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The Case of the

Speluncean Explorers

Legal positivism

John Austin (19th C)

“Law is the command of the sovereign”

Today:

The Structure of the

Canadian Legal System

Monarch

Constitution

Entrenched statutes

Organic statutes

Court decisions

Unwritten aspects

Unwritten Aspects

* Conventions

* Principles

* Democracy

* Federalism* Rule of Law

Unwritten Aspects

* Conventions

* Principles

* Federalism

* Democracy* Rule of Law

Quebec Secession Reference,

[1998] 2 S.C.R. 217

Federalism

Constitution Act, 1867,

ss. 91 and 92

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)

Parliamentary Supremacy

Legislative Branch

Executive Branch Judicial Branch

Responsible Government

Executiveaccountable to

Legislature

Judicial Branch

Executive and Legislatureaccountable to

Judiciary

Canada’s Court System

* Courts of inherent jurisdiction

* Courts of statutory jurisdiction

* Administrative tribunals

Nowwho is the

most powerful?

Democracy

Democracy

American−style = people sovereign

Canadian−style = government sovereign

Democracy

American−style = people sovereign

Canadian−style = government sovereign

Democracymust be

balanced with

Federalism, Rule of Law,and other

Constitutional Principles

Rule of Law

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 Roncarelli v.

Duplessis,[1959] S.C.R. 121

Rule of Law limits discretion of state actors

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.

� Readings: History: pp. 36-45 and 45-72

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