LEGAL FOUNDATIONS – CML 11011 FALL 2021 CYCLE 1 – INTRODUCTION TO AND CONTEXT FOR THE COURSE PRIMER ON INSTITUTIONS OF GOVERNMENT KEY TERMS – DEFINTIONS BELOW IN WHITE TEXT Three branches of government: Legislative: makes policy choices, adopts laws and holds the purse strings of government. Executive: implements and administers those policy choices and laws with the assistance of a professional public service. Judiciary: maintains the rule of law, by interpreting and applying these laws through the independent and impartial adjudication of references and disputes, and protects the fundamental liberties and freedoms guaranteed under the Charter. Responsible government The means by which the executive is held accountable to the legislature and is usually associated with the notion that those who run the executive must also sit in Parliament. Rule of law The rule of law, a fundamental principle of our Constitution, must mean at least two things: 1. Law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. 2. The rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Primary law / Statutory law + Regulations The legislature creates binding or enforceable primary law referred to interchangeably as “statutes” or “Acts”. A state or an Act is a type of legislation. The executive receives delegated power through statute to enact regulations. These must conform to the limits of rule-making power delegated by the legislature and to constitutional limits, too. DISCUSSION QUESTIONS – OWN ANSWERS IN BLACK, CLASS ANSWERS IN NAVY TEXT. What are some ways in which the Constitution limits parliamentary sovereignty? Statutes created by the legislative branch must respect the Charter, as well as Indigenous rights and treaties. If they do not, they can be declared unconstitutional by s. 92 courts which have statutory jurisdiction or struck from the books by s. 96 courts which have inherent jurisdiction. If criminal law is an area of federal jurisdiction under the Constitution, does that mean that all judges hearing criminal matters are federally-appointed? Why or why not? No because of section 92(14) of the Constitution Act, 1867 gives the provinces powers to administer justice by organizing provincial courts, “both of Civil and Criminal jurisdiction,” and to appoint and pay “provincial officers,” including judges of provincial courts. If the Ontario legislature enacted a law that a court subsequently determined to be a criminal law, of what constitutional doctrine would that run afoul? We would say that Ontario lacked the ____ to enact the law. It would violate the division of powers or federalism. We would say that Ontario lacked the Constitutional jurisdiction to enact that law. If the federal Crown (by which I mean…) is alleged to have infringed a constitutionally-protected section 35 right, would that implicate Aboriginal law or Indigenous law? The federal Crown – the head of the executive branch. Aboriginal law Source: https://www.canada.ca/en/immigration-refugeescitizenship/corporate/transparency/committees/inan-jan-28-2021/inan-section-35-consitutionact-1982-background-jan-28-2021.html With regard to Indigenous law, was treaty made on your home territory? If so, what do you know about that treaty? If you don’t know, please commit to find out. I grew up in Toronto, the site of Treaty 13 on the traditional land of the Anishnabeg, the Chippewa, the Haudenosaunee and the Wendat peoples. Treaty 13 was signed after many questioned the legitimacy of a previous treaty between the crown and the Mississauga of the Credit. In 1805 the Crown purchased approximately 250,000 acres for 10 shillings (the equivalent of $32 CAD today) while the Mississauga retained the exclusive fishing rights on Etobicoke Creek. In 1998, the Mississauga of the Credit filed a claim against the Government of Canada in which they alleged that the Crown had unlawfully acquired more lands than had been agreed upon, they also claimed that it had not paid a “reasonable sum for the land obtained in the 1805 agreement.” The claim was settled for 145 million. Sources: http://mncfn.ca/torontopurchase/ https://www.theglobeandmail.com/news/national/band-offered-145-million-for-land-lost-in1805/article4303879/ Can anyone unhappy with the decision of their provincial appeal court proceed directly to the Supreme Court of Canada, the ultimate arbiter or umpire? Explain. An appeal is a creature of statute, there is no “automatic” right. Some criminal cases have “an appeal as of right” go directly to the SCC by right, but most cases have to ask the SCC to grant “leave” to appeal it. It applies section 40 of the Supreme Court Act. SCC will only do so if: “is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it”. What does it mean that judges within a jurisdiction must treat like cases alike? In what ways are cases alike or unalike? Judges in lower courts are bound by higher court precedent if the earlier court applied similar facts to the same legal rule to answer a similar question. We say, in a system of precedent, that “like cases must be treated alike”. Who appoints judges to the Ontario Court of Appeal? Explain. The Federal Government - ? If a statute reads: “The Governor in Council may make regulations regarding…”, who has the power to act and are they enacting primary law? Refers to the Governor General, who receives counsel from cabinet – the head of cabinet being the Prime Minister, and yes, they are enacting primary law. These are binding because there is a consequence for the breach of regulation – and yes there would be. What is responsible government? Does it mean that Canada does not have a separation of powers? Responsible government refers to the means by which the executive is held accountable to the legislature and is usually associated with the notion that those who run the executive must also sit in Parliament. The term “separation of powers” is not mentioned in the constitution explicitly. But there still exists a separation of powers, responsible government refers to how the different branches are interconnected. PRIMER ON THE CROWN PRIMER ON COURT HIERARCHY, JURISDICTION, AND PRECEDENT FIRAAC CASE BRIEF TEMPLATE FACTS • ISSUE(S) RATIO ANALYSIS APPLICATION CONCLUSION NOTES DETAILS
