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Copyright © 2015 Emond Montgomery Publications Limited. NOTICE & DISCLAIMER: All rights reserved. No part of this publication may be reproduced in any form by any means without the written consent of Emond Montgomery Publications. Emond Montgomery Publications and all persons involved in the creation of this publication disclaim any warranty as to the accuracy of this publication and shall not be responsible for any action taken in reliance on the publication, or for any errors or omissions contained in the publication. Nothing in this publication constitutes legal or other professional advice. If such advice is required, the services of the appropriate professional should be obtained. Emond Montgomery Publications Limited 60 Shaftesbury Avenue Toronto ON M4T 1A3 http://www.emond.ca/lawschool Printed in Canada. We acknowledge the financial support of the Government of Canada. Nous reconnaissons l’appui financier du gouvernement du Canada. Vice president, publishing: Anthony Rezek Managing editor, development: Kelly Dickson Director, editorial and production: Jim Lyons Copy editor and typesetter: Nancy Ennis Production editor: Laura Bast Proofreader: Rodney Rawlings Permissions editor: Lisa Brant Library and Archives Canada Cataloguing in Publication Public law (Toronto, Ont.) Public law : cases, commentary, and analysis / general editors, Craig Forcese, Faculty of Law, University of Ottawa, Adam Dodek, Faculty of Law, University of Ottawa ; contributing editors, Philip Bryden, Faculty of Law, University of Alberta, Peter Carver, Faculty of Law, University of Alberta, Richard Haigh, Faculty of Law, Osgoode Hall Law School, Mary Liston, Faculty of Law, University of British Columbia, Constance MacIntosh, Schulich School of Law, Dalhousie University. — Third edition. ISBN 978-1-55239-664-3 (bound) 1. Public law—Canada—Textbooks. 2. Public law—Canada— Cases. I. Forcese, Craig 1969-, editor II. Dodek, Adam, editor III. Bryden, Philip, 1953-, editor IV. Title. KE4120.P83 2015 342.71 C2015-902584-2 KF4482.P83 2015 Acknowledgments A book of this nature borrows heavily from other published material. We have attempted to request permission from, and to acknowledge in the text, all sources of such material. We wish to make specific references here to the authors, publishers, journals, and institutions that have generously given permission to reproduce in this text works already in print. If we have inadvertently overlooked an acknowledgment or failed to secure a permission, we offer our sincere apologies and undertake to rectify the omission in the next edition. Aboriginal and Northern Affairs Canada. Statement of Apology to Former Students of Indian Residential Schools (11 June 2008). Reprinted with the permission of Aboriginal Affairs and Northern Development Canada. Canadian Human Rights Tribunal. Canadian Human Rights Tribunal (1989), 10 CHRR D/6094. Reprinted with the permission of the Canadian Human Rights Tribunal. Canadian Human Rights Tribunal. Canadian Human Rights Tribunal (1989), 10 CHRR D/6097. Reprinted with the permission of the Canadian Human Rights Tribunal. Canadian Judicial Council. Report of the Canadian Judicial Council to the Minister of Justice Under Section 63 (1) of the Judges Act Concerning the Conduct of Mr Justice Bienvenue of the Superior Court of Quebec in R v T Thereby (Ottawa: CJC, October 1996). Reprinted with the permission of the Canadian Judicial Council. Department of Justice Canada. Administrative Law, Independent Administrative Agencies, Working Paper 25, Law Reform Commission of Canada, 1980. Reproduced with the permission of the Department of Justice Canada, 2015. Department of Justice Canada. “Canada’s Court System,” online: <http://www.justice .gc.ca/eng/csj-sjc/ccs-acj/pdf/courten.pdf>, pages 3-14. Department of Justice Canada. Reproduced with the permission of the Department of Justice Canada, 2015. Department of Justice Canada. Crossing Borders: Law in a Globalized World, Law Commission of Canada, 2006. Reproduced with the permission of the Department of Justice Canada, 2015. Elections Canada. The Electoral System of Canada, 3rd ed (Ottawa: Chief Electoral Officer of Canada, 2012). This reproduction is a copy of the version available at <http://elections .ca>. Reproduced with the permission of Elections Canada. iii iv Acknowledgments House of Commons. Michel Bedard, Kristen Douglas & Elise-Hurtubise-Loranger, Conflict of Interest at the Federal Level: Legislative Framework (Ottawa: House of Commons, Library of Parliament, 24 November 2010). Reprinted with the permission of the House of Commons. House of Commons. House of Commons Procedure and Practice, 2nd ed (Ottawa: House of Commons, 2009). Reprinted with the permission of the House of Commons. House of Commons. Special Committee on the Reform of the House of Commons (Ottawa: Canadian Government Publishing Centre, Supply and Services Canada, 1985). Reprinted with permission of the House of Commons. Judicial Appointments Commission. “Selection Policy,” online: <http://jac.judiciary.gov.uk>. Reprinted with permission. LexisNexis Canada. Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham, Ont: Butterworths, 2008). Reproduced with the permission of LexisNexis Canada. Ottawa Citizen. Cristin Schmitz, with files from Lisa Tuominen, Peter O’Neil & Graeme Hamilton, “Federal Judges Often Liberal Donors, Survey Finds,” Ottawa Citizen (6 May 2005). Material republished with the express permission of: Ottawa Citizen, a division of Postmedia Network Inc. Queen’s Law Journal. Ann McDonald, “In the Public Interest: Judicial Review of Local Government” (1993) 9 Queen’s LJ 62. Reprinted with permission. Supreme Court of Canada. Remarks of the Right Honourable Beverley McLachlin, PC, presented in Ottawa on 22 November 2004, Respecting Democratic Roles. Reproduced with the permission of the Right Honourable Beverley McLachlin, PC, 2015. Supreme Court Law Review. Adam M Dodek, “Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit” (2014) 67 SCLR (2nd). Reprinted with the permission of Adam M Dodek. University of Toronto Press. Kent Roach, “Four Models of Police-Government Relationships” in M Beare and T Murray, eds, Police and Government Relations: Who’s Calling the Shots? (Toronto: University of Toronto Press, 2007). Reprinted with permission of the publisher. Preface to the Third Edition Almost every law school in Canada, as part of its first-year curriculum, offers a course that focuses on legal processes and legal institutions. Other programs, including those focusing on government studies and public administration, also delve into the world of public law. Common to these courses is the view that students beginning a career in law or government administration need to understand how the law is made, as well as the nature of and relationships among those institutions that create and apply legal rules and principles. Cer- tainly, in law school, students and law professors might address many of these issues in the conventional, substantive courses of the first-year curriculum; however, introductory public law courses proceed from the premise that these issues are sufficiently foundational to merit separate and in-depth examination. That said, it is also clear that law schools incorporate the study of legal processes and institutions in a wide variety of ways. Some law schools focus on the theoretical aspects of defining law and the law’s relationship to social ordering; others may integrate this material more closely with constitutional or procedural questions. Like- wise, other, non-law programs may approach public law in different ways, ranging from pure law courses to seminars focusing more on the “machinery of government.” With these observations in mind, our principal objective in assembling these materials was to provide a volume covering essential issues common to the majority of courses ad- dressing legal process and institutional issues. We hope that this book will form the core materials of such courses. We decided that it was better to include less material (and allow individual professors to supplement the volume to best fit their courses) than to risk including material that might be superfluous to some course designs. For the same reason, we have mostly opted not to include sets of notes and questions following sections of the text. In other words, we have sought to prepare a volume that can be easily integrated into the vari- able introductory public law courses offered across the country. The third edition incorporates major changes in Canadian public law since the publication of the second edition in 2011. The past several years have been an unusually fertile period for Canadian public law. Cases like the Supreme Court Act Reference and the Senate Reform Refer- ence have ignited public controversy and commentary and have affected our understanding of many basic issues in public law. We have also amplified our discussion of ongoing policy developments, such as the ever-changing Supreme Court of Canada judicial appointment process. Finally, we have taken the opportunity presented by this edition to restructure this volume to rationalize our changing chapters. In this last respect, over the editions, we have added more and more original narrative content. Those who have used this book before will welcome the new, bolstered introductory chapter (Chapter 1) and the new, separate chapter v vi Preface to the Third Edition on Indigenous peoples and the law (Chapter 3). They will also note that we have reorganized the material on legal theory and sources of Canadian law into two distinct chapters (Chapters 2 and 4). The original chapter on Parliament has been subdivided into two separate chapters: Chapter 6 on the composition of Parliament and Chapter 7 on Parliament’s functions. The chapter on the executive has been recrafted, so that Chapter 8 now deals with the executive and its functions. Materials dealing with review of the executive have been relocated to Chapter 11, dealing with constraints on legislative and executive action. Finally, readers will find a thoroughly revised Chapter 10 on statutory interpretation, in which we attempt to lay out this complicated area in a practical manner. Since the second edition, Professors Adam Dodek, Mary Liston, and Constance MacIntosh have joined this project. Professors Neil Craik, Ed Ratushny, and Ruth Sullivan have retired as contributors. The influence of these three colleagues remains, however, and our existing chapters have built on their original work, particularly in the discussions of the executive branch, courts, and the judiciary and statutory interpretation. In revising the chapters for the third edition, we have been very fortunate to receive com- ments from colleagues who used the first and second editions, which were very helpful in our preparations, and for which we are extremely grateful. We continue to welcome feed- back. We have also made plans to bolster the online presence for this book through a website that we shall design at <http://www.emond.ca/publiclaw>. Our contributors have benefited from the assistance of many people in finalizing this volume. All of us extend our thanks to our public law students who, over the years, have taught us even as we have taught them. Their insights have helped us improve this work. Professor Liston would like to thank Spencer Keys and Nevin Massing for providing excellent research assistance and for giving her the students’ perspective on the materials, and also Robin Elliot for valuable editorial suggestions and improvements. She also extends thanks to colleagues Cristie Ford and David Duff for their input on public law and statutory interpretation. Finally, all of us among the contributors would be remiss if we did not thank the diligent editorial team at Emond Publishing for coordinating our efforts and for their editorial and production support. We hope you enjoy the product of all our labours. Craig Forcese Adam Dodek February 2015 Summary Table of Contents Acknowledgments ....................................................................... iii Preface to the Third Edition ............................................................... v Detailed Table of Contents ................................................................ ix Table of Cases ........................................................................... xvii Chapter One Public Law in Canada ................................................ 1 I. Basic Building Blocks ............................................................. 2 II. Drilling Down: The Workings of Public Law ........................................ 4 III. Two Modes of Accountability in the Exercise of Public Power ....................... 10 IV. From Parliamentary to Constitutional Supremacy and Back? ....................... 16 PART I SETTINg THE STAgE Chapter Two Legal Theory in Relation to Public Law .............................. 19 I. Introduction ...................................................................... 20 II. Positivism and Natural Law ....................................................... 20 III. Feminist Perspectives on Law ..................................................... 28 IV. Critical Legal Studies .............................................................. 37 V. Law and Economics .............................................................. 49 Chapter Three Indigenous Peoples and the Law .................................. 53 I. Introduction ...................................................................... 53 II. Indigenous Peoples and the Canadian State ....................................... 54 III. Indigenous–State Relations Prior to 1982 .......................................... 56 IV. Section 35 of the Constitution Act and the Doctrine of Reconciliation .............. 60 V. Modern Treaties and Land Claims Agreements ..................................... 73 Chapter Four Sources of Canadian Law ............................................ 81 I. The Common and Civil Law Traditions ............................................. 81 II. Statutory Law .................................................................... 101 III. International Law ................................................................. 108 Chapter Five Recurring Constitutional Principles in Canadian Public Law ....... 113 I. The Constitution of Canada ....................................................... 115 II. Six Principles Underpinning Public Law ............................................ 134 III. Constitutional Amendment ....................................................... 168 vii viii Summary Table of Contents PART II THE KEy ACTORS IN PUbLIC LAw Chapter Six Parliament and Its Components ...................................... 177 I. The Monarch and Governor General ............................................... 177 II. Senate ........................................................................... 186 III. House of Commons ............................................................... 200 Chapter Seven The Functions of Parliament ...................................... 231 I. Bringing the Constituent Elements of Parliament Together ......................... 231 II. Key Actors in Parliament .......................................................... 240 III. Parliamentary Procedure .......................................................... 250 IV. Parliamentary Law-Making ........................................................ 256 Chapter Eight The Executive and Its Functions .................................... 297 I. Introduction ...................................................................... 297 II. Functions Performed by Executive Institutions in Canada .......................... 299 III. The Rise of the Administrative State in Canada ..................................... 305 IV. Sources of Executive Power ....................................................... 311 V. Constitutional Constraints on the Delegation of Statutory Power to the Executive .................................................................. 317 VI. Executive Institutions and Their Relationship to the Political Executive .............. 322 Chapter Nine The Courts and the Judiciary ........................................ 359 I. Structure of the Canadian Court System ........................................... 359 II. Judicial Appointments ............................................................ 370 III. Judicial Independence ............................................................ 386 PART III INTERPLAy bETwEEN THE COURTS AND THE POLITICAL bRANCHES OF gOvERNmENT Chapter Ten Statutory Interpretation ............................................. 425 I. Introduction ...................................................................... 426 II. Approaches to Interpretation ..................................................... 427 III. An Overview of the Modern Approach to Statutory Interpretation: Its Components and Its Methods .................................................. 433 IV. The Modern Approach in Action .................................................. 450 V. Interpretation and Criticism of the Modern Approach .............................. 518 Cheat Sheet for the Modern Approach to Statutory Interpretation .................. 523 Chapter Eleven Constraints on Legislative and Administrative Action .......... 527 I. Introduction ...................................................................... 527 II. The Role of Constitutional Judicial Review in a Democratic Society ................. 528 III. Judicial Review of Administrative Action .......................................... 564