JUST 2030 Lecture Notes - Lecture 1: Hot Dog, Starbucks, Quasi
Constitutional Background
British North American Act -1867 became…
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Constitution Act -1867
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Revised Constitution Act -1982
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Instituted Charter of Rights and Freedoms (1982)
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Section 91 -Federal Powers (91)
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Section 92 -Provincial Powers (15)
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National vs Regional Government
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Conflict sometimes over who has ultimate authority
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Section 91 & 92
What is the purpose of the Statute
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What is this trying to address
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Court will decide where the power comes from
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"Double aspect doctrine" acknowledges some have both Provincial and Federal
purposes.
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Aeronautics
Flight/Airport -fed
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Security -fed
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Terrorism -fed
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Baggage -fed
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Starbucks -prov
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Taxis -prov
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Parking -prov
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Runways -fed
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Shoe-shine business -prov
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Hot dog vendors -prov
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Section 92
Originally to take responsibility of "CIVIL & PROPERTY RIGHTS"
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Now dealing w/ "PUBLIC ORDER AND SAFETY"
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Federal government may not interfere
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Has the authority to set out laws under their governing section -"Quasi
criminal laws"
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WHERE DOES PROVINC LEGISLATION GET ITS POWER FROM?
Section 92 of Constitutional Act
This does not alter the Charter. You need altogether an 'exceptional
situation' to interfere (Fed/Prov)
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Ultra Vires/Intra Vires
"Beyond" the "power"/ "Within" the "power"
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Each guards their legislative authority
Ex: Alberta creates a law (in the power of that province)
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Coroner's inquest (Murder may be the crime but the inquest is Provincial).
Criminal aspect is not "pre-dominant'.
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"Doctrine of Paramountcy"
Where two laws conflict & both laws have valid authority Federal law to
prevail.
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Ex. Suspension upon Impaired conviction
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P.O.G.G
"Peace, Order & Good Government".
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Anytime there is a new area of law emerges; and is contemplated by S. 91 or
S. 92, automatically under Federal jurisdiction.
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"Pith & Substance"
When determining where it falls S. 91 or S. 92.
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What is the CORE PURPOSE of this law?
To prevent people from being harassed on the street
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Review
Provincial Offences Act History
The law reform act saw a need to differentiate between "Crimes" and "Quasi
crimes"
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Both are violations but of diff kinds
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Crimes: wrong done by a man/woman, involves mens rea (wrong intent)
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Offences: wrongs done by motorists, fishermen, merchants… particular topics
(careless by design).
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Law Reform Act
"Only those crimes thought seriously wrong by our society should count as
crimes"
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Must cause hard in nature & degree.
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Violence, dishonesty.
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Mens rea: intent, knowledge or recklessness must be proved.
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Defendant goes back to the activity, he was charged for.
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Reverse Onus
A provision within a statute that shifts the burden of proof onto the
individual.
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This is typical in criminal or tort matters but is implied in all provincial
statutes.
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(burden of proof usually on the Crown). Presumption of Innocence. Innocent
until proven guilty, etc… )
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Provincial Offences
Absolute Liability: mens rea need not be proven.
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"Guilt would follow proof merely of the prescribed act" Accused cannot
exculpate himself.
Ex. cannot drive without a licence, need not prove intent.
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Strict Liability
No need for prosecution to show Mens rea but if the accused probes he took
reasonable care he could get off.
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What would the reasonable man do in the circumstances if what the law
decides.
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There would be a defence if a 'mistake of fact' was determined.
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Provincial Offences Act
Part 1: Minor offences (tickets called Certificate of Offence).
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Part 2: Parking infractions
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Part 3: For more serious offences
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(Procedure son arrest, bail and other process apply equally to all parts)
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Part 4: Trial and Sentencing
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Part 5: General provisions (parties to offences, limitation period for a
commencement of proceedings, authority of witness.)
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Part 6: Young persons
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Part 7: Appeals and Reviews
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Part 8: Arrest, Bail and Search Warrants
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Part 9: Orders on Application Under Statuses
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Part 10: Agreement with Municipalities
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Regulations
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W1 Constitution
Wednesday,) January)10,)2018
2:40)PM
