cml2117 introduction to law 2008, lecture 4
Post on 27-May-2015
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Section 91
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to all Mattersnot coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of theParliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
Section 91 (continued)
Criminal Law
Banking
Sea Coast and Fisheries
Currency
Military
Marriage & Divorce
Patents of Invention and Discovery
Copyrights
POGG (Peace, Order and Good Government)
Section 92
In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,
Section 92 (continued)
Property and civil rights
Solemnization of marriage
Health care
Education (s. 93)
Canada’s Court System
* Courts of inherent jurisdiction
* Courts of statutory jurisdiction
* Administrative tribunals
Rule of LawJohn Locke
* Rules must be “ settled” , “ standing” , “declared and received”
* No ad hoc laws
Rule of LawA.V. Dicey
* No one can be punished “except for a distinct breach of law established in the
ordinary legal manner before the
ordinary Courts of the land”
* No one is above the law
Rule of Law Constitution
Act, 1982
Whereas Canada is founded upon the principles that recognize the supremacy
of God and the rule of law:
Rule of Law R.
v. Catagas,[1978] 1 W.W.R. 282, 81 D.L.R. (3d) 396, 38 C.C.C. (2d) 296, 2 C.R. (3d) 328
Rule of Law R.
v. Catagas,[1978] 1 W.W.R. 282, 81 D.L.R. (3d) 396, 38 C.C.C. (2d) 296, 2 C.R. (3d) 328
Rule of Law incompatible with “dispensation”
But what about discretion?
Rule of LawLon Fuller
1. Law must be general – not specific;
2. law must be public – not secret;
3. law must be prospective – not retroactive;
4. law must be clear – not vague or ambiguous;
5. law must be consistent – not contradictory;
6. law must be followable – not unfollowable;
7. law must be stable – not frequently changing; and
8. law must be enforced.
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