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Criminology (2,192)
CRIM 135 (165)
Lecture

The Division of Legislative Powers and the Courts.docx

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Department
Criminology
Course
CRIM 135
Professor
Graeme Bowbrick
Semester
Fall

Description
Types of Law: - Positive law: made by a formal legal process - Case law: judge made law - All matters in Canada is positive law - International law: governs relationships between countries - Domestic law: governs matters within the country - Procedural law: governs legal processes -> legal disputes -> criminal and civil procedures - Criminal procedure: process for judging criminals - Civil procedure: how we govern when matter is not criminal - Substantive law: law which defines rights and obligations under the law - Public law: has public interest -> we all have a stake in it - Private law: has private individuals interest -> does not matter to all of us - Constitutional law: sets framework for political and legal systems as well as protect or promote common or core values to society (Charter of Rights) - Criminal law: law which prohibits and punishes most serious and damaging misbehaviour to people or property - Taxpayers finance the entire police, criminal prosecutor, etc -> criminals are threat to all of us - Administrative law: the law which regulates behaviour of government officials and government agencies, the government must always act according to law (within their legal authority), government must act fairly towards citizens - Taxation law: public law, takes money to provide public services - Contract law: contract is legally enforceable agreement, contract with someone that is 19 and older (person must have mental capacity to understand the contract), contract must have exchange of value - Property law: law which defines property and own rights to property, real property refers to land and buildings on land, personal property is all other property, registry for valuable property (registered owners) - Tort law: law of private wrongs, not as serious as crimes (lower level), most common type of tort is negligence (carelessness, not deliberate but still a wrongful act), focuses on compensation rather than punishment Sources of Law - Law makers are always people, not from beliefs (i.e. God) - Law makers are elected - Legislation: most important form of law, case law also important but not as crucial as legislation - Primary legislation: directly made by parliament (statutes), politicians give law making power to people below them (secondary legislation) - Constitution is the source of all legal authority - Constitution gives power to make legislation to federal government and provincial government - 10 provincial legislatures and 1 federal government have the power to make legislature - Constitution divides power, some decisions only able to federal and some to provincial - 85 seats in the legislative assembly - 308 seats in House of Commons - Parties are the brand name for politics - First past the post system (not majority, who got the most votes) - Lieutenant governor at the provincial level, governor general at the federal level - Introduction is 2-3 minutes (very brief) - First reading is voted on unanimously (only as commitment to give it consideration) - The bill number represents the order it was received - In second reading, responsible minister calls for debate, series of speeches (not argument) - Opposition can use maximum of 30 minutes to delay bill (government has majority) - First real vote occurs after debate - Committee stage: 11 members of House of Commons as committee (federal level), committee as a whole (BC) done in legislature - MLA able to question minister responsible - Opportunity to change bill -> amendment -> debate on amendment -> vote on amendment - Committee sage reports complete with or without amendments - Third reading last vote in legislature -> in case bill was amended - Royal ascent is then given -> last stage of committee process -> given by lieutenant governor/governor general - Bill becomes a statute Secondary Legislation: - Delegation: not enough time to do everything or not enough technical skill - Government delegates to other government officials lower down or government agencies - Two basic legal requirements: can only do so with a statute, must clearly define what they authorize them to do - Orders and council are orders made in the executive council (cabinet) - By-laws and regulations made by delegates - Lots of authority is delegated to the cabinet - Cabinet only as power as long as it has support of legislature - Legislature: employment standards act -> cabinet -> minimum wage regulation - Lieutenant governor in council = cabinet Case Law: - How judge applies law to facts to come to conclusion - Facts, issues, law, reasons, decision - Precedent is law in legal system -> judge must decide like cases alike - Previous decision serves as decision for future crimes - Staredecisis is not the same as precedent - Precedent -> 2 cases same factually, legally, hence the same decision - Staredecisis -> decisions of higher courts are binding in the lower courts in the same jurisdiction - Common law is all of the case laws put together - Common law of Britain is common law of Canada - Conflict between common law and legislation -> legislation wins - Parliamentary supremacy-> parliament is supreme law maker in system as long as it doesn’t violate Constitution - Laws that prevail should be made by accounted politicians, not by judges Legal Reasoning: - Precedent is liked due to “fairness” and “justice” - Gives certainty and predictability - Staredecisis refers to how precedence is operated - Authority = case law - Persuasive authority: judges can use decisions from lower courts - Persuasive authority: nature of other jurisdictions-> decisions from other provinces > US, Britain > other commonwealth democratic jurisdictions (Australia), other foreign jurisdictions, and the level of court is considered as well - Binding case law: lower court has no choice but to follow higher courts decision in same jurisdiction - Non-binding case law: judge maybe persuaded to follow decisions in lower courts or from other jurisdictions - Nature of other jurisdictions: more similar jurisdiction to BC, better persuasiveness - The higher the court from the jurisdiction, the more persuasive it will be - Conflict and certainty of law vs rigidity-> stuck with old principles that don’t adapt to current times (problem of staredecisis) - Judges don’t have to follow their own decisions (not bound by law), but they usually follow precedence on the same level of court Avoiding Precedence: - Viewing differences between the cases so that precedent cannot be used - Argue that material facts are different -> distinguishable from current case - Ambiguity: law should only say one thing to everyone (interpretation) - Resolve ambiguity is done by a judge - Judge cannot say his opinion , only what the legislation meant for it to mean (legislative intent) Resolving Ambiguity: Rules and Principles of Statutory Interpretation: - Literal or plain meaning or ordinary meaning rule - Golden rule: while judges are required to use literal rule, if it would lead to law having an absurd result, he does not have to follow the literal rule - Mischief rule: judges go with interpretation that allows the law to address the problems it was meant to solve Three Grammatical Rules of Interpretation: - Expressed mention of one thing means the exclusion of another - The general word or phrase takes its meaning from the specific words or phrases that surrounds it The Canadian Constitution: - Has four basic functions: set up structures of government, should define the powers of government structures, place limitations on powers of government, and set out process for changing or amending the constitution - Colonial origins of Canada’s constitution: different colonies under British rule (parliament), some are British statutes, 3 colonial documents -> colonial laws validity act of 1865, British North America act of 1867, Statute of Westminster of 1931 - CLVA: empowered colonial legislature to make laws but big/fundamental laws came from Britain - BNA: British statute which combined colonies into the Dominion of Canada, then combined the remaining colonies together - Statute of Westminster: British parliament gave up its remaining legislative power and let Canada govern itself (self-government) The Preamble: - An introduction before the sections of legal authority - Implied bill of rights is not clearly stated - Says what the document wants to accomplish - With the charter, there is no more need for implied bill of rights - 4 fundamental elements of implied bill of rights-> basic democratic rights (freedom of expression, speech, association, assembly) - Doctrine of parliament supremacy: parliament can do anything except violate the constitution (was first important due to centuries of conflict between the parliament and the monarch) - Doctrine of responsible government: government that is accountable for the people - Doctrine of rule of law: system governed by law as opposed to arbitrary power The Division of Legislative Powers: - Divides power into two parts: federal and provincial government - Britain has unitary government -> only one level of government - Federal parliament is not superior to provincial government -> exist side by side - Jurisdiction = legislative power - Peace, order, and good government -> POGG clause: power to legislate in national emergency, power to make legislation in relation to national concern - Any power not specifically allocated to provincial powers becomes federal power -> residual clause - Specific federal powers: - Section 91 (3) raising of money by any mode of system of taxation - Section 91 (12) seacoast and fisheries - Section 91 (14) currency and coinage - Section 91 (24) Indians, and lands reserved for Ind
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