carter tomlenovich

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The Rule of Law

  • Fundamental principles:
    • an independent, impartial judiciary;
    • the presumption of innocence;
    • the right to a fair and public trial without undue delay;
    • a rational and proportionate approach to punishment;
    • a strong anmd independent legal profession;
    • strick protection of confidential communication between lawyers and clients;
    • equality of all before the law.

How Laws are Created

  • What is a law?
    • A rule that a particular country or society creates and recognizes as regulating the actions of its memebers and enforced by governing bodys.
  • In canada, there are two sources of laws:
    1. Legislation/Stautes
      • Written laws made by governments/legislatures
      • In ‘Acts’, ‘Codes’ or ‘By-laws’
    2. Case Law/ Common Law
      • Laws made by judges/courts
      • In written court decisions


  • Can be created by 3 levels of government:
    • Federal –> Canada-wide law, called ‘Acts’ or ‘Codes’
    • Provincial –> law specific to a province, called ‘Acts’ or ‘Codes’
    • Municipal –> law applying to a particular city or town, called ‘By-laws’
  • The Parlimentary Process
    • The system of law making
    • By elected officials
    • At the federal level, although similar at the provincial & municipal levels
    • Used to:
      • Make laws
      • Change a law
      • Repeal a law

Process Diagram

  • Federal Parliamentary Process
    • Governor General gives Royal Assent
    • Creates Act or Codes
  • Provincial Process
    • Similar but no Senate review & Lieutenant Governor signs to finalize
    • Creates Acts or Codes
  • Municipal Process
    • Similar Provincial but Municipal Clerk signs
    • Creates By-Laws
  • Legislative Authority/Law Making Power
    • Government can only create laws if they have legislative authority(intra vires) – otherwise they are acting ultra vires’ (outside their law making authority)
      • Where does the authority to make laws come from?
        • The Constitutional Framework: The Constitution Act, 1867. Since 1982; before that the British North America Act
          • Fundamental legal basis for government authority and how governments origanized.
          • Framework upon which the rest of the legal structure is built.
          • Directs how law making power is to be shared between governments
  • Who can make laws about what?
    • The Division of Power – how law making power is shared between governmenets – sections 91 & 92, Constituion Acts, 1867
    • Powers listen – “Enumerated powers”
    • Plus over-flow provision – if it is not listed elsewhere then belongs to the feds
    • Provincial catch-all jurisdiction to make laws

Limits on Legislative Authority

  • Intra vires
    • Law made by government is within their law-making authority of the Constitution Act
    • If challenged, court will decide
    • If found to be intra vires, the statue stands as it
  • Ultra vires
    • Law make by government is outside their law-making authority.
    • If challenged, the courts decide
    • If found to be ultra vires, statute is of no force and effect.
  • Potential Overlapping Jurisdiction
    • Examples
      • Taxation
        • feds - “any Mode or System”
        • provinces - “Direct”
      • Criminal
        • feds - Criminal law and ciminal procedure
        • provinces - administration of justice
      • Marriage
        • feds - marriage and divorce
        • provinces - solemnization