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Public Law I: September 16, 2005. Basic concepts regarding the Canadian Legal System The Canadian court structure

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public law i september 16 2005
Public Law I:September 16, 2005
  • 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
Hohfeldian Scheme (p. 17 Gall):
  • 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
Divisions of Law
  • 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
Main sources of law:

Written constitution (s. 52(1) of CA, 1982

statute law (laws created by legislatures)

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

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-but-not-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.

Sources of Law
terms and concepts
Terms and Concepts
  • 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
  • What's the difference between negative and positive law?
    • 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
    • a branch of “critical theory,” which examines institutions from the perspective of class analysis. (often very cynical about law)
british legal tradition
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.

“Imperial” statutes (Br laws applying to whole empire) remained in force until Statute of Westminster, 1931.

Development of common law courts (king’s bench, common pleas) and courts of equity (remedies other than damages or punishment – writs, injunctions). Merged in 1880s.

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.

British Legal Tradition
canadian court structure
Canadian Court Structure
  • ____________________________ federal appointments | Supreme Court of Canada | and administration | 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 | |______________________|
  • 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
Judicial Independence
  • Valente decision (1985)
    • 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
Judicial discipline
  • 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
Appeal courts
  • 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
Constitutional Crisis of 1981/82
  • 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.