1010 Class 3: The Canadian Legal and
Parliamentary Framework
Part 1: What is the law?
1. A set of rules that enable people to live
together and respect others rights.
2. A body of rules which are imposed upon
and enforced among the members of a
given state.
3. A statement of circumstances in which the
will of the public is brought to bear
through the courts.
Why do laws exist?
► They control
conflict.
► Teach us to respect
and tolerate others.
► They compel us to
behave is a certain
way.
► They guide us to
where the state will
intervene to control
our behavior.
What makes laws different?
► Laws are different than guidelines,
rules, or non-legal rules.
► Laws are applied by the state and have
sanction and consequence.
► Example:
Law: You cannot kill someone or steal their
property.
Rule: You should not eat with your mouth open.
► Are Laws or Rules universal?
Why do we follow the law?
► Children are socialized from early on to
follow the rules and laws of society.
► They exist in the household and in the world
at large.
► In Hobbes work, Leviathan he built the case
that man choose to follow the rules so as
not to live a “nasty, brutish and short” life.
Does the law have limits?
► They must be applied to
all equally in society, or
appear to.
► Sometimes they cannot
predict new unforeseen
evils.
► The law fails when it is
viewed as unacceptable to
society at large.
► Examples?
Is The Law Absolute?
► The law, for better or worse worse is open to
judicial interpretation.
► The social values and beliefs of judges are often
reflected in the decision making of the courts.
► Courts can be stacked with judges who are
thought to rule according to their own personal
belief system.
► What are some recent examples of this in both
Canada and the United States?
Judicial Activism
► Interpretation of law is
often referred to as
judicial activism.
► Chapter 15 of our
constitution prohibits
discrimination based
on age, sex, religion
and ethnicity.
Judicial Activism
► Based on this
definition some
judges will look at
the letter of the law
to guide their ruling.
► Judicial activists will
gravitate towards the
spirit or purpose of
the law when making
a ruling.
► Example?
In an effective legal system
► Laws are general and apply to all.
► Laws need to be proclaimed to all. There
must be no secret or hidden laws.
► Laws cannot be retroactive. They must be
used to control future behavior with some
extraordinary exceptions.
► Laws should be clear.
► Laws should not be contradictory
► Laws should not be impossible to apply.
In an effective legal system
► Laws should be
reasonable and
durable to avoid
confusion.
► Law should be capable
of enforcement.
► Name a recent
example of an
unenforceable law?
Part 2: The Law Makers
► In the legal system part of the process of
solving a dispute is to determine what law is
applicable and how it can or should be
applied.
► What are the rules and principles that
should be applied?
► What source of law should be applied?
► Major Sources: Statute Law and Case Law
Major Source #1 Statute Law
► Developed by acts
of the Legislature or
Parliament.
Two major types
1. Public Bills which
are designed to
enact government
policy
2. Private members
bills.
Steps to Enact a Bill
► Idea ► Second Reading -
► Ministry Review Debate
► Bill goes to Committee
► Minister’s Approval
► Committee of the Whole
► Cabinet Subcommittee House
► Cabinet Submission ► Third Reading - No
► Management Board further amendments
► Drafting of Bill ► Royal Assent
► First Reading ► Proclamation
Ultra Vires
► In a federal system a
Legislature must pass
bills that are within its
jurisdiction.
► If they do not then the
legislation is ultra vires
or beyond their power
to enact.
Result: The Bill is
deemed invalid.
Major Source #2 Case Law
► In Case Law, decided cases on the
interpretation of laws is the distinctive
feature.
► Why? The law must be consistently
applied so precedent is of great
importance.
► To be applied, the precedent must be
from a respected court and most often
from a higher court.
Minor Sources of the Law
1. Practice and Usage. These are basically
forms of behavior which have no formal
authorization but may hold sway if
unchallenged.
2. Custom or Convention. Quite common
in the British Parliamentary tradition.
Example. The tabling of a Budget.
Minor Sources of the Law
1. Scholarly Legal Writing where no other
authority speaks to the issue.
2. Morality. It is not often a source of law in
Canada but does sometimes appear as a factor
in judgements in the United States.
3. Royal Purgative. Derives from a pre-
legislative era when the crown ruled. Example:
Pardons
Part 3: Types of Law
► Private and Public Law
► Procedural and
Substantive Law
► Domestic and
International Law
► Positive Law
Types of Law
► Positive Law ► Domestic and
► Law in a command
International Law
mode. ► War crimes,
conventions on
► For example, Jane torture, illegal
shall pay Paul $10,000. weapons, etc.
If she does not, there ► Often unenforceable
is a penalty. but frequently
integrated into
Domestic Law.
Types of Law
► Private and Public ► Procedural and
Law Substantive Law
► Private law dictates ► This concerns the
how the individual process of law and the
must conduct route to justice.
themselves. ► Rules of justice.
► Public law governs the ► Example: Miranda.
operation of the state.
Public Law
1. Criminal Law
2. Constitutional Law
3. Administrative Law
4. Tax Law
Types of Public Law
► Criminal Law
► Dealt with mainly by
the state.
► While it effects the
victims, the state has
a virtual monopoly
over the process.
► Change is coming.
Types of Public Law
► Constitutional
Law
► It is concerned with
the rules which
govern the
operation of the
state.
► Defines the powers
of government.
► Constitutional Law
is very is difficult to
repeal or amend.
Types of Public Law
► Administrative
Law
► Concerned with
private matters that
have a broader
public interest.
► Zoning laws.
► Its defining
characteristic is that
of the balancing
Public needs with
Private needs.
Types of Public Law
► Taxation Law
► One of the earliest of
laws ever developed.
► It adjudicates disputes
between the taxpayer
and the state.
► If fraud is involved,
however, the matter is
defined as criminal.
Private Law
Four Major Types of
Private Law:
1. Tort Law
2. Contract Law
3. Property Law
4. Procedural Law
Types of Private Law
► Tort Law
► Developed to address civil
wrongs where harm had
been done by one to
another
► While there may be crime,
the remedy is usually
monetary.
► (Commonly know as
lawsuits.)
Types of Private Law
► Contract Law
► A variation of tort law
involving breaking
one’s word.
► Contract law concerns
the enforcement of
promises.
► Settlement is usually
monetary.
Types of Private Law
► Property Law
► Concerned with who
owns what, who can
own what, and what
can be owned.
► Usually involves Real
Estate, personal
property or usage
rights.
Subject Matter of Private Law
► Family Law
► Wills and Trusts
► Real Estate
► Business law
► Patent and intellectual
property
► Agency Relationships
Procedural Law
► Concerned with
the legal
process.
► Procedural
rules of
fairness, cost
and delay.
► Rules need to
be uniformly
applied.
► Laws of
evidence.
Part 4: Canadian Parliamentary
Lawmaking
► Legislative
bodies
Parliament
► Executive
Branch The
Crown and
Cabinet
► Judicial and
Legal Branch
The Legislature
► Legislatures exist because direct democracy
is impractical to administer. Instead we
choose a system of representative
government.
► Citizens elect a representative to give
expression to their will or desires.
► Parliament represents the people (House of
Commons) / The Senate the Regions.
Role of the Legislature
► Itsprimary role is to enact legislation. This
grew out of a long struggle between the
Monarch and Parliament about who controls
the money.
► “No taxation without representation”.
► Parliament is viewed as the supreme body
in many respects and it members enjoy
‘parliamentary privilege.’
Role of the Legislature
► While Parliament is viewed as supreme in
the Westminster model, in Canada its
powers are somewhat limited.
► Parliament is limited in two major ways.
The Canadian Constitution
The Canadian Federal system
The Senate of Canada
► Senate normally has 104
members. 24 each from
Quebec and Ontario, 24 from
the Maritimes, 24 from
Western Canada,
Newfoundland 6 and 2 from
the Territories.
► Appointed to 75 years of age.
► Designed to represent the
regions the serve as a
restraint on ‘ill conceived’
legislation.
The Executive: The Crown
► Elizabeth II is the Queen of Canada and the
business of government is conducted in her
name.
► The Crown is a legal abstraction, it is
representative of government but not
accountable for the actions of government.
► It retains prerogative powers. Dissolution
of Parliament or the choosing of the PM.
The Executive: Cabinet
► Cabinet is the center of power in the Canadian
system and the Prime Minister is at the center of
that power.
► The Prime Minister has the right to appoint or fire
Cabinet members thereby controlling outcomes.
► The Prime Minister controls the Cabinet
Secretariat, therefore, controlling the agenda and
the recording of decisions.
The Civil Service
► The basic organizational unit is the Ministry
or Department.
► A Ministry usually discharges a single
substantive function, for example, The
Ministry of Health.
► Ministries are headed by a Deputy Minister
who while reporting to the Minister is
generally viewed non-political.
Role of the Civil Service
► To separate politics from
administration.
► They do not express
personal views in praise
or criticism of
government policies.
► They provide honest
advice.
► They carry out the
decisions of the party in
power.
Role of the Civil Service
► While the Civil Service is theoretically supposed
to be concerned only with administration, in
practice the vast majority of government
initiatives originates within the civil service.
► This is because the Civil Service is a solution
provider. While politicians are good at
identifying problems they are not so good at
fixing them.
Ministerial Responsibility
► The concept of the
anonymity of the
public service is based
on Ministerial
responsibility.
► The idea is that the
Minister should resign
for errors made by his
Department.
Political Patronage
► Is the appointment of
persons to government
service based on
political connections.
► In Ontario, those
appointments are
usually made to
Agencies, Boards and
Commissions.
Judiciary
► The role is primarily
thought of a an
interpretive role. To
interpret legislation.
► Since the proc-
lamation of the
Canadian Charter of
Rights, the Supreme
Court has become
more activist.
Judiciary
► Activism in the court
has also increased due
to the role of political
parties in the
appointment of the
Judiciary.
► This is not likely to
decrease as a role of
the courts.
The Future of the Law in Canada
► Government by the judicial branch has
become a real issue in Canadian
politics.
► In many respect the government has
abrogated its power, quite willingly, to
the courts to make decisions of
controversial measures.
► What are some examples of this?
► Right to Die, Abortion, Gay Marriage,
Marijuana.