Chapter 5 Flashcards
What is the difference between Public Law and Private Law?
Private - concerns relationships between state and civil society. Private law (eg. property, torts, and contract) concerns legal relationships between private persons and the rest of the principle that private person can create legal rights and duties between each other solely on the basis of consent.
What are the 6 foundational principals that structure public law in Canada?
- Rule of Law
- Constitutional supremacy
- Parliamentary supremacy
- Federalism
- Separation of power
- Judicial independence.
What is Rule of Law
All exercises of legitimate public power must have a source in law, and every state actor is subject to constraint of the law. pg 118
What is Constitutional Supremacy?
The Constitution if the supreme law of the society and any ordinary law that is inconsistent with the Constitution is of no force or effect.
What is Parliamentary Supremacy?
Subject to the Constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statue law and (generally) delegate any of its power as it seems fit.
What is Federalism?
Parliamentary supremacy in Canada is subject to the division of lawmaking powers or jurisdictions between a national Parliament and the legislatures of the provinces, as set out in the Constitution.
What are does Separation of powers mean?
Public power is exercised through three institutional branches at the federal and provincial levels - the legislature, the executive and the judiciary - and each branch has distinct constitutional functions.
What does Judicial independence mean?
The judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional functions.
Where are the six principles that underpin public law derived from?
The Canadian Constitution - both written and unwritten constitutional sources.
Why is the Quebec Secession Reference unique?
Confirmed that the Constitution has both written and unwritten components.
Which two documents can the “text of the Constitution” or “constitutional text be found in?
Constitution Act, 1867 - which set out terms of a federal system of government through the division of legislative powers between as national Parliament and the provincial legislatures.
Constituion Act, 1982 - encompasses the Canadian Charter of Rights and Freedoms (the Charter)
The Supreme Court of Canada Recognizes two principal sources of unwritten constitutional norms, what are they?
Constitutional conventions &
Unwritten principles of the Constitution
- share simular aspects differ in important respects, including the purposes they serve, their legal status and how they are derived or recognized
What is the main purposes of the Constitutional Conventions?
To ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principals of the period. pg 122
What are the requirements for Establishing Convention?
Precedents and usage are necessary but do not suffice
They must be normative.
We must ask ourselves three questions
1) what are the precedents?
2) Did the actors in the precedents believe that they were bound by a rule?
3) is there a reason for the rule?
A Reson for the Rule
is that the federal principle.
Canada is a federal union
Pg 123
