Chapter 2 - The Quebec Legal System Flashcards
Element 1 - Structure:
Government can only do what is permitted by law & individuals can do everything but what is prohibited by law.
What is sovereignty?
A nations authority to govern themselves, any way they choose.
- Authority is granted to elect representatives
In Canada, this includes the
- Constitunional act, 1982 (BNA)
- Federal & provincial governments
Authority to enact law: What is the federal jurisdiction’s role?
S.91 - Create laws across multiple provinces. Passes laws concerning the “peace, order and good gov. of Canada”
- postal services
- military & defense
- currency
- criminal law
- environment
Authority to enact law: What is the role of the provincial jurisdiction?
S.92 - Create laws applicable only to their provinces
- hospitals
- municipal institutions
- liscences
- property and civil rights
- Rescources (apart from uranium)
The Canadian legislative process consists of […]
federal laws made by parliament, of which have 3 elements
- Legislature: House of Commons - elected members
- Senate - appointed members
- The King
What is cabinet?
Cabinet will introduce a law. The cabinet is the government and comprised of 338 members. They will make laws either federally or provincially.
Private member bills are those in cabinet who are not in the elected party (liberals), or liberals who are not considered part of cabinet.
Cabinet will present either
- a BILL - an idea for a law
- a MOTION - a decleration or commitement.
What is the process for a bill to be motioned?
1) government proposes law at “first reading”
2) if law isnt rejected its printed and goes to House of Commons as a bill and voted on 3 times, each with modifications in between
3) if passed, then goes to Senate and has 3 readings
4) if passed, then goes to Royal Assent, where the king signs off.
Who are the representatives of the crown?
- Governor General - represents crown in Canada, appointed by queen
- King - head of state, governor general exercises all of the crown’s power
- Lieutenant General - King’s representative in each province for provincial law.
Element 2 - Law: what are the 6 sources of the law?
1) The Canadian Constitution
2) Federal and Provincial Statutes
3) Jurispendence
4) Doctrine
5) Custom or Tradition
6) Administrative Regulations
The Canadian Constitution
Created in 1867 with a lack of a charter to ensure PARLIAMENTARY SUPREMACY (we should all trust parliament)
Rewritten in 1982 to include a bill of rights and have CONSTITUTIONAL SUPREMACY (ammendment formula to be able to change the constitution)
S.91-92 in the constitutyion, and its main purpose: which government can pass which laws on which subject.
Federal and Provincial Statutes
A statute is a law passed by the government.
- To pass a law they need simple majority in house of commons (51% of those prescent)
Each year all statutes are printed to a volume, and everytime a statue is changed, or repealed, they must update their copies.
- Government consolidates statutes every 15 years to make them easier to understand with all the new changes to a “revise statutes of Canada” book
What is a statute vs a code?
A statute ia 1 law dealing with 1 subject (tax, insurance, bank…)
A code is a collection of statutes that deals with many subjects in one broad area (civil code = marriage, contracts, birth…)
A statute is taken more seriously than a code. EX: Quebec charter of human rights and freedom.
Jurispendence
CASE LAW!!!
judgement of the courts that have been rendered in the pass - precedence.
- it is important that the law is always applied in the same ways
- if legislators have passed a statute that conflicts with caselaw, the Statute will override.
- Case law is common law. In quebec, courts don’t make the law, only apply and interpret.
- Judicial activism: judge going beyond the case and law to use their own opinions as to what is fair.
Who can change precedence?
- Appeals court
- Supreme Court
- or if the gov mends the precendence.
What is the difference between Common law vs Civil Law in Jurispendence?
In Common law, once a court has made a decision it has ** STARE OF DECISIS ** - considered to have the force of the law.
In Civil law, courts are not bound to past decisions though they are carefully considered to maintain uniformity.
Doctrine
Written commentaries on the law: Article, Journal, Book from expert, etc.
material used to plead a case and convince judge to accept the expert’s opinion.
- The more often the court accepts 1 doctrine, the more credible it becomes.
Customs or Traditions
A tradition or usage accepted by a community
- bull seller vs bull farmer case
Accepted by court provided no conflict with existing statutes.
- can be made into a statute
Administrative Regulations
Administrative boards, empowered by statute to pass regulations.
- Authority to pass regulations of how a law should be respected
- ex: Office de la langue francaise.
Element 3 - Administration & Enforcement: Jurisdiction
Once a law is passed, it is up to judges to interpret and apply the law.
Courtforum: the various levels of court - We determine which court will hear a case based on:
- the nature of the case
- geography: location of the issue or defendant
What are the various types of courts we find in the court system?
1) Courts of Appeal
2) Superior Court
3) Court of Quebec
4) Municipal Courts
Court System
Provincially:
- QU superior court & Court of quebec, who appeal at QU court of qppeal, who appeals to SUpreme Court
Federally
- Federal admin tribunal who appeals to Federal court, who alonside Federal tax court, appeals to Federal court of appeal, who appeal to the Supreme Court.
Municipal Court
Each municipality has the right to set up a court
- most are part-time courts with judges appointed by minister of justice of QU
- MTL, Laval and QC have full time courts with judges having a permanent position
Municipal court hears to violations of municipal laws and minor criminal offences less than $1k. They do not hear civil cases ( individuals suing someone for money)
Court of Quebec
AKA a court of first instance (where they are first being hears, not appeal) - it has 3 divisions
- Civil Division (small claims court)
- Youth Division
- Criminal & Penal Division
The court of Que judgement may be appealed @ courts of appeal of the dispute is bigger than $60k
- all cases up to $85k
Small Claims Court (division of court of que)
Began in 1972 to releive a backlog of cases & enabling people to obtain fast and less expensive statements.
Uses the INQUISITIVE METHOD - no lawyers - one judge hears both parties, asks the questions and makes a decision.
- claims must be less than $15k
- business must be represented by a full time employee (can be a lawyer)
- Company must have less than 10 employees during previous 12 months
- Creditor can reduce debt to sue at this level
- no appeals
Superior Court
- heard by one judge alone
- all cases over $85k
- superintending powers & class action requests - if a lower court goes beyong its capacity, you go to superior court to appeal what that judge did.
Court of Appeal
There’s 1 general copurt for the province
- Appeals brough from superior court
- It has APPELLATE JUSRISDICTION (the right to hear appeals)
- 7 judges (3, 5, or 7)
- Decisions based on majority
- Must apply (leave) to be heard
- Dispute either error fact or error of law
3 outcomes in the end: ruling stands, ruling overuled, ruling substituted
Supreme Court of Canada
Highest Court in Canada, appeals may be brought from any court.
- 9 Judges (3, 5 ,7 or 9)
- Judges are appointed nationwide, with 3 always being from Que
- Majority made decisions
- Need leave to be heard
- Dispute either error fact or error of law
Federal Court
- Deals with special matters concerning federal government
- Has both a First Instance section sna and appeals section.
The legal profession: who are the players?
- Judges
- Lawyers
- Notaries
- Comissioners of Oaths
- Legal Aid
Judges
Judges are selected by the government.
- Our court systen is ADVERSARIAL not inquisitive (apart from small claims)
- Must previously have been a judge for 10 years
Lawyer
- Must have passed the Que bar
- someone that gives legal advice
Notaries
A notary gives legal advice but cannot represent a client in court.
- Exclusive right to prepare certain documents (contracts)
- Notary prepares AUTHENTIC ACTS meaning it makes proof of its own.
Notary documents may be prepared:
*En brevet: having multiple copies
* En minute: must having preserved the original.
Mediators & Arbitrators
Cannot represent you in a court setting. They are an objective third party that acts similarly to a judge so you don’t need to appear in court.
EX: judge judy
Commissioners of Oaths
Similar to a notary but not as concrete. They create documents like a Affidavit, in which someone, under oath, signs declaring it to be true.
Legal Aid
- Provide lawyers and notaries free of charge
- Offered if you make less than a certain weekly revenue
Legal aid can help with
- Criminal defense in first instance courts
- Family Matters
- Alimentary Obligations
- Cases under Youth Protection Act
Legal aid cannot help with
- Actions of liebel or defamation
- Contesting election results
- Breach of promisse of marriage
- Parking Violations
