Last class:
The Case of the
Speluncean Explorers

Legal positivism

John Austin (19 th 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 Matters
not 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 the
Parliament 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
Executive
accountable to
Legislature

Judicial Branch
Executive and Legislature
accountable to
Judiciary

Canada’s Court System
* Courts of inherent jurisdiction
* Courts of statutory jurisdiction
* Administrative tribunals

Now
who is the
most powerful?

Democracy

Democracy
American−style = people sovereign
Canadian−style = government sovereign

Democracy
American−style = people sovereign
Canadian−style = government sovereign

Democracy
must be
balanced with
Federalism, Rule of Law,
and other
Constitutional Principles

Rule of Law

Rule of Law
John Locke
* Rules must be “settled”, “standing”,
“declared and received”
* No ad hoc laws

Rule of Law
A.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 Law
Lon 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.

For next class:
Readings: History: pp. 36-45 and 45-72