Divisions of Power
What are the sections in the Constitution that the divisions of power are placed in?
Federal (s. 91) & Provincial (s. 92)
Pith and substance
The essence of the law/piece of legislation.
What is primary and delegated legislation?
Primary legislation = statutes/acts (ie. Highway Traffic Act & Criminal Code of Canada)
Delegated legislation = regulations & by-laws (ie. Carriage of Goods - O Reg 643/05 & a building by-law)
What level of government appoints judges in the OCJ? What level of government appoints judges in the SCJ?
OCJ = provincial
SCJ = federal
*ONCA judges are also federally appointed
How to analyze if a law falls to s.91 or s.92.
*not for points, this is laying out how we can apply what we've learned
CHARACTERIZE: What is the law really about?
CLASSIFY: Which head of power applies?
VALIDITY: Intra vires or ultra vires?
OTHER DOCTRINES: Double aspect? Paramountcy?
What are the three divisions of power within the legislative branch of government? (the three levels of government)
Federal, Provincial, Municipal
Intra vires vs. ultra vires
Intra vires = within that level of government's jurisdiction
Ultra vires = outside that level of government's jurisdiction, it is of no force or effect
Name the courts in hierarchal order.
1) Supreme Court of Canada
2) Ontario Court of Appeal
3) Ontario Superior Court of Justice
4) Ontario Court of Justice (Tribunals are also at this level)
How many judges may sit on a SCC hearing?
Nine, three of which need to be from Quebec. The SCC judges always sit at an odd number so that there is a majority and minority (descent) vote.
Ontario regulates who banks may lend to.
What is the characteristic (pith & substance) of this?
The law directly controls bank lending eligibility.
What is federalism?
A mode of government that combines a general level of government with a regional level of government and divides it accordingly.
Incidental effects doctrine
The pith and substance of the law falls within the jurisdictional authority of one level of government, it will not be invalid because it incidentally affects a matter within another level of government's jurisdiction.
What court has the power to overrule a case from the Ontario Superior Court of Justice?
The Ontario Court of Appeal, but either the crown or the defence could then appeal to the Supreme Court of Canada.
What three courts sit within the SCJ?
Divisional Court, Small Claims, & Family Court (if not in a unified family court)
Does it fall under the classification of s.91 or s.92?
Federal s. 91(15): Banking.
Province may point to s. 92(13): Property and Civil Rights as a reason as to how the regulation is valid.
What level of government has residual power?
What is residual power?
The federal government
Peace, order, and good government (POGG)
Double aspect doctrine
If overlapping in a jurisdictional area, the law is described as a double aspect law.
What is the role of the Ontario Superior Court of Justice? How are they judged?
It acts as a trial court and as an appeal court for summary convictions. They contain both a judge and a jury. Murder cases automatically go here.
Your client is sueing their neighbour for $45,000. The Small Claims Court hears their case and your client wants to appeal.
What court does the appeal get heard in?
Small Claims Court appeals are heard within Divisional Court of the SCJ. If the appeal fails there, then it goes to ONCA (should the client still want to appeal).
Is the law/regulation valid? (is it intra or ultra vires)
Strong conclusion: ultra vires Ontario because the law’s dominant matter is banking.
s.91 & s.92 will be on the test; as practice, what level of government oversees penitentiaries? What level oversees property and civil rights in the province? How can there be an overlap of overseeing marriage?
penitentiaries = feds s.91 para 28
property and civil rights in the province = s.92 para 13
marriage = s.91 para 26 (Marriage and Divorce) & s.92 para 12 (Solemnization of Marriage in the Province )
Federal paramountcy
Where there is conflict between federal and provincial law, federal law prevails over provincial, and the provincial law is of no force or effect.
Where does an appeal for an indictment charge go after the accused chose to go before the Ontario Court of Justice?
It goes to the Ontario Court of Appeal.
Where does judicial review for a tribunal happen?
SCJ
Apply other doctrines when applicable.
Do not jump to paramountcy. First ask whether the provincial law is valid.
*when doing your analysis, don't jump to the answer, explain how you got to your conclusion using a framework.