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The Influence of Customs and Conventions

The Influence of Customs and Conventions. Customs and Conventions. A custom is a long standing way of doing something . A convention is a political custom . A convention can attain the force of law. See Case: “Patriation of the Constitution” The role of Prime Minister is a convention

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The Influence of Customs and Conventions

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  1. The Influence of Customs and Conventions

  2. Customs and Conventions • A custom is a long standing way of doing something. • A convention is a political custom. A convention can attain the force of law. • See Case: “Patriation of the Constitution” The role of Prime Minister is a convention Governor General being a Canadian Citizen is a Convention

  3. “Patriation of the Constitution” • Pierre Trudeau attempted to unilaterally patriate the constitution, then add the CCRF and an amending formula 8 provinces upset, 3 challenged Fed Gov in court. • 3 questions: • Will all this affect our provincial powers?YES it sure will! • Is this legal and constitutional?YES but… • Does the PM require our consent?YES …by convention • PM and Premiers returned to the negotiations table • finally 9/10 provinces signed and agreed. (Not Quebec)

  4. Influence of Social and Political Philosophy

  5. The influence of:Social and Political Philosophy • See pg.45 • Reaction to Holocaust • Reaction to Civil Rights Movement in US. • Globalization – increased interaction and interdependency • …these socio-political events affect our thinking (our values) and eventually result in changes to the law.

  6. The Textbook refers to Primary sources, but more appropriate would be historical sources, as the parts of our law, or the influences on our modern law. This is ancient civilizations right up to events of this century. We need to know and understand these but we can’t actually hold them or define them in a nutshell. The Textbook refers to Secondary sources, but more appropriate would be current or tangible sources, the sources that make up our law today. For example, the constitution,statutes and case law (common law). Basically the things that you need to have and hold to practice law today. ...still to come Categories: Public law, Private law, international law, Criminal law, Contract law… Understanding Chapter 2: Chapter 2 – Sources and Categories of law (Where does our law come from? What are the sources?) (How we categorize our laws)

  7. + BNA 1867 Secondary SourcesCurrent Sources • The Constitution • Statute Law • Case law You must understand the role of each of these in order for the rest of the course to make sense. Ask if you do not. CCRF All enacted statutes Precedents

  8. Most authoritative The Constitution Statutes Case Law / common law

  9. 1. The Constitution • The most important statute in the country.(yes, it is a statute itself. It had to be passed by Britain's parliament since Canada was not a country yet- hence the BritishNorth America Act.) • All laws (statutes) must be constitutional.must be in accordance with the conditions set out in the constitution: • If a law is found to be in conflict with the constitution, it may be revised or repealed. British North America Act OR Constitution 1867

  10. & Constitution Act 1982 CCRF Constitution Act 1867 BNA Act • Constitution consists of 2 main documents: • Sets out the • jurisdiction: area of law making authority • Of the levels of government • Sets out the structure of the legal system and how judges are selected. • Pre-amble states that we will have “…a Constitution similar in Principle to that of the United Kingdom.” • (That says a lot without saying a lot!) A list of different types of protected rights for Canadian Citizens the Constitution

  11. Constitution 1867 pre-amble states that we will have “…a Constitution similar in Principle to that of the United Kingdom.” 2 important principles adopted: • Judicial Independence: The principle that the judiciary functions independently from the government. • Parliamentary Supremacy: The principle that parliament has the supreme power of making Canadian laws. the Constitution

  12. How a Statute Law is Passed Statute Law: any law enacted (passed) by the federal or provincial government. • 3 readings (debate & revision) in the House of Commons • 3 readings (debate and revision) in the Senate • Royal Ascent - signature of the Queen (Represented by the Governor General) the Constitution

  13. http://www.gg.ca/index.aspx

  14. http://www.fin.gc.ca/taxdollar/index-eng.asp Federal Budget (slideshow we watched in class Tuesday 22/03/11)

  15. Quebec Abatement During the 1960s, the Government of Canada offered provinces opting-out arrangements for certain federal-provincial programs, such as hospital care and social welfare. Only Quebec chose to use these arrangements. Under these arrangements, the Government of Canada reduced—or “abated”—personal income taxes while Quebec increased its personal income taxes by an equivalent amount. The Quebec Abatement represents 16.5 percentage points of federal personal income taxes: 13.5 percentage points (Alternative Payments for Standing Programs) are related to health and social programs and 3 percentage points (Youth Allowances Recovery) are related to changes to the federal family allowance programs in 1972. Quebec continues to receive the value of these extra tax points through its own income tax system, in lieu of cash, while other provinces receive the corresponding amounts in cash. Transfers to Quebec for the CHT/CST and Equalization are shown in the financial results on the same basis as transfers to other provinces. However, since part of the Quebec transfer is made through lower federal taxes, it is necessary to net this amount out of federal program spending. As a result of long-standing fiscal arrangements with the provinces, these total transfers exceed $46 billion.

  16. Who makes which laws? • Constitution states the law making jurisdiction of the Federal and provincial Government. For example, • Military  Federal • Immigration  Federal • Healthcare  Provincial • Taxes (depends which type) the Constitution

  17. Latin • Intra Vires: within the power of - • Ultra Vires: beyond the power of -

  18. 2. Statute Law • All enacted statutes (Federal or Provincial) http://en.wikipedia.org/wiki/Law_of_Canada

  19. Statutory Interpretation • Judges interpret laws through cases. • Mischief rule • Internal aids • External aids • The text of a statute is often not enough to really understand the spirit/purpose of the law. • See Case: pg 52

  20. 3. Case law (Common Law) • When ruling on a case, judges publish a written explanation of their decision. • This forms a substantial part of Canadian Law Stare decisis: to stand by the decision. Precedents must be followed if they are set by a higher court. Lawyers and judges read case law when preparing for a case. See R v. Lavallee

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