pols-2350 final exam

• politics is bound by law

• law is shaped by politiics

statutory law:

• the outcome of the law can be affected by politics (HoC)

politics of judicial appointment:

• the process of being appointed as a judge is political

judicial decision-making can be political:

• attitude, gender, subjectivity, ideology of the judge

primacy of legal norms and instruments:

• law trumps the wishes and interests of politicians

• must go through legal processes to become the law

constitutional supremacy:

• if a bill goes against the constitution or charter it is irrelevant

legal rules can be inhibiting argument stoppers

• judicial decisions create precedent and affect the political processes

it is possible for them to coexist effectively together

political power can only be exercised through institutions and processes and therefore, in part at least through the medium of law

• law can only restrict most of the time not all the time

• Weber

• primary approach in the US until 1930s

• law is the main thing that determines an outcome

• is independent and has its own internal logic

• lacks humanistic qualities

• Schmitt

• refutes the main underpinnings of formalism in reaction to formal decision making and judges

• can be manipulated and changed in any way you wish in accordance to who is shaping it

• everything is relevant to social behaviour

• non-legal factors are more important than legal factors

• John Austin and Hart

• law is separate from morality

• relationship between the sovereign and individual citizens

• four elements of law: body of rules, enacted and applied by public officials, formulated by legitimate means, backed by state means

• problems with segregation (Hitler)

• John Locke and Thomas Aquinas

• law is enacted with morality

• two key procedural protections: nemo iudex in causa sua and audi alteram partem

• doctrine about impossibility: protects from contradictory laws

• if there are not external principles that are followed it cannot be law

• three important things about natural law: rationality and logic, due process, civil disobedience

nemo iudex in causa sua:

• no one should be the judge of their own case

• there needs to be an impartial judge

• no conflict of interest

audi alteram partem:

• listen to the other side

• you need to have the opportunity to be heard

1. rationality and logic

2. due process (charter)

3. civil disobedience (Martin Luther King)

- not consenting to the law and contesting it

- claiming it is unjust- Gandhi, Mandela, Martin Luther King

nonsense that is framed as the law by using advanced working or legal jargon

Schauer:

- doing things that we don't want to do

- restrictions to our behaviour for the benefit of the state

Hart:

- law often empowers rather than coerces

• we can get rid of material things but not the idea

physically:

- we have a physical being in the world

legally:

- we would still exist if we didn't have a physical form (passport, SIN)

physically:

- do not have a physical being

legally:

- they exist in ideation as they can enter contracts, experience harm etc.

political power is highly complex but can only be exercised through institutions and processes

in order to understand legal processes, one must be aware of the political, economic, and social contexts in which law arises, changes and persists

public and private law

- the state is directly involved (usually a party)

- constitutional, criminal, administrative, taxation law

- non-state actors involved in a dispute (corporations or citizens)

- contract, tort, property, family, estate, corporate law

- actions between private citizens

- criminal law

- administrative law

- tax law

- quasi-criminal

- administrative law

- tax law

- family law

- copyright law

- commercial law

- private claims against the Crown

- family law

- tort law

- contract law

- commercial law

when it is a private matter in Quebec (tort, contract)

1. constitution - the supreme law

2. statutes - enacted by legislation

3. common law/regulations - borrowed authority

reasonable limits clause

fundamental freedoms:

1. freedom of religion

2. freedom of expression

3. freedom of assembly

4. freedom of association

democratic rights:

3 - right to vote

4 - maximum duration of legislative bodies

5 - annual sitting of legislative bodies

mobility rights

legal rights:

7 - life, liberty, security of the person

8 - unreasonable search or seizure

9 - arbitrary detainment or imprisonment

10 - rights under arrest or detention

11 - proceedings in criminal and penal matters

12 - cruel and unusual punishment

13 - rights against self-incrimination

14 - right to an interpreter

equality rights

language rights:

- official languages of Canada

- minority language rights

minority language educational rights

enforcement rights

aboriginal rights and freedoms not affected by charter

other rights and freedoms not affected by the charter

the notwithstanding clause

federal government responsibilities

provincial government responsibilities

the supremacy clause

- the constitution is the supreme law of Canada

- laws inconsistent with it are of no force or effect

- it is an inclusive definition (things not explicitly stated)

- adoption of responsible government

- creation of s.91 and s.92 in the charter

- ultra vires vs. intra vires

- general commitment to the rule of law and God

- charter of rights and freedoms

- conventions

- were the measures that were taken constitutional

- interprovincial jurisdiction: provinces closing their borders which might have been unconstitutional

- travel is federal jurisdiction (provinces acting outside their jurisdiction)

- yes

- he can see where things could get cloudy

- federal government responsible for intra-provincial

- could be against the charter

- Nova Scotia wanted Cabinet to have the authority to create and execute laws

- this did not go through

- written law passed by a legislative body

- passing new or amending existing acts/statutes

- by-laws are created by municipalities

federal: 1985

provincial: 1990 - if it is newer than the consolidation date, that was the year the bill was enacted

- if it is the consolidation date, it existed previously and was updated

- delegated legal authority

- they are legally binding but are not laws

- danger of overregulation

- Criminal Code of Canada

- Income Tax Act

- Emergencies Act

- Highway Traffic Act

- Liquor Control Act/Liquor License Act

- Residential Tenancies Act

dispute resolution

- 3rd party person interested in helping the individuals involved come to an agreement

- not biased and agreed upon by both parties

- encourage discussions (decisions are not legally binding)

- selected by both parties

- licensed individual

- their decisions are legally binding

- impartial

- cannot select your judge

- their decisions are legally binding

civil law and common law

- judge-made law (case law)

- Canada uses common law systems (except for Quebec)

- uses precedent and stare decisis and judicial hierarchy

- defined as civilian law (codified law)

- follows the 'rule book' of the law

- applying the rules to disputes as they emerge

we use both common and civil law

- determine if it is federal or provincial

- automatically common law, unless it is a tort or contract case happening in Quebec, then it is civil law

the statute trumps the common law rule

- accepting past judgements

- treating like cases alike

'to stand by decided matters'

- consistency within the law

- treating like cases alike

- core of the judicial process

- adjudicate disputes by applying the law to the facts of the dispute

- accepted by both parties as it is impartial

- court marshall (military law)

- federal court of appeal (federal jurisdiction and federal courts, must be stated that this goes to federal court)

- court of appeal (provincial wings, more popular)

3 judges from Quebec

3 judges from Ontario

2 judges from western provinces

1 judge from atlantic provinces

the federal government

the federal government

one

- it can cause exceptions

- court of the first instance often through this court

- single judge

yes, they have federal supreme court and state supreme court

a procedural threshold that establishes whether a litigant may sue in court

style of cause

a statement written by a justice who disagrees with the majority opinion

an opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning

- courts below in the judicial hierarchy must apply the precedent of the courts above

- ex. SCC decisions must be followed by all other courts

• courts maintain their own precedents

all courts below the court of appeal in BC

all other federal courts in Canada, except the SCC

include:

open listed, there could be more than what is explicitly stated

means:

exhaustive, only means what is exclusively listed

notwithstanding:

giving primacy or making something superior

subject to:

given lesser status

shall/must: there is no discretion, it must be done

may: have the power to decide whether or not to do it

and: checklist, all must be completed

or: only one of the criteria must be checked off

- allows judges to rely on this act to follow

- gives rules and guidance

- discusses the topic of language rights (bilingualism)

- Canada 'will be ready to provide that legal rights of any corporation, company, or individual within the same shall be respected'

includes all that is listening, but also can include many other things

superior courts (ex. court of queen's bench Alberta)

civil code - locate the pertinent provisions to apply them to the case

- the decision of the majority

- ratio decidendi

the federal government

true

1. failure to achieve rules (issues must be decided on an ad hoc basis)

2. failure to publicize or make available

3. abuse of retroactive legislation

4. failure to make rules understandable

5. enactment of contradictory laws

6. rules requiring conduct beyond the power of the affected party

7. frequent changes to the law

8. congruence between what laws mean and how they are administered

true

evil in themselves (murder, robbery)

wrong because it is prohibited (waterskiing at night)

true

- mens rea was not present

- death of a person has to be foreseen and immanent

- 60%

- anything higher, both are eligible for jail