POLS 3135 Lecture 2 2007

POLS 3135 Lecture 2 2007 - Public Law I: September 21, 2007...

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Unformatted text preview: Public Law I: September 21, 2007 Basic concepts regarding the Canadian Legal System n The Canadian court structure n 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 1723­1780), community standards (eg. obscenity cases), Hogg's text, constitutional conventions n n n n ratio decidendi and obiter dicta common law judges "find" the law Constitutional conventions Crown prerogative: residue of discretionary power. Crown privilege: the claim that the crown may 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 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] British Legal Tradition n n n n n n n n n Rules of Reception: Depends whether colony acquired by conquest (or cession) or by settlement. Conquest=law of conquered people remains in force except to extent necessary to establish British rule (e.g. British criminal law). Settlement=all British statutes (and common law) are deemed to apply to colony as of date of “settlement.” Date of settlement assumed to be date when colony established its own legislature. Colonial legislature can subsequently amend this received legislation or supplant it with own laws. Moreover, colonial courts have power to declare certain British statutes “unsuitable” to colony. Dates of Reception: NB & NS: 1758 Quebec: 1759: French civil law. 1763: English public law PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: 1870. n n n n n n n Principle of Parliamentary Supremamcy “Imperial” statutes (Br laws applying to whole empire) were unlike ordinary British statutes. Could not be amended by colonial legislatures. Colonial Laws validity Act, 1865 clarified range and force of Imperial Statutes (only those that were explicitly directed at colonies). Doctrine of repugnancy defined. Imperial Statutes remained in force until Statute of Westminster, 1931. Not all Imperial Statutes repudiated. Judicial Committee of the Privy Council (JCPC); 1949. Canadian Court Structure n ____________________________ | Supreme Court of Canada | | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | 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 n Unified (integrated) hierarchical court system; judicial appointment process; salaries 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) Security of tenure (can’t be removed unless there’s been a judicial inquiry) n Financial security (a right to a salary high enough to discourage bribes that cannot be easily tampered with by gov’t) n Institutional independence (judges control administrative matters directly related to adjudication). n Judicial discipline For provincially­appointed judges: complaints can be sent to the Provincial Judicial Council (usually composed of the Chief Judges and Justices in the province) n For federally­appointed judges: the Canadian Judicial Council investigates complaints n Appeal courts n n n 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 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. ...
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This note was uploaded on 02/14/2012 for the course POLS 3136 taught by Professor Bazowski during the Winter '10 term at York University.

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