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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 33 the federal government could “breathe life” into s. 9 of the Charter (“Everyone has the right not to be arbitrarily detained or imprisoned”) by subscribing to a non-binding international declaration on the meaning of arbitrary detention and imprisonment. As for implementing the Declaration, again it is hard to see how any measures (whether legislative or executive) taken to implement the Declaration’s provisions in Canadian law might affect s. 35(1). The meaning and scope of a constitutional provision cannot be modified except in accordance with the applicable amending formula as set out in Part V of the Constitution Act, 1982 which, of course, may require the participation of constitutional actors other than Parliament and the federal government. If s. 35(1)’s box is to be filled with significantly new content, constitutional amendment would seem necessary. THE HONOUR OF THE CROWN I come now to the reason why, despite the sound objections and significant obstacles described above, the Declaration could very well change Canadian law. Arrayed alongside the international and constitutional doctrines noted above is another compelling, and equally orthodox, doctrine to be considered: the honour of the Crown. Jurisprudence of the Supreme Court of Canada insists that “it is always assumed that the Crown intends to fulfil its promises.”19 While such statements are found in cases concerning the interpretation of treaties between Aboriginal peoples and the Crown, or statutes affecting Aboriginal rights and interests, the principle is not limited to any particular context. To the contrary, “the honour of the Crown is always at stake in its dealings with Aboriginal peoples” and the principle’s “historical roots … suggest that it must be understood generously in order to reflect the underlying realities from which it stems.”20 Elaborating on the meaning of this precept, the Supreme Court of Canada has averred, “No appearance of ‘sharp dealing’ will be sanctioned.” 21 In the particular context of s. 35, the court has called it “a corollary” of that provision “that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests”.22 There is no doubt that Canada’s actions on the international plane in respect of the Declaration are, as a matter of Canadian constitutional law, attributable to the Crown. All of Canada’s interactions with the Declaration— when it voted against its adoption by the General Assembly in 2007, when it offered a qualified endorsement of the Declaration in 2010, and when it retracted those qualifications in 2016—have been Crown acts. The Crown character of these gestures is the very reason why, following reception law orthodoxy, they can have no direct domestic legal effect. That


Jan Advocate 2017
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