Public Law I: September 16, 2005

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Title: Public Law I: September 16, 2005

1
Public Law ISeptember 16, 2005

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)

2
Hohfeldian Scheme (p. 17 Gall)

If theres a legal right held by one person,
theres 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 theres discretion, theres no right.

3
Divisions of Law

Divisions of law
Positive (written) law divided into domestic and
international
Domestic law divided into substantive, and
procedural (or adjectival eg. a courts 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)

4
Sources of Law

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-but-not-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.

5
Terms and Concepts

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
What's the difference between negative and
positive law?
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
a branch of critical theory, which examines
institutions from the perspective of class
analysis. (often very cynical about law)

6
British Legal Tradition

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.

Imperial statutes (Br laws applying to whole
empire) remained in force until Statute of
Westminster, 1931.
Development of common law courts (kings 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.

7
Canadian Court Structure

8
Adjudication

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.)

9
Judicial Independence

Valente decision (1985)
Security of tenure (cant be removed unless
theres been a judicial inquiry)
Financial security (a right to a salary high
enough to discourage bribes that cannot be easily
tampered with by govt)
Institutional independence (judges control
administrative matters directly related to
adjudication).

10
Judicial discipline

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

11
Appeal courts

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

12
Constitutional Crisis of 1981/82

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 govt
elected in Alberta, and Quebec premier couldnt
get cabinet to agree.
Alberta suggested an alternative Parliament,
and 2/3 of provinces representing 50 of Canadian
population.