CML2117 Introduction To Law 2008, Lecture 4

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1. Last class:The Case of the Speluncean Explorers 2. Legal positivism 3. John Austin (19 th C)“Law is the command of the sovereign” 4. Today:The Structure of the Canadian…

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1. Last class:The Case of the Speluncean Explorers 2. Legal positivism 3. John Austin (19 th C)“Law is the command of the sovereign” 4. Today:The Structure of the Canadian Legal System 5. Monarch 6. Constitution 7. Entrenched statutes Organic statutes Court decisionsUnwritten aspects 8. Unwritten Aspects* Conventions * Principles* Democracy* Federalism* Rule of Law 9. Unwritten Aspects* Conventions * Principles* Federalism* Democracy* Rule of Law 10. Quebec Secession Reference,[1998] 2 S.C.R. 217 11. Federalism 12. Constitution Act, 1867, ss. 91 and 92 13. Section 91 It shall be lawful for the Queen, by and with the Advice and Consentof the Senate and House of Commons, to make laws for the Peace,Order, and good Government of Canada, in relation to all Mattersnot coming within the Classes of Subjects by this Act assignedexclusively to the Legislatures of the Provinces; and for greaterCertainty, but not so as to restrict the Generality of the foregoingTerms of this Section, it is hereby declared that (notwithstandinganything in this Act) the exclusive Legislative Authority of theParliament of Canada extends to all Matters coming within theClasses of Subjects next hereinafter enumerated; that is to say, 14. 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) 15. 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, 16. Section 92 (continued) Property and civil rights Solemnization of marriage Health care Education (s. 93) 17. Parliamentary SupremacyLegislative BranchExecutive BranchJudicial Branch 18. Responsible Government Executive accountable toLegislature 19. Judicial BranchExecutive and Legislature accountable to Judiciary 20. Canada’s Court System * Courts of inherent jurisdiction * Courts of statutory jurisdiction * Administrative tribunals 21. Nowwho is the most powerful? 22. Democracy 23. Democracy American−style = people sovereign Canadian−style = government sovereign 24. Democracy American−style = people sovereign Canadian−style = government sovereign 25. Democracymust be balanced with Federalism, Rule of Law, and other Constitutional Principles 26. Rule of Law 27. Rule of LawJohn Locke * Rules must be “settled”, “standing”, “declared and received” * No ad hoc laws 28. Rule of LawA.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 29. Rule of LawConstitutionAct, 1982 Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law: 30. Rule of LawRoncarelli v. Duplessis, [1959] S.C.R. 121 Rule of Law limits discretion of state actors 31. Rule of LawR.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 32. Rule of LawR. 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? 33. Rule of LawLon 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. 34. For next class: Readings: History: pp. 36-45 and 45-72