Canada’s Legal SystemNaiomi MetallicNaiomi Metallic

CESD 3216 – CESD and the LawJanuary 25-26, 2010

Part 1

Warm-up activity

1. What is government? 2. How does it obtain authority?3. What does government do?4. What would life be without

government?

Introduction

There are different types of governments (democracy, monarchies, etc.)

These determine the level of participation of the citizens in both the selection and decision-making of government.

With Barbara, you will be learning about different forms of government, the nuts and bolts of Canada’s political system and the Canadian government, and public (including Aboriginal peoples’) participation in politics

My main focus is on the legal system and laws, and my discussions about government is generalized.

What sort of things do modern governments do?

Makes laws and enforces them in order to promote better functioning of society– Prohibit conduct (criminal conduct)– Regulate conduct

Provides programs, assistance and benefits– EI, welfare, health care, etc.

Manage public resources and assets– Raise revenue through taxes – Support economic development and stimulus– Environmental protection and management of

land and resources

Three branches of government

1. Legislature– Makes laws

2. Executive– Implementing laws

3. Judiciary (the courts)– Enforcing and interprets the law

Different types of law Constitutions

– Foundational / fundamentals laws the country follows– Includes both written and unwritten laws– Highest form of law – supersedes all others– Very difficult to amend

Legislation (codified laws)– Includes statutes, regulations (and in Quebec, Civil

Code)– Can be amended, repealed, or found unconstitutional

by the courts Common law

– Judge-made law– In the British legal tradition (which most of Canada

follows), many areas of law (contract, property, tort) were not codified in legislation, but rather the law developed through court decisions over time.

Brief (and incomplete) history of creation of Canada

Canada is a democracy (i.e., citizens elect leadership in elections through majority vote), but specifically it is a Constitutional Monarchy.

Britain and France (and other European Countries) fought to colonize North America – Britain won.

Britain set up different colonies in North American that passed some of their own laws, and other times followed orders from England.

Colonies south of 49th parallel decided they didn’t want to be under British rule – so we then had the war of independence. US won.

North of it, colonies would keep ties to the British Crown in exchange for “responsible government”.

The colonies then decide to unite – Confederation – and did this by way of a Constitution.

Canada adopts Federalism

Constitution Act 1867 identifies two orders of government – Federal and Provincial

In Section 91 and 92, set out different powers each order has control over.

If one order of government passes a law that is under the list of powers of the other government, law is invalid.

Sometimes impossible not to touch on other’s powers – the courts have set out rules to determine when a law is invalid or not.

Court decisions today allow a lot of overlap

Federal government has s. 91(24) power of “Indians and Indian lands” Provincial laws generally apply to Indians, so long as they

don’t single out Indians:– Traffic laws– Contract law

The fact that these laws apply to Indians is not an attempt to take over Federal power over Indians (and Feds cannot legislate over every single area for Indians).

The areas in which the courts have found Feds have main law making power over Indians include Indian status, reserve land and Aboriginal title, and Aboriginal and Treaty rights.

Provincial laws that touch on or impact such areas can be found to invalid (so far as they impact Indian people or lands).

But there is some exceptions to this because of Section 88 of the Indian Act – we’ll come back to.

Types of governments not included in Constitution Act 1867 Municipalities

– Municipalities not separate government, but part of provincial government

– Provinces delegate a part of its power to municipalities through legislation (i.e., the Municipal Government Act)

– Municipal can only do what the Act allows it do, otherwise it has no jurisdiction.

Aboriginal / First Nation governments– For long time, seen only as federally-delegated form

of government through the Indian Act (i.e., Band Councils)

Constitution Act, 1982

Constitution of 1867 dealt mainly with rights / responsibilities of federal and provincial governments, not individuals and groups of people.

Also, while wanting to maintain its symbolic ties to British Crown, Canada wanted to sever legal ties (i.e., British approval required for constitutional amendments)

Canada Act, 1982 ((U.K.) 1982, c.11) - an Act by the British parliament that incorporated and accepted as law the Constitutional Act, 1982, granting severed virtually all remaining constitutional and legislative ties between the United Kingdom and Canada. The Constitution Act, 1982 was enacted as Schedule B of the Canada Act, 1982.

Constitution Act, 1982 (cont’d)

Constitution Act, 1982 - an Act by the Canadian Parliament requesting full political independence from Britain. Part V of this Act created a constitution-amending formula that did not require an Act by the British Parliament.

Part I of this Act is the Canadian Charter of Rights and Freedoms which outlines the civil rights and liberties of every citizen in Canada, such as freedom of speech, of religion, of mobility, legal rights, equality, etc.

Constitution is broadly worded – has to be interpreted by the Courts to be given meaning (i.e., not a complete Code).

Courts sometimes get criticized for making laws (i.e., “judicial activism”), for example, finding the ban of gay marriage illegal, finding that Mi’kmaq and Maliseet have right to trade fish in order to gain “moderate livelihood” – but this is just interpreting the Constitution.

Constitution Act, 1982 (cont’d)

Part II deals with the rights of Canada's Aboriginal peoples:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Constitution Act, 1982 (cont’d)

The Charter of Rights and Freedoms also contains section 25:

25.   The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

Citizen recourse against government

Political – elections, pressure through opposition, lobbying, media, etc.

Internal complaints procedures Ombudsman – official within government who

is assigned the responsibility of overseeing government officials from “within” the system. He or she may obtain access to secret government documents to determine if citizens’ complaints about improper treatment by the administration are valid and set up private investigations to inquire into problems within the administration.

Citizen recourse against government (cont’d)

Legal:– Administrative tribunals

• Labour standards• Human rights• Utility and Review Board

– Courts• Constitutional challenge – acting without jurisdiction,

violating equality rights, freedom of expression, Aboriginal rights, etc.

• Administrative law challenge – violation of natural justice / duty of procedural fairness (duty to give notice, permit a fair hearing, give reasons for a decision, etc.)

• Government violating some other law

End Wela’lioq

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