Canadian Legal, Government and Court Systems Flashcards
What court case did the SCC note that legality and legitimacy are linked in our constitutional tradition?
Reference re Secession of Quebec
The rule of law means that the law is
supreme over the acts of both government and private persons
Where is the Canadian Charter found?
In the Constitution Act, 1982
The Charter is a catalogue of fundamental rights and freedoms, guaranteed subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
The Charter applies to
- Parliament and the government of Canada
-the legislatures and governments of each province - all matters with the authority of either of the above
Section 33 of the Charter is
the notwithstanding clause
A Cabinet may only govern if it enjoys
the confidence of the elected members of the legislative assembly
What does Cabinet confidence mean?
That the majority of the members of the assembly agree that the Cabinet should continue to advise the King, and therefore form the government
What is an example of a vote that is always a matter of confidence?
The budget vote
What happens when Cabinet introduces a confidence vote and the majority of members reject it?
Cabinet has lost confidence and must resign
What happens when Cabinet resigns?
Generally the PM asks the GovG to call an election.
This is usually granted, however GovG has discretion to decline this
What is primary legislation?
Legislation that obtains authority from the chief law-making bodies under the Constitution. Primary legislation may authorize other bodies to make laws.
What is an example of secondary, or delegated legislation?
Municipal bylaws relating to garbage disposal
If delegated legislation is inconsistent with the authorization provided by primary legislation,
the court will set aside the delegated laws as ultra vires
Define public law
the law concerning interactions between individuals and the state, or bw different state actors
Public law encompasses:
- criminal
- constitutional
- immigration
- aboriginal
- administrative
- regulatory matters
Define private law
disputes between non state actors that are typically concerned with the payment of money from one party to another
Private law includes
- contracts
- torts
- property
- spousal and child support
- wills and estates
Criminal/ quasi criminal law is
Characterized by the seriousness of the consequence and by a strong emphasis on the prodecural rights of the accused
Civil law disputes relate to
property, contracts, torts, licensing, non-contractual obligations.
What is civil law in the context of Quebec?
Quebec’s laws are based on the French civil code, which sets out in a comprehensive code the law which frames broad, general principles to be applied in specific cases. Does not rely on precendent like the common law system
Provincial courts are made up of two kinds of judicial officer:
- provincial courts judges
- justices of the peace
Provincial court judges are
appointed from among the lawyers of the province by the provincial government. In ON, must be called to the bar for at least 10 years to be eligible.
Justices of the peace aer
not required to have legal training prior to appointment, although many do
Provincial court judges and JOPs have
- judicial independence
- security of tenure
- may only be removed prior to reaching the age of mandatory retirement when incapacitated or disabled from the execution of their office.
Provincial courts do not hear
jury trials or trials of the most serious indictable offences
Members of administrative tribunals do not
enjoy judicial independence, are appointed for a fixed term that may or may not be renewed
all provincial tribunals are subject to
supervision and judicial review by provincial superior courts.
The provincial superior courts and court of appeal are a
hybrid federal-provincial body: the province has responsibility for the establishment and administration of its superior and appellate courts, but the feds appoint the judges and pay their salaries.
Judges of the provincial superior courts may be removed from office
only by Parliament
Provincial superior courts are courts of inherent jurisdiction, meaning
they have jurisdiction to hear and decide every kind of legal dispute unless a statute specifically provides otherwise
The SCC held that the provincial superior courts have a
“core” of jurisdiction guaranteed by the Constitution that cannot be removed, even by statute.
The Divisional Court is
a branch of the superior court
The Divisional Court hears
- appeals from certain decisions of the superior court and from certain administrative tribunals
- applications for judicial review of actions or decisions of the provincial tribunals and courts
The Small Claims Court is a
branch of the superior Court
The Small Claims Court is unique in that
the judicial officers who preside are frequently “deputy judges”
What are deputy judges?
Lawyers appointed by the Superior Court itself with the approval of the provincial AG.
Small Claims Court is
a civil trial court that handles cases where the amount of money or value of goods involved is $35,000 or less
The province’s highest court is
The Ontario Court of Appeal
Seeking leave to appeal is
the process for asking permission of the Court of Appeal to begin an appeal
Federal Courts are
established by Parliament to hear civil (non-criminal) cases that
- arise under federal statutes or
- that involve the federal government or its agencies
Federal Court functions as
a civil superior court that hears trials involving federal areas of law like intellectual property law, competition law, and litigation involving federal Crown corps or gov depts
the IRB appeals to
The Federal Court
An example of a federal tribunal is
IRB, Competition Tribunal, Canadian Industrial Relations Board
The SCC is made up of
9 appointed judges, three of which must be appointed among judges/lawyers from Quebec
The SCC will only grant leave to appeal in cases of
public importance
Certain cases allow an automatic right to appeal to the SCC, such as
when a person is convicted at the provincial court of appeal after being acquitted at initial trial
A reference case is
The process of the feds asking the SCC to provide an advisory opinion on questiosn of law
in a reference case, the SCC hears
submissions from the feds and any other interested party who is permitted to participate
Are references binding
Not strictly, but in practice such decisions are treated as authoritatively as any other SCC decision
