Legislation -Pre Midterm

Question 1

What is law?

Answer 1

A rule that a particular country or society creates and recognizes as regulating the actions of it’s members and enforced by governments

Question 2

There are 2 sources of law:

Answer 2

1. Legislation/statutes
	• Laws made by governments
	• A written law
	2. Case law/common law
Laws made by judges/courts

Question 3

Statutes or legislation are laws created by 3 levels of government:

Answer 3

1. Federal -Canada wide
   • Called “acts’ or “codes”
   
   2. Provincial -applying to that province
   3. Municipal -applying to a particular city or town
      Called “by-laws”

Question 4

How are laws made? Parliamentary process (federal)

Answer 4

• To make a law
• To change a law
To repeal a law

Question 5

Federal parliamentary process:

Answer 5

• Governor general gives royal assent

Creates acts or codes

Question 6

Provincial process

Answer 6

• Similar but no senate review and lieutenant governor signs to finalize
Creates acts or codes

Question 7

Municipal process

Answer 7

• Similar to provincial but municipal clerk signs

Creates by-laws

Question 8

Legislative Authority

Answer 8

Governments can only act of they have legislative authority (intra vires)- otherwise ‘ultra vires’ = acting outside their authority

Question 9

Where does the authority to make laws come from?

Answer 9

• The constitution act, 1867 since 1982
• The constitution is the fundamental legal basis for government authority and by which government is organized
• Paramount legislation - Primacy of the constitution of Canada - s. 52.(1) constitution act, 1982 Framework upon which the rest of the legal structure is built
Directs how power should be shared between governments

Question 10

The division of power

Answer 10

how law making power is shared between governments - sections 91 & 92, constitution act, 1867

Question 11

Section 91 - list of federal powers/exclusive law-making jurisdiction

Answer 11

• Powers listed - “enumerated powers”

Plus over-flow provision - if it is not listed elsewhere then belongs to the feds

Question 12

Sections 92, 92A, 93, & 109 - list of provincial powers/exclusive law making jurisdiction

Answer 12

Provincial catch-all provision - enumerated ground #16 - “Generally all matters of merely local or private native in the province.”

Question 13

Amending formula to change to constitution

Answer 13

• Requires federal government and 2/3’s of the provincial governments for change to occur
Which equals the feds and 7 of 10 provinces and the 7 provinces must contain at least 50% of the population of Canada

Question 14

Legal Citation

Answer 14

to direct someone looking for a statute to the right book & chapter by giving ‘co-ordinates’ about where to find it

Question 15

Organization of a Statute

Answer 15

• Short title - how you refer to the statute e.g. Criminal code of Canada short title is Criminal code
• Preamble - the overall purpose
• Parts - often not always - Part 1, Part 2, etc. as a way to organize a statute
• The substance of the law is written in sections like this - section175(1)(a)
○ Sections e.g. 175
§ Subsections e.g. (1)
□ Clauses e.g. (a0
• Sections may also be numbered like
• Definitions - at the beginning or in the section
• Language Interpretation
○ “shall” “may” “and” “or”
• Legal presumptions- things presumed in the body of the legislation often indicated by phrases like “absent evidence to the contrary”, “shall be deemed to” and other language that lets the reader presume a fact unless contradicted
Entitlements, penalties & remedies e.g. maximum/minimum sentences, fines, compensation, reinstatement, and other outcomes

Question 16

Regulations

Answer 16

• Statutes often provide for the creation of regulations by an appropriate government minister
• Regulations are in areas that allow for the operationalizing of the statute
Do not require the level of review necessary for enacting, changing or repealing a statute