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Chapter 6

Chapter 6

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Political Science
Political Science 2246E
Ross Gibbons

Chapter 6 Public Administration the Constitution and Law The Law the Courts and the Administration of JusticeThe Egyptian kings were perhaps the first to delegate the administration of justice to judges starting around 2900 BCWe embraced the rule of law which is the principle that both the rulers and ruled are answerable to the law and both are prohibited from interfering with the independence of the courts which uphold the rule of law through their positions as independent arbiters of societal disputesThe function of the law is to regulate human behaviourLaw must be knowableLaw must be predictableEnglish common law tradition is a system of law wherein judges dispense justice on the basis of past custom and on the precedents built up over the years in proper legal findingsCanada also have a system of civil law mostly in Quebec o Based on roman law when the emperor Justinian ordered the consolidation of all lawJudges in a civil law system are more constrained in making judgements than in common lawThe civil codeQuebec a legacy of the early relationship between French and English after the conquest un 1759 is a key aspect of the distinctive political culture of the provinceThe Quebec act of 1774 made Canada a bijural country Several parts of the constitution relate to the courts o S 92 authorizes the creation of courts by the provinces which also appoint the judges o S 96 authorizes the creation of courts by the provinces but in this case judges are appointed by the federal government o S 101 authorizes the creation of courts by the federal government which also appoints the judgesThe SCC was established in 1875 but did not become the final court of appeal until 1949 o Consists of nine learned and senior justices appointed by the PM three judges from Quebec hear civil law casesThe US court system has two parallel independent sets of courts state supreme courts and courts of appeal for matters falling within state jurisdiction and federal district courts and court of appeal for matters of federal jurisdiction According to Fitzgerald and Wright there are three important and distinctive features of the Canadian court system 1 Most matters arising under federal or provincial law are dealt with by courts that are administered by the provinces 2 The judges of these courts may be federally or provincially appointed 3 All appeals from provincial appointed courts including matters of provincial law are heard by federally appointed judgesThe federal court of Canada consists of a trial division and an appeals division and its tasks were expanded to include federal administrative law cases concerning agencies boards commissions and tribunalsThe courts require supportive bodies and agencies to facilitate the formulation and implementation of law o Done through Dept of Justice header by an attorney general The dept of justice o Headed by a politician chosen by the PM to play a dual role as both minister of justice and the attorney generalo The minister is concerned with administration of justice in areas like criminal law family law human rights and aboriginal justice o As attorney general he or she must also act as the chief law officer of the crown with responsibility for conducting all litigation for the federal governmentSupporting the minister of justice is a deputy minister o Also performs dual roles o Manages the administration of the dept of justice and advises the minister regularly on matters affecting the depto Is also the deputy attorney general Some put dept of justice in the category of central agencyo One of the key responsibilitiesof the dept since 1982 is ensuring that new legislature is consistent with the charter o Some 17 regional offices across Canada that provide legal advice to federal depts and agencies outside of OttawaAccording to the justice dept its administrative responsibilities for law making involves these steps o Once cabinet has decided what new laws should be introduced during a session of parliament work beings on preparing bills o When the subject in question is the responsibility of a dept other than justice specialists in the dept work with justice lawyers who provide the legal expertise to draft the bill o Justice is consulted in the early stages of the work and continues to be involved through each step The constitution encapsulates the rule of law even though it is nowhere explicitly mentioned in the written documentation of the constitutionWhat is a ConstitutionFundamental law of a political systemProvides a set of rules for the peaceful and civilized resolution of conflicts over scarce resourcesMallory
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