Class Notes (836,331)
Canada (509,735)
Criminology (2,192)
CRIM 135 (165)

The Division of Legislative Powers and the Courts.docx

9 Pages
Unlock Document

CRIM 135
Graeme Bowbrick

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
More Less

Related notes for CRIM 135

Log In


Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.