Andrea - LAP - Fall 2014 Notes

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Contents Part I: Introduction to Legislation ................................................................................................................ 2 A. Sources of Law ................................................................................................................................. 2 Canadian Legal Inheritances ................................................................................................................ 2 Cooper v. Stuart (1889) ........................................................................................................................ 2 B. Policy Choice and Limitations .......................................................................................................... 6 KEY POINTS .......................................................................................................................................... 6 Policy Process (Tardi Article - Page 23) .............................................................................................. 7 C. Federal and Alberta Primary Legislation .......................................................................................... 8 Passing a Bill in the Legislature ............................................................................................................. 10 Speaker on Regulations: .................................................................................................................... 10 D. Subordinate Legislation (on reserve in library) .............................................................................. 11 Part III: Statutory Interpretation ................................................................................................................ 12 Problems Interpreting Statutes .............................................................................................................. 12 Chapter One: General Approach to Statutory Interpretation ................................................................ 13 Chapter Two: Specific Aids to Construction ........................................................................................... 19 A. Context (Internal Context - Language Aids) (pg 149) ................................................................. 19 B. External Context ........................................................................................................................ 21 Chapter Three: Presumptions ................................................................................................................ 23 A. Presumptions: Retroactivity, Retrospectivity and Vested Rights ................................................ 23 B. Presumption: Against Substantive Alteration ............................................................................. 29 C. Strict Construction of Penal Statutes ......................................................................................... 30 LAP - Fall 2014 1 | P a g e
Part I: Introduction to Legislation Sources of Law Canadian Legal Inheritances 1. Law from History, Custom, and Tradition Canada received common law from Britain as a result of British imperial rule and territorial possession. Quebec, on the other hand, has civil law origins as a result of its French occupation. We also recognize the First Nations. (a) Law and Aboriginal Peoples o Aboriginals refers to: Indians, Inuit, and Metis. o Few early cases recognized Aboriginal people's legal status sufficient to protect their cultural, political and economic rights. o By virtue of the Constitution Act (1867) s. 91(24) the federal parliament has power over the Indians and their lands. (b) Canada's Common & Civil Law Traditions (i) Reception of European Law o Two ways to determine what type of law is used under British common law; Settled colonies - if settled all of English law becomes applicable (statutory and common); Conquered colonies - pre-existing laws remain in force subject to change by the British parliament. o Old understanding of common law is that the rulings of judges set out the fixed rules. Contemporary understanding indicates that we no longer rely exclusively on case law . o Civil law (used in Quebec) arouse from the Roman law of Corpus Juris Civilis. Laws are not based on cases, but established laws, generally written as broad legal principles. It also includes the writings and interpretations written by learned scholars. o In common law, reliance on past cases is called the principle of stare decisis (let the decision stand) and is related to the doctrine of precedent. Precedents are made up of principles from previous cases. These principles may arise from the interpretation of a statute or constitutional provision, or through common law reasoning employed by a previous judge(s). o In common law the ratio decidendi (reason of deciding) is the binding rule for purposes of precedent. Everything else is obiter dicta (things said by the way). o Equity is defined as the body of law developed by the Court of Chancery prior to the court's dismantling. These operated separate from the common law courts and developed in tandem with common law (see page 7-8). Cooper v. Stuart (1889) Rule of conquest: pre-existing aboriginal laws remained in force, subject to modification by Crown or Parliament necessary to operate government Rule of settlement: entire body of English law (statutes and common law) was imported 2 | P a g e
o All statutes passed before a certain date were automatically "received" (unless unsuitable) and remained in force o Statues passed after the date wouldn't apply unless clearly expressed A repealed statute in England would only be repealed in a colony if it was expressly stated Problems of determining which of the rules of reception would apply o Aboriginals were already present, so true settlement wasn't possible o France also had an interest in BNA and claimed the territory In practice: o Rule of conquest applied to central Canada o Rule of settlement applied everywhere else English law was initially imposed on Quebec Quebec Act, 1774 restored civil law - except for criminal matters (ii) COMMON LAW Common law: set of fixed rules, unearthed by judges from cases through deductive legal reasoning, analogy, and application of precedent 2 fundamental ideas o Judges don't make the law - they merely declare it o All relevant past decisions are evidence of the law - judges infer from precedent what is true law in the given instance CIVIL LAW Arises out of Roman law of Justinian's Corpus Juris Civilis Not based on cases but established laws written down as broad legal principles Civil Code of Quebec (iii) PRECEDENT Stare decisis : reliance on past cases - "let the decision stand" Stability, coherence of law, predictability, fairness in decision making, efficiency, eliminates judicial bias Ratio decidendi : the binding rule for precedent "reason for deciding" o Obiter dicta : Everything else said (iv) EQUITY Comes from the Court of Chancery (dismantled around 1873) Meant to provide a corrective to the perceived harshness of common law o i.e. contract remedies such as injunctions Applied concurrently with common law - equity prevails in cases of conflict 2. International Law Domestic Law - body of principle most people encounter. It is legislation enacted by the legislatures or made as regulations by the executives. International Law - there are two types of international law; treaties and customary . o Treaties - bilateral (2) or multilateral (3+). These affect foreign policy without necessitating changes to domestic laws ; however some may require internal changes. o Customary - binds all states , excepting only those that have been sufficiently persistent in rejecting it prior to its emergence as a binding norm. Because Canada approaches these two laws differently, we are considered dualist. Treaties may require Canada to change its domestic law in order to follow the rules of the treaty; 3 | P a g e
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