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Chapter 1

ADMS 2610 Chapter Notes - Chapter 1: Precedent, Royal Assent, Substantive Law

Administrative Studies
Course Code
ADMS 2610
Robert Levine

of 8
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1. What impact does the Canadian Charter of Rights and Freedoms have on rights and
freedoms not mentioned specifically in the Charter? Could these "other rights and
freedoms" be curtailed or extinguished by governments?
Answer: The Charter recognizes the existence of other rights and permits them to continue
except where they conflict with Charter rights and freedoms. Rights outside the Charter do
not have Charter protection, and may be abolished or encroached upon by governments.
2. What is the difference between a "right" and a "privilege"?
Answer: A right is an act that may be done with impunity and with the support and
recognition of the state. The state recognizes a right as something which neither it nor
others may deny. A privilege is something which the state allows or permits under specific
circumstances at the pleasure of the state.
3. Why are "rights" and "duties" often considered together when one thinks of laws?
Answer: Because "rights" often permit a person to do something that interferes with
others, laws generally include obligations or duties on the person possessing a right to
exercise the right in a particular way to minimize interference with others. Laws may also
include duties on those affected by the exercise of a right to permit the right to be exercised.
4. Could a society exist without laws? If not, why not?
Answer: A complex society certainly could not exist without laws, as some means of
regulating the activities of people would be necessary to maintain order. Even in a primitive
society, rules regulating fairness in vengeance matters were necessary.
5. "Advanced civilizations are generally characterized by having a great many laws or statutes
to control the activities of the citizenry." Comment on the validity of this statement.
Answer: This is a valid observation. Advanced civilizations are characterized by persons
engaged in activities which involve a great deal of social contact and interaction.
Historically, they have also involved many people living in close proximity to each other (in
cities). Each type of social interaction usually requires some legislative control, hence, the
more interaction, the more laws that are required.
© 2009 Copyright by McGraw-Hill Ryerson Limited
6. On what basis are Charter fundamental rights and freedoms open to restriction by
Parliament or the provincial legislatures?
Answer: Fundamental rights and freedoms may be restricted under s. 1 if the restriction can
be shown to "be demonstrably justified in a free and democratic society." Rights and
freedoms may be "temporarily" overridden by the "notwithstanding" clause (s. 33) as well.
7. Why is the doctrine of stare decisis an important part of the Common Law system?
Answer: The doctrine of stare decisis is the theory of precedent. Judges are expected to
apply previous decisions to similar cases which come before them in order to maintain a
degree of consistency in the law. By following this doctrine, the law is not only consistent,
but others can predict how the law may be applied in similar.
8. How does the Common Law differ from the principles of equity? From statute law?
Answer: Common Law and equity have different roots. The common law was the product
of the common law courts. The principles of equity were originally principles or rules which
the King applied in settling disputes which did not fall within the jurisdiction of the common
law courts. Later, the King's Court (Chancery) used the same and other principles in order
to provide fair and just results. At present, the courts may apply both common law and
equity, but where conflict exists, equity prevails. Equity differs from statute law in the sense
that statute laws are written or codified laws, whereas the principles of equity are found in
the recorded judgments of the courts.
9. How does a legislature establish a new law? Explain the procedure.
Answer: The usual process is as follows:
a. A bill (essentially a proposed law) is presented to a legislative body (Parliament
or provincial legislature).
b. A motion is made (and passed) to have the bill 'read' a first time.
c. The bill is then printed and circulated to the members to study.
d. The bill is later brought forward for debate (second reading) in principle.
e. If the bill passes the second reading stage, it is sent to a Committee for study and
amendment on a clause by clause basis.
f. Once passed by the Committee, the bill is reported in final form by the Chair of
the Committee for a third reading.
© 2009 Copyright by McGraw-Hill Ryerson Limited
g. The bill is then debated for a final time by way of a motion to have the bill read a
third time.
h. If passed by a majority vote, the bill at the federal level goes to the Senate where
a similar process is followed.
i. Once a bill has been passed by the House of Commons and Senate (or a
provincial legislature) it goes to the Governor-General (or Lieutenant-Governor,
if provincial) for royal assent.
j. The bill becomes a law on receipt of royal assent, and effective as a law when
proclaimed in force.
10. Define substantive law, and explain how it differs from procedural law.
Answer: Substantive law - law which sets out the rights and duties of individuals and
corporations. Procedural law - law which set out the procedure whereby substantive laws
are enforced.
11. Describe the difference between the Common Law and the Civil Code of the Province of
Quebec. What are the relative merits of each system?
Answer: Common Law consists of the recorded judgment of the courts. The civil code is a
written body of law. Merits of civil code: laws are written down and may be consulted to
determine what the law is. The law can be changed by statute amendment and kept up to
date by the legislature if change is warranted. Merits of Common Law: flexible, as judges
may change it through interpretation, or by distinguishing the case at hand from the
precedent. Adaptable to changing social attitudes.
12. "The supremacy of the state was reached when it managed to exercise a sufficient degree of
control over the individual to compel him or her to use the state judicial system rather than
vengeance to settle differences with others." Why was it necessary for the state to require
this of the individual?
Answer: When the state lacked the power to control its citizens, individuals used their own
means to resolve disputes, as it was the only method whereby a person could obtain redress.
Vengeance, however, often disrupted the entire community, and affected others not involved
in the dispute. Once the state had the power to compel citizens to obey its decrees, it could
substitute orderly procedures for settlement which caused less disruption to the community
than vengeance.
13. How does a "regulation" made under a statute differ from other "laws"?