Crim135 - Topic 3.docx

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CRIM 135
Graeme Bowbrick

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TOPIC #3 – THE SOURCES OF LAW Introduction  You can‟t have law unless there is law marker – some society is god, morarch  In democracy = people make the law - these people fall into two categories  1. People we elect to legislatures who make a form of law called „Legislation‟  2. Judges who make „case law‟  Both legislatures and courts as sources of law. LEGISLATION  Most important form of law today – primary role in making law A. Primary Legislation: Statutes  All power comes from the constitution – the most basic and fundamental law there is – all legal power resides  In Canada, our constitution allocates the legislative power to 11 legislatures (institutions that make laws) o 10 provincial legislatures and federal legislature (parliament) o Each provincial legislatures have same legislative authority and they exercise it under their provinces  Provincial legislative authority - Health care, education o Federal parliament exercise their power to the entire country  Federal legislative authority - Eg criminal law, foreign affairs  Only limitation – the constitution itself. Legislatures can make any law, as long as it conforms to the constitution ** See Political and Legislative Process** B. Secondary Legislation: By-Laws, Order-In-Council, Regulations Concept of Delegation  In large organization, person in charge don‟t do everything.  Legislatures are allowed to delegate legislative authorities. They can delegate others to make secondary legislations. Typically to other government officials, or create government agencies  Responsibilities are delegated to others. o They don‟t have enough time. o They may not have technical knowledge to do all the things, need specialists.  Two basic requirements: o Must pass a statute (define who) agreed by majority to delegate authority away to pass laws. o Must define what the authorities are. – exactly what they are authorizing them to do/ not to do  Eg worker compensation board o Compensate workers eg injuries o Make regulations about work place safety o Federal/provincial legislatures cannot worry about this, so they delegate workload to Worker Compensation Board because they have the expertise and do this as a full time job. Types of Secondary Legislation  Thousands of agencies across Canada that make laws under delegated authorities granted to them by the legislatures.  By Laws - City Councils – provincial legislatures gave them power to make local laws – eg parking tickets, banning of smoking in restaurants  Order-In-Council - Cabinet– constitution give power to „legislatures‟ not the cabinet or prime minister. They only have power if they have support of majority of MLA. Legislatures delegated most authorities to cabinets Example: Minimum Wage (Regulations)  Statue - Employment Standard Act (Act = Statue) = says employer must pay minimum wage  Cabinet - pass regulation deciding minimum wage  Legislative  Employment Standards Act  Cabinet  Minimum Wage Regulation The Political and Legislative Process 1. The Political Process (a) Elections  Every 5 years max. (now 4 years in BC by law) o Constitutional requirement – need to seek new mandate from people  Candidates seek election to one of 87 seats in the Legislative Assembly (legislature)  There is one seat in the legislature for each of 87 electoral districts around the province o Many elections happening simultaneously across province – divide BC into 87 consitutiences (electoral districts) of roughly equal population –( eg Surrey 5, Burnaby 4, etc) o During elections on the same date – each choose a person to represent and occupy their district seat in the provincial legislature in Victoria.  Almost all candidates run for office as part of a political party o Not all, some are independence. However people tend to vote for political party because they make it easier for people – we know them better, they are branded – the brand name represent certain values –we usually don‟t know the individual but we know what the party stand for and we vote whichever closest to our values  To win, a candidate needs only to get more votes than any of the other candidates -- “first past the post” electoral system (not a majority of votes) (b) After the Election – Forming a Government  The 87 winning candidates are sworn into office as Members of the Legislative Assembly (M.L.A.) o Different MLA in each province. o To pass a law need majority to agree before a law can be passed. So need lieutenant governor to determine who will be government.  The Lieutenant-Governor looks at which group can work together as a majority … the Lieutenant Governor will then ask that group of MLA‟s to form a government o LG = Queen‟s represntitive to the province (small remaining power of the queen) – to ask someone to form a government – prefer a GROUP who will consistently work together and between them have a majority of votes in legislature = GOVERNMENT o If NDP has most seats, then leader of NDP will form a government  All MLA‟s that are not part of the government are members of the Opposition (c) After the Election – Forming a Cabinet (Executive Council)  The leader of the government is the Premier o Need senior management team – Premier (CEO) – chosen by lieutenant government o At federal level, it is the Prime Minister  Premier chooses several (~20?) government MLA‟s to form the cabinet or executive council (and the Premier can add or remove people from the cabinet at any time)  The members of the executive council are known as cabinet ministers [examples: Attorney General; Minister of Finance; Minister of Education; Minister of Health] o Cabinet members must be from MLA o CM responsible for own district, also have extra responsibilities. o Politicians can occupy both branches – legislative and executive branch – in US only president = executive, congress are legislative which are completely separated.  The cabinet only has power as long as a majority of MLA‟s support it o Constitution give power to make law to LEGISLATURERS not directly to executives – premier cannot just make laws, need majority of MLA in that legislature to have power o A premier/cabinet can be brought down by a majority of the legislature if they dislike o Usually not a
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