September 3 2020 Rubina Sidhu The Constitution is

September 3, 2020 Rubina Sidhu

The Constitution is the Supreme Law of Canada. It achieved full independence for Canada by allowing it to change its Constitution without approval from Britain. It contains division of powers between Canadian Federal Government and Provincial Governments (Constitution Act, 1867). It also enshrined the Charter of Rights and Freedoms (Constitution Act, 1982).

Fed. Govt. Prov. /Terr. Govt. § Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. § The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon. § The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, § Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. Currency and Coinage § Local Works and Undertakings § Banking, Incorporation of Banks, and the Issue of Paper Money § The Solemnization of Marriage in the Province. § Bankruptcy and Insolvency § Property and Civil Rights within the Province. § Indians, and Lands reserved for the Indians § The Administration of Justice in the Province -organization of courts, civil law procedure, appoint judges § Naturalization and Aliens § Generally all Matters of a merely local or private Nature in the Province. § Marriage and Divorce § The Criminal Law § Residual power "peace, order, and good government" for areas that are not explicit in Sections 91 or 92 § The Public Debt and Property. § The Regulation of Trade and Commerce. § The Raising of Money by any Mode or System of Taxation. § Postal Service. § Militia, Military and Naval Service, and Defence. § Navigation and Shipping. §

Domestic Law International Law § Law of single nation state § Law that is common to all nation-states § Example: Divorce Act § Usually mediated by UN § Governance and accommodation of nations with global treaties, conventions and customs § Example: Universal Declaration of Human Rights

§ Private Law – laws that govern relationships between private citizens or entities; private interest § Gerald Gall’s examples: 1. Contracts 2. Property 3. Family Law 4. Wills and Estates 5. Torts 6. Company Law 7. The Law of Agency 8. Patent law § Public Law – laws that govern the relationship between the state and the general population; public interest § Gerald Gall’s examples: 1. Constitutional Law 2. Criminal Law 3. Administrative Law 4. Taxation Law

§ Substantive Law – laws that determine the rights and obligations between individuals or individuals and the state § Example: Criminal Code section prohibiting first degree murder § Procedural Law – laws that govern process for determining the rights of parties, the step by step process of how a case can proceed § Example: Criminal Code section on trial procedure and taking evidence to trial

1. Statute Law/Legislation 2. Case Law 3. Custom 4. Books of Authority

§ Statute Law: Law that is enacted by duly elected legislatures, whether federal or provincial/territorial § Dominant source of law because of Parliamentary Supremacy § House of Commons (Federal) and Legislative Assemblies (in Provinces/Territories)

1. 2. 3. 4. 5. Minister responsible introduces the Bill in HOC or LA and gives First Reading and no debate (Bills often die at an early stage due to other govt. priorities) Bill often goes to Second Reading and Minister responsible sets out the purpose of Bill and there is a full debate Bill is sent to a committee of the HOC or LA (committee with govt. and opposition members) often further debate and may be a public hearing Bill goes to Third Reading, may be 1+ proposed amendments to the Bill If Govt. still wishes to proceed and there is sufficient support for Bill, Bill is passed Federal Bill goes through same process in Senate (105 Senators appointed by Governor General) before Bill is submitted to Governor General for approval (Royal Assent) Provincial/Territorial Bill, after the Third Reading goes to Lieutenant Governor of Prov/Terr. for approval

§ Case Law: Judicially constructed law – that is established by decisions in specific court cases, with the decisions of the Supreme Court of Canada established as final case law § Precedent: a principle or rule established in a previous case that is either binding on or persuasive for a court/tribunal when deciding subsequent cases with similar issues or facts § Importance of a Precedent depends on the hierarchal placement of the court issuing the decision

1. A judicial decision must be made against a backdrop of precedents and in trying to fit the current case into the framework of existing case law/precedents, lawyers and judiciary may lose touch with the intention of the legislature A litigator will try to distinguish their client’s case from damaging precedents by distinguishing the facts so that the court will not make a decision contrary to their client’s interest § 2. Difficult for a court to reverse its previous decisions in a system of precedents, especially the Supreme Court of Canada (highest court and court of last resort) SCC does depart from its past decisions by weighing new evidence or responding to new conceptions of a problem but this can be seen as being against Parliamentary Supremacy because judges are thought of as doing more than just interpreting statutes

§ Most (not all) judicial decisions are published AKA “reported” § Case law can be found 1. Reporters that contain judgments 2. ONLINE – Can. LII: https: //www. canlii. org/en/ § Editors of Reporters write a “headnote” – summary brief of the case

§ Judicial decisions are cited in a certain way: § For example - R v. Gunn and Ponak (1971), 5 C. C. C. (2 d) 503 (B. C. C. A. ) § R refers to Rex or Regina AKA King or Queen of England because crimes are seen as being § § committed against the state and the monarch acts in the interest of the state – Criminal case Accused names are Gunn and Ponak Decision was in 1871 Reported in Volume 5 of Canadian Criminal Cases (Reporter) 2 nd ed. Decision by the BC Court of Appeal

§ Custom: A source of law that derives the practices and patterns of behaviour through which society has come to order itself § Custom did not have as significant effect as form of law in Canada except in Canadian constitutional law, SCC have given prominence to the role of custom/convention in Federal-Provincial disputes over constitutional change § Example: SCC decision 1981 on patriation of Canadian Constitution – Manitoba (A. G. ) V. Canada (A. G. ) (Patriation Reference)- SCC held there was constitutional convention requiring Federal government to have consent of the Provinces before amending the British North America Act (precursor to Constitution Act, 1867) even though it was not required by law

§ Books of Authority: Authoritative text or commentaries on the meaning of development of forms of law and their applicable principles § Increase in the use of books of authority in judicial decisions and likely to continue especially since Charter became entrenched as Constitutional document and courts look for empirical and theoretical guidance on rights such as freedom of religion, freedom from cruel and unusual punishment and freedom of expression

There are further sources of law which involve looking at the social, political, economic and historical developments in Canada such as debates in the House of Commons, newspapers, Commission hearings, public opinion polls