Public Law I:
September 16, 2005
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Basic concepts regarding the Canadian
Legal System
The Canadian court structure
Course kits will be for sale ($50) at the
end of class, or you can buy them from
the Keele Copy Centre, 4699 Keele St.,
416-665-9675, or Glendon poli sci
office. (NOT available at bookstore)
Hohfeldian Scheme (p. 17 Gall):
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If there’s a legal right held by one person,
there’s a duty for someone else (usually a
public official). For a right to exist, there is
always a correlative duty. Use legal terms
precisely and carefully.
If there’s discretion, there’s no right.
Divisions of Law
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Divisions of law:
Positive (written) law: divided into domestic and international
Domestic law: divided into substantive, and procedural (or
adjectival – eg. a court’s rules of procedure)
Positive domestic law: divided into public and private
Public law: criminal, administrative, constitutional, tax
Private law: most important divisions are contracts, property
and torts (private wrongs); many other types as well (see Gall)
Common law system compared with civil law system
deductive (civil) vs. inductive (common); weight of
precedent; reports of framers & la doctrine (civil)
Sources of Law
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Main sources of law:
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Written constitution (s.
52(1) of CA, 1982
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statute law (laws created
by legislatures)
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case law (created by
judges)
Other (informal) sources that
inspired both statute and case
law: Ten Commandments,
Magna Carta (1297), Roman
law, canon law, writings of legal
scholars (eg. Coke 1552–1634,
and Blackstone 1723-1780),
community standards (eg.
obscenity cases), Hogg's text,
constitutional conventions
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ratio decidendi and obiter
dicta
common = general
common law judges "find" the
law
Constitutional conventions
Parliamentary Sovereignty or
Legislative Supremacy (same).
Separation of powers
Aggregate legislature can do
anything. Seven-fifty-formula;
unanimity formula; some-butnot-all formula; provinces alone;
feds alone
Crown prerogative: residue of
discretionary power. Crown
privilege: the claim that the
crown my decide not to present
documents ordered by judges,
H of C or Senate.
Terms and Concepts
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primary (enacted by a sovereign legislature) and
subordinate legislation (eg. Orders in Council, city
bylaws, CRTC regulations)
Manner and form requirements for judges to recognize a law
What are "legal persons?”
People, corporations, and governments
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What's the difference between negative and positive law?
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Negative law: prohibited from certain behaviours (crim. law)
Positive law: positive incentive to change behaviour (tax deductions for
donations to political parties) [NOT same sense as judicial positivism]
Critical Legal Theory
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a branch of “critical theory,” which examines institutions from the
perspective of class analysis. (often very cynical about law)
British Legal Tradition
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Reception: All English statutes enacted
prior to reception are law in Canada,
unless changed in Canada. Date of
reception based on when a colony
established a legislature, or set by
statute.
NB & NS: 1758
Quebec: 1759: French civil law.
1763: English public law
PEI: 1763
Ontario: 1792
Newfoundland: 1832
BC: 1858
Man, Alta., Sask: 1870.
Federal gov't: date depends on
when federal laws were inherited
from former colonies. Eg. Quebec,
1763; Ont. 1792.
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“Imperial” statutes (Br laws applying
to whole empire) remained in force
until Statute of Westminster, 1931.
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Development of common law courts
(king’s bench, common pleas) and
courts of equity (remedies other
than damages or punishment –
writs, injunctions). Merged in
1880s.
Preamble to BNA Act: implied Bill of
Rights
Barristers and Solicitors
Judicial Committee of the Privy
Council (JCPC); 1949.
England: specialized appeal j's;
Canada: generalist appeal j's.
Canadian Court Structure
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____________________________
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Supreme Court of Canada
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9 judges
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|___________________________|
_____________________|
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____|___ ____|____
________________|________
federal |
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| federal
appointments | Tax | | Federal |
| 10 provincial & 3 territorial | appointments,
& admin. | Court | | Court
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courts of appeal
| provincial
| 22 js | | 39 js
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128 judges
| administration
|______| |________|
|_______________________ |
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_____________ |______
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federal
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appointments | provincial superior
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provincial
| trial courts
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administration | 829 judges
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|__________________ |
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|___________________|
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___________ |__________
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(All counts as of 2001)
provincial | pure provincial and
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appointments | territorial courts
|
& admin. |
984 judges
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|______________________|
federal appointments
and administration
Adjudication
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Adjudication involves an independent,
impartial and qualified judge authoritatively
settling a dispute, according to law, with
reasons. Usually, decisions can be appealed.
Other forms of dispute resolution: combat,
negotiation, mediation, arbitration. (ADR
refers to alternatives to the courts –
especially mediation and arbitration.)
Judicial Independence
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Valente decision (1985)
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Security of tenure (can’t be removed
unless there’s been a judicial inquiry)
Financial security (a right to a salary high
enough to discourage bribes that cannot
be easily tampered with by gov’t)
Institutional independence (judges control
administrative matters directly related to
adjudication).
Judicial discipline
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For provincially-appointed judges:
complaints can be sent to the Provincial
Judicial Council (usually composed of
the Chief Judges and Justices in the
province)
For federally-appointed judges: the
Canadian Judicial Council investigates
complaints
Appeal courts
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Minor appeals heard by a single judge in a higher
court (summary conviction appeals)
Major appeals heard by the provincial Court of Appeal
Ontario has about 18 Court of Appeal judges; usually
they sit in panels of 3 (sometimes 5)
The Federal Court (Appeal Division) has about a
dozen judges; hear cases in panels of 3.
Supreme Court (9 judges) most often hears cases in
panels of 7; sometimes panels of 5 or 9.
per curiam (or per coram) vs. seriatim decisions
Constitutional Crisis of 1981/82
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1867: Canada independent re its internal affairs
Balfour Declaration (1926) and Statute of Westminster (1931):
Canada recognized as an independent state re foreign relations
BNA Act (1867) was an imperial statute, therefore could only be
amended by British Parliament. 1926-1981: many failed
constitutional conferences.
Victoria Charter nearly successful (1971): Amending formula
would include Parliament, Ontario, Quebec, 2/4 Western
provinces, 2/4 Atlantic provinces. Failed when a new gov’t
elected in Alberta, and Quebec premier couldn’t get cabinet to
agree.
Alberta suggested an alternative: Parliament, and 2/3 of
provinces representing 50% of Canadian population.