Advocates for the Rule of Law is proud to announce that it has completed its first intervention at the Supreme Court.
ARL intervened on behalf of the respondent in the case of Courtoreille v. Canada. ARL argued that the duty to consult principle must be balanced against the principle of legislative sovereignty. If the government fails to consult with Aboriginal groups prior to the introduction of legislation, that fact will be a relevant consideration at the proportionality stage, should a s.35 rights breach be established.
ARL also argued that the democratic principle of responsible government helps define the separation of powers and when precisely the “legislative process” begins. It is because of responsible government that the separation of powers in Canada is flexible (vis a vis the legislative and executive branches), such that ministerial (executive) conduct during the legislative process is, in effect, legislative conduct. It is therefore insulated from the duty to consult that would ordinarily apply to executive conduct. Put another way, when ministers of the Crown, who are, with very few exceptions, also legislators, put forth legislation that they themselves (and others from their party) will soon vote on, they are acting in a prima facie legislative capacity.
The archived webcast can be viewed here. ARL’s submissions begin at approximately 3:07:00.