CML2117 Introduction To Law 2008, Lecture 4

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Information about CML2117 Introduction To Law 2008, Lecture 4
Education

Published on October 2, 2008

Author: kaplanmyrth

Source: slideshare.net

Last class: The Case of the Speluncean Explorers

Legal positivism

John Austin (19 th C) “Law is the command of the sovereign”

Today: The Structure of the Canadian Legal System

Monarch

Constitution

Entrenched statutes Organic statutes Court decisions Unwritten aspects

Unwritten Aspects * Conventions * Principles * Democracy * Federalism * Rule of Law

Unwritten Aspects * Conventions * Principles * Federalism * Democracy * Rule of Law

Quebec Secession Reference, [1998] 2 S.C.R. 217

Federalism

Constitution Act, 1867, ss. 91 and 92

Section 91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

Section 91 (continued) Criminal Law Banking Sea Coast and Fisheries Currency Military Marriage & Divorce Patents of Invention and Discovery Copyrights POGG (Peace, Order and Good Government)

Section 92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,

Section 92 (continued) Property and civil rights Solemnization of marriage Health care Education (s. 93)

Parliamentary Supremacy Legislative Branch Executive Branch Judicial Branch

Responsible Government Executive accountable to Legislature

Judicial Branch Executive and Legislature accountable to Judiciary

Canada’s Court System * Courts of inherent jurisdiction * Courts of statutory jurisdiction * Administrative tribunals

Now who is the most powerful?

Democracy

Democracy American−style = people sovereign Canadian−style = government sovereign

Democracy American−style = people sovereign Canadian−style = government sovereign

Democracy must be balanced with Federalism, Rule of Law, and other Constitutional Principles

Rule of Law

Rule of Law John Locke * Rules must be “settled”, “standing”, “declared and received” * No ad hoc laws

Rule of Law A.V. Dicey * No one can be punished “except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land” * No one is above the law

Rule of Law Constitution Act, 1982 Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law:

Rule of Law Roncarelli v. Duplessis, [1959] S.C.R. 121 Rule of Law limits discretion of state actors

Rule of Law R. v. Catagas, [1978] 1 W.W.R. 282, 81 D.L.R. (3d) 396, 38 C.C.C. (2d) 296, 2 C.R. (3d) 328

Rule of Law R. v. Catagas, [1978] 1 W.W.R. 282, 81 D.L.R. (3d) 396, 38 C.C.C. (2d) 296, 2 C.R. (3d) 328 Rule of Law incompatible with “dispensation” But what about discretion?

Rule of Law Lon Fuller 1. Law must be general – not specific; 2. law must be public – not secret; 3. law must be prospective – not retroactive; 4. law must be clear – not vague or ambiguous; 5. law must be consistent – not contradictory; 6. law must be followable – not unfollowable; 7. law must be stable – not frequently changing; and 8. law must be enforced.

For next class: Readings: History: pp. 36-45 and 45-72

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