SUMMARY OF HIGHLIGHTED SECTIONS: FEMINIST PERSPECTIVES ON LAW

1. Introduction to Feminist Legal Theory

●​ Feminist legal theory examines how legal systems disadvantage women.

●​ Early feminist legal movements focused on voting rights and marriage law reforms.
●​ The 1960s saw a more structured feminist movement targeting workplace and
criminal law discrimination.

2. Early Formalist Feminism

●​ Early feminism aimed for formal equality, replacing explicitly biased laws.
●​ Suffrage movement led to the Women’s Suffrage Act (1918) granting voting rights.
●​ Despite progress, women were excluded from the Senate under the British North
America Act, 1867.

3. The Persons Case (Edwards v AG Canada, 1930)

●​ Issue: Could women be considered "qualified persons" for Senate appointments?

●​ Supreme Court of Canada Ruling: Denied women Senate eligibility based on a
strict interpretation.
●​ Privy Council Appeal: Overturned the ruling, recognizing women as "persons."
●​ Impact: Established the "living tree" doctrine—constitutions should evolve with
society.

4. Contemporary Feminist Legal Thought

●​ Liberal Feminism: Advocates gender equality within legal frameworks.

●​ Radical Feminism: Critiques systemic male dominance in law.
●​ Intersectional Feminism: Examines multiple identity-based discriminations.
●​ Key Legal Areas Examined: Employment law, reproductive rights, and criminal
justice.

5. Reproductive Rights and R v Morgentaler (1988 SCC)

●​ Issue: Was the abortion law (Criminal Code s. 251) unconstitutional?

●​ Supreme Court Decision: Struck down the abortion law as violating section 7 of
the Charter (right to security of the person).
●​ Significance: A major victory for reproductive rights, reinforcing bodily autonomy.

6. Conclusion

●​ Feminist legal theory challenges patriarchal structures in law.

●​ Key cases like Edwards v AG Canada and R v Morgentaler demonstrate legal
evolution.
●​ The "living tree" principle allows constitutional growth to reflect modern values.
SUMMARY OF HIGHLIGHTED SECTIONS: SECTION 35 AND INDIGENOUS RIGHTS

1. Constitutional Recognition of Indigenous Rights

●​ Section 35 of the Constitution Act, 1982 recognizes and affirms Indigenous and
treaty rights.
●​ Defines Indigenous peoples as Métis, First Nations, and Inuit.
●​ Prevents legislative extinguishment of Indigenous rights.

2. R v Sparrow (1990 SCC)

●​ First Supreme Court ruling on section 35.

●​ Indigenous fishing rights were challenged under provincial laws.
●​ Established the “Sparrow Test”:
○​ Determines if government regulation infringes an Indigenous right.
○​ If yes, government must justify the infringement.
○​ Justification must respect the honour of the Crown.

3. Aboriginal Rights and the Van der Peet Test

●​ R v Van der Peet (1996 SCC) refined the definition of Aboriginal rights.
●​ Test for Indigenous rights:
○​ Practice must be integral to the group’s culture before European contact.
○​ Must have continuity with modern Indigenous practices.
●​ Criticism: The test is seen as restrictive and limiting Indigenous self-determination.

4. Indigenous Land Rights and Title

●​ Tsilhqot’in Nation v British Columbia (2014 SCC) established full Aboriginal title
rights.
●​ Requirements for title:
○​ Continuous and exclusive occupation pre-European sovereignty.
●​ Rights granted under title:
○​ Use, enjoyment, economic benefits, and governance of land.
○​ Crown must obtain consent or justify infringements.

5. Métis Rights and R v Powley (2003 SCC)

●​ First Supreme Court case on Métis rights under section 35.

●​ Powley Test:
○​ Identifies if a claimant belongs to a historic Métis community.
○​ Determines if practices are protected under Indigenous rights.
●​ Challenges: Lack of provincial recognition and difficulty in proving historic Métis
communities.
 6. Treaty Rights and the Honour of the Crown

●​ R v Badger (1996 SCC): Treaties must be interpreted liberally and ambiguities

resolved in favor of Indigenous peoples.
●​ Haida Nation v British Columbia (2004 SCC):
○​ Established the duty to consult Indigenous peoples.
○​ Consultation required before decisions affecting Indigenous rights.
●​ Manitoba Métis Federation v Canada (2013 SCC):
○​ The Crown’s historical obligations to Métis peoples were not fulfilled.

7. Conclusion

●​ Section 35 enshrines Indigenous rights in the Constitution.

●​ Supreme Court rulings provide strong legal recognition but challenges persist.
●​ Reconciliation efforts continue through treaty negotiations and modern
agreements.

SUMMARY OF HIGHLIGHTED SECTIONS: COMMON LAW AND CIVIL LAW

TRADITIONS

1. The Common and Civil Law Traditions

●​ Common Law:
○​ Originated in England and developed through judge-made decisions.
○​ Based on precedents and the doctrine of stare decisis (let the decision
stand).
○​ Supreme Court and Privy Council decisions shaped common law uniformity.
●​ Civil Law (Quebec’s System):
○​ Based on codified laws originating from Roman law.
○​ Relies on broad legal principles and doctrinal writings rather than case
law.
○​ The Civil Code of Quebec integrates some elements of common law for
harmonization.

2. Bijuralism in Canada

●​ Canada has a mixed legal system:

○​ Common law applies in all provinces except Quebec.
○​ Quebec follows civil law for private matters, influenced by common law
institutions.
●​ Quebec’s courts adopt a common law-style adversarial approach, differing from
pure civilian systems.

3. The Role of Precedent in Common Law

●​ Stare Decisis:
○​ Lower courts must follow higher court rulings (binding precedent).
○​ Supreme Court of Canada is not bound by its own previous rulings.
 ●​ Hierarchy of Precedents:
○​ Provincial courts are bound by their own appeal courts.
○​ Pre-1949 Privy Council decisions remain binding unless overturned.
○​ Decisions from other provinces are persuasive but not binding.

4. Application of Precedents and Ratio Decidendi

●​ Ratio Decidendi (reason for the decision) forms the binding rule of a case.
●​ Obiter Dicta (incidental comments) are persuasive but not binding.
●​ Example: Seneca College v Bhadauria (1981 SCC):
○​ Held that the Human Rights Code forecloses civil actions based on public
policy.
○​ Later Canada Trust Co v Ontario Human Rights Commission (1990)
distinguished its application.

5. Conclusion

●​ Common law and civil law coexist in Canada, shaping its legal framework.
●​ Precedent provides stability but also allows judicial evolution.
●​ The interaction between case law and statutory law defines modern Canadian
legal practice.

SUMMARY OF HIGHLIGHTED SECTIONS: STATUTORY LAW AND INDIGENOUS

RIGHTS

1. Crown’s Fiduciary Obligations to Indigenous Peoples

●​ The Supreme Court has confirmed the Crown’s fiduciary duty toward Indigenous
peoples in multiple cases.
●​ Manitoba Metis Federation v Canada (2013 SCC):
○​ Recognized the historic failure of the Crown in fulfilling its promises to the
Métis.
○​ Highlighted the legal framework of Indigenous-Crown relations in the
Manitoba Act, 1870.
●​ Authorson v Canada (2003 SCC):
○​ Explored limitations on the Crown’s fiduciary responsibility.
○​ The extent of Crown obligations remains untested in some areas.

2. Statutory Law and Its Relationship to Common Law

●​ Common law developed through judicial decisions, whereas statutory law is

enacted by legislatures.
●​ Statutes can override common law but must be explicit in doing so.
●​ Example: Same-sex marriage
○​ Initially prohibited under common law and civil law traditions.
○​ Legalized via Reference re Same-Sex Marriage (2004 SCC) and the Civil
Marriage Act, 2005.
○​ Followed constitutional challenges such as Halpern v Canada (2003).
3. Role of the Charter in Statutory Interpretation

●​ Courts interpret statutes in alignment with the Charter.

●​ Example: Egan v Canada (1995 SCC)
○​ Addressed whether same-sex couples were entitled to spousal benefits.
○​ Set precedents for equality rights under Section 15 of the Charter.

4. Conclusion

●​ The Crown’s legal obligations to Indigenous peoples are still evolving.

●​ Statutory law can override common law but is subject to constitutional limits.
●​ Charter rights continue to influence statutory interpretation and legal reforms.

SUMMARY OF HIGHLIGHTED SECTIONS: INTERNATIONAL LAW IN CANADIAN LAW

1. Introduction to International Law and Its Reception in Canada

●​ Domestic vs. International Law:

○​ Domestic law: Enacted by Parliament or provincial legislatures.
○​ International law: Includes treaties and customary international law.
●​ Two Main Forms:
○​ Treaties: Agreements between states (bilateral or multilateral).
○​ Customary International Law: Universal state practice accepted as law.

2. International Law’s Role in Canadian Legal System

●​ Treaties and Domestic Law:

○​ Canada follows a dualist system: Treaties do not automatically become law.
○​ Requires Parliament to implement treaties through legislation.
○​ Example: Civil Marriage Act (2005) implemented Canada’s same-sex
marriage obligations from international law.
●​ Customary International Law in Canada:
○​ Monist approach: Customary law is automatically part of Canadian law
unless overruled by statute.
○​ Bouzari v Iran (2004 ONCA): Courts apply customary law unless explicitly
displaced by legislation.

3. Challenges in Implementing International Law

●​ Democratic Legitimacy Issues:

○​ Federal executive signs treaties, but Parliament must implement them.
○​ If Parliament does not pass legislation, Canada may fail to uphold its
international obligations.
●​ Legal Uncertainty:
○​ Customary international law is often unclear and relies on judicial
interpretation.
○​ Raises questions about the role of courts in shaping international law’s
domestic effect.
4. Key Cases and Application

●​ Egan v Canada (1995 SCC): Considered Canada’s human rights obligations under
international law.
●​ Reference re Same-Sex Marriage (2004 SCC): Demonstrated how courts use
international human rights norms in constitutional interpretation.

5. Conclusion

●​ Canada integrates international law selectively: Treaties require legislative action,

but customary law is directly incorporated.
●​ Courts play a crucial role in aligning domestic law with international obligations.
●​ As globalization increases, international law’s influence on Canadian law will
grow.

SUMMARY OF HIGHLIGHTED SECTIONS: RECURRING CONSTITUTIONAL

PRINCIPLES IN CANADIAN PUBLIC LAW

1. The Constitution of Canada and Its Structure

●​ Section 52(1) of the Constitution Act, 1982: Declares the Constitution as the
supreme law of Canada.
●​ The Constitution includes:
○​ The Canada Act, 1982 and amendments.
○​ Other legal instruments and unwritten constitutional principles.
●​ Two main sources of unwritten norms:
○​ Constitutional conventions
○​ Unwritten principles of the Constitution

2. Hierarchy in Law

●​ Constitutional Law is the highest form of law, overriding all conflicting statutes or
common law.
●​ Statute Law (legislation enacted by Parliament or provincial legislatures) prevails
over common law.
●​ Common Law (judge-made law) evolves through judicial precedent but can be
overridden by statute.
●​ Subordinate Legislation (e.g., regulations and municipal by-laws) must conform to
its parent statute.
●​ Key Case: RWDSU v Dolphin Delivery (1986 SCC):
○​ The Charter does not apply directly to common law but influences its
development.
○​ Later cases, such as Grant v Torstar Corp (2009 SCC), confirmed that
constitutional values guide common law evolution.
3. Constitutional Conventions

●​ Definition: Political customs governing state operations that are not legally
enforceable.
●​ Key Case: Re Resolution to Amend the Constitution (1981 SCC) (Patriation
Reference)
○​ Established a three-part test for conventions:
1.​ Practice or agreement developed by political actors.
2.​ Political actors recognize they are bound by the convention.
3.​ Normative purpose exists to justify the convention.
○​ Found a convention requiring substantial provincial agreement before
constitutional amendments.
●​ Enforceability: Conventions are politically binding, but courts do not enforce them.

4. Unwritten Constitutional Principles

●​ Developed in the Quebec Secession Reference (1998 SCC).

●​ Four key principles recognized:
1.​ Federalism: Balances power between federal and provincial governments.
2.​ Democracy: Government must reflect the will of the electorate.
3.​ Constitutionalism and the Rule of Law: All government actions must
comply with the Constitution.
4.​ Protection of Minority Rights: Ensures rights of linguistic, cultural, and
Indigenous minorities.
●​ Unlike conventions, unwritten principles have legal force and impose limits on
government power.

5. Judicial Interpretation and the Living Tree Doctrine

●​ Key Case: Edwards v AG Canada (Persons Case, 1930 SCC)

○​ Established the Living Tree Doctrine: The Constitution must evolve with
society.
●​ Key Case: Reference re Secession of Quebec (1998 SCC)
○​ Recognized that constitutional principles must be considered in legal
disputes.
●​ The Supreme Court has limited direct enforcement of unwritten principles but uses
them to interpret the Constitution.

6. The Shift from Parliamentary Supremacy to Constitutional Supremacy

●​ Before 1982: Canada followed parliamentary supremacy, meaning Parliament

could enact any law.
●​ After 1982: The Constitution and Charter of Rights and Freedoms limited
legislative power.
●​ Key Cases:
○​ OPSEU v Ontario (1987 SCC): Reinforced constitutional supremacy.
○​ Manitoba Language Rights Reference (1985 SCC): Declared
unconstitutional laws invalid but granted time for compliance.
7. Federalism and Distribution of Powers

●​ Sections 91 and 92 of the Constitution Act, 1867 outline legislative authority.

●​ Key Case: Hodge v The Queen (1883 SCC)
○​ Established that federal and provincial governments are coequal sovereigns
within their areas of jurisdiction.
●​ POGG (Peace, Order, and Good Government) Clause:
○​ Grants Parliament power over areas not explicitly assigned to provinces.
○​ Often used in national emergencies and economic regulation.

8. Conclusion

●​ The Canadian Constitution includes both written laws and unwritten principles.
●​ Constitutional conventions guide political behavior but are not legally
enforceable.
●​ Judicial interpretation shapes constitutional evolution, particularly through the
Living Tree Doctrine.
●​ The shift to constitutional supremacy ensures laws comply with fundamental
rights.

SUMMARY OF HIGHLIGHTED SECTIONS: CONSTITUTIONAL PRINCIPLES IN

CANADIAN PUBLIC LAW

1. Parliamentary Supremacy vs. Constitutional Supremacy

●​ Parliamentary Supremacy:
○​ Rooted in British constitutional history, allowing Parliament to legislate freely.
○​ Incorporated into Canada through the Constitution Act, 1867.
●​ Constitutional Supremacy:
○​ Shifted with the Constitution Act, 1982, particularly with the Charter of
Rights and Freedoms.
○​ Laws must now comply with constitutional rights, limiting parliamentary power.
○​ Key Case: Quebec Secession Reference (1998 SCC) affirmed
constitutional supremacy.

2. Federalism and Division of Powers

●​ Sections 91 and 92 of the Constitution Act, 1867 outline the division of legislative
powers:
○​ Federal powers: Defense, trade, criminal law.
○​ Provincial powers: Education, healthcare, property rights.
●​ Key Case: Hodge v The Queen (1883) recognized federal and provincial
legislatures as coequal sovereigns.
●​ POGG Clause (Peace, Order, and Good Government):
○​ Residual power granted to Parliament for matters not explicitly assigned.
○​ Used in national crises and emergencies.
3. Judicial Independence and Separation of Powers

●​ Judiciary must be independent from legislative and executive branches.

●​ Sections 96-101 of the Constitution Act, 1867 establish judicial structure and
appointment processes.
●​ Key Case: Reference re Remuneration of Judges (1997 SCC):
○​ Governments cannot reduce judicial salaries without independent
commissions.
●​ Key Case: Doucet-Boudreau v Nova Scotia (2003 SCC):
○​ Courts must balance their remedial powers with respecting the role of the
executive.

4. Rule of Law and Judicial Review

●​ Judicial review ensures laws comply with the Constitution.

●​ Key Case: Canada (Prime Minister) v Khadr (2010 SCC):
○​ Courts may intervene in foreign policy only when constitutional rights are
violated.
●​ Key Case: Crevier v Quebec (1981 SCC):
○​ Judicial review is a constitutional function that cannot be removed from
superior courts.

5. Notwithstanding Clause and Limits on Legislative Power

●​ Section 33 of the Charter (Notwithstanding Clause):

○​ Allows Parliament or provinces to override certain Charter rights temporarily.
○​ Rarely used, but remains controversial.
●​ Key Case: Ford v Quebec (1988 SCC):
○​ Ruled Quebec’s use of the clause to restrict commercial signs in English was
lawful but politically controversial.

6. The Living Tree Doctrine and Constitutional Interpretation

●​ Constitution is flexible and must evolve with societal changes.

●​ Key Case: Edwards v AG Canada (Persons Case, 1930):
○​ Established the “living tree” doctrine.
○​ Allowed women to be recognized as “persons” eligible for Senate.
●​ Key Case: Reference re Same-Sex Marriage (2004 SCC):
○​ Demonstrated how courts adapt constitutional meanings to contemporary
values.

7. Conclusion

●​ Canada transitioned from parliamentary to constitutional supremacy with the

Charter.
●​ Judicial independence ensures checks on government power.
●​ The “living tree” doctrine allows constitutional growth without formal
amendments.
 ●​ Judicial review plays a critical role in maintaining the balance between
legislative power and individual rights.

SUMMARY OF HIGHLIGHTED SECTIONS: THE EXECUTIVE AND ITS FUNCTIONS

1. Role of the Executive Branch

●​ The executive branch is responsible for implementing and enforcing laws.

●​ Includes Crown, Prime Minister, Cabinet, Public Service, and administrative
agencies.

2. Functions of the Executive

●​ Rule-Making (Delegated Legislation): Regulations and municipal by-laws created

under legislative authority.
●​ Spending and Tax Collection: Government revenue from taxation supports public
services.
●​ Dispute Resolution: Administrative tribunals resolve conflicts without judicial
involvement.
●​ Enforcement Decisions: Police, prosecutors, and regulatory agencies ensure
compliance with laws.
●​ Service Provision: Governments provide education, healthcare, infrastructure, and
welfare.

3. Sources of Executive Power

●​ Prerogative Powers:
○​ Traditional royal powers exercised by the executive (e.g., foreign affairs,
defense, appointments).
○​ Key Case: Black v Canada (2001 ONCA): Prerogative powers are
reviewable only when individual rights are affected.
●​ Statutory Powers:
○​ Parliament and legislatures delegate powers through statutes.
○​ Statutory law can override prerogative powers.

4. Constitutional Constraints on Executive Power

●​ Executive actions must comply with the Constitution.

●​ Courts can review the legality of executive decisions under administrative law
principles.
●​ Key Case: Canada (Prime Minister) v Khadr (2010 SCC): Courts can intervene
when executive actions violate constitutional rights.

5. Relationship Between the Executive and Political Institutions

●​ The Crown: A formal head of state, represented by the Governor General.

 ●​ Prime Minister and Cabinet: Hold decision-making power and control legislative
agendas.
●​ Public Service: Implements government policies and maintains continuity.
●​ Crown Corporations & Administrative Agencies: Operate independently but
under executive oversight.
●​ Police and Prosecutors: Ensure law enforcement but maintain legal independence.

6. Conclusion

●​ The executive is a diverse and powerful branch, but its authority is constrained by
constitutional principles.
●​ Judicial oversight ensures executive accountability.
●​ Delegated legislation must align with constitutional rights and principles of
fairness.
●​ The balance between executive discretion and legal limits is central to Canadian
public law.

SUMMARY OF HIGHLIGHTED SECTIONS: JUDICIAL INDEPENDENCE AND THE

COURTS

1. Importance of Judicial Independence

●​ Judicial independence ensures courts operate without political or executive

interference.
●​ Key Case: British Columbia v Imperial Tobacco Canada Ltd (2005 SCC):
○​ Judicial independence is essential for public confidence in the legal system.

2. Sources of Judicial Independence

●​ Unwritten Constitutional Principle:

○​ Judicial independence is not explicitly mentioned but is considered a
fundamental principle.
●​ Sections 96-100 of the Constitution Act, 1867:
○​ Establish appointment, tenure, and financial security for judges.
○​ Section 99: Judges hold office during good behavior and can only be
removed for cause.
○​ Section 100: Parliament controls judicial salaries, ensuring financial security.

3. Key Case: Reference re Remuneration of Judges of the Prov Court of PEI (1997
SCC)

●​ Addressed judicial salaries and financial security.

●​ Governments cannot unilaterally reduce judicial compensation without
independent review.
4. Impartiality vs. Independence

●​ Impartiality: Judges must remain neutral in their decision-making.

●​ Independence: Judges must be free from external influence, particularly from the
government.
●​ Key Case: Valente v The Queen (1985 SCC):
○​ Defined judicial independence as security of tenure, financial security, and
administrative independence.

5. Judicial Appointments and Diversity Considerations

●​ Judicial Appointments Commission (JAC):

○​ Ensures an independent process in selecting judges.
○​ Crime and Courts Act 2013 introduced diversity considerations in judicial
appointments.

6. Judicial Review and Executive Constraints

●​ Courts have the power to review executive decisions to ensure compliance with
the law.
●​ Key Case: Canada (Minister of Citizenship and Immigration) v Tobiass (1997
SCC):
○​ A meeting between a senior government official and the Chief Justice raised
concerns about judicial independence.
○​ The Court ruled that judicial integrity must be protected from government
influence.

7. The Living Tree Doctrine and Judicial Interpretation

●​ The Constitution is a "living tree," meaning it evolves with society.

●​ Key Case: Edwards v AG Canada (Persons Case, 1930 SCC):
○​ Established that the Constitution must be interpreted in a flexible, evolving
manner.
●​ Key Case: Reference re Same-Sex Marriage (2004 SCC):
○​ Demonstrated how courts adapt constitutional meanings to contemporary
values.

8. Conclusion

●​ Judicial independence is a cornerstone of democracy and the rule of law.

●​ Courts play a critical role in checking executive power and ensuring legal
fairness.
●​ The financial security, tenure, and appointment of judges are key safeguards
against government interference.
●​ Judicial review maintains the balance between constitutional principles and
evolving societal values.
SUMMARY OF HIGHLIGHTED SECTIONS: SUPREME COURT ELIGIBILITY AND
STATUTORY INTERPRETATION

1. Introduction to Supreme Court Eligibility

●​ Reference re Supreme Court Act, ss. 5 and 6 (2014 SCC) clarified eligibility for
Quebec seats.
●​ Issue: Whether former Quebec bar members of at least 10 years standing qualify for
appointment.
●​ Majority Opinion:
○​ Quebec appointees must be current members of the Quebec bar or judges
from Quebec’s superior courts.
○​ Purpose: Ensuring Quebec’s legal traditions and social values are
represented.
●​ Dissenting Opinion (Moldaver J.):
○​ Former advocates of 10 years standing should qualify.
○​ The majority’s interpretation was restrictive and unsupported by statutory
history.

2. Legislative History and Interpretation of ss. 5 and 6

●​ Section 5: General eligibility applies to all Supreme Court appointments.

○​ Includes current and former judges and current and former advocates.
●​ Section 6: Specifies three judges must be from Quebec institutions.
○​ Majority View: Quebec appointees must be current members of the Quebec
bar or a Quebec court.
○​ Dissenting View: Section 6 builds on section 5 and does not impose
additional requirements.

3. Constitutional Significance of Quebec Seats

●​ The Supreme Court was created in 1875 as part of a constitutional compromise.

●​ Quebec required a guaranteed representation to maintain confidence in the Court.
●​ Majority’s reasoning:
○​ Ensuring civil law expertise on the Court.
○​ Reinforcing Quebecers’ trust in federal judicial institutions.
●​ Dissenting opinion:
○​ The requirement of current bar membership adds no meaningful benefit.
○​ Former advocates and judges still hold expertise in Quebec civil law.

4. Broader Implications of the Decision

●​ Impact on Federal Court Judges:

○​ Federal Court judges from Quebec were deemed ineligible for Quebec seats.
○​ The ruling reinforced the distinction between federal and Quebec legal
institutions.
●​ Judicial Independence and Appointment Constraints:
 ○​ Majority: Strict criteria protect Quebec’s legal identity.
○​ Dissent: The restriction undermines diversity and limits the appointment
pool.

5. Conclusion

●​ Majority upheld a strict interpretation of eligibility for Quebec seats.

●​ Dissent argued for a broader, more inclusive reading of the Supreme Court Act.
●​ The ruling reinforces Quebec’s distinct legal system within Canada’s judiciary.
●​ Statutory interpretation plays a crucial role in shaping judicial appointments
and constitutional law.

SUMMARY OF HIGHLIGHTED SECTIONS: SUPREME COURT ELIGIBILITY AND

STATUTORY INTERPRETATION

1. Modern Approach to Statutory Interpretation

●​ Principle: Words of an Act must be read in their entire context, harmoniously with
the statute’s scheme, purpose, and legislative intent (Rizzo Shoes, para 21).
●​ Three Key Questions in Interpretation:
○​ What is the ordinary meaning of the words?
○​ What is the meaning when read in the context of the entire Act?
○​ What is the meaning when read against the legislative intent and purpose?
●​ Application Factors:
○​ Economic, political, and social context.
○​ Horizontal coherence (alignment with related statutes).
○​ Vertical coherence (must comply with the Constitution and federal law
precedence).
○​ Legislative history and remedial intent.

2. Tools of Statutory Interpretation

●​ Ordinary Meaning Rule:

○​ Courts start with the plain meaning but can depart if ambiguous.
○​ Dictionaries and bilingual statutes are used to resolve ambiguity.
●​ Harmonization with the Scheme of the Act:
○​ Benefit-conferring statutes are interpreted broadly.
○​ Penal statutes are interpreted strictly in favor of the accused.
○​ Regulatory and administrative laws take a purposive approach.
●​ Principles of Interpretation:
○​ Noscitur a sociis: A word derives meaning from surrounding words.
○​ Ejusdem generis: A general term follows the same category as the
preceding specific terms.
○​ Expressio unius, exclusio alterius: Express mention of one thing excludes
all others.

3. Role of Judicial Interpretation in Supreme Court Eligibility

 ●​ Reference re Supreme Court Act, ss. 5 and 6 (2014 SCC) clarified eligibility for
Quebec seats.
●​ Issue: Whether former Quebec bar members of at least 10 years standing qualify for
appointment.
●​ Majority Opinion:
○​ Quebec appointees must be current members of the Quebec bar or judges
from Quebec’s superior courts.
○​ Purpose: Ensuring Quebec’s legal traditions and social values are
represented.
●​ Dissenting Opinion (Moldaver J.):
○​ Former advocates of 10 years standing should qualify.
○​ The majority’s interpretation was restrictive and unsupported by statutory
history.

4. Broader Implications of Supreme Court Interpretation

●​ Impact on Federal Court Judges:

○​ Federal Court judges from Quebec were deemed ineligible for Quebec seats.
○​ The ruling reinforced the distinction between federal and Quebec legal
institutions.
●​ Judicial Independence and Appointment Constraints:
○​ Majority: Strict criteria protect Quebec’s legal identity.
○​ Dissent: The restriction undermines diversity and limits the appointment
pool.

5. Conclusion

●​ The modern approach to statutory interpretation ensures coherence and

consistency.
●​ The Supreme Court relies on a purposive approach to clarify ambiguous
provisions.
●​ Quebec’s legal system remains distinct within the judiciary, reinforcing
constitutional protections.
●​ Judicial interpretation shapes statutory law and Supreme Court appointments
within constitutional limits.

SUMMARY OF HIGHLIGHTED SECTIONS: JUDICIAL REVIEW AND ADMINISTRATIVE

ACTION

1. The Role of Judicial Review in a Democratic Society

●​ Judicial review ensures compliance with constitutional principles.

●​ Courts have the power to invalidate laws or executive decisions that contradict
constitutional mandates.
●​ Key Case: Reference re Remuneration of Judges (1997 SCC):
○​ Judicial independence is constitutionally protected.
○​ Courts have the authority to prevent legislative interference in judicial
salaries.
2. Constitutional Constraints on Legislative and Executive Power

●​ Unwritten Constitutional Principles:

○​ Certain principles, like judicial independence, stem from Canada’s
constitutional history.
○​ Key Case: New Brunswick Broadcasting Co. v Nova Scotia (1993 SCC):
■​ Held that legislative privileges have constitutional status.
■​ However, no historical basis exists for limiting Parliament’s power over
judicial independence.
●​ Judicial Review’s Legitimacy:
○​ Derived from the text of the Constitution, particularly section 52 of the
Constitution Act, 1982.
○​ Courts interpret the Constitution, ensuring that legislative and executive
actions remain within legal boundaries.

3. Administrative Law and Judicial Review of Executive Action

●​ Judicial review of administrative action differs from legislative review:

○​ Courts ensure that government agencies act within their delegated powers.
○​ If an administrative body acts outside its authority, the decision is ultra vires
(beyond legal power).
○​ Key Case: Shell Canada v Vancouver (1994 SCC):
■​ Municipalities must act within statutory limits.
■​ The Supreme Court ruled Vancouver acted outside its authority in
restricting Shell Canada’s operations for political reasons.

4. Limits on Delegated Authority

●​ Delegatus non potest delegare: A delegate cannot further delegate authority unless
expressly permitted.
●​ Key Case: Reference re Regulations in Relation to Chemicals (1943 SCC):
○​ A minister cannot delegate powers unless the statute explicitly allows it.
○​ Courts enforce strict rules against unauthorized delegation.
●​ Exceptions to Non-Delegation:
○​ Routine administrative functions may be subdelegated.
○​ Key Case: Forget v Quebec (1988 SCC):
■​ Quebec’s language authority was permitted to delegate the
administration of language exams.

5. Procedural Fairness and Duty to Act Fairly

●​ Administrative decision-makers must ensure procedural fairness.

●​ Fairness includes:
○​ Right to be heard (audi alteram partem)
○​ Impartiality in decision-making (nemo judex in sua causa)
●​ Key Case: Baker v Canada (1999 SCC):
○​ A Jamaican woman facing deportation was denied fair hearing rights.
 ○​ Supreme Court ruled that immigration officers must give proper
consideration to humanitarian concerns.
○​ Established procedural fairness factors:
■​ Nature of decision
■​ Statutory scheme
■​ Impact on individuals
■​ Legitimate expectations
■​ Institutional constraints

6. Substantive Judicial Review and Standard of Review

●​ Two standards of review:

○​ Correctness: Courts substitute their judgment when legal errors are made.
○​ Reasonableness: Courts defer to administrative decisions unless
unreasonable.
●​ Key Case: Dunsmuir v New Brunswick (2008 SCC):
○​ Established modern standards of review.
○​ Courts balance deference to expertise with legal oversight.
●​ Key Case: Vavilov (2019 SCC):
○​ Clarified reasonableness as the default standard.
○​ Courts only apply correctness in constitutional, legal system, or jurisdictional
matters.

7. Conclusion

●​ Judicial review upholds the rule of law and prevents government overreach.
●​ Administrative decisions must respect procedural fairness and statutory limits.
●​ Standards of review ensure a balance between judicial oversight and
administrative expertise.