Chapter 2

Question 1

Define law

Answer 1

A set of rules enforceable by courts or government agencies

Question 2

Define substantive law

Answer 2

Law that establishes rights and limitations

Question 3

Define procedural law

Answer 3

Law that governs enforcement of substantive law

Question 4

Define public law

Answer 4

Governs relationship between individuals and government

Question 5

Define private law

Answer 5

Governs interpersonal relationships

Question 6

What is civil law?

Answer 6

Law or rules in a system determined by central civil code, precedent less binding

Question 7

What is common law?

Answer 7

Relies on stare decisis and precedent is binding

Question 8

What section of Canada’s Constitution does the federal government govern and what do they govern?

Answer 8

(section 91) - banking, currency, postal service, etc.

Question 9

What section of Canada’s Constitution does the provincial government govern?

Answer 9

(Section 92) - hospitals, education, etc.

Question 10

What did the Royal Proclamation of 1763?

Answer 10

Established a nation to nation relationship between the Crown and First Nation communities

Question 11

Describe what Stare Decisis means

Answer 11

(1) in Latin, “to stand by things decided” (2) a system of justice where judges are required to follow precedent (3) very significant system of common law

Question 12

What section of the Constitution Act recognizes Indigenous peoples and their Treaty Rights?

Answer 12

Section 35 of the Constitution Act

Question 13

What does the Charter of Rights and Freedoms Establish?

Answer 13

(1) Protects Basic individual rights when it comes to the government by limiting their actions (2) some exemptions are allowed

Question 14

What does the Human Rights Legislation establish?

Answer 14

(1) prohibits discrimination based on gander, religion, etc. (2) applicable to employment, public facilities, services, etc.

Question 15

Where do we look to predict the outcome of a legal dispute?

Answer 15

In a common law system because of precedent making decisions

Question 16

How does the use of stare decisis differ in civil law and common law jurisdictions?

Answer 16

(1) in civil law jurisdiction only the code is binding on judge, cases decided by other judges are merely persuasive or can be turned to for guidance. (2) in common law jurisdiction can be a binding aspect of the law meaning if a case qualifies as precedent the judge faced with that precedent must follow it.

Question 17

Describe what is meant by “common law judges did not make the law, they found it.”

Answer 17

When common law was originally introduced in Europe it was the legal structure that was imposed, not the rules themselves. The judges just applied the law or rule that were already in place with the “common people.”

Question 18

Describe the advantages of stare decisis

Answer 18

(1) The main advantage is the stability and predictability that it revives for the legal system — it’s not always necessary for someone to go to court to find out how the law will be applied to a situation. (2) Parties can avoid the costs and difficulties associated with court action. (3) whenever there’s no precedent to cover a specific case before the court, the court is then free to make such precedent.

Question 19

Describe the disadvantages of stare decisis

Answer 19

(1) the main disadvantage is as the number of precedent grows, the courts are unable to change and adapt a situation as the attitudes of society alter. — the courts often find themselves using rules established centuries earlier which may have no jurisdiction for being applied in a modern situation.

Question 20

Describe the problems with the common law system that led to the development of law equity?

Answer 20

Because of stare decisis among other things the common law became rigid in its procedure and inflexible in the rules that were applied. The remedies that were applied were limited as well. So the court of chancery developed to provide relief in those situations.

Question 21

What was accomplished by the Judicature Acts of 1873 - 1875.

Answer 21

Organized the various different court structures in place in England—during that time—into one central court system called the English High Court of Justice.

Question 22

Explain what is meant by the phrase, “the supremacy of Parliament.”

Answer 22

In the English and Canadian legal systems, Parliament is supreme. (1) A statute enacted by parliament becomes the definitive law of the land overriding any other rule or law.

Question 23

What is the exception to the supremacy of Parliament?

Answer 23

In Canada it is the Charter of Rights and Freedoms.

Question 24

What effect will a passed statute have on inconsistent judge-made law (case law)?

Answer 24

The principle of the supremacy of Parliament such a statute will override any inconsistent judge-made law.

Question 25

Outline how a parliamentary bill becomes a law

Answer 25

A new law goes through a process of introduction in the form of a bill, debate, modification, and approval referred to as first, second and third readings, then receives royal assent from the Governor General or Lieutenant-Governor of a province.

Question 26

Using the principles of stare decisis, explain how judges determine whether or not they are bound by another judges decision in a similar case.

Answer 26

(1) Judges are bound by the precedent-making decision of other judges who are in the same court hierarchy at the same or higher rank. (2) the judge must determine whether the case presented as a precedent covers the same facts or whether it can be distinguished—if the facts can be differentiated the case is not binding.

Question 27

What’s included in Canada’s Constitution?

Answer 27

Legislation, court decisions considering the constitution, Constitution Act of 1867, Statute of Westminster 1931, The Constitution Act of 1982, Charter of Rights and Freedoms.

Question 28

What is the effect of sections 91 and 92 of the Constitution Act of 1867?

Answer 28

Section 91 and 92 divide powers between the federal and provincial governments. (Section 91) assigns certain areas of legislative power to the federal government and (section 92) assign other powers to the provincial governments.

Question 29

How did the Constitution Act of 1867 limit the power of the federal and provincial governments?

Answer 29

Assigns certain areas of governmental control to either the federal or provincial governments for their exclusive jurisdiction—however there may be overlap between the two and when this occurs.

Question 30

Explain what is meant by the doctrine of paramountcy? When does the doctrine apply?

Answer 30

Since it is possible for federal and provincial legislation to overlap and it is not possible for both to obey the law, the doctrine declares that the federal legislation prevails.

Question 31

Describe the limitations on the federal or provincial governments power to delegate their authority to make laws

Answer 31

The federal and provincial governments cannot delegate their power to make laws. They can delegate the administration of the laws to another body, such as an administrative tribunal.

Question 32

Explain how the Constitution Act of 1982, including the Charter of Rights and Freedoms affects the doctrine of supremacy of Parliament

Answer 32

The Constitution Act of 1982 and The Charter of Rights and Freedoms limits many important areas of rights and freedoms that cannot be overridden without a constitutional amendment, so in those areas Parliament is no longer supreme

Question 33

Explain how the courts have power to declare legislation passed by either provincial or federal governments unconstitutional

Answer 33

The courts now have power to declare legislation passed by either the provincial government or federal government as unconstitutional, because it is inconsistent with the Charter of Rights And Freedoms.

Question 34

Explain any limitations that apply to the rights and freedoms listed in the Chater

Answer 34

(Section 1) limits our rights when reasonable to do so in a free and democratic society. (Section 33) Allows government to pass legislation contrary to certain section of the Charter as long as they state they are doing so at the time. The exemption only lasts for five years but may be renewed at the end of that period.

Question 35

Give examples of democratic rights, mobility rights, legal rights, and equality rights as protected under the Charter

Answer 35

(Democratic rights) - right to vote, that elections be held (Mobility rights) - the right for citizens to live, work, and travel freely in Canada (Legal rights) - right to life, liberty, security (Equality rights) - the right no to be discriminated against on the basis of sex, religion, race, etc.

Question 36

Give three examples of rights protected under the Charter

Answer 36

(Language rights) - French and English are guaranteed as the official languages of Canada. (Parliamentary debates) - everyone has the right to use English or French. (Aboriginal rights) - the Charter will not repeal Aboriginal, treaty or other rights of Aboriginal peoples.

Question 37

Explain the limitations that apply to human rights legislation in Canada. Does the Canadian Human Rights Act address all discrimination?

Answer 37

It only addresses the grounds for discrimination in areas of society which are described in the legislation. The Canadian Human Rights Act does not address all discrimination.

Question 38

List an example where the Canadian Human Rights Act doesn’t address all discrimination

Answer 38

A restaurant is legally able to only hire attractive servers, so long as they do not discrimination against any applicants on any of the prohibited grounds such as age or physical disability.

Question 39

How do human rights codes differ in their application from the Charter of Rights and Freedoms?

Answer 39

The Charter only deals with our relationships with government and government institutions. The humans rights codes govern our relationships with each other and non governmental institutions such as corporations.

Question 40

Explain R. V. Clough, 2001

Answer 40

The trial judge was not supposed to pass his own judgement on the courts ruling of Kozma. Clough argued that her circumstances were similar to Kozma and the trial judge must impose the same conditional sentencing. Clough argued on the basis of stare decisis that the judge of the BC court should be bound by the decision of the judge of the BC Court of Appeal considering they are in the same judicial system.

Question 41

Explain Daniel’s v. Canada, 2016 (Indian Affairs and Northern Development)

Answer 41

Found that the Indian Act includes ALL aboriginal peoples, including non-status natives and Metis peoples.