Lecture 1 - Sources of Constitutional law

Historical Origins

• Treaty of Paris (1763): Britain conquered New France and British Law took over (until Québec Act of 1774 when Britain allowed private law to be French in Québec)

• Our constitution is mainly based off of the principles of UK constitutions (Public law - British (1860), private case law in quebec - French (1774))

• Statute of Westminster (1931) - Laws from British parliament could be modified or abolished in Canada, and we could also request constitutional changes from British parliament

Constitution

• Supreme law of Canada

• Canada Act of 1867 and 1982: Charter of Rights and Freedoms

• MOST IMPORTANT SECTION OF CONSTITUTION Section 52: Sec. 52 of the Canada Act of 1982 (Primacy of the Constitution of Canada), power to invalidate laws and interpretation

  • Allows courts to look at all sections of the constitution and invalidate laws based on them.

• Any law that is inconsistent with the provisions of the Constitution is of no force or effect

  • Courts are an important body for the interpretation of the law

Laws

• Needs to be adopted by parliament to be considered a law

• Judiciaries have the power to invalidate laws

• Parliament can exclusively make laws amending the Constitution of Canada (in relation to executive branch or senate and house of commons)

• Provincial Law

  • Laws apply to anyone within the respective territories of provinces

  • Limited by higher courts (federal)

• Decision of judicial bodies

  • Source of law, therefore source of constitutional law

  • Variable authority (which court and date of decision)

  • The authority of a judicial decision depends upon litigants and other sources of law

Case Law

• Case law, also known as common law, refers to the body of law created by judicial decisions and interpretations in individual legal cases.

• In the context of litigants, case law plays a crucial role in shaping legal principles, standards, and interpretations that guide and influence future legal cases.

• When a dispute arises and goes to court, the judge or judges decide the case based on applicable statutes, regulations, and legal precedents. These decisions form a part of case law. The judgments in these cases set legal precedents that subsequent cases often rely on when dealing with similar legal issues. Litigants, which are the parties involved in the lawsuit (plaintiffs and defendants), may cite relevant case law to support their arguments and position.

• Litigants can use case law in various ways:

  • Legal Precedent: Litigants use established case law to argue for a particular interpretation of the law or to demonstrate how similar cases were decided in the past.

  • Persuasion: Litigants may use case law to persuade the court to adopt a particular legal reasoning or to support their legal position.

  • Distinguishing Cases: Litigants may attempt to distinguish the facts or legal principles of their case from those in previous cases to argue for a different outcome.

  • Challenging Precedent: Litigants may challenge existing case law and argue for a departure from precedent based on changes in societal norms, legal understanding, or circumstances.

Government Decisions

• Other State Bodies Adopting and Applying Norms: State bodies, apart from legislatures and courts, also adopt and implement legal norms. While they hold significance, these norms are lower in legal hierarchy compared to the constitution, statutes, and common law.

• Delegation of Authority: Delegation of authority involves granting decision-making power from higher levels of government to lower levels. Provincial governments delegate authority to municipalities, and the federal government does the same to territories due to the absence of mention in the constitution.

• Decisions of Legislative Assemblies: Legislative assemblies make decisions with legal scope, which may include resolutions and motions, albeit primarily with political value. These decisions may pertain to recognizing a particular group, such as the Quebecers as a distinct nation within a united Canada.

• Regulations and Operation of Assemblies: Legislative assemblies establish regulations governing their internal functioning, ensuring they operate within constitutional and legislative bounds. These regulations extend to both houses and national assemblies, with the understanding that they cannot violate established legislative and constitutional rules. For example, Quebec's electoral law authorizes a commission to approve regulations related to the Directeur Général des Élections (DGE).

Legislative Assemblies Decisions

• Everything adopted in parliament is integral to Canadian public law.

• Delegation of powers (aka Federal government gives power to territories through law and provincial government gives power to municipalities through law).

• Division of powers, provinces will not apply laws to federal jurisdiction and vice versa.

Doctrine

• Prominent Authors and Lawyers, Law Professor Writings: The writings of esteemed authors, lawyers, and law professors encompass a wide array of legal subjects and provide valuable insights and interpretations, often shaping the evolution of legal thought and practice.

• Incorporating Otherwise Silent Elements: Doctrines in Canadian law allow for the exploration and discussion of elements that may not be explicitly stated in legal texts. This includes examining customs and constitutional conventions, shedding light on aspects that may not have been formally codified.

• Absence of Conflicts or Non-Sanctionable: Doctrines are typically regarded as non-conflicting and not subject to formal sanctions. They serve as interpretive tools and guidelines rather than enforceable laws, facilitating a nuanced understanding of legal principles.

• Development of Law and Judicial Support: Doctrines aid in the progressive development of the law, often garnering support from the courts. They act as sources of inspiration for judges, influencing their interpretations and decisions in legal cases.

• Citing Doctrine in Judicial Decisions: Judicial decisions often reference and cite excerpts from legal doctrine, especially when providing rationale for their rulings. This practice helps solidify legal reasoning and ensures alignment with established legal thought.

  • Only whatever the judge decides to reference in their ruling is then included in the law, anything not explicitly mentioned is still only considered legal theory.

• Persuasive and Subsidiary Source (Margin): Doctrines hold a persuasive and subsidiary role within the legal landscape, providing decision-makers with justifications and additional perspectives. They serve as a valuable resource at the margin, aiding in sound decision-making.

• Growth of Doctrine since the Canadian Charter of 1982: The advent of the Canadian Charter of Rights and Freedoms in 1982 has significantly contributed to the growth of legal doctrine in Canada, particularly concerning social issues. Legal scholars have increasingly engaged with and generated doctrinal discussions to address evolving societal and legal challenges.

• Suggestive and Generative Role: Doctrines play a suggestive and generative role in legal discourse, prompting discussions, shaping interpretations, and fostering innovative legal approaches. They provide a fertile ground for legal exploration and growth, influencing legal thought and the evolution of jurisprudence.

Custom

• Custom in Canadian law is established through consistent, public, and peaceful actions or abstentions over a specific duration, without protest. These actions or omissions must possess essential qualities, being morally good, reasonable, and creating a clear, certain, and consistent obligation.

• Created through the continuous repetition of a public and peaceful act, or abstention from carrying out an act for a certain time, without there being any protest against this act or this abstention.

  • Sanctionability of Custom: Customs in Canadian law are susceptible to sanctions. Violation or non-compliance with established customs may result in legal consequences, reinforcing the importance and enforceability of customary practices.

  • Gradual Emergence and Discontinuation: Customary practices gradually emerge and fade away within Canadian law. They evolve over time and may cease to be recognized if they no longer align with societal values or circumstances.

• Authority and Recognition of Custom: Customs hold authority within Canadian law due to the rule of law, hierarchy in legal sources, and incorporation of customary rules into common law. Courts acknowledge and apply customary practices, and legislative assemblies sometimes adopt them, albeit with occasional confusion and limited argumentation.

  • Rule of law: refers to a principle of governance in which all persons, institutions and entities, public and private … are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

• Indigenous Reality and Growth of Customary Law: The Indigenous reality in Canada has seen a growth in the recognition and importance of customary law. Customary practices within Indigenous communities are increasingly acknowledged and respected, reflecting a broader acknowledgment of diverse legal traditions and practices.

Constitutional Conventions

• Of high importance to constitutional law

• Not sanctionable

  • Something can be illegitimate (unconstitutional), but not technically illegal

  • Governments can be voted out if they act unconstitutionally

  • Can’t become strict law, but they can be formalized in laws

• Rules between political actors that are treated as binding due to a sense of political necessity

• Made from political events and agreements of high importance

  • Can’t be made by one person

• Agreement needs to be important enough to set a precedent and for political actors to consider themselves bound by it

  • Constitutional conventions need to have a clear reason for existing

Lecture 2 - State

Concept(s) of State

• Socio-Political: Organized and autonomous territories and communities.

  • The state is the fundamental notion of law, ultimate human grouping, and has monopoly on violence.

  • Built and used by individuals, rulers exercise power of the state.

  • No longer based solely on one individual (king/queen) but has become institutionalized and is now an “idea” (ex. Parliament and other bodies as our perception of the state).

• Legal: The state is the central legal order; a normative network that is capable of sanction.

  • Creates laws, rules, sanctions are created and executed.

  • There can only be one state within a state; allowing international relations and interactions with other states.

  • In Canada: The Federal government is the spokesperson of the federation; internally there are 2 levels of sovereignty (provincial and federal) whereas externally there is 1 level of sovereignty (federal).

A state must have territory and a population; states can come about by conquests of war, revolution, secession, voluntary merger, etc.

State Sovereignty

• The state expresses autonomy and independence of a legal order within its own territory.

  • It has ultimate ultimate jurisdiction over its jurisdiction (decision making power)

• A state has power to govern itself; it can make and enforce laws.

• State sovereignty has evolved from personal sovereignty to collective sovereignty; the authority of the state is exercised by the people through their representatives and political processes.

Canadian Sovereignty

• Based on the evolution with the UK.

• British colonies could act practically in almost all matters; limits were: the supremacy of the British parliament and colonies had to adopt laws compatible with colonial law.

Before 1982 when we formally patriated our constitution, people still thought of Canada as a sovereign country:

• Attended San Francisco Conference without being a part of the British Empire Delegation.

• We would ask the UK to make constitutional amendments and they would consent automatically.

How we achieved International status:

• 1867

  • We had no jurisdiction over our external relations, the British took decisions for us and we were not a country even though we acted as an autonomous political identity.

  • Could not modify our constitution.

  • Gradual retreatment of imperial government.

  • We started to resist proposals from parliament in London.

  • We joined the League of Nations as our own country.

• 1926

  • The 1926 conference established that Britain and the dominions are autonomous countries.

  • Treaties concluded by the UK are only applicable to Canada with expressed consent/request.

• 1982

  • Patriated our constitution and British parliament no longer had power over Canada, its laws had no effect here.

Exercise of Sovereignty - Functions of the State

• The state exercises sovereignty by issuing binding norms/rules.

• In Canada, we do not have perfect separation of powers (ex. Judges appointed by the federal government, GG appointed on advice of the PM, etc.)

Legislative Function: Adopts laws, private or public. Federal and provincial governments each have their own jurisdictions (municipal under provincial guardianship and territories under federal guardianship). Can be sovereign or delegated.

Judicial Function: Individualizes rules of law to resolve disputes, application of norms/rules through judgements including persons, and judicial discretion and independence (no interference of influence).

Executive Function: Used to be only for peace and order, now also acts through public administration activities (governments, state corporations, commissions, municipalities, authorities) and has regulatory power (regulations/by-laws), discretionary power (decisions) and purely administration power (management, investigations, and reports).

The Sovereign State and the Managerial State

• Concept of sovereignty (belongs only to the state) vs. the concept of property, public acts vs acting like a private individual, public property vs private property.

• The state does not only exercise power by ownership of land, but enforcement of laws, rules, etc.

Sovereign State: making laws, sovereign acts (ex. When fed declares war, it is immune from lawsuits).

Managerial State: How the state manages itself (ex. If a fed gov department buys planes from Boeing and then cuts contracts, can be sued/pay fines).

Sovereignty in the State

• Who is the state (who is the sovereign?)

  • Historically: Exclusively personal and not collective notion.

  • There has been an evolution from personal sovereign to collective sovereignty.