LAWS2501 - Law, State & Constitution

The constitution is very hard to amend

True, the charter has in place many sections that govern the amending of the constitution.

Canada is a confederation.

False Canada is a federation.

The most important part of the constitution is S.52.

True, this section states that all law not consistent to the constitution is null and void.

Not all modification to the constitution are part of the constitution.

False, all modifications of the constitution are part of the constitution

The constitution of 1867 is Canadian

False, not completely, the constitution act is very much still British and based off of the British constitution, even if enacted in Canada.

After the constitution act of 1982 the British no longer had any power on our laws and constitutions.

True after 1982, Canada truly became independent from the British government, excluding the inclusion of the monarch.

Law that the Canadian parliament incites is not necessarily important to the rest of the provinces.

False, the Canadian Parliament's laws must be respected in each province, despite the independence of each province.

The territories are similar to provinces in that they are sovereign.

False, the territories are technically legislated by the Canadian government, however, the Canadian government delegates those rights to the territories. At any point though, the Canadian government can remove those rights without changing the Constitution.

Provincial laws must adhere to the constitution.

True, laws enacted by the province must be constitutional.

When judges set a precedent in regards to the constitution it is then a rule of the constitution

True, any decisions made in regards to the constitution is now a part of the constitution.

When a court makes a decision on a case it only affects that particular case.

False, all decision made by judges are Erga Omnes (towards all) i.e. Case law.

Courts apply & interpret the constitution.

True, courts are there to fill the gaps made by legislators.

Statute law is a type of law that is enacted and codified by a legislative body, such as a parliament or congress.

True, statute is a written law passed by the legislative branch of a government/parliament.

Common law trumps statutes.

False, statutes trump common law. When Parliament or a provincial or territorial legislature passes a statute, it takes the place of common law or precedents dealing with the same subject.

A custom is:

Susceptible of sanction

More than a use

Appears and goes out gradually

A custom is created through continuous repetition of an act.

True, moreover the act is supposed to be peaceful and public and can also include refusal of carrying out an act (as long as there is no large protest).

What are doctrines?

Writings of law professors and lawyers or scholars

Doctrines are sanctionable.

False, doctrines are not sanctionable, however, a SECTION of a doctrine may become sanctionable if quoted by a judge but only in the context the Judge intends

How is the House of Commons and senate chosen?

The senate is nominated while the House of Commons is elected.

Not adhering to a constitutional convention is illegal.

False, it is only illegitimate.

Not adhering to a convention holds no consequences.

False, is does hold political consequences.

Convention are the same as customs.

False, customs are created through time whereas conventions can be made through one important event.

Judges can impose sanctions on conventions.

False, conventions are only sanctionable by government officials (only politically sanctionable not legally sanctionable).

The state is the only one that can exercise coercion.

True, the state in order to keep the peace has been allowed to use methods of violence and coercion so as to allow for a better society.

The state is not necessarily an apparatus.

False, the state is an apparatus and has the right to make laws and enforce said laws.

There can be multiple states in one state

False, a State must be one.

Provinces are states.

False, provinces are subordinates to the state, but provinces are sovereign within their own jurisdiction.

Provinces may engage in public affairs.

False, provinces are excluded from public affairs and must only act as private individuals.

What is a sovereign state?

• Organized and autonomous territory

• No Material Limits

• Ultimate power over its jurisdiction

What is a mean of expression?

Most fundamental notion of law

What is an ideal of a nation?

People get together to form a nation

A state mustn't be the main apparatus.

False, the state should be the main apparatus, meaning its the main holder of power (not an abstract holder).

There can be multiple states in a state.

False, there must only be one state in a state or else it is not a state. (centralized power).

What are ways a state can be born?

• Legal parentage

-Merging

-Through a new order

How can a state be destroyed?

-Literal destruction (through natural disaster or other)

-New order

-War

Canada had some jurisdiction over international relations before 1867

False, we had no jurisdiction over international relations.

Municipalities are soverign

False, a province can assume control right away of a municipality.

What is managerial?

The business the government conducts (rather than formal legal proceedings which are sovereign).