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comm 315 > chaper 2 and 3 PP > Flashcards

chaper 2 and 3 PP Flashcards

1
Q

The First Element of The Quebec Legal System

A

Sovereignty & Authority to Enact Law

The Legislative Process

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2
Q

Sovereignty & Authority to Enact Law

A

Constitution Act, 1982 (BNA Act)

Federal (s.91) and provincial (s.92) governments

The authority is granted to elected representatives

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3
Q

The Legislative Process

A

Cabinet usually introduces laws

“Private Members Bills” sometimes

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4
Q

three elements of the Legislative Process

A

Legislature (House of Commons / Provincial legislatures)

Senate (abolished in Quebec)

Queen (Governor General / Lieutenant GG – Royal Assent)

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5
Q

The Second Element of The Quebec Legal System

A

Laws are rules of behaviour imposed or accepted in the society

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6
Q

Six sources of law that develop or restrict new laws in the Second Element of The Quebec Legal System

A
  1. Constitution
  2. Statutes
  3. Jurisprudence
  4. Doctrine
  5. Custom
  6. Administrative Laws
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7
Q

Constitution

A

Sections 91 and 92 of the Constitution Act, 1867 (Parliamentary Supremacy)

The Constitution Act, 1982 (Constitutional Supremacy)

Section 52 “the supreme law of Canada”

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8
Q

Statutes

A

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”

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9
Q

Jurisprudence

A

Case Law

Precedence

–> courts decide similar cases in a similar manner

Doctrine of Stare Decisis

judicial activism

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10
Q

Precedence

A

courts decide similar cases in a similar manner

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11
Q

Doctrine of Stare Decisis

A

“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

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12
Q

Doctrine

A

Written commentaries on the law

–> usually by respected lawyers and judges

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13
Q

Custom

A

A tradition or usage accepted by a community

Accepted by court provided no conflict with existing statute

Can be made into statute

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14
Q

Administrative Laws

A

Administrative Boards empowered by statute to pass regulations

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15
Q

The Third Element of The Quebec Legal System

A

Administration & Enforcement

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16
Q

Administration & Enforcement

A

Forum (Jurisdiction)

The Court System

The Legal Profession

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17
Q

Forum (Jurisdiction)

A

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

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18
Q

How do we determine which court will hear a case?

A

Nature of the case (type of case and amount of money involved)

Geography (location of issue or defendant)

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19
Q

The Court System

A
  1. Municipal Court
  2. Small Claims Court
  3. The Court of Quebec
  4. Superior Court
  5. The Court of Appeal
  6. The Supreme Court of Canada
  7. Administrative Tribunals (Boards)
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20
Q

Municipal Court

A

Municipal by-laws (traffic, zoning, taxes)

Minor criminal matters (mischief, theft under $1000)

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21
Q

Small Claims Court

A

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

22
Q

Superior Court

A

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

23
Q

The Court of Appeal

A

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

24
Q

The Supreme Court of Canada

A

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

25
Q

Administrative Tribunals (Boards)

A

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

26
Q

The Legal Professions

A

Judges

lawyers

notaries

arbitators/mediators

27
Q

Judges

A

Selected by government

The court system is adversarial not inquisitive, except Small Claims Court

28
Q

lawyers

A

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

29
Q

notaries

A

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

30
Q

arbitators/mediators

A

Can’t represent in court

Objective third party

31
Q

Democracy has challenges due to what?

A

Diverging opinions on issues with majority rule over minorities

Trying to balance individual rights with societal objectives

32
Q

the basic objectives of charters

A

to keep a balance between individual rights and societal objectives

33
Q

entrenched Canadian rights and freedoms

A

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

34
Q

application of our Canadian rights and freedoms

A

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

35
Q

protected Canadian rights and freedoms

A

Fundamental Freedoms

Democratic Rights

Mobility Rights

Legal Rights

Equality Rights

36
Q

Fundamental Freedoms

A

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

37
Q

Democratic Rights

A

Right to vote and run for office

“every citizen must be allowed to play a meaningful role during an election”

38
Q

Mobility Rights

A

Freedom to travel and work anywhere in Canada

the right to live anywhere in Canada

person or corporation can do business anywhere in Canada

39
Q

Legal Rights

A

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

40
Q

Equality Rights

A

Protection from discrimination

41
Q

limitations to our Canadian rights and freedoms

A

section 33 and section 1 allows the government to limit our rights with:

The Notwithstanding Clause (section 33)

The Oakes Test (section 1)

42
Q

The Notwithstanding Clause (section 33)

A

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

43
Q

according to the Notwithstanding Clause, the limitations must be renewed after how many years?

A

5 years

called the sunset clause

44
Q

The Oakes Test (section 1)

A

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

45
Q

What are the differences between the Quebec and Canadian Charters?

A

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

46
Q

protected Quebec rights

A

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)

47
Q

Québec’s Fundamental Freedoms and Rights

A

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

48
Q

Québec’s Protection from Discrimination (too long)

A

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

49
Q

Section 49 allows victims to sue for what?

–> enforcement of rights and freedoms

A

Injunction (cessation of violation)

Compensation for Material damages

Compensation for Moral damages

–> physiological distress

Punitive damages

–> if the infringement was intentional

–> Preventative role

50
Q

Section 9.1 of the quebec charter allows government to limit rights in which section?

how can the government justify this?

A

sections 1 to 9

Government has justify limits under Oakes Test principles

comm 315 (12 decks)

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