Wednesday, October 24, 2012

Law Reform Commission of Saskatchewan Consultation Paper on Crown Immunity

The Law Reform Commission of Saskatchewan has published a Consultation Paper on the Presumption of Crown Immunity:
"At common law, 'the king can do no wrong.'  In 1905,  Halsbury’s Laws of England could still state the general rule that 'no remedy lies against the Sovereign' unless an express exception in law exists.  It is hardly surprising that this broad notion of Crown immunity has been abridged over the last century.  The most important reform was the adoption of the Crown Proceedings Act, 1947 in England.  This legislation was quickly copied throughout the Commonwealth. Saskatchewan’s Proceedings Against the Crown Act  sets out when an individual may sue the Crown, the liability of the Crown in tort,  and certain rules and enactments that bind the Crown."

"This Act does not, however, eliminate the presumption of Crown immunity, which is the topic of this Consultation Paper. Simply stated, the presumption of Crown immunity is the presumption that a statute does not 'bind the Crown' unless it expressly states that it does (...)"

"Some statutes  include a provision stating that 'the Crown is bound by this Act,' but many do not.  In some cases, the decision to immunize the Crown from obligations created by the statute may have been a matter of deliberate policy.  In many cases,however,  it is possible that  legislators simply failed to consider whether immunity is appropriate, and thus created what has been called immunity by default (...)"

"Law reform agencies in Alberta,  British Columbia, and Ontario have recommended reversal of the presumption so that a statute would bind the Crown unless the statute expressly provides otherwise.  The presumption has in fact been reversed  by  the Legislatures of  British Columbia and Prince Edward Island. Considerable academic literature criticizing the presumption exists (...)"

"This consultation paper discusses the presumption of Crown immunity and the consequences of reversing it.  This paper:
(a)  Discusses  how  the courts in Canada  have  interpreted and applied the presumption;
(b)  Reviews the criticisms of the presumption; and
(c)  Considers how reversing  the presumption  would affect  the law in Saskatchewan."
 The consultation runs to March 31, 2013.

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posted by Michel-Adrien at 9:47 pm


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