AFM231 Chapter Notes - Chapter 2: Political Philosophy, Public Law, Clean Hands
18 May 2018
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Chapter 2
Introduction
• The Canadian legal system regulates government
• Government is divided into 3 branches
• The legislative branch creates law in the form of statutes and regulations
• The executive branch formulates and implements government policy (the central ideas or
principles that guide government in its work, including the kind of laws it passes) and law
• The judicial branch adjudicates on disputes
• Constitutional law: the supreme law of Canada that constrains and controls how the branches of
government exercise power
• Constitutional law which is the supreme law of Canada is charged with ascertaining and enforcing
limits on the exercise of power by the branches of government.
• It’s also haged ith upholdig the alues of a atio
• Values are tied to liberalism: a political philosophy that emphasizes individual freedom as its
key organizing value
• E.g. freedom to display a legal product in a business must be justified according to the
principle of constitutional law
• Canadian legal system: the machinery that comprises and governs the legislative, executive, and
judicial branches of government
• it is essential to have basic knowledge of this system for business because
• the legislative branch of government passes laws that impact on business operations
• failue to oply a esults i fies ad othe pealties. It’ll lose out o
opportunities to influence government policy and take advantage of favourable
laws.
• The executive branch implements and generates policy that may directed at business
• GM has a corporate and environmental affairs department that monitors
government policy and track and contribute to debates over public policy that could
affet GM’s usiess
• The judicial branch provides rulings that not only resolve existing legal conflicts but also
impact on future disputes
• MCae’s hallege to the toao aess at ioles all thee ahes
• The legislative branch passed the law to which McCrae objects
• The executive branch formulated and advanced the government policy that led to the
legislation being enacted
• The judiial ah y applyig ostitutio la ill deteie hethe MCae’s
objections to the law are valid or not.
The Canadian Constitution
• The Caadia ostitutio is ot otaied i oe douet. It’s satteed i ay plaes, oth
legislative and political, written and unwritten.
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• The written elements include the constitution act of 1867 (part of which divides legislative power
between federal and provincial governments) and the Canadian charter of rights and freedom
(which identifies the rights and freedoms that are guaranteed in Canada)
• Constitutional conventions: important rules that are not enforceable by a court of law but that
practically determine how a given power is exercised by government.
• They are in place because politicians historically have agreed to abide by them
• The Canadian constitution provides for the three branches of government: legislative, executive, and
judicial
The legislative branch of government
• The Legislative branch of government creates a form of law known as statute law
• Statute law: formal, written laws created or enacted by the legislative branch of government.
• E.g. of statue law is the criminal code of Canada which prohibits offences
• E.g. the Tobacco Access Act was created by the legislative branch at a provincial level
• Three levels of government, federal, provincial, and municipal make legislation in Canada
• Parliament (federal legislative branch) composed of the House of Commons and the Senate
• For legislation to become law, it passes House and get approved by Senate
• “eod ae fo “eate is the hae of soe seod thought
• Each province also has a law-making body
• E.g. i BC, it’s alled the Legislatie Assely
• Municipalities which are created by provincial legislation, have legislative bodies called city councils.
Statute Law and Jurisdiction
• The constitution dictates how much power each level of government get
• Each level of government has the jurisdiction (the power that a given level of government has to
enact laws) to pass laws within its proper authority or sphere.
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• Canada is a federal state, which means that governmental power is split between the central,
national authority (federal government), and regional authorities (provincial governments)
• Federal government may enact laws in the following
• Interprovincial/international trade and commerce
• Postal service
• Navigation and shipping
• Seacoast and inland fisheries
• Currency
• National defence
• Criminal law
• Banking
• All legislative areas not given to the provinces (this is a residual category)
• Provincial government have jurisdiction to make laws in the following
• Hospitals
• Property and civil rights within the province (e.g. regulation of contracts)
• Administration of justice (e.g. the court system)
• Local matters (e.g. highway regulation)
• Incorporation of provincial companies
• Municipalities have no constitutionally recognized powers. Their power is delegated by the
provincial governments.
• Zoning
• Subdivision
• Taxation for the benefit of the municipality
• Licensing
• Federal government has jurisdiction over criminal law, which includes the power to define new
crimes, provide penalties
• There are no provincial criminal codes
• If thee ee, it ould e uostitutioal eause a poiial goeet does’t hae
the power to pass such a law.
• No court would enforce
• In short, the federal government has exclusive jurisdiction (jurisdiction that one level of
government holds entirely on its own and not on a shared basis with another level) over
criminal law.
• Provincial and federal government have shared or concurrent jurisdiction at times
• Concurrent jurisdiction: jurisdiction that is shared between levels of government
• Public health is one such area legislated by both government
• Environment is another area.
• In areas of concurrent jurisdiction, what the provincial government cannot do is enact
legislation that would create a conflict with federal legislation.
• In an area of concurrent jurisdiction such as health or the environment, the doctrine of
paramountcy (a doctrine that provides that federal laws prevail when there are conflicting
or inconsistent federal and provincial laws) applies.
• This doctrine only applies if there is an express contradiction between the two laws
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Document Summary
Incorporation of provincial companies: municipalities have no constitutionally recognized powers. Their power is delegated by the provincial governments: zoning, subdivision, taxation for the benefit of the municipality. Licensing: federal government has jurisdiction over criminal law, which includes the power to define new crimes, provide penalties, there are no provincial criminal codes. If the(cid:396)e (cid:449)e(cid:396)e, it (cid:449)ould (cid:271)e u(cid:374)(cid:272)o(cid:374)stitutio(cid:374)al (cid:271)e(cid:272)ause a p(cid:396)o(cid:448)i(cid:374)(cid:272)ial go(cid:448)e(cid:396)(cid:374)(cid:373)e(cid:374)t does(cid:374)"t ha(cid:448)e the power to pass such a law: no court would enforce. In areas of concurrent jurisdiction, what the provincial government cannot do is enact legislation that would create a conflict with federal legislation. The judicial branch of government: the concept is: the judiciary is to be independent from the legislative and executive branches of. The system of courts: although varies between provinces, the system of courts that judges operate within has three basic levels, trail, final appeal.
