Lawf3040 Lap 2016, Tru Law (Gauthier, Fall 2016)

Front 1

The Sources of Law & Introduction to Parliament: R v Sparrow (1990)

Back 1

s. 35(1) is a culmination of a long struggle for constitutional recognition of Aboriginal rights and provides base for negotiations

Front 2

Sources of Law & Introduction to Parliament: R v Van der Peet (1996)

Back 2

van der Peet TEST: aboriginal rights protected under s 35(1) are those that relate to a practice, custom, tradition that is integral to the culture of the group

Front 3

Sources of Law & Introduction to Parliament: Cooper v Stuart (1889)

Back 3

(Less important?)

Held: Law of perpetuities not in effect in NSW

Front 4

Sources of Law & Introduction to Parliament: Canada Trust Co v Ontario (Human Rights Commission) (1990)

Back 4

- estate est. trust for white ppl only

- whether law of trusts can be ruled in a human rights tribunal

- found that it can

- the takeaway is the common law is flexible based on how you define the scope of the case

Front 5

Sources of Law & Introduction to Parliament: Halpern v Canada (2003)

Back 5

- same-sex marriage

- sexual orientation held to be protected under Charter

- Charter trumps the common law

- Feds codify new def of marriage after affirmative Reference to SCC

Front 6

Sources of Law & Introduction to Parliament: Re: Resolution to Amend the Constitution (1981) (i.e., Patriation Reference)

Back 6

Constitutional conventions are not legally enforceable.

- court finds that constitutional convention is to gain assent of provs but this cannot be enforced: these conventions then become simply a political matter

Front 7

Sources of Law & Introduction to Parliament: Reference Re Secession of Quebec (1998)

Back 7

Unwritten Constitutional Principles flow from preamble to 1867 act and may be recognized by the court as part of the Constitution of Canada

Front 8

Sources of Law & Introduction to Parliament: Babcock v Canada (2002)

Back 8

Canada has Parliamentary Sovereignty to a degree that is limited by the actual Constitutional Supremacy. Court finds in Babcock that parliament does not have to reveal all of its secrets about its business it conducts;

- as long as it does not violate constitution

Front 9

Sources of Law & Introduction to Parliament: Black v Chretien (2001)

Back 9

- use of prerogative power (foreign affairs)

- PM asks Black not be appointed to HoL

- advising foreign head of state about Canadian policy is valid exercise of prerogative power

Front 10

Sources of Law & Introduction to Parliament: Delivery Drugs Ltd v Ballem

Back 10

- Legislation takes priority over prerogative powers

Front 11

Institutional Framework: Reference re Secession of Quebec, [1998]

Back 11

- in legislative branch of government, federalism is the "animating principle"

- federalism = 1) local authorities can better rule their areas 2) provinces do not rule on each other's affairs

Front 12

Institutional Framework: Doucet-Boudrea v. Nova Scotia, 2003

Back 12

- courts have used "separation of powers" to restrain the judicial role

- judicial remedy requiring construction of schools: you must build then report on progress

- judge can order to build but cannot rule on details of functioning of schools

Front 13

Institutional Framework: Ontario v. Criminal Lawyers’ Association of Ontario, 2013

Back 13

- who gets to rule on how much Amicus gets paid? Judges or AG (Executive)?

- constitutional framework prescribes different roles for the three branches

- for development of certain "core competencies"

- branches should not overstep their bounds

Front 14

Institutional Framework: Canada (Prime Minister) v. Khadr, 2010

Back 14

- Judge finds Khadr's Charter rights were breached but that it is the realm of the executive to conduct Foreign Relations

- Executive works within a range, fenced by the judiciary

Front 15

Institutional Framework: O’Donohue v. The Queen, (2003)

Back 15

- Act of Settlement challenged since it requires no catholics

- found not justiciable since it is UK Act

- found all commonwealth countries would have to agree, not JUST Canada

Front 16

Institutional Framework: McAteer v. Canada (AG), 2014

Back 16

- does oath of citizenship to Queen violate the Charter

- Queen as symbol of British dominance is distasteful to some

- HELD: oath is not to person, but to the institution which is the representation of our form of government

Front 17

Institutional Framework: Reference re Provincial Electoral Boundaries (Sask), [1991]

Back 17

- House of Commons Members are elected by ridings

- some ridings have lower pop, so vote is worth more

- HELD: right to vote is not equality of voting power but the guarantee of representation

- even at best could only have relative parity

Front 18

Institutional Framework: Figueroa v. Canada, 2003

Back 18

- MPs organized into parties

- old rule that parties need to raise 50 candidates to be considered 'party', campaign as such

- this rule held Unconstitutional, democratic benefit to having more opinions

Front 19

Institutional Framework: Re Gray, (1918)

Back 19

- Parliament can delegate as long as it is not complete abdication

- total delegation would offend 1867 Act separation of powers

Front 20

Institutional Framework: Nova Scotia (AG) v. Canada (AG), [1951]

Back 20

- delegation is to be from one level to another (e.g., fed to prov) but not inter-level

Front 21

Institutional Framework: Guergis v. Novak, 2012

Back 21

- prerogative power reviewed in tort action

- former cabinet min sued PM following allegation of criminal misconduct

- Guergis argues removal was improper: mistreatment, rumour spreading

- the executive power to appoint and dismiss is beyond Judicial review

Front 22

Institutional Framework: Fraser v. PSSRB, [1985]

Back 22

- Executive Branch: Public Service

- Revenue Canada employee fired for opposition to intro of metric system

- balance of free speech and duty to fulfill functions

- importance of impartiality and perception thereof in Public Service

- cannot engage in sustained, highly visible acts on major gov't policy

Front 23

Institutional Framework: Osborne v. Canada, [1991]

Back 23

- Legislationrestricting political involvement of civil servants was overly broad andviolated the Charter free expression guarantee

- higher duty to be loyal only on high-ranking officials

- see also: harperman incident: environment canada employee sent home with pay, retired

Front 24

Institutional Framework: R. v. Campbell, [1999]

Back 24

- The Executive: Enforcement Bodies have no immunity at common law,

Front 25

Institutional Framework: Krieger v. Law Society, 2002

Back 25

- The Executive: Enforcement Bodies must comply with ordinary regulatory standards

Front 26

Institutional Framework: Shell Canada Products Ltd. v. Vancouver, [1994]

Back 26

- Vancouver seeks to ban dealing with Shell since Apartheid

- HELD: this is outside of statutory limits of Vancouver

- note Dissent by McLachlin: that local intentions should be given effect; generous construction; remedy is at ballot box

Front 27

Institutional Framework: Baker v. Canada, [1999]

Back 27

- Judiciary interpretation of legislation has duty to be fair (procedural)

- immigrant deported, had children born in Canada

- immigration hearing was not granted

- HELD: hearing should be held

Front 28

Institutional Framework: Dunsmuir v. New Brunswick, 2008

Back 28

- Judiciary interpretation of legislation is limited to substantive review (Merits-based)

- there is a RANGE of reasonable limits to be stayed within

Front 29

The Legislative Process: New Brunswick Broadcasting Co v. Nova Scotia, [1993]

Back 29

- legislature immune from Charter

- a part of the constitutionally protected privilege

- here in decision to not allow broadcasting of proceedings on TV

Front 30

The Legislative Process: Canada (House of Commons) v. Vaid, 2005

Back 30

- employee, driver, fired, claims discrimination

- branches of gov't respect boundaries: judiciary will not intrude on decision of Parliament

- parliamentary privilege limited to what is Necessary to carry out legislative work and implicate the dignity and efficiency of Parliament

- this case not within nec. work of leg: not privileged

Front 31

The Legislative Process: Bacon v. Saskatchewan Crop Insurance Corp, (1999)

Back 31

- Noordinary law can prevent the enactment of new legislation; remedy for ‘badlaws’ is at the ballot box

- gov't changed insurance program unilaterally

- no ordinary law can prevent the enactment of new legislation

Front 32

The Legislative Process: Turner v. Canada, [1992]

Back 32

- Parliament enactslegislation that essentially results in the person’s ongoing litigation behindcompleted unfavourably

- Retroactive legislation can disrupt activelitigation

Front 33

The Legislative Process: Wells v. Newfoundland, [1999]

Back 33

- Leg has legislative freedom but it must use clear and explicit language to extinguish rights

- commissioner's job legislated out: he is entitled to terms of his hire since the gov't did not explicitly eliminate those

- also Morguard

Front 34

The Legislative Process: Authorson v. Canada, 2003

Back 34

- veterans sue for money owed in pension appealing to Bill of Rights

- Gov't can legislate itself out of duty- even to take away property rights- even to extinguish claims for breach of fiduciary duty

Front 35

The Legislative Process: Re Gray, (1918) at 170

Back 35

- was war measures act 1914 intra vires?

- Yes

- generally can delegate but not to the point of abdicating its duties

Front 36

Problems of Meaning: Ontario Mushroom Co. Ltd. and Learie (1977)

Back 36

- is mushroom a vegetable?

- Employment Standards Act has exemptions for min wage to vegetable farmers

- public, farmers, levels of gov't, dictionary consulted

- HELD: dangerous to consult dictionaries where common meaning can be different

Front 37

Problems of Meaning: R. v. Higgins, [1929]

Back 37

- meanings of 'care and control'

- drunk after car crash? operating vehicle?

- strict wording approach leads to absurd results e.g., when car is in driveway, can you be drunk?

Front 38

Problems of Meaning: R. v. Thomen, [1964]

Back 38

- meaning of 'motor vehicle' cannot apply to wrecked car: there is no danger to public there

Front 39

Problems of Meaning: R. v. Verrette, [1978]

Back 39

- meaning of 'nude in public'?

- nudity = completely without clothes?

- or as deeming provision, what offends public decency: so nudity extends to those wearing some clothing

Front 40

Problems of Meaning: R. v. Thame, 2012

Back 40

- meaning of 'intoxicated'

- drunk quietly waiting for bus home, since he got off party bus that was out of hand

- not guilty of public intoxication since not disorderly

Front 41

Problems of Meaning: R. v. Levkovic, 2013

Back 41

- baby born then disposed

- nobody can be convicted of a breach not clearly prohibited

- Police need to not have over-vague for application

- meaning of 'before birth' found vague in lower court, SCC finds it not vague

Front 42

Statutory Interpretation: Re Rizzo & Rizzo Shoes, [1998]

Back 42

- whether ESA allows for termination benefits in case of bankruptcy

- modern principle adopted: "Today there is onlyone principle or approach, namely, the words of an Act are to be read in theirentire context, in their grammatical and ordinary sense harmoniously with thescheme of the Act, and the intention of Parliament"

- termination by employer should include bankrupt

Front 43

Statutory Interpretation: Reference re Supreme Court Act, RSC 1985, 2014

Back 43

- Nadon case

- MAJ: text, context, purpose

- DISS: absurdity: renew for a day to be eligible; 'the judges' in s. 6 refers back to s. 5; modifier "current" is lacking

- Modern Principle used by both sides to come to opposite conclusions

Front 44

Statutory Interpretation: Canada Trustco Mortgage Co. v. Canada, 2005

Back 44

- tax avoidance ok if it does not break a rule

- modified by GAAR + other anti-avoidance rules

- rule in favour of Tax payer only when other principles don't furnish an answer

Front 45

Statutory Interpretation: Witts v. BC (AG), (1982)

Back 45

- horse racing meaning of word 'sex'

- Act limits objections made on basis of sex;

- man objects on basis of gelding, colt, etc

- HELD: sex has a specific meaning that is certain in that comunity

Front 46

Statutory Interpretation: Morguard Properties Ltd. v. City of Winnipeg, [1983]

Back 46

- legislature wishing to limit a right must do so expressly

- also Wells v Newfoundland

Front 47

Statutory Interpretation: Insurance Corporation of BC v. Heerspink, [1982]

Back 47

- leg protecting human rights has quasi-constitutional status

- human rights leg gets liberal interpretation

- flexible according to evolving conceptions

- human rights law supersedes other law in cases of conflict

Front 48

Statutory Interpretation: BC (Public Service Employee Relations Commission) v. BCGSEU, [1999]

Back 48

- An e.g. of liberal and purposiveinterpretation of human rights legislation

- And an e.g. of dynamicinterpretation of human rights legislation

- woman firefighter let go for not running fast enough

Front 49

Statutory Interpretation: Royal Bank of Canada v. Saskatchewan Power Corp, [1990]

Back 49

- judicial interp of fiscal leg is literal and narrow

- benefit of doubt to the taxpayer

Front 50

Statutory Interpretation: Partington v. AG (1869)

Back 50

- benefit to the taxpayer

- if within letter of law: he is taxed, if crown cannot bring within letter of law, no tax, even if spirit of law is otherwise

Front 51

Statutory Interpretation: Stubart Investments Ltd. v. The Queen, [1984]

Back 51

- modern principle not applied to fiscal legislation as well

- favour Crown equally in provisions conferring benefits

- fiscal leg is now policy tool, not just revenue raising

Front 52

Statutory Interpretation: Canada Trustco Mortgage Co. v. Canada, 2011

Back 52

- favour taxpayer only when other interpretive principles furnish no result

Front 53

Statutory Interpretation: Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006

Back 53

- Presumption in favour ofthe taxpayer is residual

- Only applies where otherinterpretive principle does not solve

Front 54

Statutory Interpretation: R v. Clarke, 2014

Back 54

- truth in sentencing comes out before sentencing, after crime

- reads "applies only to persons charged after" act comes into force

- unambiguously applies

- in general, a strong presumption against retroactivity

Front 55

Statutory Interpretation: Castonguay Blasting Ltd v. Ontario, 2013

Back 55

- environmental legislation gets liberal interpretation

- blasting goes awry, notifications made but not to min of environment

Front 56

OPTIONAL: Hudon v. Haakenson, [1971]

Back 56

- re: Act to Regulate Vehicles on Highways

- does it apply to private property?

- no it does not

- title can be used only if text is ambiguous

Front 57

OPTIONAL: Chamberlainv. Surrey School District No. 36, 2002 SCC

Back 57

- Surrey School Board rejectsthese books since they would be too offensive to some parents (same-sex issues)

- HELD: The preamble is usedto determine intent of School Act which focuses on secularism

Front 58

OPTIONAL: Pembina Institute v. Alberta (Environment and Sustainable Resource Development), 2013 ABQB

Back 58

- Purpose Statement used tointerpret the act

- dept of Env decisions require input but internal rules for input reject input out of hand

Front 59

OPTIONAL: Covert v Nova Scotia, 1980

Back 59

No interp should defeat the purpose of the legislation

Front 60

OPTIONAL: Heydon's Case, 1684

Back 60

Heydon's Rule: the mischief the act was intended to cure

Front 61

OPTIONAL: Smith v Hughes, 1960

Back 61

- prostitutes should not solicit 'on the street'

- does that include on balcony overlooking street?

- mischief rule applied: leg intended to clean up streets: balcony solicitation is caught

Front 62

OPTIONAL: Ontario v Canadian Pacific, (1995)

Back 62

- Presumption against absurdity

- "any use" is more than trivial

Front 63

OPTIONAL: R v Daoust, 2004

Back 63

- law against selling stolen property apply to buyer?

- no only seller

Front 64

OPTIONAL: R v Zeolkowski, 1989

Back 64

- "all relevant evidence" = same meaning throughout

Front 65

OPTIONAL: Thompson v Canada, 1992

Back 65

- "recommendation" means ordinary meaning of advice, not binding decision

Front 66

OPTIONAL: Peach Hill Management v R, 2000

Back 66

- "funding by government" and "government funding" are different phrases, done on purpose and have different meanings

Front 67

OPTIONAL: R v Schwartz, 1997

Back 67

- meaning of "wrong"?

- is it morally wrong? or Illegal?

- must be morally wrong since 'unlawful' is used elsewhere in Criminal Code

Front 68

Ejusdem Generis

Back 68

- of the same class

- list followed by general term, general term is read down to the most restrictive feature of the list

- "oranges, lemons, grapefruit, or other fruit"

- does not apply where reversed: list after general term (National Bank of Greece v Katsikonouris, 1990)

Front 69

Noscitura a scoiis

Back 69

- associated words

- meaning of word is coloured by other nearby words

- e.g., "roads, highways, streets, lanes, alleys" - footway must be paved

Front 70

Expressio unius

Back 70

- mention of one excludes the others

- complete list excludes what is not mentioned

- e.g., "you may only bring x and y" excludes z

(Re Medical Centre Appartments Ltd and City of Winnipeg (1969))

Front 71

OPTIONAL: Friends of the Oldman River Society v Canada, 1992

Back 71

- court wants to find ways around crown immunity

- finds purpose of Fed act would be frustrated if AB Crown was not bound

Front 72

OPTIONAL: Morishita v Richmond, 1990

Back 72

- By-law directs clerk to s 4; s 5 clearly meant; fixed

Front 73

OPTIONAL: R v Shubley, 1990

Back 73

- Under-inclusive legislation not judicially corrected

- Regulations dealing with misconduct of inmates, provisions for charge stopping a internal discipline process, but not for addressing an internal discipline after criminal charge process begins

Front 74

OPTIONAL: R v Atchison, 2006

Back 74

- skateboarders are included in pedestrians

Front 75

OPTIONAL: Monsanto Canada v Ontario, 2004

Back 75

- presumption against use of regulations to interpret act overturned by finding Act and Regs were a total 'scheme'