Exam #2 Flashcards
(37 cards)
Life Cycle of a law
Introduction
Debate and Discussion
Adoption
Codification
Amendment
Repeal
Statute Regulations
Many statutes are accompanied by a type of subordinate legislation known as regulations, particularly where the subject matter being covered is of a technical nature. Unlike statutes, regulations are not passed by Parliament or provincial legislatures. They are prepared and published by administrative officials (department or ministry staff) under the authority of the relevant statute to deal with the technical issues. Regulations tend to be very practical and can include lists, schedules, diagrams, forms, and charts. The rules of various levels of courts are generally published in the form of regulations.
How to look up a statute
The statute that police consult most often is the Criminal Code. The most current version of this statute is cited as RSC 1985, c C-46 (the significance of the elements of this citation will be discussed below). Because it is one of the most frequently consulted Canadian statutes, the Criminal Code is often published by commercial publishers in both pocket editions and annotated editions that contain commentary, many of which contain the text of other related statutes, such as the Youth Criminal Justice Act,16 the Canada Evidence Act,17 and others creating criminal or quasi-criminal offences. These editions typically also include the text of the Charter of Rights and Freedoms. Current, commercially published editions of the Criminal Code will serve most research needs, but because such editions are usually published once a year, new provisions or amendments may not be included. To be absolutely sure that the information is up to date (for example, to prepare for a court appearance), one needs to update, or note up, research results by consulting an official source—that is, a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency—for the legislation, as described below.
What is the difference between the criminal code and class and the ones they use in court
Current, commercially published editions of the Criminal Code will serve most research needs, but because such editions are usually published once a year, new provisions or amendments may not be included. To be absolutely sure that the information is up to date (for example, to prepare for a court appearance), one needs to update, or note up, research results by consulting an official source—that is, a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency—for the legislation
official source
a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency
Know where to find the objectives of a statue
Preamble An introduction, made up of one or more provisions, the preamble sets out the objectives and guiding philosophy of the statute. The preamble can often provide some interesting insights into the socio-political context of the statute. It is also an official component of the statute for interpreting and enforcing the statute.
Know about Canada constitution
British North America Act 1867. In 1982, the British Parliament passed the Canada Act 1982,2 which contained the Constitution Act, 1982.3 The Constitution Act, 1982 was passed by our Parliament and includes the Canadian Charter of Rights and Freedoms.4
How to cite a federal and provincial statute
A reference to a statute will also likely provide the statute’s citation—a list of letters and numbers following the statute name that represent that statute’s “address” for the purpose of research.
A federal statute’s citation looks like this:
Criminal Code, RSC 1985, c C-46; or
Immigration and Refugee Protection Act, SC 2001, c 27.
A provincial statute’s citation looks like this:
Provincial Offences Act, RSO 1990, c P.33; or
Employment Standards Act, 2000, SO 2000, c 41.
Reasonable limits of the charter
The reasonable limits of the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms are found in Section 1 of the Charter
The rights guaranteed by the Charter are important but are not without limits. Some rights-granting provisions contain an internal limitation. For example, section 7 guarantees the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (emphasis added). The content of “the principles of fundamental justice” has been a matter of judicial consideration (it has been interpreted by case law), and legal tests have evolved to determine whether a particular violation of a section 7 right will be deemed to be in accordance with the principles of fundamental justice.
Charter challenges have been brought by prison inmates who were denied the right to vote because of their incarceration. The decisions have made it clear that inmates are entitled to vote in federal and provincial elections.11 Restrictions on their voting have been held not to be “reasonable limits” on the inmates’ rights for the purpose of section 1 of the Charter, and policies preventing inmates from voting are unconstitutional.
Note that although many Charter rights are guaranteed to people who live in Canada regardless of citizenship, the wording of section 3 makes it clear that the right to vote is guaranteed to every citizen of Canada—that is, citizenship is a prerequisite to the eligibility to vote in most elections.
What the charter governs
The Canadian Charter of Rights and Freedoms is a constitutional document that protects the fundamental rights and freedoms of individuals in Canada, governing interactions between individuals and the government. Adopted in 1982 as part of the Constitution Act, it ensures that all levels of government in Canada respect certain rights and freedoms while creating limits that can be justified in a free and democratic society. Key areas it covers include:
- Fundamental Freedoms (Section 2)
Freedom of expression
Freedom of religion
Freedom of peaceful assembly and association - Democratic Rights (Sections 3-5)
Rights to vote and run in elections
Limits on the duration of legislative bodies (such as a five-year maximum term for governments) - Mobility Rights (Section 6)
Rights to enter, remain in, and leave Canada
Rights to move and work in any province - Legal Rights (Sections 7-14)
Right to life, liberty, and security of the person
Rights on arrest or detention (e.g., protection against arbitrary detention, right to a lawyer)
Fair trial rights (e.g., presumption of innocence, right to an interpreter if necessary) - Equality Rights (Section 15)
Right to equality and freedom from discrimination based on race, sex, disability, and other protected grounds - Language Rights (Sections 16-22)
Rights related to official languages, recognizing English and French as Canada’s official languages
Rights to use either language in federal institutions - Minority Language Education Rights (Section 23)
Right to education in one’s minority language (English or French), if there is sufficient demand in a province
The Charter aims to create a balance between individual rights and the public good, using Section 1 (the Reasonable Limits Clause) to allow limitations on rights when necessary in a democratic society. Additionally, Section 33, known as the Notwithstanding Clause, allows provincial legislatures to temporarily override certain Charter rights.
The rights of citizens
lthough not truly a limit, not all of the Charter rights are available to every person in Canada. The legal or “criminal law” rights are available to everyone, but the democratic and mobility rights apply only to citizens of Canada. Thus, it is important to look at the language of each section to determine who is entitled to the protection of the different rights in the Charter. For example, section 3 states:
- Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
The words “Every citizen of Canada” make clear that this right is not available to non-citizens.
What is a bill
a preliminary version of a statute law that is written down to be reviewed, debated, and voted on before becoming law
Section 7 of the charter
Section 7 of the Canadian Charter of Rights and Freedoms protects three fundamental rights: life, liberty, and security of the person. It reads:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
section 8
Section 8 of the Canadian Charter of Rights and Freedoms protects individuals from unreasonable search and seizure by the government. It reads:
“Everyone has the right to be secure against unreasonable search or seizure.”
section 9
Section 9 of the Canadian Charter of Rights and Freedoms protects individuals from arbitrary detention or imprisonment. It states:
“Everyone has the right not to be arbitrarily detained or imprisoned.”
Section 10
Section 10 of the Canadian Charter of Rights and Freedoms protects the rights of individuals upon arrest or detention. It outlines three key rights:
“Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”
Section 11
Section 11 of the Canadian Charter of Rights and Freedoms outlines the rights of individuals charged with an offense. These rights aim to ensure fairness and transparency in the criminal justice process. Section 11 reads:
“Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.”
Section 24
Section 24 of the Canadian Charter of Rights and Freedoms provides individuals with remedies when their Charter rights or freedoms have been violated. This section allows individuals to apply to the courts for appropriate relief, and it includes a specific remedy related to the exclusion of evidence obtained through rights violations. Section 24 reads:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
Common law
The role of the common law in our legal system is a direct result of our history as a British colony; we have inherited the common law as part of our law-making system. The common law is the body of judicial decisions made by courts in England and in Canada that establishes legal rules and principles dealing with specific issues. The common law has evolved over many years and reflects changes in society.
common law
a legal rule or a body of legal principles, established through judicial decisions, that deals with particular legal issues or subject areas
What is a citizen of Canada and what is not
In Canada, a citizen is a person who holds legal status as a member of the Canadian nation, with certain rights, responsibilities, and privileges established by the government. Canadian citizenship is defined by the Citizenship Act, and people can obtain it by birth or naturalization.
Who is a Citizen in Canada?
Citizens by Birth
Generally, any person born on Canadian soil is automatically a Canadian citizen, regardless of their parents’ citizenship or immigration status (except for children of foreign diplomats in Canada, who are not granted citizenship by birth).
Citizens by Naturalization
People born outside of Canada can become Canadian citizens through a formal application process known as naturalization.
Applicants must meet specific requirements, such as permanent resident status, a certain period of residence in Canada, knowledge of Canada, language proficiency, and no serious criminal history.
Dual or Multiple Citizenships
Canada allows its citizens to hold multiple nationalities, so a Canadian citizen may also be a citizen of another country. However, their Canadian citizenship status and rights within Canada remain intact.
Rights of Canadian Citizens
Citizens enjoy the full rights and freedoms provided by the Canadian Charter of Rights and Freedoms, including the right to vote, run for political office, enter and leave Canada freely, and access Canadian passports. They also have the duty to obey Canadian laws and are encouraged to participate in society.
Who is Not a Citizen in Canada?
Permanent Residents
Permanent residents are non-citizens who have the right to live and work in Canada indefinitely. However, they do not have certain rights reserved for citizens, such as voting or holding high-security public offices.
They may apply for citizenship after meeting residency and other requirements.
Temporary Residents
Temporary residents are people in Canada on a temporary basis, such as visitors, students, or temporary workers. They do not have the same legal status as citizens or permanent residents and are subject to immigration conditions.
Foreign Nationals
Foreign nationals are individuals who do not hold Canadian citizenship or permanent resident status and who are not authorized to live or work in Canada permanently. They are typically citizens of another country and may require a visa to enter Canada.
Stateless Individuals
Stateless individuals do not hold citizenship in any country, including Canada, though they may live in Canada under refugee or stateless status. They may apply for permanent residency and, eventually, citizenship if they meet the requirements.
Understanding who is a citizen is important because citizenship grants certain exclusive rights, like voting and holding a Canadian passport, and signifies full membership within the Canadian state.
Limitations of a precedent
while precedent ensures consistency and stability, its limitations highlight the need for balance, allowing the law to evolve in response to new challenges while respecting past decisions. Courts often navigate these limitations by distinguishing cases or relying on legislative intervention to address outdated or problematic precedents.
How to read a citation
the case name—for example, R v Ford;
a year in parentheses or square brackets—for example, (1982) or [1982]—which is either the year in which the case was decided (parentheses), or the year of the reporter volume in which it is reported (square brackets);
a number that represents the volume number of the series of case reports in which the case is reported—for example, 65;
letters that represent the initials of the case reports in which the case is reported—for example, “CCC” for “Canadian Criminal Cases” (see Appendix A); these initials may be followed by a series number if the case reporter has been published in more than one series—for example, “(2d)” means second series;
the page number in the case reporter where the case can be found—for example, 392; and
in parentheses, a short form of the name of the court from which the decision comes—for example, “SCC” for “Supreme Court of Canada”—if the court is not obvious from the name of the reporter.
The examples above produce the following case citation:
R v Ford (1982), 65 CCC (2d) 392 (SCC).
Know what government institution falls under what jurisdiction
In Canada, different government institutions fall under the jurisdiction of federal, provincial/territorial, and municipal governments, with each level responsible for specific areas of law and administration. This division of powers is primarily established by the Constitution Act, 1867. Here’s a breakdown of which institutions typically fall under which jurisdiction:
- Federal Jurisdiction
The federal government, based in Ottawa, has jurisdiction over institutions and areas that affect the country as a whole or require nationwide consistency. Examples include:
Military and National Defense: The Canadian Armed Forces, Department of National Defence
Immigration and Citizenship: Immigration, Refugees, and Citizenship Canada (IRCC)
Banking and Currency: Bank of Canada, Office of the Superintendent of Financial Institutions (OSFI)
Criminal Law: The Criminal Code of Canada (though enforcement is often managed by provinces)
Foreign Affairs and International Trade: Global Affairs Canada
Employment Insurance and Pensions: Service Canada, Canada Pension Plan (CPP)
Indigenous Affairs: Indigenous Services Canada, Crown-Indigenous Relations and Northern Affairs Canada
Postal Services: Canada Post
Telecommunications and Broadcasting: Canadian Radio-television and Telecommunications Commission (CRTC)
Fisheries and Oceans: Department of Fisheries and Oceans (DFO)
Environmental Protection: Environment and Climate Change Canada (for issues that cross provincial borders or involve federal lands)
These institutions deal with areas requiring uniform policies across provinces and territories.
- Provincial and Territorial Jurisdiction
Provinces and territories manage areas of local concern and are responsible for institutions affecting the daily lives of people within their borders. Key areas include:
Healthcare: Ministries or Departments of Health (e.g., Ontario Ministry of Health), hospitals, healthcare regulations
Education: Ministries or Departments of Education, school boards, curriculum development
Civil and Property Rights: Courts handling civil law (e.g., family law, property disputes)
Municipal Affairs: Oversight of municipalities within each province, local zoning, and planning laws
Natural Resources: Provincial management of resources such as forestry, mining, and energy production
Provincial Police: Provincial police forces (e.g., Ontario Provincial Police) where applicable; in provinces without provincial police forces, the RCMP provides local policing by contract
Transportation and Infrastructure: Provincial highways, transport regulations, driver licensing and vehicle registration
Social Services: Provincial welfare programs, child protection services, provincial disability assistance
Labor and Employment Standards: Employment laws (e.g., minimum wage, worker safety regulations)
Each province and territory may have unique laws and institutions due to differences in population needs and resources.
- Municipal Jurisdiction
Municipal governments, created by the provinces, handle local services and regulations. They are responsible for:
Public Transit: Local transit authorities (e.g., Toronto Transit Commission)
Fire and Emergency Services: Fire departments, emergency response planning
Local Policing: Municipal police departments (e.g., Vancouver Police Department) in municipalities with their own police forces
Waste Management: Garbage collection, recycling programs
Local Roads and Infrastructure: Maintenance of city streets, sidewalks, and local facilities
Public Libraries, Parks, and Recreation: Libraries, parks, recreational facilities, and community centers
Zoning and Land Use Planning: Regulation of building permits, zoning for residential, commercial, and industrial land use
Public Health and Safety: Local public health units (e.g., for food safety inspections, immunizations)
Municipal governments vary in structure and responsibilities depending on their province or territory but are always subject to provincial law.
what is required when creating a statute
The government may make this decision because it believes that the common law rules are appropriate and worthy of entrenchment in statute or because it disagrees with the common law rules that have developed on a certain legal issue and wants to ensure that changes are made. it must pass through the whole life cycle
Who and what the charter applies to
he Charter protects those basic rights and freedoms of all Canadians that are considered essential to preserving Canada as a free and democratic country. It applies to all governments – federal, provincial and territorial – and includes protection of the following: fundamental freedoms, democratic rights.
