Sources of Law (Week 8)

Question 1

What is meant by the Charter revolution?

Answer 1

Parliamentary supremacy 2 constitutional supremacy

Laws and gov action must be consistent with the rights in the constitution

Question 2

What are the two parts to the Oakes test?

2 meet the second requirement what test in conducted? what are its requirements?

Answer 2

1. is there a violation
2. is it justifiable in a free and democratic society
   Proportionality test
   - rational connection between leg means and ends
   - impair the rights as little as possible
   - proportionality between measures and the objectives

Question 3

What happened in the R.V Oakes test?

Answer 3

Reverse onus - to prove he was not intending to traffic drugs was a violation of his charter rights (s. 11 - presumption of innocence and fair trial)
Oakes was right - failed the proportionality test

Question 4

What is the doctrine of progressive interpretation?

Answer 4

Constitution as living tree (persons case), capable of growth and expansion within natural limits

Question 5

What happened in Toronto v Attorney General of Ontario?

Answer 5

Duggy cut council in half - city challenged
Law interfered with s. 2 - expression
Cannot be justified
Not ultra vires

Question 6

What are the principle sources of canadian law?

Answer 6

1. Statutes (parliament/legislatures)

2. Case Law (Judicial decisions - common law)

Question 7

What are the two dangers of judge made law?

Answer 7

1. Misinterpretation of parl = loss of legitimacy

2. Reversal of part decisions = consistency and predictability?

Question 8

What are two subsidiary sources of Canadian law?

Answer 8

Customs - presents in constitutional law, and international law
Books of authority - secondary sources that judges can turn 2 for guidance

Question 9

What is true about legislatures and politics?

Answer 9

Need not be justifiable but politically accountable

Question 10

What are the functions of legislatures according to vago and nelson?

Answer 10

1. Conflict management - compromise/negotiation
2. Integrative - speak on behalf of all Canadians
3. Special relationship with first nations - continuing rights, negotiation, self-government

Question 11

Who influences lawmaking?

Answer 11

Legislators and lobbyists

Question 12

What are the pre-law stages of activity?

Hint: there are 6
Double hint: IIFIMM

Answer 12

1. Investigation and publicizing of problem (making a “crisis”)
2. Information gathering (formulation)
3. Formulation (legislative remedy)
4. Interests-aggregation (deal-making) –link to conflict res
5. Mobilization (interest groups) –link to conflict res
6. Modification

Question 13

What are the functions, merits and troubles associated with administrative law?

Answer 13

Functions - investigation, rule-making, adjustment, enforcement
Merits - speed, informality, flexibility, expertise, and continuous surveillance of industry/relation
Trouble - regulatory capture, inaccessible, informality

Question 14

What are the problems associated with judicial lawmaking?

Answer 14

1. Rigid - courts tend to be conservative (space for innovation is narrow)
2. What is the source for the court’s legitimacy?
3. Translation issues - misinterpretation of intentions of legislators, reversal, courts may need to reverse past decisions