Chapter 2 Flashcards
What is law? Assuming a workable definition.
Law is the body of governing rules made by the government that can be enforced by the courts or by other government agencies.
What is substantive law?
The rights and rules that govern our behaviour and set limits on our conduct.
What is procedural law?
Determines how substantive laws will be enforced.
What is public law?
Includes constitutional law and determines how the country is governed and regulates our relationship with govt.
What is private law?
The law that governs our personal, social, and business relationships.
In Canada what is Bijuralism?
Two legal traditions co-existing, being common law and civil law.
What is the civil law legal system?
Quebec’s noncriminal legal system based on the French civil code.
A set of rules stated as broad principles of law that judges apply to the cases that come before them.
- Prior decisions do not constitute binding precedents.
What is the common law legal system?
Law that is not written as legislation, rather a system of rules based on precedents and adaptable to different circumstances.
What is stare decisis?
The system of law were judges are required to follow president. One of the most significant features includes that the decision of a judge is binding on all judges and lower courts. This allows previous decisions to act as a crystal ball and predict the outcome of all litigation.
Laws are inherent in the fact that it may be inflexible and may not acknowledge changing social attitudes.
What is a hierarchy of courts in Canada?
I.) supreme court of Canada.
II.) the court of appeal in the province.
III.) the provincial court of Kings bench.
IV.) the provincial court of justice.
What is a Court of chancery
A court that saw power delegated from the King to the Chancellor.
Arose due to limitations of the common law court.
What is a statute?
A written law passed by parliament.
Statutes and limitations determine what we must do to carry out business in Canada.
What is parliamentary supremacy?
Dictates that where case law and statutes conflict, statutes prevail.
What are the three key items in the British North America Act? [1867]
Created the dominion of Canada.
Established structures of power of the federal and provincial levels of government.
Divided power among the judicial, executive and legislative branches of the government.
What is he constitution act, 1982
The rule book that the government must follow.
Includes the charter of rights and freedoms.
What are the elements of the Constitution?
Statutes
Case law on constitutional issues
Conventions; unwritten rules on how the government is to operate and includes the role of law.
What is the residential tenancies act an example of?
A statute.
What sections divide power between the federal and provincial governments?
Sections 91, and 92.
T/F: The constitution act 1867, and charter of rights of freedoms place some limitations on supremacy of parliament.
T
What does the Executive Branch do?
Implements the law.
What does the judicial branch do?
Interprets legislation and makes case law.
What does the legislative branch do?
Creates the legislation or statute law.
In a jurisdictional dispute, what is the test?
Pith and substance.
- What is the main purpose of the law
- Whether the government that enacted the law had the constitutional jurisdiction to regulate the concern
What is Paramountcy?
The federal and provincial governments powers overlap considerably, if the overlap is incidental, both laws are valid in operative and the body should follow which ever law holds to a higher standard. If they are conflicting, then the federal legislation be operative and the provincial no longer apply.
What does the charter of rights and Freedoms aim to do?
It aims to protect human rights against abuses by the government.
What does human rights legislation aim to do?
Aims to protect individuals against discrimination and intolerance by society at large
Can human rights be interfered with?
Only by constitutional amendment.
Who protects the rights within the charter of rights and freedoms?
The rights are protected by judges, not governments
What are the limitations on charter rights?
Section one allows interference with rights and freedoms as maybe justifiable in a free democratic society.
Section 33 legislators can pass act that infringe on rights not withstanding the charter, but legislation must be reviewed every five years
Section 32 (one); restricts operation of the charter to government and government related activities, such as universities and hospitals
What does the charter protect?
Democratic rights, fundamental freedoms, mobility, rights, legal rights, equality rights, and the language rights
What are fundamental freedoms?
- Freedom of conscience and religion
- Freedom of thought, belief, opinion and expression
- Freedom of peaceful assembly and association
What are the limitations on democratic rights?
Those who are underage or mentally incompetent.
What is included in legal rights?
Intended to protect individuals from unreasonable interference from the government or its agents.
-Section 7 states that we have the right to life, liberty, and the security of person
- Fundamental justice : everyone is entitled to procedural fairness and the rule of law.
- Sections 8+9 prohibit such activities as unreasonable search and seizure and arbitrary imprisonment.
Which rights cannot be overridden with section 33
Democratic rights mobility rights and minority language rights
What does the Canadian humans rights act apply to?
Abuses that occur in sectors regulated by Federal legislation
Both federal and provincial governments have set up what to hear complaints of human rights, violations, to investigate human rights, violations, and post significant sanctions on remedies
Human rights tribunal
If a human rights tribunal is unable to find settlement and what occurs
A tribunal hearing
