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Law 2101 (127)

Section 2: Canadian Constitution - Textbook Notes

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Law 2101
Mysty Sybil Clapton

SECTION 2 The Canadian ConstitutionCONSTITUTIONALISMTHE RULE OF LAW th Legal theorists like John Austin 19 c described law using The Command Theorylaw is understood as a command backed by a sanction o Gives too broad of a definition of lawo It is also too narrowit identifies some law but not all lawNot all laws are commandsex Enabling Laws do not command anyone and there are no sanctions marriage entering contracts writing a will etcLaw has 4 primary functions o 1 Guiding BehaviourPreventing undesirable behaviour Securing desirable behaviour by coordinating activityo 2 Providing facilities for private legal arrangements between persons contract marriage etc o 3 Provision of services and distribution of goods by providing for taxation and all of the social programs and common goods that are paid for from taxationeducation garbage removal etc o 4 Settling disputes among persons this is what happens in court roomsth Aquinas definition of law in the 13 c Law is an ordinance of reason for the common good of a community promulgated by the person or body responsible for looking after the community ConstitutionalismConstitutionalism is the idea that the powers of government ought to be limited and limited by lawThe actions of a limited government must be evaluated against the Constitution To the extent that a limited governments actions are inconsistent with the Constitution that government has exceeded its jurisdiction and its action is illegal The Constitution Act 1867 assigns certain matters to the federal government and other matters to provincial governmentso Whenever a province passes a law that deals with a matter that is actually within the jurisdiction of the federal government the law is invalidAny law that infringes the Charter of Rights and Freedoms is invalid The Rule of LawThe rule of law and not menthe discretion of decision makers like government actors and judges should be constrained by general laws set out in advanceo Rulers must not be free to act arbitrarily or maliciously Finnis 8 feature of the ideal and of the Rule of Law o 1 Rules must be prospective and not retroactiveto meet the ideal of the Rule of Law laws must apply to future events not past events o 2 Rules must be capable of being complied witha law cannot demand the impossibleo 3 Rules must be promulgatedpeople have to have access to what the law actually says The more uncertainty there is about what the law actually requires the less the ideal of the Rule of Law is achievedo 4 Rules must be clearif rules are too vague and people cannot be sure what they mean then they cannot use the law as a guideo 5 Rules must be coherent with each otherthe satisfaction of one law cannot result in the violation of anothero 6 Rules must be sufficiently stable to allow people to plan their livesif the law changes too often or too radically people will lose confidence in their ability to organize their lives around ito 7 The making of orders applicable to relatively limited situations must be guided by relatively general clear stable ruleswhere the law grants discretion to decision makers it must be bounded guided discretiono 8 People with the authority to make or administer laws in an official capacityMust be accountableMust actually administer the laws consistently with their tenor Roncalleri v Duplessis Appellant was the proprietor of a restaurant in Montreal whose liquor license was revoked o He was a Jehovahs witnessconsidered insulting and offensive to the religious beliefs and feelings of the Roman Catholic populationDuplessis wanted to punish the appellant not only by revoking the existing license but in declaring him barred from one foreverTo deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferredGross abuse of legal power expressly intended to punish Roncalleri for an act wholly irrelevant to the statute a punishment which inflicted on him the destruction of hi economic life as a restaurant keeper within the province Re Manitoba Language RightsManitoba Act 1870 was not originally created in both English and Frenchwhich deems it invalido The invalid current Acts of the Legislature will be deemed temporarily valid for the minimum time necessary for their translation reenactment printing and publicationThey had no force or legal effect while they were unilingual Judgment of the courtdeclared the Acts of the Legislature of Manitoba invalid and of no force or effect would without more undermine the principle of the Rule of Law
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