chaper 2 and 3 PP Flashcards
The First Element of The Quebec Legal System
Sovereignty & Authority to Enact Law
The Legislative Process
Sovereignty & Authority to Enact Law
Constitution Act, 1982 (BNA Act)
Federal (s.91) and provincial (s.92) governments
The authority is granted to elected representatives
The Legislative Process
Cabinet usually introduces laws
“Private Members Bills” sometimes
three elements of the Legislative Process
Legislature (House of Commons / Provincial legislatures)
Senate (abolished in Quebec)
Queen (Governor General / Lieutenant GG – Royal Assent)
The Second Element of The Quebec Legal System
Laws are rules of behaviour imposed or accepted in the society
Six sources of law that develop or restrict new laws in the Second Element of The Quebec Legal System
- Constitution
- Statutes
- Jurisprudence
- Doctrine
- Custom
- Administrative Laws
Constitution
Sections 91 and 92 of the Constitution Act, 1867 (Parliamentary Supremacy)
The Constitution Act, 1982 (Constitutional Supremacy)
Section 52 “the supreme law of Canada”
Statutes
a law passed by our federal and governments
Can be changed at any time by simple majority
deal with only one subject (ex: taxation)
interpreted more strictly than a code
full intent of lawmakers must be made found “within the four corners of the Act”
Jurisprudence
Case Law
Precedence
–> courts decide similar cases in a similar manner
Doctrine of Stare Decisis
judicial activism
Precedence
courts decide similar cases in a similar manner
Doctrine of Stare Decisis
“let the decision stand”
once a court has made a decision, this decision is considered to have the force of law unless it is changed by a new statute
Doctrine
Written commentaries on the law
–> usually by respected lawyers and judges
Custom
A tradition or usage accepted by a community
Accepted by court provided no conflict with existing statute
Can be made into statute
Administrative Laws
Administrative Boards empowered by statute to pass regulations
The Third Element of The Quebec Legal System
Administration & Enforcement
Administration & Enforcement
Forum (Jurisdiction)
The Court System
The Legal Profession
Forum (Jurisdiction)
How do we determine which court will hear a case?
the levels at which we can seek a decision or the reversal of a deicison
How do we determine which court will hear a case?
Nature of the case (type of case and amount of money involved)
Geography (location of issue or defendant)
The Court System
- Municipal Court
- Small Claims Court
- The Court of Quebec
- Superior Court
- The Court of Appeal
- The Supreme Court of Canada
- Administrative Tribunals (Boards)
Municipal Court
Municipal by-laws (traffic, zoning, taxes)
Minor criminal matters (mischief, theft under $1000)
Small Claims Court
No lawyers
Cases no more than $15000
Business must be represented by an employee
Not available to businesses with more than 10 employees
Employee can be lawyer
Creditor can reduce debt to sue at this level (forfeits remaining debt)
No appeals
Superior Court
Court of first instance
All cases over $85 000
All cases not assigned to other courts
Has superintending and reforming power over lower courts
–> not court of appeal nor corporations (maybe)
–> if a court needs a higher authority, it can check with this one
all decisions can be appealed automatically or with leave with the court of appeal’s permission
The Court of Appeal
appeals brought from the superior court or court of Quebec (in special cases)
7 Judges (3, 5 or 7 will hear a case)
Decisions based on majority present
Apply for leave (permission) to be heard
Can argue error of law or error of fact
The Supreme Court of Canada
hears appeals from all provinces
–> with permission to appeal (asked by the person who is dissatisfied) from lower court
9 Judges (3, 5, 7 or 9)
–> 3 from Quebec
decisions are by majority
With leave (permission)
Error of Law or Error of Fact
Administrative Tribunals (Boards)
have the power to enact administrative regulations
–> force a law or how a law should be used
Internal review mechanism of Administrative decisions
No appeals usually
The Legal Professions
Judges
lawyers
notaries
arbitators/mediators
Judges
Selected by government
The court system is adversarial not inquisitive, except Small Claims Court
lawyers
Must be Member of the Quebec Bar
give legal advice
assist in setting up new business
prepare contracts
have exclusive right to represent clients
plead cases before the court
notaries
also give legal advice
Can’t represent in court, except non-contested issues
Exclusive right to prepare certain contracts and authentic acts
Produce authentic documents, which “make proof of their own contents”
exclusive to Quebec
arbitators/mediators
Can’t represent in court
Objective third party
Democracy has challenges due to what?
Diverging opinions on issues with majority rule over minorities
Trying to balance individual rights with societal objectives
the basic objectives of charters
to keep a balance between individual rights and societal objectives
entrenched Canadian rights and freedoms
rights included, hence protected, in the constitution
–> neither the federal nor provincial governments can change them alone
–> 7 provinces containing at least 50% of the population canada need to approve it
application of our Canadian rights and freedoms
all levels of the government must respect the Charter (Section 32(1))
federal, provincial, municipal, and any associated organization and employee must respect this
violation between private individuals is not protected
–> only applies to government positions
protected Canadian rights and freedoms
Fundamental Freedoms
Democratic Rights
Mobility Rights
Legal Rights
Equality Rights
Fundamental Freedoms
Freedom of religion, thought, expression
freedom of the press and other media
the right to assemble and associate
basic minimum needs for every citizen of a democratic society to develop and flourish
Democratic Rights
Right to vote and run for office
“every citizen must be allowed to play a meaningful role during an election”
Mobility Rights
Freedom to travel and work anywhere in Canada
the right to live anywhere in Canada
person or corporation can do business anywhere in Canada
Legal Rights
Right to life, liberty, security
–> excludes euthanasia or assisted suicide
right to judicial protections against unreasonable search or detention and against cruel and unusual punishment
innocent until proven guilty, right to a lawyer and to be informed of reason of arrest
Equality Rights
Protection from discrimination
limitations to our Canadian rights and freedoms
section 33 and section 1 allows the government to limit our rights with:
The Notwithstanding Clause (section 33)
The Oakes Test (section 1)
The Notwithstanding Clause (section 33)
Government can limit rights found in s.2 and s.7 – 15.
empowers the federal or provincial government to pass laws notwithstanding some of the provisions of the Charter
–> can adopt a statute that will be protected from a court striking it down even tho it may violate a charter right
according to the Notwithstanding Clause, the limitations must be renewed after how many years?
5 years
called the sunset clause
The Oakes Test (section 1)
Section 1 of the Charter allows government to limit rights if the objective of the limit has a strong societal importance
Section 1 of the Charter allows government to limit rights if the “means” chosen is the least intrusive
must show how the statute that infringes the charter must be maintained
can limit any freedom and right found in the charter
What are the differences between the Quebec and Canadian Charters?
Quebec Charter can also be used for violations between private individuals
–> canadian charter applies only to government infringement of citizen’s rights and freedoms
Quebec Charter not entrenched in a Constitution so easier to change
–> canadian charter is entrenched, so it cannot be changed without approval of federal or provincial government
protected Quebec rights
Fundamental Freedoms and Rights (s. 1 - 9)
Protection from Discrimination: right to equal recognition and exercise of rights and freedoms (s. 10 - 21.1)
political rights (s. 21 - 22)
judicial rights (s. 23 - 38)
economic and social rights (s. 39 - 48)
Québec’s Fundamental Freedoms and Rights
S.1 Right to life and security
S.2 Right to assistance
–> Except for fear or other valid reason
S.3 Freedom of expression, opinion and religion, right to associate
S.4-6 Safeguard of dignity and privacy
protection of property
right to physical protection and integrity
Québec’s Protection from Discrimination (too long)
S.10 Discrimination defined as an act that nullifies or impairs a right
–> only rights listed are protected
S.11 No discriminatory symbols or signs
S.12 Can’t refuse to contract based on discrimination
S.13 Discriminatory clauses in contracts are void
S.15 Can’t deny access to public place
–> Unless “undue hardship” proven
S.16 No employment related discrimination allowed
S.18.1 No obligatory S. 10 questions in application forms and interviews, except if aptitude and qualification are related (s.20) or questions are based on affirmative action program
S.18.2 Can’t discriminate against job applicants due to past criminal record if it si not related to job they obtained a pardon
S.19 Equal pay for equal work, except if
–> Based on aptitudes and qualifications
–> Based on pay equity plans
S.20 Can discriminate in hiring if:
–> Based on aptitudes and qualifications
–> If a community or religious organization
S.20.1 Insurance and retirement plans can discriminate
person must also not be restricted from accessing public transportation or a public place
Section 49 allows victims to sue for what?
–> enforcement of rights and freedoms
Injunction (cessation of violation)
Compensation for Material damages
Compensation for Moral damages
–> physiological distress
Punitive damages
–> if the infringement was intentional
–> Preventative role
Section 9.1 of the quebec charter allows government to limit rights in which section?
how can the government justify this?
sections 1 to 9
Government has justify limits under Oakes Test principles
