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Law 2101 (688)
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The Canadian Constitution.docx

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Department
Law
Course
Law 2101
Professor
Mysty Sybil Clapton
Semester
Fall

Description
Sep 17, 2013 The Canadian Constitution Introduction  Parking example: drew arrows on the no parking sign, someone who parked there received a ticket… Is it valid?  Hutterite example: photo should be taken for driver’s license, but their religion doesn’t allow being photographed Questions What is Law?  Aristotle on natural phenomenon: what is something  why does it do this? Why Do We Have law?  understanding something gives you a reason to comply with or reject it  for the sake of justice; for what is fair for everyone  law, as an institution, is morally valuable o not saying law is always just, kind, equitable What Should I do?  tend to think, “What if it were me?”  exercise moral judgment  rules are written down to make things clear for everyone What Would Life Be Like Without Law?  decision to not comply with law cannot be taken lightly; can be a complicated process for some  must consider the value of law What Is Law Used For?  Criminal Law: restrain wrong-doing, punish the wrong-doer  Austin’s Command Theory of Law: all law can be reduced to a command backed by a sanction o over-inclusive: captures a lot of things that we don’t think of as law  eg. stealing iPad mini: if you don’t give it to me… *implicit threat*, yet is not a law o under-inclusive: law does a lot of things that aren’t captured by this definition  eg. making wills: if you want to make an order of affairs to have your property orderly transferred, this is how you do it  eg. selling things— houses, cars, etc.: you don’t have to sell it but if you do, you must follow these rules What Does the Law Do? 1. Guides behavior o reason for criminal law o law steps in place of consensus to provide a functional solution o secures desirable behavior o eg. which side of the road to drive on: no moral reason to drive on a certain side of road, but that the law states you should drive on a certain side makes one morally obligated to follow, otherwise chaos would ensue 2. Provides private legal arrangements o eg. wills, contracts 3. Provision of services and goods; creation of institutions 4. Settling disputes Thomas Aquinas Law is the ordinance of reasons for the common good of a community promulgated by the person responsible for looking after the community.  for common good, not to benefit individuals Law is not the only thing governing our actions— we must consider whether or not we have good reason to disobey law.  presumption: we should obey law CONSTITUTIONALISM  a principle of morality  to limit the power of authority; set boundaries on what the government can do o eg. Provincial government cannot criminalize abortion, but the Federal government can. Why? Because power is allocated in the Constitution. Criminal Law is allocated to the Federal Government.  does not have to be written, as long as everyone knows what the rules are and acknowledges them o eg. UK, common law  excludes existence of a PM  very hard to change when unwritten, not easy to change when written The Rule of Law  law should not be arbitrary  Aristotle: “rule of law, and not rule of men”  should be impartial  should not depend on discretion  political morality  an ideal we should aspire our law to comply with 1. Law should be prospective. o meant to apply to the future, not the past o unfairness in retroactive laws: too late for people to avoid noncompliance o eg. changing the speed limit from 50 to 40 would mean a lot of people broke the law 2. Law must be capable of being complied with. o otherwise being tyrannical 3. The rules of the law must be promulgated. o published for people to see 4. The rules of law must be clear. o eg. It should be in Canada that persons at all times do the right thing. 5. Rules must be coherent with each other. o cannot be contradictory, otherwise people will be breaking law no matter what they do o overlapping jurisdictions an example of contradictory law  Federal law will always trump Provincial law 6. Rules must be sufficiently stable in order for people to plan their lives. o cannot change too quickly or too often o legislation can change more quickly 7. Discretion must be guided by rules. o eg. Jehovah’s witness restaurant manager liquor license revoked o no such thing in Canadian law as unlimited grant of discretion: must be bounded by the purpose for which the discretion is given 8. Those who are given authority to administer laws must be held accountable for their administration. Sep 19, 2013 CONSTITUTIONAL LAW  public o public law: between gov’t to gov’t or gov’t to people o private law: person to person  no document in Canada outlining the Constitution (unlike the US) The Constitution… o spells out how gov’ts change from one to the next o provides for the orderly transfer of power o cannot make a political community successful alone o must be followed by everyone in order for it to be functional Functions of the Constitution 1. Protects the citizens from the gov’t; maintain civil liberties. Whose job is it to enforce the Charter? In Canada, it is the job of the judges. Conceivably though, the legislature can. It used to be shared between the legislature and the judiciary. The legislative override formally authorizes the legislature to enact legislation notwithstanding anything the court has said whether it complies with the Charter of Rights or not. The legislature gets the final word— but this power has never been used (in provinces other than Quebec). What are the rules governing the use of the notwithstanding clause? Basically, there are none. 2. Divides powers between governments. Provincial Governments are not subordinate to the Federal government. Both derive their power exclusively from the Constitution. However, the Municipal Government receives its powers from the Provincial Government. The territories get their jurisdiction from the Federal Government. Why do we have a federal government? Simply put, the regional nature of Canada. We want decisions to be made locally rather than centrally, as different provinces have different wants. The primary force behind this is Quebec, both due to the Catholic culture and the French culture. Criminal law became a Federal matter, unlike the US where powers lie within each state. 3. Asserts the principles of our nation. The Constitution reassured the provinces that nothing would change: “We will gain independence, but we will keep our ties to the UK.” The final break from the UK happened in 1982. 4. Separation of Powers. (In-house, within one particular government) Assigns responsibilities among particular governments. The governments of Canada are separated into: legislative, executive, and judicial. Only the legislative branch can make laws. How are laws made in Canada? A bill is introduced to the House of Commons. It must pass three readings and votes before it is passed onto the Senate, where it again goes through three readings and three votes. When it passes these stages, it goes to the Governor General for royal assent, after which it becomes a law. This is a very long process.  Governor General is advised by privy counsel  real power exercised by Cabinet and PM (though not said in Constitution) What does the Judiciary do? They resolve disputes that are brought to them. These disputes are usually between private individuals or crown prosecutors. Sources of Constitution 1. Constitution Act of 1867 Originally called the British North America Act. It created a national union between what is now Ontario, Quebec, PEI, New Brunswick, Nova Scotia. It created different institutions (legislative, judicial, executive), assigned powers, and allocates/divides powers amongst the Provincial and Federal Government. Never meant to stand alone— very incomplete. There is no way for the Canadian Parliament to change this document. Why? It does not only affect the Federal Parliament; it sets out duties of Provincial Parliaments as well. We cannot allow the Federal Government to change it because they might ta
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