DCC2118 - General Public Law Flashcards
Define General Public Law
- A law created by the Constitution that applies to everyone
- defines the organizations and function of the state
- rules and laws regulated by the country that may enforce consequences
What’s the Constitution?
- a bunch of different documents that collectively make up the highest
levels of Canadian law
-1867 constitution sets out the provincial
heads of power. Generally, matters affecting a single province fall
under provincial jurisdiction.
- Examples include taxation in a province, the establishment and
tenure of public officials in a province and the incorporation of
companies in a province
When was The ratification of the British North America Act?
1867 (confederation)
What other colonies were constituted in their turn as Dominions
- Australia (1901),
- New Zealand (1907),
- The Union of South Africa (1910),
- Newfoundland (1919), and
- The Irish Free State (1922)
What is The Statute of Westminster? And when was it created?
-1932
- Legislative equality with Britain.
* A full legal freedom except in areas of
Dominions’ choice.
* The powers of Canada’s Parliament and those
of the other Dominions
What is the British North American Act
- Created the Dominion of Canada,
- Provided for the union of three of the five
British colonies into a federal state, - Determined which powers are given to
Parliament and to the provinces, - The Constitution Act, of 1867 does not make up
all of the Constitution of Canada.
Describe Confederation
- The union of the three colonies: Nova Scotia, New
Brunswick, and the province of Canada. - Later, the province of Canada was divided into Ontario and
Quebec. - Newfoundland and Nunavut were the last ones to join
What is the Patriation of the Constitution
-1982
-Transfer the Constitution Act, of 1867 from the
authority of the British Parliament to
Canada’s federal and provincial legislatures
* A new amending formula, and
* The Charter of Rights and Freedoms
1920s Canada’s governments had been trying and failing to agree on a way to patriate and amend the country’s original constitution
2 important factors
- The failings of a half-century of diplomacy between federal and provincial governments made negotiations between the two very difficult
- An unexpected victory for Pierre Trudeau and the liberal party in Feb 1980
This meant the liberal party led the charge
Whats different about the Consistution act of 1982
- Canada’s full legislative independence from
the United Kingdom - No further British acts of Parliament will apply
to Canada - The power amendment to the constitution
What are Constitutional conventions?
- Are unwritten rules
- Are not enforced by the law courts
- Are binding rules of constitutional behaviour
- Conventions shape the relationship between the
executive and legislative authority - Conventions exist to protect some principles of the
constitution that would be negatively impacted. - Conventions have a complex relationship with
constitutional instruments, as they can interact with
the text of the Constitution in different ways
How do de Recognize a
constitutional Convention
The Supreme Court of Canada, in two related references,
determined those circumstances in which a court can declare
the existence of a conventional rule:
* Test of three criteria:
- there must be precedents,
- the actors must believe that they are bound by the rules, and
- there must be a rationale for the ru
What is an Imperial conference/statue?
-Power to amend Canada’s constitution be excluded from the provisions of the statute and Canada should thus square its autonomy at the same time with its other dominions and find a solution later
-Thus the British were asked to retain the power to amend the Canadian constitution
-Therefore the Canadian parliament was in charge of developing their own solutions on how to amend this constituting
Reasons for Confederation
- The violence of the Civil War took many British North Americans
- Saw a weak central government in the us
- This inspired the strong central government of the north
- Protection of US trade policies
- Fears of American aggression and expansion
- British increasing refusal to pay for the defence of the north
Define the Rule of Law
- It is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power
- It is a collection of ideas that govern how we all relate to each other
- Constitution Act, 1982: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law
Why does the Rule of Law matter?
-the Rule of Law was a
fundamental principle of the Canadian
Constitution and that the Criminal Code was part of a system of “positive laws” that governs in Canada and cannot be overridden
Elements of the Application of the Rule of Law
The rule of law in the SCC
The Supreme Court rejected the use of the principle of the rule of law to provide for broader versions of certain rights
— notably, for the prospectivity of legislation and for fair
trial rights — then provided under the Charter. It observed
as well that the rule of law must be considered in
conjunction with other unwritten principles, democracy
and constitutionalism
-The SCC found that the unwritten principles of the rule of
law, the independence of the judiciary, and the separation
of powers must be balanced against the principle of the
sovereignty of Parliament
What is The principle of legality at the
International level and describe them
- The Charter of the UN
2.The Universal Declaration of Human Rights (1948) - The Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
4.the International Covenant on Civil and
Political Rights (1966)
What is the principle of legality?
- nullum crimen sine lege = No crime withought Law
The rule of law in Canada: between formal and substantive conceptions:
- Procedural democracy
existence of certain procedures (eg. regular elections) - Substantive democracy
the outcome of elections is representative of the people
What is Discretionary power?
Statutory Discretion
- Discretion exists whenever a statutory decision-maker has the power to make a choice among possible courses of action or inaction
Principles developed by courts to ensure that the exercise of discretion by statutory decision-makers takes place in accordance with the law are:
- To exercise the discretion for the proper statutory purpose, and
- To exercise the discretion in an independent
manner
Discretion - Ground of review
- Error of law
- Bad faith
- Irrelevant ground or improper purpose
- Failure to consider a relevant ground
- Fettering discretion
- Discrimination
- Discretion exercised according to the Charter
- Unwritten principles of the Constitution
Describe/explain arbitrary power
When power is used arbitrarily, it is when it is used beyond what has been authorized or when it is used for something else entirely
- “Arbitrary” refers to something that is decided on a whim or by judgement rather than following a set of rules or particular logic.
- An arbitrary government is a government that is the court
of last resort. What the government says goes, no questions are asked.
Example: Laws limit a person`s arbitrary power to do what they want,
regardless of the harm they may cause to others.
It requires that laws be known or
ascertainable to citizens, and ensures that laws are applied consistently to each citizen, without favouritism, thus ensuring the legitimacy of state exercise of power
What is Judicial Review and what are the two types
Judicial review on administrative acts
- Judicial review on the constitutionality of legislation.
- Judicial review involving the actions of the executive branch of government
Judicial review involving the actions of the legislative branch
* Judicial independence
What are examples of Natural justice and procedural fairness?
Common rules
- Notice
- Disclosure
- Opportunity to present one’s case
- Opportunity to respond
- Duty to consider all of the evidence
- Right to counsel
- Right to an interpreter
- Legitimate expectation
- Right to impartial decision maker and freedom from bias
- Audi alteram partem = let the other side be heard as well
