feminism consists of different sects with different

beliefs. It is a more complex movement, relying on various

disciplines such as criminology and sociology the general gist of

feminism is that the legal system is seen as paternalistic and male-centred.- The subject of abortion provides a good forum to examine

how feminist theory may translate into practice (see).


7/185

Morganteler:

In this case on the constitutionality of the abortion restrictions, the

majority found them unconstitutional on procedural grounds.

Justice Wilson, however, wrote a concurring opinion focusing on

much more feminist topics, such as rights in a wider social

context, the female experience, and far more emotional issues)

Critical Legal Studies: critical legal theory - Like some forms of

feminism, critical legal studies is a radical alternative to established

legal theories; rejects that there is any kind of natural legal order

discoverable by objective means.- CLS is a direct attack on

traditional legal theory, scholarship and education.- The CLS

movement can be very theory-driven and densely philosophical.-

CLS, like the feminist perspective, takes issue with the liberal basis

of law and its relationship to justice, and attempts to establish a

different vision of what justice might be- The liberal belief that law

should be certain and natural is, for CLS scholars, illusory. Lawreproduces the oppressive characteristic of contemporary Western

societies- 3 stages governing the application of CLS ideas :(1)

Hegemonic consciousness

: Western laws are maintained by a system of beliefs that have their

foundation in a liberal, market driven economy, which reflect

interests of a dominant class(2)

Reification

: The beliefs that maintain Western laws are presented as essential

and objective, and the laws that prop up this belief system


8/185

necessary follow suit, becoming equally incontrovertible(3)

Denial:

Laws and legal thinking aid in the denial of real truths- See

R v R.D.S:

Compare how the judges in this case dealt with the issue of race

with the judges in

Re Drummond Wren

And

Re Noble and Wolf Law and Economics

-

Law and economics theories look at law differently, less grounded in

moral theory and more in ideas about efficiency (as opposed to

feminism, which deals with producing equality); law and economics

scholars have applied economic analysis to explain various areas of

law.- The Traditional law and economics Approach applies

economics methodology to legal rules in order to assess whether the

rules will result in outcomes that are efficient.- The Economic

theory of regulation, or public choice theory, applies basic economic

theory in an attempt to understand Public policy. It attempts to

explain government intervention as a corrective to market failure.

The theory seeks to understand why some government programs

seems to run counter to the public good, or at least do not

maximize the public good. This theory says that policy makers (e.g.

legislators) act in order to maximize political support; they are not


9/185

necessarily attempting to maximize social welfare and are motivated

by self interest- See

Duncan Estate v Baddeley

(This case dealt with the issue of how to calculate damages for an

estate arising out of a negligence action for wrongful death. Should

future earnings be included or not? While the court did not do any

explicit calculations or economic reasoning, there was a clear

subtext that the judge had to consider the wider social-economic

implications of allowing for recovery of future earnings or not);

Bhadauria v Board of Governors

(Public choice theory behind the Court of Appeals decision; the

Court recognised, on public policy grounds, a new tort of

discrimination. But, at the Supreme Court level, this idea was

rejected this idea of anew economic tort- Note: One of the themes

in public law is to show how common law has been displaced by

policy formation (in the form of legislation) as the primary means of

social regulation. A number of important questions lie at the heart

of this analysis: (1) what, in economic terms, is the problem that a

legal rule or structure is attempting to resolve? What effect does

this rule have on society? Why do we have the laws that we have?

Should we have different laws?

Cases

Hill v Church of Scientology

FACTS:


10/185

Hill is a prosecutor in Toronto suing the Church of Scientology as a

private individual. Hill brought a common law libel action based on

allegedly false statements the church made about him.

ISSUE:

Is the Charter applicable to a private action based on a common law

tort? Is the common law tort of defamation inconsistent with the

Charter (s. 2b)?

REASONING:

Private parties owe each other no constitutional duties and cannotfound their cause of action upon a Charter right. The party

challenging the common law cannot allege that the common law

violates a Charter right because, quite simply, Charter rights do not

extend in the absence of state action. The most that the litigant can

do is argue that the common law is inconsistent with Charter

Values.

The party who is alleging that the common law is inconsistent with

the Charter should bear the onus of proving both that the common

law fails to comply with Charter values and that, when these values

are balanced, that the common law should be modified. So, it is up

to the party challenging the common law to bear the burden of

proving not only that the common law is inconsistent with the

Charter values but also that its provisions cannot be justified.


11/185

HELD:

Even though private parties owe each other no constitutional duties

and cannot found a cause of action upon a Charter right, the Court

concluded that the common law tort of defamation reflected an

appropriate balance between freedom of expression values and the

legislative objectives underlying the law. As such, there was no need

to amend or alter the legislation.

RATIO:

Even though Charter doesnt apply directly to this action, Common

law should be interpreted with reference to Charter values (as per

obiter in Dolphin). If common law is inconsistent with Charter

values, and not justifiable, the common law should be modified.

Society de assurance automobile du Quebec v Cyr

FACTS:

Pursuant to s. 520 of the Highway Safety Code (HSC), The Societyde l'assurance automobile du Qubec (SAAQ) entered into a

contract with the Centre de verification mcanique de Montral

(CVMM) to carryout the mechanical inspection of road vehicles.

According to this contract, Cyr, an employee of CVMM, was

designated as an accredited mechanic for the purpose of the SAAQ

vehicle inspection program. However, following notices of breach for

failure to apply the appropriate standards during certain

inspections, Cyr's accreditation was revoked by SAAQ. Cyr and

CVMM filed a motion for judicial review of the decision to revoke the

accreditation, claiming that it had not been rendered in a manner


12/185

consistent with the Act respecting administrative justice (AAJ). The

Superior Court concluded that the actions of the SAAQ in sending

the notices of breach and subsequent revocation of accreditation

were an exercise of contractual rights and dismissed the

application. The majority of the Court of Appeal set aside the

decision, holding that Cyr had the right to procedural fairness and

that the existence of a contract could not be used by the SAAQ to

avoid the obligations codified by s. 5 of the AAJ.

ISSUES:

Whether a government body will avoid public law duties when

delegating its functions by way of contract or other form of

agreement

REASONING:

Cyr is entitled to procedural fairness under s. 5 AAJ, as his

designation as an accredited mechanic for the purposes of the

SAAQ mechanical inspection program constitutes an administrative

authorization. Cyr cannot be considered a party to the contract,

because under this contract, CVMM is the mandatory of the SAAQ,

not Cyr. Delegations of government power are authorizations. In

delegating to Cyr the power to conduct vehicle inspections, the

SAAQ was granting him the authorization to act on its behalf.

Moreover, the authorization in the present case is specifically

provided for in s. 520 of the HSC. The legislative origin of the

authorization further confirms its administrative nature.

Consequently, section 5 of the AAJ and its procedural requirements


13/185

are applicable to the present matter because (1) the revocation of

Cyr's designation is a "decision concerning a permit or licence or

other authorization of like nature", and (2) Cyr is a "citizen" as

contemplated by the AAJ. Not all acts of the SAAQ are subject to

public law, but the act of authorization has specifically been

deemed worthy of procedural fairness protection by the legislature.

HELD : Appeal dismissed

COMMENT:

This case distinguishes between the applicability of public and

private law. The dissent held that the parties are bound by contract,

since the SAAQ chose to use a contract to appoint the persons

authorized to conduct the mechanical inspection Articles David

Tanovich, The Charter of Whiteness: Twenty-five years of

Maintaining Racial Injustice in the Canadian Criminal Justice

System

Introduction :

As we reflect on the 25 year anniversary of the Charter, much will

be written about the impact this document has had on those living

on the margin. Has the Charter given any hope to Aboriginal and

radicalized communities? While there is reason to be optimistic

about the possibilities for future reform, the Charter to date has

had very little impact on racial injustice in Canada We continue to

incarcerate Aboriginals and African Canadians at alarming rates,

racial profiling at our borders and in our streets flourishes. The

utility of using litigation to address racial injustice Successful


14/185

litigation brings with it considerable attention media, community

organizations etc and can help raise public consciousness,

stimulate academic research and political action. And one of the

most important Political responses could be the collection of data

which will reveal the extent and scope of racial injustice Absence of

any racial profiling legislation, and the passing of Anti Terrorism

Legislation, and the Conservative Criminal Code amendments, all of

this has had a disproportionate impact on radicalized communities.

So, Charter litigation remains as important means of addressing

fundamental injustice While I place considerable reliance onCharter litigation to address racial injustice, there is no question

that other legal and extra-legal strategies are necessary in order to

ensure implementation of the changes and to fill the gaps when

litigation fails. Anti-racist training for all criminal justice actors, the

creation of monitoring systems, the creation of more anti-racist

actors etc are all examples of strategies that can work together with

litigation The problem is not with the Charter but with those who

argue and interpret it Narrow approaches to judicial review and lack

of judicial imagination have played a role in limiting the impact of

Charter litigation on racial injustice. In a number of key cases

addressing issues such as bail (because blacks are more likely to be

detained), jury selection (because blacks are less likely to be found

on juries), the use of peremptory Challenges and racial profiling,

courts have refused to adopt critical race standards or arguments

when they were advanced. See, e.g.:

R. v. Pan; R. v. Sawyer


15/185

Sawyer, who is White, was tried together with Galbraith, who is

Black, on a charge of assault. Following the conviction, a juror

contacted Sawyer and told him that she had been under undue

pressure to come to a verdict and that certain racial comments were

made by other members of the jury. The accused argued that the

common law jury secrecy rule needed to be altered under section 7

of the Charter to ensure that verdicts were not tainted by racism.

The argument was rejected. Also, in a number of cases, trial judges

have been or appeared Hostile When asked to adjudicate a race

issue. E.g. in R v Brown, B was asked by the judge to apologize tothe officer for rising racial profiling. Sometimes, hostility can be

implied from the reasoning employed by the Court to dismiss the

argument. The relevant instances of judicial reluctance and hostility

certainly tend to confirm the theory that the composition of the

judiciary and inherent conservatism of judicial review are some of

the biggest hurdles in using litigation as a political tool of change

With respect to litigation, there has been a large-scale failure of trial

lawyers to raise race once critical race standards have been

established by the courts. Why are trial lawyers not raising race

when it is appropriate to do so? E.g. small number of racial profiling

cases litigated following the R v Brown decision. Race is not being

raised because some lawyers are not seeing the issue, while others

are uncomfortable engaging in race talk before courts Appellate

lawyers often fail to raise the issue of race on appeal. The SCC has

yet to deal with the racial profiling issue. And they face the hurdle

of not having a record from which to work (i.e. race issues may not


16/185

be raised at the trial level)

Conclusion :

This refusal of judges to act and lack of race consciousness by

lawyers are having a direct impact on the ability of the Charter to

remedy racial injustice The two bright spots have been race-based

challenges for cause, and the recognition of the existence of racial

profiling by our courts. But even in these areas, there is stillroom

for improvement Rostam Josef Neuwirth, International Law and

the Public/Private Law Distinction

Background :

The role of law is to provide rules to coordinate reciprocal behaviour

amongst various members of a social order, in order to avoid

conflicts or detrimental effects amongst these members. A law is an

attempt to formulate a norm with the use of abstract wording, that

governs the broadest area of life possible.It is the ill-defined notion

of international law that is called to face the challenge of a

menacing disorder spreading over the emerging international

community The two categories of public international and private

international law are most likely to fulfil this function in the

emerging international community

Public international law , or the law of the nations, is defined as

the system of law governing the relations between states.

Private international law, or the conflict of laws, is a system co-

ordinating the different laws from different countries, and it

responds to the question of applicability of foreign or domestic law


17/185

within domestic courts In the present time, complex interactions

between states and private individuals occurs, and harmony

between public and private international law cannot be confirmed

anymore The decline of state sovereignty and the increasing

insufficiency of a pure positivist theory of law to explain phenomena

on the legal plane, are two examples of how global change has

shattered the fundaments of doctrinal thinking on which the

classical doctrine was built Legal pluralism and legal polycentricism

in international law The world community of today is formed by a

great number of diverse societies; each political society has its ownlaw which is based on its own traditional religious, cultural or

social values The first steps in the recognition of the diversity of the

world community are found in the terms of legal pluralism and legal

polycentricism, repudiating both the presumption of the sole

existence of one total legal order and a single value approach to law.

Considering the very nature and rationale of public and privateinternational law - both dealing with interactions amongst these

various societies, whether organised as states, peoples, groups or

individuals, that together form the world community - different legal

traditions must be given their equal and due place in the

international legal order, This can be achieved by emphasising the

continuity in the evolution of law; an evolution that has constantly

been influenced by the exchange of many different cultures The

critical point: tendencies in contemporary law The second half of

the 20th Century has faced dynamic development in all areas

affecting human society, and driven by the theory of legal positivism


18/185

law was not spared from this development and underwent, and is

undergoing, significant changes

Law has reached a critical point which is cause for hope and

concern the critical point is understood as two parallel yet

mutually ant agnostic trends. The evolution of technology has

affected the evolution of law law has rapidly evolved, but the

question is whether it has progressed or regressed?

Law has progressed EXTERNALLYalmost every action in daily life

is subject to law (i.e. broad scope of application). From an

INTERNAL point of view, as far as the FUNCTION OF LAW WITH

RESPECT TO JUSTICE is concerned (thus including morality,

predictability and continuity), the issue is less clear. The huge

quantity of norms enacted gives rise to concern. A law is an attempt

to formulate a norm with the use of abstract wording,that governs

the broadest area of life possible. Aristotle pointed out that every

law is laid down in general terms, while there are maters about

which it is impossible to speak about in general terms. But the

defect lies not in the law, but in the nature of the subject matter.

Because of this flaw apparently inherent in law, the challenge in the

near future is to examine the traditional perception of the theory

underlying law. This flaw, and various oppositetendencies in the

evolution of law, call for new theoretical approaches to the law

regulating the present world order. From a practical perspective, it

calls for a simpler general theory, allowing for a rapid orientation

but also a just application of the vast variety of norms. A Law for


19/185

the World of Today

The present challenge is to find a legal notion that faces the

challenges of the new realities that a global political world order has

created. Such a notion would not only have to cover the different

categories of law, but also it would have to meet the implications of

an immense cultural diversity of legal systems created by a large

number of states In this process of adaptation, the preliminary step

is to bring about the desired change by redefining existing notions,

or by creating new notions used in legal discourse.

Since codificationthe process whereby legal ideas become positive

law is taking place extensively, changes in the ideas do not

automatically result in changes of the written positive law (i.e. the

more conduction , the more difficult it is to change notions).

Therefore, when new legal ideas emerge, they are still expressed

through notions that gave shape to their previous legal norms. The

new ideas may then stand in clear contradiction to each other.

This fate is shared by the notion of international law

The notion of international law

This seems to be an outdated concept, not fit for responding to new

realities


20/185

[Author then lists numerous notions related to international law]

A synthetic search for a suitable notion

When contemplating the variety of notions that exist for the law of

today, it is hard to make a choice. Each notion has appeared in a

different time and context, but they allappear to overlap

The essay will use the term international law, because its covers

broadest range of these contexts. Instead of trying to change theterm itself the focus will be on a change of its understanding and

scope of application

The Dynamism of Public/Private Dichotomy

Public international law foundations-

The evolution of public international law reveals the strong

influences that theories exercise on the shape of law and its

institutions; on the other hand, the theories themselvesare shaped

by influences stemming from the factual developments occurring in

this world

This becomes obvious when one considers the two main theories

competing in international law:

natural law and positive law

,


21/185

the first emphasising moral standardsand the latter a more

practical approach. While a naturalist view dominated the 17

th

and 18

th

centuries, the positivist view gained importance throughoutthe 19

th

century. Since WW II, the naturalist and positivist views can be said

to co-exist in parallel. The atrocities committed by the Nazi

government thatculminated in World War UU revived the popularity

of natural law. Since then, the naturalist and positivist view can be

said to co-exist in parallel-

Principle sources of international law:(i) international conventions

establishing rules expressly recognised by contesting states

(corresponds more with positivist thought)(ii) international custom

(e.g. treaties which lack universal binding force) (corresponds with

naturalist thought): The universally binding force of custom is

expressed in theconcept of ius cogens, i.e. peremptory norms,

which is based upon an acceptance of fundamental and superior

values within the system and ins some respects is akin to thenotion

of public order. A further expression of the naturalist characterexpressed by custom is found in the concept of obligations erga

omnes. With full awareness of the majorimportance of the

distinction between customary and treaty law


22/185

Private international law

- Conflict of laws in its widest sense deals with 3 subjects:

jurisdiction, choice of law and recognition of foreign judgments- The

body of rules called private international law fulfills a coordinating

function between legal orders of different states, in search for a

greater decisional harmony- From a theoretical perspective, the

historical development of private international law was dominated

by 2 major ideas

Private and public law

- The classical distinction is that public law governs the relations

between the state and its nationals, while private law governs their

relations amongst themselves.

The implementation of international law

- The way a state approaches this depends on whether the state

practice is influenced by the monist or dualist concept- Thereception and implementation of the international norm in the

national realm is necessary because a state, the traditional subject

of international law, can in some casesonly achieve compliance w/

international obligations by assuring that the behaviour of its

nationals is in conformity w/ international obligations entered by

the same state-

Customary international law and treaties: Distinguish between

these two, the two main sources of international law.

-


23/185

International customary law

is considered to be part of municipal law if incorporated. The

incorporation can be made on the basis of a relevant constitutional

provision orby judicial practice. Incorporation doesnt automatically

give such law higher standing within the national legal order. A

later national law is capable of nullifying the obligationset forth-

Treaties

: The way treaties are transferred into the national legal system not

only depends on the constitution but also the character of the

treaty. The CONSTITUTIONdetermines the process from the

beginning of negotiations until the final administration of a

negotiated treaty within a national legislation. From a constitutional

point of view,the implementation of a treaty can take place through

a special or general transformation. Special = international norm

must be adopted by legislation/regulation; general =declared part of

municipal law without any special legislation. Treaties can either be

self-executing or non-self executing, the former requires

implementation by way of statute.Advantages/disadvantages of

direct applicability of international laws in a municipal court:

advantages include the increase for the effectiveness of

international law, a betterfulfillment of relevant treaty obligations

etc. Disadvantages are recognized when one considers democratic

participation in the international law making process, the adaption

of international norms to domestic particular circumstances, the

adequate fulfillment of the respective international obligations,

possible conflicts between international and othernations norms


24/185

SOURCES OF LAW

Overview

- Early relations with Aboriginal Peoples- Reception of English

Common Law- French Civil Law and Bijuralism- Convention-

Statute- Treaty

Law and Aboriginals-

It is important for a legal system to recognize that Canada was

populated by aboriginal people prior to its colonization by the

European empires-Aboriginals cultural, political, economic and

legal systems/rights not protected after colonization- But in 1982,

with the patriation of the Constitution, aboriginal rights were

constitutionally entrenched in s 35 of the Constitution Act, 1982-

Cases such as

Mitchell v Canada

and

Delgamuukw v BC

interpreted s 35

Canadas Common and Civil Law Traditions

a.

Reception of European law:

- Canada law remains a largely European inheritance. British

concepts of reception determined how Canadas common law and


25/185

statute law was received- Just as the aboriginal legal systems, the

British had special rules of incorporation that defined how non-

British law would apply in their colonies. If a location was

conquered orceded, the local laws would continue to apply, modified

only as far as was necessary to integrate them into the Imperial

legal system. For those territories that were simplycolonized, the

Common law, as it stood at the time of first settlement, was

imported (

Cooper v. Stewart

)- So there is an important distinction between CONQUER and

SETTLE (that latter of which ignores the presence of Aboriginals; it

entails the automatic reception of English law)- Most of Canada

considered settled, so entire body of English law was imported to

the settled colonies- The courts were the arbiters of settlement

datesb.

Nature of the Common and Civil law:

- Common law: Common law is an English invention. It is judge-

made law, developed through the common law courts (as opposed to

the Court of Chancery). Two fundamentalideas permeate common

law theory: (1) Judges do not make the law but merely declare it; (2)

all the relevant past decisions are considered as evidence of the law,

and judgesinfer from these precedents what is the true law in a

given instance- Civil law: Quebec inherited civil law. Civil law is

based on established laws, normally written as broad legal

principles. The difference between civil and common law lies more


26/185

in their different methodological approaches as opposed to

codification per se. In civil law countries, legislation is seenas the

primary source of law. Judgements normally rely on the provisions

of codes and statutes. Judicial reasoning is based extensively on

the general principles of the rule orcode. On the other hand,

common law methodology, even where statutory sources of law are

present, employs analogical reasoning from statutory provisions to

fill in gaps.- The bijuralism remains largely intact in Canada

todayc.

The Operation of Common Law and Precedent

- The principle of stare decisis is the formal term to describe how

the common law relies on precedent- Precedent in law helps in

categorization; precedent economizes on information and minimizes

idiosyncratic conclusions, and serves, therefore, a number of

purposes- Advantages/benefits and disadvantages/problems

with/of precedent:a. Advantages/benefits: (i) Aids in the stability

and coherence of the law, making it more predictable (ii)Provides

fairness in decision making; (iii) Promotes efficiency and eliminates

sources of error (such as judicial bias); (iv) Fulfills a symbolic role

by recognizing the relationship between courts and the

legislature;(v) Provides some certainty (liberty to decide each case as

you think right without any regard to principleslaid down inprevious cases would result in uncertainty of law); (vi) Possibility of

growth (new rules can beestablished and old rules can be adapted

to meet new circumstances and the changing needs in society)(e.g.

can talk about how feminists would enjoy this aspect of the


27/185

doctrine, without which the laws todayrelating to female

participation in society might be primitive)b.

Disadvantages/problems: (i) Rigidity (once a rule is laid down, it is

binding even if the decision is thought tobe wrong) + Perpetuation of

errors; (ii) Bulk/complexity (so much law, difficult to learn it all; lay

people cantaccess it); (iii) Slowness in growth (the system depends

on litigation for rules to emerge); (iv) Easy todistinguish (Give case

example); (v) Also some

intellectual uncertainty (as the law is in constantevolution)

d.

Common Law and Equity

- Common law has a variety of internal meanings according to

context; for instance, common law must sometimes be

distinguished from equity- Equitys original function was to provide

a corrective to the perceived harshness of the common law.- Law as

a body of rules is by its nature concerned with generalitiesgroups

or classes of persons and events, rather than individuals and

discrete happenings. Because of this,law sometimes fails to achieve

adequate justice in a particular case- Rules of equity are now

applied concurrently in all superior courts, with equity prevailing in

cases of conflicte.

International Law

- Distinguish between domestic and international law

International law


28/185

- Distinguish between

treaties

(contracts between states who take part in treaty) and

customary international law

(entrenched norms binding on all states, except those whohave

repudiated them by practice)

International law as a part of Canadian law

- How does domestic law interact with international law? The

answer depends on the source of international law: treaty or

customary law?(a) Treaties- Dualism: Canada has a dualist

tradition an international treaty has no direct effect in domestic

law until domestic legislation passed to transform or implement the

law intoCanadian law by an act of Parliament (if a federal matter) or

provincial Legislatures (if a provincial matter)- There are

advantages, disadvantages and uncertainties with the dualist modeof reception (e.g. implementation issue no clear rules on when a

treaty has been implementedinto Canadian law; in this context, the

Baker

approach seems to be unsatisfactory, which states that for a treaty

to be considered implemented, it must be done so explicitly inthe

relevant statutesee the

A Hesitant Embrace

article below for a critique of

Baker


29/185

and this approach in general; further, the

Suresh

approach appears to not be satisfactoryeither, which suggests that

you can use unimplemented treaties to aid interpretation of

legislation)(b) Customary international law- Once a rule becomes

recognized as customary law, it is AUTOMATICALLY part of

domestic law- Can be displaced by statute- There are also some

concerns related to incorporating customary international law into

domestic law- But the SCC has been unclear on the statutes of

customary international law in Canadian domestic law- The

following are two cases on the application of international law in

Canadian domestic law:Baker v Canada

LHeureux-Dube: Importance of considering best interests of

children indicated by Canadas ratification of the Convention on the

Rights of the Child, an internationalinstrument. International

treaties and conventions are not part of Canadian law unless they

have been implemented by statute. The Convention has not been

implemented byParliament, and therefore its provisions have no

direct affect on Canadian law. Nevertheless, the values reflected in

international human rights law may help inform thecontextual

approach to statutory interpretation and judicial review.

Iacobucci: It is a matter of well-settled law that an international

convention ratified by the executive branch of government is of no


30/185

force or effect within the Canadian legalsystem until such time as

its provisions have been incorporated into domestic law by way of

implementing legislation. I do not agree with the approach adopted

by mycolleague, wherein reference is made to the underlying values

of an unimplemented international treaty in the course of the

contextual approach to statutory interpretation andadministrative

law, because such an approach is not in accordance with the

Courts jurisprudence concerning the status of international law

within the domestic legal system.De Guzman v Canada

FACTS:

Ms Gs application to have her sons sponsored for admission to

Canada was refused under the Immigration and Refugee Protection

Regulations. Ms G argued, inter alia,that the relevant provision is

invalid. One ground was that it is inconsistent with international

human rights instruments to which Canada is a signatory, and

which protect theright of families to live together and the best

interests of children. G argues that priority should be given to

international instruments which prevail over any

inconsistentprovision in either the IRPA or the regulations

ISSUE:

Is paragraph 117(9)(

d

) invalid because it renders the IRPA non-compliant with

international human rights instruments to which Canada is

signatory


31/185

REASONING:

- To conclude that the terms of the IRPA, which have been debated

and approved by Parliament, are overridden by a conflicting

international legal instrument does not respectthe

legislative

process in this country. Only

express

indication of such a principle by Parliament would allow such an

outcome- But the applications Judge took an overly narrow view onthe value of international law- International law can be used to

interpret

the Charter and it can

influence

the common law- In

Baker

, Court endorsed the use of international law to interpret a

statutory provision as requiring immigration officers to give great

weight to the best interests of anyaffected children when exercising

discretion, EVEN IF NOT IMPLEMENTED- Further, Brunnees and

Troope in a Hesistant Embrace argue that courts have not alwaysmade it clear how influential international law should be in the

interpretation of domestic legislation. Sometimes it is treated as

merely persuasive, while at other times it is presumed to be

determinative, unless the statutory text is irremediably inconsistent


32/185

with international law. In an attempt to bring greater clarity to the

analysis in the evolving domestic jurisprudence, the authors

suggest that Parliament should be presumed notto legislate in

derogation of international legal norms that are binding in Canada.

In contrast, non binding international norms should not be given

the same interpretive weight,but should be regarded as no more

than persuasive and contextual

HELD:

I conclude that paragraph 3(3)(f) does not incorporate into

Canadian law international human rights instruments to which

Canada is a signatory, but merely directs thatthe IRPA must be

construed and applied in a manner that complies with them- The

following is an article on issues concerning the application of

international law in Canadian courts:

Brunnee, Jutta & Stephen Toope, A Hesitant Embrace: Baker and

the Application of International Law in Canadian Courts

Background

- Today, Courts appear to recognize the relevance of international

norms whether or not they have been implemented through

Canadian legislation, and whether or not they arebinding on

Canada

- In Baker, the Court held that the values reflected in international

human rights law may help inform the contextual approach to

statutory interpretationand judicial review- Canadian courts are

grappling more with the practical application of international law


33/185

- Canadian courts, however, are still inclined to avoid deciding

cases on the basis of international law: and the avoidance strategy

is subtle even when they invoke internationallaw, Canadian

courts generally do not give international norms concrete legal effect

in individual case-

After the Baker decision, there appears to be a trend towards

treating all international law, whether custom or treaty, binding on

Canada or not,implemented or unimplemented, in the same manner

as relevant and persuasive, but not determinative (this comes

implicitly from the decision, notexplicitly)

- The point is the Supreme Court and other courts have confused,

rather then clarified the domestic impact of international law- Job

for academics and judiciary to attack international law questions in

a more principled manner. Same with courts

- The SCC in Baker and in Suresh said that the relevant

international instrument was not implemented in Canada (but we

think its arguable that there isimplied implementation because of

the Charter and its protections)- We argue that its is not enough to

treat ALL normative threads as potentially persuasive, but not

mandatory over time, this approach risks weakeningthe fabric of

the law. CONCERN: If international law is merely persuasive, it

becomes purely optional, and it can be ignored at the discretion of

the judge- We argue that in the case of norms that are binding on

Canada under international law, Canadian courts have an

obligation to interpret domestic law inconformity with the relevant

international norms as far as possible. By contrast, norms that


34/185

arent binding (e.g. soft law) can help inform the interpretationof

domestic law and may be persuasive.

Implemented Treaties

- In Canada, the executive controls both the signature and

ratification of international treaties. If

the treaty is in force and Canada has ratified it, the treaty is

binding onCanada

as a matter of international law; but this does not answer the

question of whether the treaty is effective within the Canadian

domestic legal system- International treaties are not directly

applicable in Canada but require transformation.- Canadian courts

struggle not only to determine when international norms require

implementation through legislation but also to determine whether

such implementation hasactually occurred. They wrestle as well

with the implications of the common law principle that "Parliament

is not presumed to legislate in breach of a treaty or in a

mannerinconsistent with the comity of nations and the established

rules of international law."76 In the case law, it remains unclear

when this principle comes into play and how it relatesto the

implementation requirement.- So while the power to enter into an

agreement rests with the federal executive, transformation generally

requires legislation that enacts treaty obligations into domestic

law.- Transformation must occur w/in the jurisdictional framework

set out by the Constitution Act 1867.- It is unclear what constitutes

implementation, and there are potentially many ways this can be


35/185

done in a statute. Least common practice is inferred

implementation-

When a treaty is explicitly transformed into Canadian law, its

provisions should be determinative in the interpretation of domestic

legislation

- When the purpose of a statute is to implement an international

treaty, the Court must adopt an interpretation consistent with

Canadas obligations under the treaty.- A court must rely on the

treaty to interpret the statute and on the international rules of

treaty interpretation to interpret the treaty and resolve any textual

ambiguities-

Canadian courts have tended towards a narrow construction of the

implementation requirement

,

effectively equating implementation with statutoryimplementation- But surely there can be implicit implementation, e.g. by way of the

Charter.- In Ahani, it was stated that absent implementing

legislation, international law has no effect

- Traditionally, however, Canadian law did not categorically require

statutory implementation

Unimplemented treaties

- There are cases where treaties are genuinely unimplemented.-

What is the legal effect of such treaties? We submit that a treaty

that is binding on Canada, while not directly applicable in Canada,


36/185

is nonetheless subjectto the presumption of legislative intent to Act

consistently with Canadas international obligations.

- As we understand the presumption, it applies to all of Canadas

international obligations, whether treaty based or rooted in

customary international law- This understanding leads to the

inference that courts should make every effort to interpret

Canadian law so as to conform to Canadas international

obligations

- Unfortunately, Canadian case law has not taken a consistent

approach to the presumption of conformity w/ international law.

- First, there is an uncertainty of the effect of that presumption in

the context of Charter interpretation. The SCC has tended to draw

upon international norms merely to informits interpretation of the

Charter. In the Charter context, a weaker version of the

presumption of conformity has emerged.- Secondly, the case law

since Baker is unclear on whether the presumption applies equally

to Canadas international obligations and non-binding international

norms

- The ambiguous state of the case-law in this regard is reflected in

the Courts decision in Baker. One of the principle causalities of

this lack of clarity iscustomary international law. The central ruling

in Baker was that even though Canada had never explicitly

transformed its obligations under the Conventionof the Rights of the

Child into domestic law, the immigration official was bound to

consider the values expressed in that Convention when


37/185

exercisingdiscretion. Therefore, the Conventions emphasis upon

the best interests of the child should have weighed heavily in

considering Ms Bakers application

.- How did majority arrive at the conclusion that the values

reflected in international human rights law may help inform the

contextual approach to statutory interpretation and judicial review?

More specifically, the central question is how the majority conceived

of this principle in relation to the traditional presumption of

statutory conformity withinternational obligations.- It would seem

that the primary question for the majority with respect to the

relevant international instrument was how to give effect to the

unimplemented treaty.

As saidabove, the majority took the narrow view on the question of

implementation and observed that, absent implementation by

Parliament, its provisions haveno DIRECT application in Canadian

la

w. Yet the values reflected in the Convention could shape

statutory interpretation.-

In our view the majority erred for 2 reasons:

(1) While the provisions in that instrument were not directly

applicable IN Canadian law, they were binding ON Canada

andtherefore relevant to statutory interpretation through the

presumption of conformity (from the standpoint of this

presumption, the Court wouldnt have had to distinguishbetween

the provisions and values, and could have used both). The Court


38/185

simply failed to adopt the presumption which they should have,

based on the very quote which theyrelied to cite authority for the

presumption; it would have been clearer for them to just have used

the presumption in arriving at the conclusion; (2) By avoiding the

presumption,the interpretation of the international instrumental

taken was overly narrow

- Baker results in 2 questions: (1) How should courts approach

international treaty norms that are binding on Canada, but absent

implementation, notdirectly applicable in Canada? (2) How should

they approach norms that do not bind Canada but reflect important

international values?- Some have suggested to ignore the rigid

distinction between binding and non binding. Doing so risks some

norms being ignored completely, simplybecause they are not legally

binding. Similarly, legal norms produce a false sense of security

when it is assumed that they require nothing other

thanmechanical application by a judge. According to Knop, anapproach focused on persuasiveness of norms can improve the

domestic application of bothtypes of norms. Knop therefore likes

Bakers approach- But we are worried that Baker has not signaled a

positive shift. Worry is that Baker signals a path towards treating

all international law as persuasiveauthority, which the Court MAY

use to inform its interpretation of domestic law. By treating both

binding and non-binding international norms in thismanner, courts

move away from their duty to strive for an interpretation that is

consistent with Canadas international obligations.- Binding

international norms are not only persuasive, they are obligatory. If


39/185

we fail to uphold our obligations, we undermine respect for law

internationally

[Note: binding = ratified; implemented = implemented by statute]

Customary international law

- The existence of a binding rule of custom is proven with reference

to two distinct, but interrelated, elements: state practice and opinio

juris.- The proper application of customary international law has

emerged in a series of cases after Baker as a major question for the

Supreme Court. To what extent caninternational customary law

inform domestic legal processes? The best view appears to be that

customary law can operate directly within the Canadian legal

system

- We hope that the SCC intended to suggest that the precautionary

principle can inform statutory interpretation even if it should not

yet have become customary internationallaw. If this reading is

correct the Court would have confirmed a principle that it alluded

to in Baker: in appropriate cases, international norms that are not

legally binding onCanada may inform statutory interpretation and

judicial review- Another case after Spraytech that the SCC

commented on customary international law was in Suresh. Jus

cogens norms are a particularly compelling form of

customaryinternational law.

Summary

- Customary international law (a peremptory norm of customary

international law which emerges by general consensus of the


40/185

international community): should be directlyapplicable (it is a part

of Canadian law). Courts should strive to interpret statutes and

common law to be consistent with obligations under customary law.

However, theapproach of Canadian courts to customary

international law is unclear. There is no unequivocal statement on

whether custom is part of Canadian law or not. If anything,

thereare some indications that our courts may be retreating from

custom. The SCC decisions in Spraytech and Suresh leave room to

be interpreted as suggesting that customary law,including even just

cogens, is not directly binding in Canada. The two decisions permitthe inference that custom merely helps inform a contextual

approach to statutoryinterpretation, furnishing a potentially

relevant and persuasive source for this power, but nothing more.

-

International treaty law: treaty that has been explicitly implemented

by statute is part of our domestic law and should be determinative

in the interpretation of Canadian law.When Charter issues arise,

Canadian legislatures retain control over domestic law. The

presumption of conformity is to be applied only where possible, and

it can be rebutted byan explicit legislative Act.- International law

that is NOT binding: finally, there is an array of international

normative statements that may not be legally binding on Canada,but Canada may find relevantto the interpretation of a domestic

statute. E.g. might encounter non-binding parts of a treaty

(preamble); international treaties to which Canada is not a party etc

(SOFT LAW)- These norms should be treated as potentially relevant


41/185

and persuasive for the interpretation of domestic law

Conclusion

- Canadian courts are becoming international courts, as the

boundaries between nations becomes more blurred

The Bijuralism Issue

Department of Justice, Bijuralism and Harmonization: Genesis

Bijuralism signifies the co-existence of the English common law

and French civil law traditions, within a country organized along

federal lines

Common Law Tradition

The

common lawtradition can be distinguished from the civil traditional essentially

by its method, that is, its rules of interpretation, the hierarchy of its

sources and itsinductive reasoning.

The principle characteristic of the common law is this inductive

process, which consists of generalizing from common points

between distinct cases and then establishing legalcategories with

vague foundations and flexible limits


42/185

To practitioners, the common law means that they have access to a

fragmented law that they will discover incrementally as needed.

This leads to the legal fiction that a judgedoes not make the law but

discovers it, as a legal vacuum is impossible

Civil Law Tradition

The most important feature of the

civil law

tradition differentiating it from the common law tradition is itsemphasis on the primacy

of written laws

. Civil law is not judgemade/recognized law, its codified law

Another defining characteristic of the civilian tradition is its

conceptualism as the civil law tradition is characterized by its

emphasis on abstract concepts. What follows fromthis is the use of

a deductive approach to legal reasoning is used, proceeding from

the general to the specific (as opposed to specific to general like in

C/L).

The second source of law in civilian tradition is legal scholarship la

doctrine, and the third source is prior judicial decisions.

Language


43/185

One integral issue relating to Canada's bijuralism is that of

"language". It is very important for me to stress that I consider

language to play a crucial role in the evolution of law.

The sources of common law were established in the English

language. Translation often results in some very difficult problems

for the practice of the common law in French. The same holds true

for the practice of civil law in English

The suitability of judges educated in the common law tradition

hearing cases involving civil law issues has been the subject of

some debate in Quebec and has even led tosome opinion favouring

a distinct Supreme Court for Quebec or a separate civil law division

within the existing Supreme Court

One question that often arises is whether the common law system

is intimately linked to the Anglo-Saxon mentality and language? Is

the system of values of Francophonesinconsistent with the common

law tradition?In this regard, I cannot emphasize enough that my

experience has taught me that French is not the exclusive linguisticvehicle for the expression of the civil law tradition nor isEnglish the

exclusive vehicle for the expression of the common law. I highly

doubt that there is any mystical connection between the French

language and the civil law traditionand the English language and


44/185

the common law tradition.

Bilingual legislation

It is perhaps trite to state that federal legislation in Canada is

intended to apply consistently across the provinces and territories

that the same federal law must apply inboth Quebec and in

Ontario. While this may be the ultimate goal of federal legislation, in

practice this goal is not easily attained, since federal legislation

must be drafted in theEnglish and French languages and in a

manner which is compatible with two legal systems. Federal

legislation must not only be bilingual, but also bijural. Indeed,

federallegislation must simultaneously address four different

groups of persons:

1.

anglophone common law lawyers;2.

francophone common law lawyers;

3.

anglophone Quebec civilian lawyers; and

4.

francophone Quebec civilian lawyers.- It is crucial that these four

legal audiences in Canada be able to both read federal statutes and

regulations in the official language of their choice and also be able

to find inthem terminology and wording that are respectful of the


45/185

concepts, notions and institutions proper to the legal tradition of

their particular province or territory- One distinctive and often

difficult feature of Canadian bijuralism is the task of rendering the

common law in French and the civil law in English. More

specifically, howlegislative statutes and judicial decisions of either

legal tradition can be "transposed" into the language of the other.

With respect to the process of drafting federal legislation, itis now

readily recognized that this process should not rely upon the

technique of simply transposing the concepts of one legal tradition

into the corresponding functionalequivalents of the other legaltradition. In many areas, a new vocabulary must be forged.

Interpreting Bilingual Legislation

The requirement in Canada that legislation be enacted in both

English and French has important implications. It means that both

language versions of a bilingual statute areoriginal, official and

authoritative expressions of the law. Neither version has the status

of a copy or translationand neither has paramountcy over the

other. This is known asthe "

equal authenticity rule"

The rule of equal authenticity also requires the courts, in

interpreting bilingual legislation, to extract the "highest common

meaning" from the two versions that is consistentwith the context of

the provision. Where there is a blatant conflict between the English


46/185

and French versions, courts must examine the legislative history of

the two linguisticversions of the provision, looking also to the

purpose and object of the statute. One must therefore go further

than mere verbal comparisons, looking to the highest

commonmeaning of the two versions

Courts are therefore required to interpret bilingual legislation in a

manner that accords with the true spirit, intent and meaning of an

enactment and that best ensures theattainment of its objectives.

Harmonization

The interaction of law emanating from the federal and provincial

levels and the potential conflicts between them and possible

harmonization is a complex issue

Over the years, pursuant to the division of powers under the

Constitution Act, 1867

, Parliament has enacted a considerable number of laws aimed at

regulating private lawissues. Certain public law statutes, when

applied in Quebec, require that recourse be had to the

Civil Code of Quebec

to identify the precise nature of the juridical act inquestion.

Consequently, there are several areas of law found in federal

statutory enactments which require harmonization with Quebec


47/185

private law, expressed primarily in the

Quebec Civil Code

As such, civil law is called upon to fill the gaps left by the federal

law

While civil law and common law complement the private law

provisions of federal legislation, at the same time, federal legislation

should not be applied uniformly throughoutthe country in everyrespect. Our objective is legal duality, not necessarily to achieve one

rule to be applied uniformly across Canada; this requires respect

for the character anduniqueness of the concepts and principles of

each legal system

Convergence and Progress

There is evidence of a certain convergence between the civil law and

common law traditions in Canada. While the common law and civil

law families share common origins,

these legal systems have been moving farther and farther from

those origins.

This move can be seen as the result of

frequent contact with other legal systems


48/185

,

the growth in the number of sources of international law, the

mobility of persons, the influence of the media, the production of

indigenous reference works and the growing use of legislation

, even in common law jurisdictions, to enablethe law to adapt

quickly to societal change.

One often-cited example of the convergence of the two legal

traditions in Canada focuses on the acceptance in Quebec of

specific institutions of the common law traditionnamely,

the trust.

Another instance of this "

rapprochement

" of the two traditions can be discerned from the current situation

where common law courts are required to apply and

interpretsubstantive civil law .e.g recent tort case where Court

made extensive reference and resorted to civilian authority

Chief Justice McLachlin stated that looking to how other courts indifferent jurisdictions deal with this issue provides perspective both

on the nature of theproblem and possible solutions.

Conclusions


49/185

Our legal system must now incorporate the shared values of society

as a whole, without excluding or discriminating against anyone. It

must evolve in light of our backgroundand needs. In the Canadian

context, it seems to me that a new analysis of the situation is also

needed

It is true that things have already changed substantially. The

codification of the law is increasingly extensive in both systems.

There are more and more new sources of substantive law, including

international law and native law. Translation, language training for

judges and jurists, and exchanges between law schools are far more

common. There is widespread access to criminal justice in French

at the trial level throughout the country. Some universities offer a

double law degree; others have organized one-yearwork terms for

students studying the other system. POLAJ is doing important work

The negative side is that French-language books, articles and cases

from Quebec continue to be inaccessible to the vast majority of

practitioners and judges in the commonlaw provinces and

territories. I have also noticed that the bilingualism of many young

Quebec jurists is insufficient to give them full access to English-

language legal sources. Onthe flip-side, if French is not understood

in most of English Canada, how can we be expected to make use of

the insights it offers in resolving legal disputes?St-Hilaire v Canada


50/185

(A-G)

FACTS:

The respondent asked the Treasury Board to pay her, in her

capacity as a surviving spouse and as heir of her husband's

succession, the allowances prescribed in theAct. The Treasury

Board refused to pay anything on the basis of a public policy rule

that no one may profit from his own crime. The respondent then

applied to the Federal Court, Trial Division for a declaratory

judgment that would recognize her right to the benefits provided by

the Act. Allowing the application, Blais J. ruled that the applicable

law was thelaw of successions defined in the

Civil Code of Qubec

and that under that law there is no unworthiness to inherit by

operation of law unless there is an intention to commit thealleged

crime and that the offence of manslaughter falls outside this rule.

ISSUE

: The main issue on appeal was whether the civil law of Quebec is

the suppletive law where a court must interpret and apply a federal

enactment which is silentconcerning civil rights in Quebec and if

so, whether the respondent was unworthy by operation of law of

inheriting from her husband under subsection 620(1) of theCivil Code of Qubec

.

REASONING:


51/185

Decary JA (dissenting in part):

- What is the applicable law: the civil law of Quebec or the common

law?- Unless indicated otherwise, no document other than the Civil

Code shall serve as ordinary law, in private law, in the federal

legislation applicable to Quebec.- Whenever a federal statute that is

to be applied to Quebec resorts to a private law concept without

defining it, and the

Interpretation Act

is likewise silent, or the federalstatute does not fully occupy the

possible field of private law jurisdiction in question, it is the Civil

Code that supplies the necessary conceptual support for an

intelligentapplication of that statute- In Quebec it is trite law that

the "ordinary law" of the province is constituted by the

Civil Code of Qubec

and theCode of Civil Procedure

-

Of course, there are a number of situations in which the civil law is

required to assume what might be called a passive role. Such

situations include every instance where, infurtherance of its own

purposes, a federal statute assigns certain effects to juridical acts

or facts governed by the Civil Code. More frequent, however, are

situations in which thecivil law plays an active role by applying

directly to complement federal private law statutes, just as it does


52/185

with regard to provincial statutes of the same type. Most of the

time,of course, these laws do not contain all that is necessary for

their application. In one way or another, they are almost always

incomplete. They employ civil law concepts withoutdefining them;

they refer to institutions enshrined in the Civil Code or fail,

wittingly or unwittingly, to state all of the principles that apply to

the field they regulate.

The civil lawis therefore called upon to fill in the lacunae or gaps left

by federal law- What, in my view, should determine whether or not

it is necessary to resort to the private law (in Quebec, the civil law)

is not the public or private natureof the federal enactment at issue

but the fact, quite simply, that

the federal enactment in a given case must be applied to situations

or relationships that it has not defined and that cannot be defined

other than in terms of the persons affected.

- It is also worth remembering the complementary nature of federal

and civil law: all of the Federal statutes created do not create an

independent legal system. Because theseActs derogate from or add

to the

jus commune

of each province, they are supplemented by the relevant provincial

law, which is used to interpret them and to apply them. Thereis,

therefore, a

complementary relationship

between federal legislation and the


53/185

jus commune

of the provinces

- I do not think there can be any doubt that this part of the Act,

which refers to "succession" without defining it, should be

interpreted in Quebec in light of the civil law. The answer is not so

obvious when it comes to defining the rights of the "surviving

spouse". This expression, as I said earlier, is defined in theAct and

furthermore does not correspond to any concept that is defined in

the

Civil Code of Qubec

. The Act appears,

prima facie

, to constitute a completecode in this regard. But is this really the

case?

What we are looking for here is not who is the surviving spouse. We

know her. What we are asking ourselves,rather, is

whether this surviving spouse is eligible to receive the benefit

provided by the Act.

- Since

the Act is silent on the question of eligibility

, the Attorney General submits that the legislative void must be

filled by the common law. This argumentcannot succeed

, since the question of eligibility is a question of civil rights and the

applicable rule is one of private law, and thus, in this case, of civil


54/185

law

- The

Civil Code of Qubec

recognizes the principle that no one should profit from his or her

crime

.

The question then is what the civil law understands by theprinciple

that no one should profit from his or her crime.

- In

ab intestate

and testamentary succession, there is unworthiness by operation of

law only if the heir is convicted of making an attempt on the life of

the deceased

.

Shouldthe circumstances of the crime in the case at bar lead to the

disqualification of the respondent, given that the respondent has

been convicted of manslaughter? I think so. Itwould be too easy for

anyone charged with murder to avoid the civil consequences of a

conviction for murder by pleading guilty to a reduced charge of

manslaughter andavoiding a trial in the course of which all of the

relevant facts would be disclosed. The civil court, faced with a plea

of guilty to a charge of manslaughter, may be sceptical

andconclude, from the scant evidence at its disposal, and given the

balance of probabilities, that there was a sufficient intention to kill.-


55/185

In sum, the respondent was forfeited from her entitlement to the

benefits payable to a surviving spouse under subsection 13(3) of the

Act, but she was entitled in her capacityas heir, to the minimum

amount of $75,202.50 payable under subsection 27(2) of Part I of

the Act and to the supplementary death benefit of about $81,750.

Letourneau JA:

- The Federal Court of Appeal has on many occasions recognized

the complementarity of the Quebec civil law with federal law where

the latter is silent. It has also endeavored toharmonize the effects of

federal statutes in order to avoid possible inequities as a result of

disparities while acknowledging a right to be different where

harmonization provesimpossible. The unworthiness to inherit under

subsection 620(1) of the

Civil Code of Qubec

attaches to the person convicted of making an attempt on the life of

the deceased. The wording of this article creates serious difficulties

since there is no offence in Canadian criminal law of making an

attempt on the life of the deceased. But Subsection 620(1)of the

Civil Code of Qubec

does not exclude from its purview all cases of manslaughter. Where,

as here, a person commits aggravated assault or inflicts seriousbodily harmlikely to cause death, knowing that death may result

but being indifferent as to whether or not it results, that person is

by operation of law unworthy of inheriting from his victim- Held

that respondent was disqualified


56/185

Desjardin JA:

- To determine the meaning of the words "surviving spouse" and

"succession" when the federal statute in question, the

Public Service Superannuation Act

, is silent, it isnecessary to refer to the

Civil Code

of Qubec

and not the common law. The

Civil Code of Qubec

is the foundation not only of all other Quebec laws, but also of the

relevantprovisions of the Act in question. The first paragraph of

article 620 of the Code, which states that "a person convicted of

making an attempt on the life of the deceased" isunworthy of

inheriting by operation of law, does not rule out the applicability

thereto of some cases of manslaughter, let alone the manslaughter

committed by the respondent- Since the respondent was "convicted

of making an attempt on the life of the deceased", she was

unworthy by operation of law of inheriting from her husband under

thatprovision and could not receive the surviving spouse's annuity.

HELD

: Appeal allowed

Convention

- Constitutional conventions are a species of unwritten

constitutional norms. The British Constitution was understood to


57/185

include certain conventions that govern the workingsand

interaction of the branches of the state. Because the Constitution

Act 1867 sought to effect a Constitution similar in Principle to that

of the UK, Canada inherited theseconventions.- The following is a

case where a specific convention was recognized:Re: Resolution to

amend Constitution:

FACTS:

The References in question were prompted by the opposition of

eight provinces to a proposed Resolution, published on October 2,

1980. The proposed Resolutioncontained an address to be

presented to Her Majesty The Queen in right of the United Kingdom

and a statute, to which was appended another statute provid ing for

thepatriation of the

B.N.A. Act,

with an amend ing procedure, and

a Charter of Rights and Freedoms.

The proposed Resolution carried the approval of only two provinces,

Ontarioand New Brunswick. The opposi tion of the others, save

Saskatchewan, was based on their assertion that both

conventionally and legally the consent of all the provinces

wasrequired for the address to be forwarded to Her Majesty with theappended statutes. The proposed Resolution was adopted by the

House of Commons and by the Senate on April23 and 24, 1981.

ISSUES:


58/185

All parties agreed that proposed amended constitution would affect

provincial rights and powers.2 key issues: (1) Is agreement of

provinces

constitutionally (legally) required

?; (2) Is there

a constitutional convention

?

REASONING:

Issue 1: Majority of 7:2 - Legally provincial consent was not

required.

Issue 2: Constitutional convention, 6:3 majority found an existing

convention that a substantial measure of provincial consent is

required. Re: provincial consent there wasprecedent. Since 1930 all

amendments affecting the provinces were passed with provincial

consent there were no exceptions. Precedent indicated intent to

have consent.Reason

confirms Canadas federal principle.

1. Legal Issue [7:2]The Majority

[CJ Laskin]


59/185

No unanimity for constitutional amendment w/ all provinces

impacted.Majority took view of legal authority. It w/n power of feds

to pass such a resolution and take it on to the UK.

The Dissent

[Martland & Ritchie

federalism principle and precedent to support the view that in

law provincial approval was required. P. 33 history of

amendmentsreveals the operation of constitutional constraints. A

unilateral power to amend could see feds take away all provincial

powers [the in terrorem argument].Argued: feds doing indirectly

what cannot do directly by having UK amend constitution w/o

provincial approval.

2. The Constitutional Convention [6:3]Majority

[Including Martland & Ritchie]

p. 46 Constitutional conventions + constitutional law = totalconstitution- Majority recognized conventions.- Constitutional

conventions unenforceable by courts. Exist and recognized to

ensure that framework of const. will be operated with prevailing

constitutional values or principles[p.44].- Three key elements to


60/185

convention: (1) precedent (2) intent to be bound by the convention &

(3) reason for the convention.

HELD:

Convention needs substantial measure of provincial consent was

not supported by precedent arguably required unanimous

consent. But, here, 8 provinces opposedthe amendments it did not

matter. Insufficient provincial support.

topic 3

Fundamental Principles of the Canadian Legal System

Overview

- Rule of law- Parliamentary sovereignty and constitutional

supremacy- Separation of powers- Judicial independence

Creik Reading

Background- Public law concerns the relationship between the state

and civil society- Private persons may only create legal rights and

duties b/w each other, and only on the basis of consent. In

comparison, the state holds all authoritative power (the state

mayimpose its dictates on persons without their individual

consent)- In a society governed by the rule of law, the state may not

act arbitrarily. The state must impose its will lawfully, and in

accordance with law- The starting point in assessing the legitimacy

of state action is the Constitution- The Constitution establishes the

foundational law through which the rule of law can occur. Second,

it establishes the respective relationships between the institutions


61/185

orbranches of the state that perform the functions necessary to

operationalize law in societyRule of law- Everyone, including the

powerful state, must act in accordance with the law- Rule of law is

similar, but

broader

than the concept of constitutionalism, which requires that all

government action comply with the Constitution;

rule of law is a prerequisite tothe constitutionalism

- Rule of law means that laws must meet certain qualitative

standards, but being prospective and being general in character are

not necessarily requirements (see the

BC v Imperial Tobacco

case)- The rule of law is an implicit principle underlying the

Constitution (and such principles have full force of law) (see, e.g,

BC v Imperial Tobacco

)- See

Roncarelli v Duplessis

, where it was held that even a fully discretionary power is subject

to the rule of law- See

BC v Imperial Tobacco Canada, where manufacturers of tobacco claimed that legislation enacted

which favoured BC government in ma

foundation law

Documents