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Law Final Exam notes

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Wilfrid Laurier University
Political Science
Phaedra Klodner

Constitutional Law The role of judiciary is to interpret and apply the law the role of the legislature is to decide upon and enunciate policy the role of the executive is to administer and implement that policyConstitution a body of law which establishes a framework for a government and is the supreme law of the countryConstitutional Law The system of written and unwritten principles that defines what power we to our government while protecting individuals and certain groupso Formed from conventions statutes proclamations and court decisionsThree branches of government o Executive the Queen but the powers lie with the Cabinet o Legislative the House of Commons the Senate the Governor General o Judicial Composed of the judges who interpret and apply the Constitution to actual casesThe separation allows the system to run efficiently in that the rule of law is maintainedRule of Law Dictates that the law is supreme over both the individual and the government as the power of the government must find its root in a legal principleConstitutional Law is that which overrides all other laws in CanadaConstitution Is drafted with an eye to the future Its function is to provide a continuing framework for the legitimate exercise of governmental power o Must be capable of growth and development over time to meet new social political and historical realities often unimagined by its framersCanadian government does not have unlimited powerPower is divided between federal provincial and territorial governmentsParliamentary Supremacy The doctrine that Parliament is the only lawmaker and this ability cannot be overridden or set aside by the courts or anyone else o The Canadian notion of parliamentary supremacy is unique in that the Constitution must be acknowledged as the supreme law of Canada Conventions and Prerogative PowersConventions are important to constitutional law and although they may lie outside of the legal documents they may be recorded elsewhereThe role of judges and courts in the government and their independence form the executive and legislative branches of governmentConventions are important because they clothe the legal framework of the formal Constitution and provide a large measure of flexibility the operation of the Constitution can be significantly changed without having to directly amend the Constitution Acts or other legal aspects of the ConstitutionA convention is a rule that officials apply that is somewhere on the continuum between custom and constitutional lawPrerogative Powers Privileges that the law gives to the CrownCrown Head of state or the monarchy The Queen of England is the formal head of state and the government federal and provincial is also referred to as the Crown AmendmentAmending Formula The statutory method used to change the Canadian ConstitutionConstitutional law and the division of powers have remained stable because of the amending formula that is required to make a change in the law as there must be consent from Parliament to change the Constitution o Once this is established 23s of the provinces must agree on the changes and these 7 provinces must contain at least 50 of the population of Canada Division of PowersThe constitution lists the powers of the federal provincial or territorial governments and which level of government is permitted to legislate in that areaImportant to note that the Peace Order and Good GovernmentPOGG clause gives the rest of the legislative power that is left over to the federal government o POGG has been used in situations where there is a gap not covered by the division of powers where it is a national concern but is not provided for in the division and where there is a national emergency not otherwise provided forTerritorial PowersThe territories of Yukon Northwest Territories and Nunavut have a different status than the provinces Constitutional Issues and the CourtsMuch of the time it is up to the courts to interpret whether an area is within the jurisdictions of the federal or provincial governmentThere are various ways that a constitutional issue can come before the courts o The first is through a factual dispute with the government or an individual who alleges that a statute is unconstitutional because it is outside the powers of the legislating body o Courts may also hear these issues if a party to a legal dispute contends that the interpretation of the legislation makes it beyond the powers of that level of government o Last way is through a reference Reference A question that the government brings to the court to give an opinion about the constitutionality or legality of a provision even though it is not currently in dispute in an actual caseThe Governor in Council has jurisdiction to order a reference but the Supreme Court has the discretion to refuse to hear a reference if there is not enough material in the record or there is no foundation to the reference or it would be otherwise inappropriate Intra Vires and Ultra ViresOne of most important parts is determining whether a body is acting within its mandateIntra Vires Within the body or authority of a bodyUltra Vires Acting outside of the power given to the legislative body by a particular statute If a legislative body acts beyond its authority the decision is invalid Double Aspect and the Paramountcy DoctrineDouble Aspect Meaning that it may be a federal matter from one perspective and a provincial matter from another perspective o If both are of equal importance and it is possible to operate without conflict o Parliament may define the rights that will operate federally and the legislature will have regulations to structure the matter from a provincial viewpointIf laws conflict and the laws cannot comply with both elements the court has developed a system of federal paramountcy to be used where the federal legislation trumps the provincial Interjurisdictional Immunity DoctrineRelated to paramountcy is the interjurisdictional immunity doctrine
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