Illegal Music:

“What It's All About”

from
Feed the Animals

by
Girl Talk
Virtual Campus

coming soon…
 Last class:

The Case of the

Speluncean Explorers
Legal positivism
John Austin (19 C)
th

“Law is the command

of the sovereign”
 Today:

The Structure of the

Canadian Legal System
Monarch
Constitution
Entrenched statutes

Organic statutes

Court decisions

Unwritten aspects
 Unwritten Aspects

* Conventions
* Principles
* Democracy
* Federalism
* Rule of Law
 Unwritten Aspects

* Conventions
* Principles
* Federalism
* Democracy
* Rule of Law
 Quebec Secession
Reference,
[1998] 2 S.C.R. 217
Federalism
Constitution Act, 1867,
ss. 91 and 92
Section 91
It shall be lawful for the Queen, by and with the
Advice and Consent of the Senate and House of
Commons, to make laws for the Peace, Order,
and good Government of Canada, in relation to
all Matters not coming within the Classes of
Subjects by this Act assigned exclusively to the
Legislatures of the Provinces; and for greater
Certainty, but not so as to restrict the Generality
of the foregoing Terms of this Section, it is
hereby declared that (notwithstanding anything
in this Act) the exclusive Legislative Authority of
the Parliament of Canada extends to all Matters
coming within the Classes of Subjects next
Section 91 (continued)
Criminal Law
Banking
Sea Coast and Fisheries
Currency
Military
Marriage & Divorce
Patents of Invention and Discovery
Copyrights
POGG (Peace, Order and Good Government)
Section 92
In each Province the Legislature may
exclusively make Laws in relation to
Matters coming within the Classes of
Subject next hereinafter enumerated; that
is to say,
Section 92 (continued)
Property and civil rights
Solemnization of marriage
Health care
Education (s. 93)
 Parliamentary
Supremacy

Legislative Branch

Executive Branch Judicial

Branch
Responsible
Government

Executive
accountable to
Legislature
 Judicial Branch

Executive and Legislature

accountable to
Judiciary
Canada’s Court System
* Courts of inherent jurisdiction
* Courts of statutory jurisdiction
* Administrative tribunals
 Now
who is the
most powerful?
Democracy
 Democracy
American-style = people
sovereign
Canadian-style = government
sovereign
 Democracy
American-style = people
sovereign
Canadian-style = government
sovereign
 Democracy
must be
balanced with
Federalism, Rule of
Law,
and other
Constitutional
Principles
Rule of Law
Rule of Law John
Locke
* Rules must be “settled”,
“standing”, “declared and
received”

* No ad hoc laws
Rule of Law A.V.
Dicey
* No one can be punished
“except for a distinct breach
of law established in the
ordinary legal manner before
the ordinary Courts of the
land”

* No one is above the law

Rule of Law
Constitution Act, 1982

Whereas Canada is founded

upon the principles that
recognize the supremacy of
God and the rule of law:
 Rule of Law Roncarelli
v. Duplessis,
[1959] S.C.R. 121

Rule of Law limits discretion of

state actors
Rule of Law R. v.
Catagas,
[1978] 1 W.W.R. 282, 81 D.L.R. (3d) 396, 38 C.C.C. (2d) 296, 2 C.R.
(3d) 328
Rule of Law R. v.
Catagas,
[1978] 1 W.W.R. 282, 81 D.L.R. (3d) 396, 38 C.C.C. (2d) 296, 2 C.R.
(3d) 328

Rule of Law incompatible with

“dispensation”

But what about discretion?

 Rule of Law Lon
Fuller
1. Law must be general – not specific;
2. law must be public – not secret;
3. law must be prospective – not
retroactive;
4. law must be clear – not vague or
ambiguous;
5. law must be consistent – not
contradictory;
6. law must be followable – not
unfollowable;
 For next class:


Readings: History: pp. 36-45 and
45-72