pols-2350 final exam

law and politics

how do law and politics influence each other

• politics is bound by law

• law is shaped by politiics

how might law be influenced by politics

statutory law:

• the outcome of the law can be affected by politics (HoC)

politics of judicial appointment:

• the process of being appointed as a judge is political

judicial decision-making can be political:

• attitude, gender, subjectivity, ideology of the judge

how is politics influenced by the law

primacy of legal norms and instruments:

• law trumps the wishes and interests of politicians

• must go through legal processes to become the law

constitutional supremacy:

• if a bill goes against the constitution or charter it is irrelevant

legal rules can be inhibiting argument stoppers

• judicial decisions create precedent and affect the political processes

what does Loughlin say about law and politics colliding

it is possible for them to coexist effectively together

what does Loughlin say about political power

political power can only be exercised through institutions and processes and therefore, in part at least through the medium of law
- law can only restrict most of the time not all the time

formalism

• Weber

• primary approach in the US until 1930s

• law is the main thing that determines an outcome

• is independent and has its own internal logic

• lacks humanistic qualities

realism

• Schmitt

• refutes the main underpinnings of formalism in reaction to formal decision making and judges

• can be manipulated and changed in any way you wish in accordance to who is shaping it

• everything is relevant to social behaviour

• non-legal factors are more important than legal factors

positivism

• John Austin and Hart

• law is separate from morality

• relationship between the sovereign and individual citizens

• four elements of law: body of rules, enacted and applied by public officials, formulated by legitimate means, backed by state means

• problems with segregation (Hitler)

naturalism

• John Locke and Thomas Aquinas

• law is enacted with morality

• two key procedural protections: nemo iudex in causa sua and audi alteram partem

• doctrine about impossibility: protects from contradictory laws

• if there are not external principles that are followed it cannot be law

• three important things about natural law: rationality and logic, due process, civil disobedience

what are the two key procedural protections in natural law?

nemo iudex in causa sua:

• no one should be the judge of their own case

• there needs to be an impartial judge

• no conflict of interest

audi alteram partem:

• listen to the other side

• you need to have the opportunity to be heard

three important things about natural law

1\. rationality and logic

2\. due process (charter)

3\. civil disobedience (Martin Luther King)

what is civil disobedience

\- not consenting to the law and contesting it

\- claiming it is unjust- Gandhi, Mandela, Martin Luther King

what is pseudolaw

nonsense that is framed as the law by using advanced working or legal jargon

what is meant by law as coercion

Schauer:

\- doing things that we don't want to do

\- restrictions to our behaviour for the benefit of the state


Hart:

\- law often empowers rather than coerces

what is legal fiction

- we can get rid of material things but not the idea

how do humans exist physically (material) and legally (ideation)

physically:

\- we have a physical being in the world


legally:

\- we would still exist if we didn't have a physical form (passport, SIN)

how do corporations exist physically (material) and legally (ideation)

physically:

\- do not have a physical being


legally:

\- they exist in ideation as they can enter contracts, experience harm etc.

the conceptualization of political power

political power is highly complex but can only be exercised through institutions and processes

what do skeptics say about the conceptualization of political power

in order to understand legal processes, one must be aware of the political, economic, and social contexts in which law arises, changes and persists

what are the two sources of law

public and private law

what is public law

\- the state is directly involved (usually a party)

\- constitutional, criminal, administrative, taxation law

what is private law

\- non-state actors involved in a dispute (corporations or citizens)

\- contract, tort, property, family, estate, corporate law

\- actions between private citizens

types of federal public law

\- criminal law

\- administrative law

\- tax law

types of provincial public law

\- quasi-criminal

\- administrative law

\- tax law

types of federal private law

\- family law

\- copyright law

\- commercial law

\- private claims against the Crown

types of provincial private law

\- family law

\- tort law

\- contract law

\- commercial law

when would civil law be relevant in Quebec

when it is a private matter in Quebec (tort, contract)

what is the hierarchy of authority

1\. constitution - the supreme law

2\. statutes - enacted by legislation

3\. common law/regulations - borrowed authority

what is s.1 of the charter

reasonable limits clause

what is s.2 of the charter

fundamental freedoms:

1\. freedom of religion

2\. freedom of expression

3\. freedom of assembly

4\. freedom of association

what are s.3-5 of the charter

democratic rights:

3 - right to vote

4 - maximum duration of legislative bodies

5 - annual sitting of legislative bodies

what is s.6 of the charter

mobility rights

what are s.7-14 of the charter

legal rights:

7 - life, liberty, security of the person

8 - unreasonable search or seizure

9 - arbitrary detainment or imprisonment

10 - rights under arrest or detention

11 - proceedings in criminal and penal matters

12 - cruel and unusual punishment

13 - rights against self-incrimination

14 - right to an interpreter

what is s.15 of the charter

equality rights

what are s.16-22 of the charter

language rights:

\- official languages of Canada

\- minority language rights

what is s.23 of the charter

minority language educational rights

what is s.24 of the charter

enforcement rights

what is s.25 of the charter

aboriginal rights and freedoms not affected by charter

what is s.26 of the charter

other rights and freedoms not affected by the charter

what is s.33 of the charter

the notwithstanding clause

what is s.91 of the constitution

federal government responsibilities

what is s.92 of the constitution

provincial government responsibilities

what is s.52 of the constitution

the supremacy clause

\- the constitution is the supreme law of Canada

\- laws inconsistent with it are of no force or effect

\- it is an inclusive definition (things not explicitly stated)

the constitution act of 1867

\- adoption of responsible government

\- creation of s.91 and s.92 in the charter

\- ultra vires vs. intra vires

the constitution act of 1982

\- general commitment to the rule of law and God

\- charter of rights and freedoms

\- conventions

covid and the constitution

\- were the measures that were taken constitutional

\- interprovincial jurisdiction: provinces closing their borders which might have been unconstitutional

\- travel is federal jurisdiction (provinces acting outside their jurisdiction)

does Macfarlane believe the measures we took during the pandemic were justified (border restrictions)

\- yes

\- he can see where things could get cloudy

\- federal government responsible for intra-provincial

\- could be against the charter

Henry VIII Clause

\- Nova Scotia wanted Cabinet to have the authority to create and execute laws

\- this did not go through

statutes

\- written law passed by a legislative body

\- passing new or amending existing acts/statutes

\- by-laws are created by municipalities

years of statute consolidation

federal: 1985

provincial: 1990
\- if it is newer than the consolidation date, that was the year the bill was enacted

\- if it is the consolidation date, it existed previously and was updated

regulations

\- delegated legal authority

\- they are legally binding but are not laws

\- danger of overregulation

what are examples of federal statutes

\- Criminal Code of Canada

\- Income Tax Act

\- Emergencies Act

what are some examples of Ontario statutes

\- Highway Traffic Act

\- Liquor Control Act/Liquor License Act

\- Residential Tenancies Act

what is the core of the judicial process

dispute resolution

what is mediation

\- 3rd party person interested in helping the individuals involved come to an agreement

\- not biased and agreed upon by both parties

\- encourage discussions (decisions are not legally binding)

arbitration

\- selected by both parties

\- licensed individual

\- their decisions are legally binding

judges

\- impartial

\- cannot select your judge

\- their decisions are legally binding

what are the two systems of law

civil law and common law

what is common law

\- judge-made law (case law)

\- Canada uses common law systems (except for Quebec)

\- uses precedent and stare decisis and judicial hierarchy

what is civil law

\- defined as civilian law (codified law)

\- follows the 'rule book' of the law

\- applying the rules to disputes as they emerge

what does 'Canada is bijuridical' mean

we use both common and civil law

how do you determine if something is common and civil law

\- determine if it is federal or provincial

\- automatically common law, unless it is a tort or contract case happening in Quebec, then it is civil law

what happens if a common law rule conflicts with a statute

the statute trumps the common law rule

what is a precedent

\- accepting past judgements

\- treating like cases alike

what is stare decisis and why is it important

'to stand by decided matters'

\- consistency within the law

\- treating like cases alike

what are courts

\- core of the judicial process

\- adjudicate disputes by applying the law to the facts of the dispute

\- accepted by both parties as it is impartial

what are the three wings before getting to the SCC

\- court marshall (military law)

\- federal court of appeal (federal jurisdiction and federal courts, must be stated that this goes to federal court)

\- court of appeal (provincial wings, more popular)

what is the geographical distribution of SCC judges

3 judges from Quebec

3 judges from Ontario

2 judges from western provinces

1 judge from atlantic provinces

who are the federal judges appointed by

the federal government

who assigns the bench for Court of appeal and court of queens

the federal government

how many judges does the court of queens have

one

why is the court of queens important

\- it can cause exceptions

\- court of the first instance often through this court

\- single judge

does the USA have a duel track system

yes, they have federal supreme court and state supreme court

what is standing

a procedural threshold that establishes whether a litigant may sue in court

what is the name for a court case title

style of cause

what is a dissenting opinion

a statement written by a justice who disagrees with the majority opinion

what is a concurring opinon

an opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning

what is vertical stare decisis

\- courts below in the judicial hierarchy must apply the precedent of the courts above

\- ex. SCC decisions must be followed by all other courts

what is horizontal stare decisis

- courts maintain their own precedents

if the BC court of appeal makes a ruling, it is legally binding on...

all courts below the court of appeal in BC

if the federal court of appeal makes a ruling, it is binding on...

all other federal courts in Canada, except the SCC

include v. means

include:

open listed, there could be more than what is explicitly stated

means:

exhaustive, only means what is exclusively listed

notwithstanding vs. subject to

notwithstanding:

giving primacy or making something superior

subject to:

given lesser status

mandatory language (shall/must) vs. permissive language (may)

shall/must:
there is no discretion, it must be done

may:
have the power to decide whether or not to do it

and vs. or

and:
checklist, all must be completed

or:
only one of the criteria must be checked off

what is the Interpretations Act

\- allows judges to rely on this act to follow

\- gives rules and guidance

what does the 1867 Address discuss

\- discusses the topic of language rights (bilingualism)

\- Canada 'will be ready to provide that legal rights of any corporation, company, or individual within the same shall be respected'

what is an inclusive definition

includes all that is listening, but also can include many other things

Robert is being prosecuted for some very serious offences. He is being charged with murder and treason. What court would he go to for his criminal trial

superior courts (ex. court of queen's bench Alberta)

judge Zanoni was appointed to a court with a civil legal system (France). He is tasked with resolving a property dispute over a landlord and tenant. However, he has forgotten what the law is. What is the first step?

civil code - locate the pertinent provisions to apply them to the case

what is legally binding in the precedent case?

\- the decision of the majority

\- ratio decidendi

judge Zanoni was kicked out of a civil legal system (France). He became a judge in Alberta (where he is from). He was appointed as a judge in Alberta and, specifically, the s.96 Court of Queens Bench of Alberta. Who appointed Judge Zanoni

the federal government

true or false: every province has a provincial, federal, appeal, and supreme court

true

morality of law: eight ways to make a law fail

1\. failure to achieve rules (issues must be decided on an ad hoc basis)

2\. failure to publicize or make available

3\. abuse of retroactive legislation

4\. failure to make rules understandable

5\. enactment of contradictory laws

6\. rules requiring conduct beyond the power of the affected party

7\. frequent changes to the law

8\. congruence between what laws mean and how they are administered

true or false: politics is bound by law, law is shaped by politics

true

what does malum is se mean

evil in themselves (murder, robbery)

what does malum prohibitum mean

wrong because it is prohibited (waterskiing at night)

true or false: the SCC invalidated felony murder

true

why did the SCC invalidate felony murder

\- mens rea was not present

\- death of a person has to be foreseen and immanent

what is the highest interest rate one can give out

\- 60%

\- anything higher, both are eligible for jail