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Greg Flynn (95)

Week of September 23-October8, 3NN6

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Political Science
Greg Flynn

3NN6 – Public Law September 23 – October 8 T ABLE OF C ONTENTS SEPTEMBER 23, 2013 1 LEGISLATIBRANCH 2 EXECUTIVBRANCH 5 SEPTEMBER 30, 2013 5 EXECUTIVBRANCH OGOVERNMENT 5 OCTOBER 1, 2013 6 TUPPERAPPOINTMENTS; 6 PRIMEMINISTER&CABINET 6 PUBLICLAW 7 JUDICIARY AND COURTS 8 THERULE OLAW –ASSIGNMENT 8 OCTOBER 7, 2013 8 JUDICIBLRANCH–MAKES LAWS WITH REFERENCE TO CONS;ITUTION 9 OCTOBER 8, 2013 10 S EPTEMBER 23, 2013 LEGISLATIVE AND E XECUTIVE BRANCHES OF G OVERNMENT Newsworthy Case “Allegiance to Queen as violation of freedom of speech” - Denied by court; Relationship that public law governs is the relationship that we have; 1. Separation of power and responsible government a. Idea that if you separate out the power of the executive and limit their power and answerable to the people; albeit through a representative body, you can thereby avoid the possibility and limit the possibility of tyranny to occur; make our government; i. EXECUTIVE BRANCH; make them accountable to us through the legislative branch of government; ii. Limit scope of powers that they can use, and need a body to ensure that they hold those limits; iii. Purpose of separation of powers is to prevent this tyranny; that a ruler can start seizing our property and incarcerating us; iv. 3 Branches of Government; v. Executive; Legislative; courts (interpret and apply the law;) b. Responsible government; germane to parliamentary systems of governments; answerable to the legislative branch and can only continue in office for so long as it maintains the approval; c. President (US) accountable to the people; regardless of what the senate and house of representatives; 3NN6 – Public Law September 23 – October 8 d. Canada, government can only stay in power so long as it maintains the confidence of the house of representatives; senate; e. Responsible government existed prior to federation; i. Governor of each colony took advice from the council; ii. Advice; to govern various colonies; iii. Were at odds with wishes of local communities; iv. Representative governments to advice or pass laws in relations to how they should be governed; 1. Armed rebellion in 1837; 2. Keeping the system in place; but elected representatives would choose elected; 3. Governor general would do as requested by council; developed 50 years in Canadian history; v. Ties into what we expect to see in our system of government; vi. Legislature has been able to exert its will over the executive; vii. What are the purposes and elements of legislative branch of Canada; L EGISLATIVE B RANCH f. Elements and Purposes i. House of commons 308 members; elected; based on the principles of representation by population; 1. Voting for these individuals restricted to Canadian citizens; 18 years of age or older; 2. Legislative branch must sit once every 12 months; It can sit no longer rd than 5 years, unless war has been declared by the Government and a 2/3 majority of the members agree to continuation by parliament; ii. Senate 1. 105 members divided on a regional basis; 24 Ontario, the west and Quebec; 1 for each territory; 8 nova scotia, 8 new Brunswick, 8 Newfoundland and 6 prince Edward island; 2. Senators sit until age 75; Harper is attempting to alter this; iii. The Queen; 1. Any law passed by house or senate has to be passed into law by the governor general 2. What are the purposes of the legislative branches of government? 3. Power to make law; acceptable and unacceptable behavior in society; legitimation; legitimize the action of government; 4. Representation; this is what the constituents want from the law; hold the executive to account; iv. Legislative authority; 1. Law making function for the most part; context recognize that system is predicated on parliament supremacy; which is to say that the legislature has the authority to make or unmake any law whatsoever; it can change the law as it sees fits; there are no restrictions on legislative authority; it means that the other levels of government; judicial and executive; are subordinate to the legislative branch of government; g. Parliamentary Supremacy i. Never existed in Canada; h. Limits to Parliamentary Supremacy? i. Federalism 3NN6 – Public Law September 23 – October 8 1. Idea that we divide between two levels of government; the constitution divides legislative authority between two levels of government; in these systems and depending on the constitution; one level of government is precluded from making laws in specific areas; 2. Bound only to the areas permitted by the constitution; sovereign within those jurisdictions; free to make laws within those jurisdictions as they see fit; constrained by other factors; charter of rights and freedoms; list set of rights that governments shouldn‟t interfere; ii. Charter 1. Limits to what parliament can do; 2. Reasonable Limits Clause; were permitted to violate the charter of rights and freedom because of section 1. 3. Notwithstanding clause: government has the authority to do so if it‟ll violate our rights; iii. Amending Formulae 1. Prior to 1982 if wanted to change the constitution, had to go to the queen and ask her to do so; 2. Amending formulas that provide for some supremacy to affect matters in the constitution that are in the jurisdiction; iv. Extraterritoriality; 1. Can parliament make laws that apply in Canada to acts of Canadian citizens outside of the country? a. Yes. Statue of Westminster; b. R. V Bakker i. „Bakker‟ – tried for committing crimes under the Canadian criminal code; took place in foreign jurisdiction; underage children; decided to Vietnam and Cambodia to have sex with prostitutes under the age of 13 ii. Video taped; advertised on the web about sex tourism; c. Haven‟t tended to do so; is because then other people will make laws that apply inside borders in Canada; asserting extraterritoriality in foreign jurisdiction; 2. If unlawful events occur outside of the border; can be persecuted; a. E.G exploitation of women and children; 3. Extraterritorially of the provinces; do not have jurisdiction a. Provinces have power within the provinces; b. Provinces can only pass laws with what occurs within those boundaries; c. Incorporations act in Canada; corporation made in Ontario, it can carry its business anywhere it wants; i. Province creates the entitity and allowed to carry out its work; power of parliament to make or unmake laws; v. Delegation; 1. Can the delegation it‟s law making to other bodies? Yes; ANYTHING BUT TAXATION; 2. HODGE V. THE QUEEN 1883; The issue was whether the province could delegate its authority to make laws around the sale distribution and prohibition of alcohol to a board of license commissioners; 3NN6 – Public Law September 23 – October 8 3. ONLY POWER THAT THE DELEGATE CANNOT DELEGATE is the ability to LEVI taxes; (Taxes; exist in the hands of federal government alone; a. RE: Ewing State b. Fees on probate to the court? If it‟s necessary to prove that will and dispense the will through the court; then fees are applies; courts set out a percentage of the state as the fees to probate; section 53. That taxes can only be levied by the house of commons; cannot delegate authority to any other body; vi. Self-imposed limits (Can bind future governments) 1. Imposing ties on a future government‟s ability to do what they‟d like; balancing of budgets? Let governments off the hook; “had to cut off this spending because of the budget” 2. Were these laws viewed as binding? Never contested in court; 3. Governments can impose restraint on themselves; self-imposed restraints can be restrictive; 4. RE: CAP a. Cap agreement that federal government would fund Welfare programs funded by the Government on 50% basis and would increase the amount at rate of inflation; b. Mulroney limited increase at 5%; BC, Alberta, Ontario; others were allowed to let their social welfare budget to increase; c. Provinces took it to the court; could change the legislation or could leave it as such; changed the legislation; and it was no longer bound by agreement; 5. Wells V. Newfoundland a. 1999 vii. Globalization 1. Can Canada opt out of World Bank and NAFTA; the government can withdraw from these trade agreements if it wants to; REALITY: Can it really do any of these? Dichotomy between what the law says we can do, but no government would take this because of the consequences; viii. Appropriate role of the senate? 1. Limited role in terms of being a leader under legislative perspective; 2. When is it appropriate for senate to intervene? ix. Methods of control of executive x. Elections and electoral reform 1. Electoral system tends to lead to majority government 2. Electoral dictatorship 3. Democratic mechanisms as elections; fundamental to democracy that courts do not like to interfere for it; 4. Conflict of interest laws require expulsion from office; court of appeal found a technicality; 5. Fundamental to our democracy; votes; it is not for the courts to intervene in these processes; 6. Electoral system is not fair; wasted votes; majority government; inhering unfairness to the electoral system; if you don‟t vote for anyone other than the person who won; then it is wasted; a. From a law perspective; we do not care; the issue of fairness is the for the legislature should decide; b. Courts look from a procedural perspective; 3NN6 – Public Law September 23 – October 8 E XECUTIVE B RANCH i. The Queen and the Governor General 1. King Byng Affair 2. Tupper Appointments ii. The prime minister 1. Black V. Chretien iii. The Cabinet 1. Ministerial Responsibility; 2. Collective responsibility; i. Power shifts to the other side of the house depending on whether majority or minority government. S EPTEMBER 30, 2013 Medicinal Marijuana section 7 & 15 – equality provisions; if prevented from accessing medical care are being discriminated;  Section 7; violation of liberty and security of person Public Law – Within the Week;  Member of Parliament; o Charged with electoral fraud and kicked out of the conservative caucus; o How law can operate to hold our legislative accountable;  Supreme Court of Canada on Sniffer Dogs o “When can the police use sniffer dogs?” o Reasonable suspicion on part of the police was enough to use the sniffer dog;  2km over the speed limit; o Individual was perspiring and „perhaps‟ had something that did not wish the police to look at; o “Sniffer dog” o The state has to be able to justify that the state can intrude on someone‟s liberty and privacy; was there reason enough to have the dog sniff?  Supreme court nominated; Male o More reflected of Harper‟s approach; E XECUTIVE B RANCH OF G OVERNMENT  Constitution, federalism, the charter of rights and freedoms limit what governments can do;  Legislature is the supreme body; it bows to the wishes of the executive; to the extent of other parliamentary systems;  Virtues of section 9,10,11 o QUEEN HEAD OF STATE…etc. o Not only is the Queen part of the executive as the formal; but Governor General as well; and he has a series of power that arise from the royal prerogative;  Power to appoint and dismiss the government  Dissolve the house of commons;  Constitutional convention all other powers are dictated to be done only as directed by the prime minister; except. That the prime minister must continue to have the confidence of the House of Commons.  Governor General - 3 powers 3NN6 – Public Law September 23 – October 8  Power to appoint  Power to dismiss o Governor general has never exercised the authority to dismiss;  Power to dissolve;  By convention that the government was in power at the time that the election it was dropped continues until it is defeated in the House of Commons;  What happens if the prime minister dies in office? Deputy prime Minister would fill that role; but we do not have a deputy prime minister; so who has the authority to speak to the Governor general; o KING BYNG AFFAIR; o Fall of 2008 facing a motion of no confidence on Monday went to the governor general on Thursday and asked to prorogue the government;  Conditions; return parliament within a short time  Pass budget that would get consensus of the opposition  Mr. harper did not accede to the view that Governor general at his peril; O CTOBER 1, 2013  The power to appoint prime minister (Governor General)  Power to dismiss gov‟t  The ability of the governor general to refuse to grant dissolution of the house where there is good cause to do so; King-Byng affair  Responsible government principle  Where it is not clear that the prime minister has the confidence; then it is upon the Governor General. TUPPERAPPOINTMENTS;  Prime minister until house of commons convenes;  Governor general will accede to the request of the prime minister. PRIMEMINISTER&CABINET  Control the house of commons (prime minister) through strict party discipline; through the ability to control nomination  As well as the powers of the executive;  Primary figure in Cabinet is PM  Prime minister presides over the cabinet, sets up meetings; o Canadian prime minister is more powerful in our system of Government than the President of the United States;  In addition to informal powers/ conventions/ practices of parl. System o Has a set of powers that have been devolved to him; chief. That belonged to the queen but has been delegated down; the courts can review some of these powers, some cannot. In support; o BLACK & CHRETIEN o Black; wa
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