CSPG conference--Parliament and the Courts.

• Author: Stos, Will
• Position: Canadian Study of Parliament Group

The Canadian Study of Parliament Group's annual conference explored the important, intricate and evolving relationship between Parliament and the Courts. Increasingly, Courts turn to the parliamentary record to inform their decisions, while parliamentarians cite judicial pronouncements as the reason for action or inaction. Four panels were organized to examine when and how Parliament seeks to inform the Courts, how the Courts understand Parliament, the role each institution plays within Canada's constitutional architecture, and the many facets of this relationship--from reference powers to the notwithstanding clause.

How the Courts Understand Parliament

Vanessa MacDonnell, an associate professor at the University of Ottawa, and Jula Hughes, a professor at the University of New Brunswick co-presented on how the courts have looked at parliament's "duty to consult" Indigenous Peoples prior to enacting legislation affecting them. MacDonnell noted the recent Supreme Court of Canada decision on Mikisew Cree First Nation v. Canada found there is no duty to consult at any stage of the legislative process.

She said that since 1982 there had been an idea that parliamentary sovereignty was now a bounded concept where there are competing interests. However, this case reasserted parliamentary sovereignty. The decision noted the duty to consult only applies to executive action. She views this ruling as a mistake and contends there is a way to separate constitutional principles and reconcile them so we can have a discussion of how the duty to consult is judiciable. However, the Court's mistake means parliamentary sovereignty takes prominence.

Hughes suggested that not all judges think about parliament in the exact same way, but they do agree that ultimately parliament should be treated as a black box (or at least a grey box in the view of some judges) that you can't really look into. She said it was surprising all justices made an attempt to settle the question in the Mikisew Cree case right away when this was a 'first look' case. These actions are not usually how common law works with respect to big questions. Hughes also suggested the judges didn't look at Treaty 8 fully because it imposes positive obligations on the federal government (not just not to interfere, but in the original treaty the government must 'provide munitions and twine'). Hughes concluded by noting some of the practical implications of a duty to consult (for example, limited parliamentary time to consider legislation).

Kareena Williams, a lawyer at Grant Huberman Barristers & Solicitors, represented a northern British Columbia First Nation in the SCC case. They asked to intervene to protect existing agreements and future agreements because there were questions about the value of agreements if one party can make changes without consulting/agreement of others. Williams compared the SCC decision to a line in the movie Love Actually. Billy Bob Thornton's character tells Hugh Grant: "111 give you everything you want, as long as I want to give it."

Williams stated the court should not side with the Crown to assert paternalistic control of Indigenous people because that does not foster reconciliation. She wondered why First Nations are being told to make agreements rather than going to court if those agreements can be changed by the Crown. Although the government is already consulting on legislation, the approach the court has taken is 'wait to see whether your rights are infringed, then come back to court.' William said this decision promotes a 'trust us' philosophy that she finds troubling.

Saleha Hedaraly, a professor in the University of Montreal's Faculty of Law, explored how courts interpret a legislator's intentions. She said the law is a communication activity and the key word to retain is "text". The "text" is a form of communication that is interpreted. The courts must mediate the communication.

Why would courts look at the legislator's intent? Hedaraly explained that while we think the law's intent is clear, the interpretation may not be the same. In other words, the communication is not received the same way and there may be a grey zone. "Interpretation is a game of assumptions," she told the audience, and while some argue we must look at the words, others might suggest we should look at the goal.

Hedaraly concluded by noting that legislative intent must look at the text, the context, and the goal of a law by exploring complementary arguments: historical arguments, authority, jurisprudence, and common sense (for example, is the law absurd?) "What's abstract for you may not be abstract for me," she said.

Philippe Dufresne, a law clerk and parliamentary counsel at the House of Commons, asked why courts are more or less comfortable with not addressing or settling a matter and why we reach different decisions on parliamentary privilege? He noted a trend of courts reviewing the executive branch. The more an executive decision affects 'strangers' or non-members, the more likely the court is to look at the case.

When a court feels that potential electoral remedies are realistic, they are more inclined to find for the sharing of power. Dufresne explains that privilege is "immunity from judicial...