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Public Law I: September 16, 2005 n n n Basic concepts regarding the Canadian Legal System The Canadian court structure Course kits will be for sale ($50) at the end of class, or you can buy them from the Keele Copy Centre, 4699 Keele St. , 416 -665 -9675, or Glendon poli sci office. (NOT available at bookstore)
Hohfeldian Scheme (p. 17 Gall): n n If there’s a legal right held by one person, there’s a duty for someone else (usually a public official). For a right to exist, there is always a correlative duty. Use legal terms precisely and carefully. If there’s discretion, there’s no right.
Divisions of Law n n n n Divisions of law: Positive (written) law: divided into domestic and international Domestic law: divided into substantive, and procedural (or adjectival – eg. a court’s rules of procedure) Positive domestic law: divided into public and private Public law: criminal, administrative, constitutional, tax Private law: most important divisions are contracts, property and torts (private wrongs); many other types as well (see Gall) Common law system compared with civil law system deductive (civil) vs. inductive (common); weight of precedent; reports of framers & la doctrine (civil)
Sources of Law n n Main sources of law: n Written constitution (s. 52(1) of CA, 1982 n statute law (laws created by legislatures) n case law (created by judges) Other (informal) sources that inspired both statute and case law: Ten Commandments, Magna Carta (1297), Roman law, canon law, writings of legal scholars (eg. Coke 1552– 1634, and Blackstone 1723 -1780), community standards (eg. obscenity cases), Hogg's text, constitutional conventions n n n n ratio decidendi and obiter dicta common = general common law judges "find" the law Constitutional conventions Parliamentary Sovereignty or Legislative Supremacy (same). Separation of powers Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-butnot-all formula; provinces alone; feds alone Crown prerogative: residue of discretionary power. Crown privilege: the claim that the crown my decide not to present documents ordered by judges, H of C or Senate.
Terms and Concepts n n n primary (enacted by a sovereign legislature) and subordinate legislation (eg. Orders in Council, city bylaws, CRTC regulations) Manner and form requirements for judges to recognize a law What are "legal persons? ” People, corporations, and governments n n What's the difference between negative and positive law? n n n Negative law: prohibited from certain behaviours (crim. law) Positive law: positive incentive to change behaviour (tax deductions for donations to political parties) [NOT same sense as judicial positivism] Critical Legal Theory n a branch of “critical theory, ” which examines institutions from the perspective of class analysis. (often very cynical about law)
British Legal Tradition n n n n Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada. Date of reception based on when a colony established a legislature, or set by statute. NB & NS: 1758 Quebec: 1759: French civil law. 1763: English public law PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta. , Sask: 1870. Federal gov't: date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont. 1792. n “Imperial” statutes (Br laws applying to whole empire) remained in force until Statute of Westminster, 1931. n n n Development of common law courts (king’s bench, common pleas) and courts of equity (remedies other than damages or punishment – writs, injunctions). Merged in 1880 s. Preamble to BNA Act: implied Bill of Rights Barristers and Solicitors Judicial Committee of the Privy Council (JCPC); 1949. England: specialized appeal j's; Canada: generalist appeal j's.
Canadian Court Structure n ______________ | Supreme Court of Canada | | 9 judges | |______________| | ____|________|____ federal | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | courts of appeal | provincial | 22 js | | 39 js | | 128 judges | administration |______| |_____________ | | | _______ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |___________________| | ______ |_____ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |___________| federal appointments and administration
Adjudication n n Adjudication involves an independent, impartial and qualified judge authoritatively settling a dispute, according to law, with reasons. Usually, decisions can be appealed. Other forms of dispute resolution: combat, negotiation, mediation, arbitration. (ADR refers to alternatives to the courts – especially mediation and arbitration. )
Judicial Independence n Valente decision (1985) n n n Security of tenure (can’t be removed unless there’s been a judicial inquiry) Financial security (a right to a salary high enough to discourage bribes that cannot be easily tampered with by gov’t) Institutional independence (judges control administrative matters directly related to adjudication).
Judicial discipline n n For provincially-appointed judges: complaints can be sent to the Provincial Judicial Council (usually composed of the Chief Judges and Justices in the province) For federally-appointed judges: the Canadian Judicial Council investigates complaints
Appeal courts n n n Minor appeals heard by a single judge in a higher court (summary conviction appeals) Major appeals heard by the provincial Court of Appeal Ontario has about 18 Court of Appeal judges; usually they sit in panels of 3 (sometimes 5) The Federal Court (Appeal Division) has about a dozen judges; hear cases in panels of 3. Supreme Court (9 judges) most often hears cases in panels of 7; sometimes panels of 5 or 9. per curiam (or per coram) vs. seriatim decisions
Constitutional Crisis of 1981/82 n n n 1867: Canada independent re its internal affairs Balfour Declaration (1926) and Statute of Westminster (1931): Canada recognized as an independent state re foreign relations BNA Act (1867) was an imperial statute, therefore could only be amended by British Parliament. 1926 -1981: many failed constitutional conferences. Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4 Atlantic provinces. Failed when a new gov’t elected in Alberta, and Quebec premier couldn’t get cabinet to agree. Alberta suggested an alternative: Parliament, and 2/3 of provinces representing 50% of Canadian population.