Factum of the Counsel for the Charter Committee on Poverty Issues in Council of Canadians et al. v. Canada Appellant Factum (Ontario Court of Appeal)

77 Pages Posted: 1 Mar 2014 Last revised: 14 Sep 2022

See all articles by Martha Jackman

Martha Jackman

University of Ottawa - Common Law Section

Date Written: 2004

Abstract

The appellant in this case submits that the investor-state adjudication provisions in the North America Free Trade Agreement (NAFTA) unconstitutionally eliminate or diminish the jurisdiction guaranteed to Canadian superior courts by s 96 of the Constitution Act, 1867 and by the constitutional principles of judicial independence and the rule of law. Further, adjudication of disputes brought by investors against Canadian laws, regulations and policies by tribunals unable to consider or protect the provisions of Canada's constitution violate constitutionalism and the Canadian Charter of Rights and Freedoms.

The adjudication provisions accord investors of the United States and Mexico rights to claim damages against Canada before ad hoc tribunals for interfering with their property, economic or contractual rights. The adjudication provision encompasses virtually any government measure, including legislation, regulations or other measures that serve broad public interest objectives.

Having an international tribunal that is able to review the decisions of Canada's superior courts and award relief to foreign investors that was denied in a domestic court violates sections 96-101 of the Constitution Act 1867, and undermines the judicial independence of domestic courts. The review of domestic court judgments by a tribunal that is constitutionally unaccountable, unbound by precedent, and of uncertain operating principles and procedures offends the rule of law.

The Appellants submit that the government violates the principle of constitutionalism by conferring adjudicative authority over investor-state disputes to tribunals which do not interpret and apply NAFTA consistently with constitutional values and principles, but rather operate under the framework of private commercial arbitration. Further, while investor-state procedures authorize challenges to government regulatory and protective measures that directly impact on the enjoyment of sections 7 and 15 of the Canadian Charter of Rights and Freedoms (right to life, liberty and security of the person, and right to equality, respectively), investor-state tribunals are unable to ensure that these rights are considered or protected in the adjudication of individual investor claims or in the determination of appropriate remedies. Investor-state procedures thus violate ss. 7 and 15 of the Charter of Rights and Freedoms and are not justifiable under section 1.

Keywords: Charter, Canada, NAFTA, United States, Mexico, foreign, investment, charter, 1, 15, 7, arbitration, tribunal, Constitution, 1867, commercial, rule of law, 96, 97, 98, 99, 100, 101, factum, investor-state, dispute

Suggested Citation

Jackman, Martha, Factum of the Counsel for the Charter Committee on Poverty Issues in Council of Canadians et al. v. Canada Appellant Factum (Ontario Court of Appeal) (2004). Available at SSRN: https://ssrn.com/abstract=2311784 or http://dx.doi.org/10.2139/ssrn.2311784

Martha Jackman (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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