ADMS 2610 Lecture Notes - Lecture 1: Public Law, Lex Mercatoria, Concurrent Jurisdiction

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The Canadian Legal System
In addition to the Constitution, and written and unwritten law, the Canadian Legal
system is comprised of three Branches of Government:
1. Legislative Branch: Comprised of either the federal legislature (house of commons)
or provincial legislature (the provincial house), this branch prepares and creates codified
(written) law in the form of enactments or statutes. Synonyms for statutes are
legislation, or enactments or Acts of Parliament or Acts.
As between the federal government and the provincial governments, in order to
determine which government has the right to enact a statute or legislation, you must refer
to the Canadian Constitution which is comprised of both the British North America Act,
1867 (now called the Constitution Act, 1867); and the Canadian Charter of Rights and
Freedoms. In the Constitution Act 1867, sections 91 and 92 of this Act set out the
division of powers between the Federal Government (section 91) and the Provinces
(Section 92) or, in other words, the jurisdiction of the Federal Government and the
provinces. For example, the federal government has exclusive jurisdiction over criminal
law, navigation and shipping, bankruptcy and insolvency, national defence and currency
etc…, while the provincial governments have jurisdiction over property and civil rights,
matters of a local or private nature in a province, the solemnization of marriage,
administration of justice (the court system) etc…. Exclusive jurisdiction means that the
jurisdiction held by that particular level of government is not shared with another. In
other words, if the federal government has exclusive jurisdiction in a specific area such as
criminal law, the provinces cannot enact or make or pass any laws in that area.
Sometimes, however, a given area does not fall into section 91 or 92 so that both the
provinces and the federal government can pass laws relating to that area. For example,
“public health”. This is called concurrent jurisdiction. However, where both the
federal government and a province or provinces pass laws that conflict with one another,
something called the doctrine of paramountcy applies. This doctrine states that where
there is a conflict or inconsistency between federal and provincial legislation, the
federal legislation prevails.
2. Executive Branch: This is the branch of government that formulates or makes
and executes or puts into force government policy, as well as administers all departments
of government. It is comprised of the prime minister (federal) or premier (provincial)
and their Cabinets (made up of ministers of various governmental departments).
Generally speaking, the Executive branch is responsible for making regulations for
particular statutes. These regulations often provide procedures and rules under a given
statute and/or fill in blanks left in the statutes. Regulations and the making of rules form
the basis of Administrative Law which is an area of law that relates to the various boards,
agencies, tribunals and commissions who exercise some form of governmental function
provided for by legislation and the regulations that apply to them.
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