Chapter 2 the Canadian legal system part 1 Flashcards
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The canadian legal system
is the machinery that compromises and governs the legislative, executive and judicial branches of the government
Government Policy
Central ideas/ principles that guide government in its work (includes kinds of laws that are passed)
constitutional law
Supreme law of canada that constrains and controls ow the branches of government exercise power
What are the 3 branches of the legal system
- Legislative- creates statute law (impact business operations)
- Executive- generates policy ( can be directed at businesses)
- Judicial- provides rulings on legal conflicts and future conflicts
Canadian constitution
- the law must comply with the constitution
- hard to change, the amending formula must be met
constitutional conventions
rules not enforceable by the court of law but that practically determine how power is excised by the govt
constitutional act 1867 - 4 jurisdictions set out
S.91
-Division of powers of the government
Federal: s.91
Prov Govt: S.92
Territorial govts: limited self government but subject to federal control
Municipal govt - Law making jurisdiction made from provincial legislature
Exclusive federal jurisdiction
currency, national defense, criminal law, banking, postal service set out in section 91 of the charter
exclusive provincial jurisdiction
hospitals, property, civil rights, local matters, incorporation of provincial companies section 92 of the charter
municipalities jurisdiction
no constitutionally recognized powers**
-delegated powers by the province
zoning, subdivision, licensing, property tax
Jurisdiction definition
Power that a level of government has to enact laws central authority (federal) regional authorities (provincial) territorial governments (limited)
Exclusive jurisdiction definition
one level of government that completely controls one portion of the law
– federal government has exclusive jurisdiction over criminal law
concurrent jurisdiction
shared between levels of government– public health, the environment – federal law prevails in concurrent jurisdiction – called paramountcy
paramountcy
doctorine- federal law prevails in concurrent jurisdiction
bylaws
Made by municipal government- zoning, taxes, business regulation
concurrent jurisdiction over environment
federal: ocean, waterways, fisheries, import and export of hazardous products (tdg)
Municipal: water, sewage, noise, chemical use
what is the executive branch of government comprised of?
-formal executive - responsible for ceremonial features represented by governor general or leutenant general
political executive- day to day operations -formulating and executing policy and administering departments
cabinet- all ministers heading government departments that pass regulations ( prime minister too )
What is the judicial branch of government comprised of?
Judiciary- collective reference to judges – appointed by judges and it is not a branch of government
judge- appointed by federal or provincial government
System of courts
- provincial / territorial system of courts with 3 levels: 1. trial, 2. intermediate appeal, 3. final appeal
inferior court
- judges appointed by prov government
- limited financial jurisdiction
- organized by the type of the case
- parties appear without a lawyer
superior court
judges appointed by federal government
- unlimited financial jurisdiction
- more serious criminal matters
- legal representation
civil court
-small claims court - disputes with a small amount of money
supreme court of canada scc
- final court of appeals
- requires permission to appeal from scc
- deal with cases of national significance
federal court
- deals with some types of litigation involving the federal government
Canadian charter of rights and freedoms
Became part of the charter in 1982 -it is a guarantee that the government will act with values associated with a liberal democratic state
fundamental freedoms
everyone has the freedom of conscience, religion, thought, belief, opinion, expression, press, peacefule assembly and association - section 2
equality rights
- charter protects of violation of rights from the government
- legislation is unconstitutional when if it violates a charter right- the judges strick it down
s. 33
not withstanding clause – allows the govt to opt out of some charter rights by enacting legislation “not withstanding” that violates the charter
what are the 2 sources of law
- statute law
2. judge made law
Precedent
use of decisions made in earlier cases by judges in similar matters
lower courts must follow precedents made by higher courts (it is a more valued decision)
-SCC does not have to use precedent
law of equity
fair given circumstances of case opposed to what strict rules of law might dictate
classifications of the law
- domestic
includes
substantive
procedural
substantive includes : public private common law. civil law
- international law
domestic law
internal law of a country
includes procedural and substantive- and statute as well as common law
- deals with individuals and cooperations
international law
governs relations with other entities with in international and legal states like us and world trade
- treaty law
substantive law
rights, duties, liabilities (everything kinda except procedures)
procedural law
-procedure to enforce rights, duties and liabilities
public law
relationship between persons and all levels of government
- constrains governments power ( rule of fairness)
- includes criminal law, tax law, constitutional law, administrative law
private law
similar to procedural law but deals with contract, tort, property and company law
common law
judge made, used everywhere but not quebec
-bases private law on judicial decisions that must be applied
civil law
quebecs system of private law, government by civil code- that is general principles applied to the case at hand – look into this more..
