Friday September 13 , 2013
Public Law I- Pols 3135
What is law?
The word “law is used in a variety of contexts, eg. God’s law, law of land
Gods law = command from law
Law of nature (physics) = there is a regularity in the word never changes.
Law of physics describes that invariant nature
Law of Land
Law of land
Political law consist of a set of rules governing citizen behavior in a political
o Law is always territorial:
o In America there’s American law , Canada there’s Canadian law
o Jurisdictionally based
How distinct is national law from other rules? Eg) what sets political law
from others like Gods law
o National laws have institutions ensuring its enforcements ( the
Coercive sanctions available and can be used by institutions of
Can the law be understood by merely attending to the written words of
statues ( the linguistic perspective ) ?
o What role is played by
Judicial discretion ?
Persuasiveness of lawyer?
Interpretation by public servants and elected politicians ?
Interpretation by ordinary citizens
o Law is subject to interpretation
Law in use is always argumentative. We always argue about what it is.
Example is meant to emphasize the argumentative nature of law in use.
What makes law legitimate in a democracy? i.e) how does law acquire its
capacity to govern our behavior
o We obey the law because we make it. At a distance we are the authors,
we choose those who govern us and write them
Enacted by legitimate political institution?
How is Parliamentary law made?
Introduced in house of commons,3 readings, sent to governor general.
Governor general acts as representative of the queen. Command of the queen
There is an element of command in legislation
o Law is a command o Someone’s command
o Why do we obey? Habit?
Schools of Legal Thought:
The only law that
They believe the law is what I written down
Good judges can interpreted what’s written down
If they stay close to what’s written, not their own judgment
there are higher laws that positive law ought to emulate.
Law of state cannot contradict higher law of nature
Judges cant be impartial
Even if judges try to be impartial the law can never be perfectly clear. What
makes judges decide the way they do
Canadian judicial realism
Four men trapped by cave in. One suggested cannibalism. They where charged.
One Judge: apply established law literally & convict (positivist)
Divisions of Law
I. Substantive Law
II. Procedure Law
o This is how you handle case in court. Rules to handle law
Substantive Law Public Law
o Law that involves the state and individual citizens
o Two levels of state having a dispute
o Criminal Law- most common
o Constitutional Law- rules on how state govern
o Administrative Law
Private / Civil Law
o Law involving dispute between two individuals
o Its private
o Family, Contract, Property, tort, labour
Common Law v. Civil Law
Civil law in contrast to public law it means ; family, tort contract
The other sense civil law refers to another legal system common in Europe
and other parts
We have common law that we inherited from Britain. It’s a british derived
Civil law initially derived in Europe but it spread to other parts of the world,
most likely the countries that it colonized
Two Legal Traditions:
Common Law :
Judge made law, there judgments or legal decisions constitutes as common law.
Precedents became rule.
Civil law is written in one book , derived from Roman law . Law from several
9 provinces we use common law to govern cases in private or civil law
Only Quebec uses a civil law in private or civil law
o Quebec inherited the French civil law Friday September 20 , 2013
Public Law I – Lecture #2
Sources of Law
Main Sources of Law:
Written constitution (s. 52(1) of CA , 1982
o Supreme law
o Foundation, tells us how government are choses, what powers they
have and how can they
o 1867- BNA Act- Canada (Quebec, Ontario), nova scitia, nova scotia. 1 st
o New constitution act 1982- added charter of rights and freedoms
Statute law (laws created by legislatures)
o Primary passed by legislature after debate and committee study
o Primary law.
o Pieces of legislation
o Regulations , orders-in-council devised by bureaucrats to give
substance to primary legislation
o Secondary legislation bureaucrats (12:00min)
They have to be published in the Canadian Gazette
In common law systems court rulings that clarify the law or fill in gaps in the
law themselves have the status of the law
Do judges make it up? Judges sat they “find” the law
o They make fiction that when they are making the rulings that they are
not making the law.
Part of the case which has binding force (precedent ) and hence status of law
is ratio decidendi
o Ratio decidendi – part of legal judgment that contains court primary
reasoning as to why they concluded the case
o They give a reason
Other authoritative statements in judgment which do not have precedential
value are known as obiter dicta
o Obiter dicta – other reasons
Unwritten rules ( not part of statutory laws) which are said to inform the
way our government works and there are regarded as part of our
constitution and create an obligation - that is they should be followed o Aren’t justiciable- courts cant enforce them. (why are we obliged to
o By convention the leader of the party with most seats in an election
they are asked to form the government and their leader is prime
Prime minister and members of cabinet advised government
o Unwritten rules like how we select our prime minister
o How are we able to amend BNA .
To amend a law we just pass a ne law to amend it
Prerogative powers are defined as “ the residue of discretionary or arbitrary
authority which at any given time is legally left in the hands of the Crown.”
Typically delegated to G-G and L.G, eg. Appointment and dismissal of the
prime minister, and the summoning , proroguing and dissolving of
Parliament in accordance with ministerial advice. 31:48
o What was left over to the monarch that Parliament did not take away
o Eg. Prerogative of queen to prime minister – gives job to governor
general, he choses prime minister. (cases of a tie )
They are not officially a source, (39:00min)
Often referred to by judges ( like the Magna Carta, Peter Hogg, roman law ,
community standards- 43:00)
British Legal Tradition
Rules of Receptions : depends whether colony acquired by conquest (or
cession) or by settlement. Rule of reception -Law of conquest people remains
in force except to extent necessary to establish British rule (it would impose
criminal law system.)
Colonies that where gained through Settlement= all British status (and
common law) law deemed to apply to colony as of date of “settlement”. Date
if settlement assumed to be date when colony established its own legislature.
Once they had Colonial legislature and subsequently amend this received
legislation or supplant it with own laws. Moreover , colonial courts have
power to declare certain British statutes “unsuitable” to the colony
Dates of Reception:
o NB & NS: 1758
Colonies of settlement
o Quebec: 1759: French civil law. 1763: English public law Acquire through conquest, maintained its own law
o PEI: 1763
o Ontario: 1792
o Newfoundland: 1832
o BC: 1858
o Man , Alta., Sask: 1870
Principle of Parliamentary Supremacy
o Parliament of the day can make any law it wishes
They have the last word
o So the ns legislature can make any law it wishes
“Imperial” statutes (Br laws applying to whole empire) were unlike ordinary
British statutes. Count be amended by colonial legislatures.
o They could not be amended by colonial legislatures , they had to be
o They were passed by British parliament to specifically apply to
colonies, they could not change these.
Colonial laws validity act, 1865 clarified range and force of Imperial Statutes
(only those that were explicitly directed at colonies).
o Clarified which applied and which didn’t
o Any colonial law that contradicts the imperial statues
Doctrine of repugnancy defined
o Any colonial law that contradicts imperial statues, that law will be
deemed to be no force in affect. They colonies cant enforce them
because they are repugnant to the imperial statues .
1867: creation of Canada with the BNA which serves as Cdn constitution
o it sets the terms of unions, its also one of the laws we cant change.
They got the word dominion from the bible,,
Canada sovereign in domestic affairs but not foreign affairs.
Road to Autonomy
The Statute of Westminster (grants autonomy to those dominions, birth of
the common law ) finds its origins at the Imperial Conference of 1926. Lord
Balfour, Britain’s foreign ministers, suggested that all dominions be granted
full autonomy in their legislations.
o They would resend Colonial law validity act
This would establish equality amongst Britain and the Dominions. These
nations included the dominion of Canada, the colony of newfoundland, the
commonwealth of Australia , the dominion of New Zealand , the union of
south Africa, and the Irish free state.
o The white dominions were given the opportunity for self government
o Canada for its own domestic reason choose to ask Britain to except
Canada from complete autonomy. Canada couldn’t amend BNA ACT BNA Act (1867) was an imperial statute, therefore could only by amended by
British Parliament Statute of Westminster did not change this situation. Why
Supreme court of Canada created by federal statute in 1875 but not highest
Highest court is JCPC- a specialized committee of British house of lords
hearing appeals from Dominions. Judicial committee of the Privial Counsel.
o Stop criminal appeals to jcpc 1920’s. 1930’s made rulings they didn’t
like. A piece of legislation introduced in 1939 , 1949 yes Canada can
end appeals to JCPC
Constitutional Patriation: Persistent Failure
From era of Statute of Westminster onward a growing sense of nationalism
in English-Canada led to calls for constitutional repatriation from Britain.
1929-1981: many failed constitutional conferences.
Victoria Charter nearly successful (1971): Amending formula would include
Parliament, Ontario, Quebec, ¼ Western provinces, 2/4 Atlantic provinces.
Failed when a new gov’t elected in Albertan and Quebec premier couldn’t get
cabinet to agree
Only link is the jcpc , 129min
128min- We asked Britain to keep the colonial validly act. We
chose to retain British over our constitution. We were scared.
Because of the constant fighting between the provinces and
federal govt regarding the divisions of powers. Provinces were
scared the federal government would have control over the
constitution and put it in favor
Constitutional Crisis of 1980/82: The Quebec Referendum
In 1976- separatist party (party Quebeqouis) was elected to power in Quebec.
Bill 101 – strengthen French language in Quebec.
o 1980- Referendum in Quebec. (Special election)
o 60% of Quebecers voted no
The Trudeau gamble 1981-82
1980 Quebec failed referendum on sovereignty association 1981 constitutional conference called by Trudeau. Only two provinces
supported Trudeau was Ontario and new Brunswick
o he pushed to bring constitution back home and to add to it.
o 1981 constitutional conference – “gang of eight” opposes Trudeau
plan for Canadian Constitution, with Charter of Rights
Trudeau proposes unilateral patriation
o Trudeau proposes Ottawa goes alone to Great Britain to insert a
charter and an amending formula
o Quebec went to appeal and r