Law Reform Commission of Saskatchewan
The doctrine of Crown immunity provides that a statute does not bind the Crown unless the statute expressly so states or it is otherwise clear from the enactment that the legislature intended the Crown to be bound. The Commission draws a distinction between legislation currently in force and future enactments in its recommendations for reform.
The presumption of Crown immunity holds that the Crown is not bound by statue unless expressly bound by a specific enactment. This Consultation Paper discusses the presumption and the consequences of reversing it. The Paper discusses how the courts in Canada have interpreted and applied the presumption, reviews the criticisms of the presumption, and considers how reversing the presumption would affect the law in Saskatchewan.
Appeals to the courts from decisions directly affecting individuals are usually made by officials under statutory authorization. However, there is a lack of consistency in the form and scope of statutory appeal rights, and some statutes do not provide for appeals. The Commission makes recommendations respecting the right to appeal, grounds of appeal and structure of appeals.
There are two tiers in Saskatchewan administrative law appeals: all decisions may be judicially reviewed on jurisdictional issues, but only some are appealable to the courts on their merits. The Commission recommends that a standard should be established across all administrative schemes that provides a degree of uniformity while conforming to the specific needs of each tribunal.
Much of British received law has now been superseded by Saskatchewan legislation or become inapplicable to the conditions of the province. However, some English statutes remain in force, and are routinely applied by the courts. The status of many other English statutes is uncertain. The Commission recommends eliminating the remaining received law.
The Commission suggests that the harmonization of Aboriginal laws is necessary and desirable due to changes in technology and infrastructure, as well as the changing nature of Aboriginal law-making. Aboriginal and non-Aboriginal laws can work in parallel without overlap in the jurisdiction of the respective law-making bodies.
The Statute of Frauds requires that many sorts of contracts be evidenced in writing and signed by those bound. The Commission suggests that these requirements are necessary only in the case of contracts for sale of land. It recommends that The Statute of Frauds be repealed and that provisions regarding the sale of land be included in The Land Contracts (Actions) Act.
Though receiving British law facilitated the development of our legal system, the remaining laws are now a source of confusion. The Commission recommends ways of undertaking the complex process of extricating and disposing of applicable English statutes in the province.
Legislation is proposed that gives more power to the courts to require fair restitution when a contract has been found to be frustrated. The Commission recommends an approach that allows the courts to more fairly allocate the burden of frustration between the parties.
A contract is frustrated when an unforeseen event so distorts the agreement that the law declares it ended and discharges the parties from their duties. The Commission proposes a Frustrated Contracts Act that allows courts a wider ability to adjust the situation post-frustration to ensure a fair result for all parties.
The Commission recommends that there be statutory guidance in classifying provincial offences. It recommends further that the defences available for criminal offences be made available for all provincial offences. The Provincial Offences Act is proposed.
Generally, provincial offences are found to be strict liability offences, which do not have a fault requirement. However, defences of due diligence or reasonable mistake of fact are available. The Commission recommends that some reform be undertaken to protect those inadvertently caught by offence provisions not requiring fault.
Many provincial offences carry penalties similar to those prescribed for violations of the Criminal Code. These sanctions are imposed with regularity, though the offences often do not appear to merit them. The Commission suggests reforms to the provincial sentencing options to include diversion, conditional discharge, and suspended sentence-type penalties.