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P1 law exam notes > Jurisdiction and Fundamentals > Flashcards

Jurisdiction and Fundamentals Flashcards

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1
Q

what is the Rule of law?

A

In our constitutional tradition, “To be legitimate, all exercises of public power must be authorized by and comply with the law

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2
Q

What does the Rule of law guarantee?

A

It guarantees that the law is SUPREME over the acts of both governments and private persons

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3
Q

What does the rule of law protect ind.’s from?

A

It protects individuals from arbitrary state action; if a person believes the state has acted unlawful, that individual may seek a remedy from an independent court.

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4
Q

What is the Constitution of Canada (Constitution Act 1867)?

A

It is the SUPREME law of Canada, & any law or government action that is inconsistent with the Constitution, is of no force or effect.

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5
Q

What happens when a law is inconsistent with the Constitution?

A

A court will declare it invalid, and the process of “striking down” begins.

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6
Q

What is Federalism?

A

Canada is a federal state.In Canada political power is divided between the federal and provincial orders of government. Each order of government has authority within its own jurisdiction.

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7
Q

How are other Canadian provinces governed?

A

Canadian provinces are independent and autonomous entities. With that, laws concerning matters within provincial legislation (property law, highway traffic law, family law) may be substantially different from province to province.

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8
Q

What is Canada considered?

A

Canada is a parliamentary democracy.

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9
Q

What is the Parliament?

A

Parliament is the law making body for the FEDERAL order of government.

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10
Q

What components make up the parliament?

A

The Queen as represented by the Governor general, an UPPER HOUSE of appointed members called the senate, and a democratically elected LOWER HOUSE called the House of Commons.

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11
Q

How are new Federal laws made?

A

New federal laws may be proposed in either of the two houses and must be approved by majority vote of the members in both houses and receive the assent of the Governor General b4 they become a law.

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12
Q

What is a legislature?

A

Each province has its own legislature, made up of a Lieutenant governor (the Queens representative in each province), and a SINGLE HOUSE legislative assembly.

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13
Q

How are new provincial laws made?

A

Proposed laws are debated and voted on in the assembly and become law with the assent of the Lieutenant Governor.

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14
Q

What are political parties?

A

Members of parliament and provincial legislatures belong to political parties. Typically, after an election, the party that has the most members elected to the House of Commons /legislative assembly governs or aka “FORMS THE GOVERNMENT”.

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15
Q

What is a Prime Minister and Premier?

A

The leader of the governing party becomes the first minister (Prime Minister in the federal assembly) & a Premier in the provincial assembly.

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16
Q

What is a “Cabinet”?

A

The Premier selects other members to act as Queens ministers aka the Cabinet.

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17
Q

Who governs the executive branch of government?

A

The party with the most elected representatives in the legislative assembly assumes control of the executive branch of government.

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18
Q

What is responsible government?

A

the unwritten rule in the Constitution is that the Queen has legal power only to do so on the advice of their Ministers

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19
Q

What does confidence mean?

A

A cabinet may only govern if it enjoys the confidence of the elected members of the legislative assembly. Furthermore, it means that a majority of the members of the assembly agree that the Cabinet should continue to advise the Queen i.e. forms the government.

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20
Q

How does a new election come about?

A

If majority of the members vote that the cabinet has lost the confidence of the assembly and must resign. When a Cabinet resigns, the Prime Minister asks the Governor General to call an election (or lieutenant governor). If the request is denied they can invite the leader of a different party in the assembly to form the government. They would form a new Cabinet and seek to hold the confidence of the assembly.

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21
Q

What is an Act or a statute?

A

Laws made by parliament and the provincial legislatures are referred to as Acts. They are also called statutes.

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22
Q

How many times do Acts must be approved before coming into any force or effect?

A

Acts must be voted and approved by a majority of the members 3 TIMES in BOTH the HOC and the SENATE; Acts of the provincial legislature must be voted on and approved by a majority of the members 3 TIMES

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23
Q

What is Royal Assent?

A

Once the proposed Act has been voted on and approved 3 times, it must be given royal assent by the Queen’s representative.

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24
Q

What is primary legislation?

A

Acts of Parliament or of the provincial legislation are “primary legislation” because the authority directly comes from the chief law-making bodies under the Constitution

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25
Q

What is secondary legislation?

A

An act may also authorize a different person or body to make laws. Ex. a municipality to make municipal by-laws governing garbage collection, street parking. Its only valid if it is consistent with the authorization provided by primary legislation.

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26
Q

What is a Regulation?

A

Regulations are a form of delegated legislation. Often an Act of Parliament will set out the policy of a law in broad strokes and allow the governor in council to provide for the details in regulations.

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27
Q

What is public law?

A

Public law concerns the actions between ind.s (corporations) and the state. It encompasses criminal law, constitutional law, immigration law, admin law etc). Public law cases tend to raise issues of public importance, typically dealing with how governments may affect the interest of individuals.

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28
Q

What is private law?

A

Private law aka “civil law” are disputes between non-state actors that are typically concerned with the payment of money from one party to another. It encompasses law of contract, torts, property, wills and estates

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29
Q

Why do we categorize disputes?

A

Categorizing is a useful way to determine different kinds of legal disputes

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30
Q

What is procedural law?

A

Is the body of legal rules governing how cases are brought to court. The fundamental purpose is to ensure that whatever the outcome the person who came before the court has had a fair opportunity to present their side or respond to allegations made against them. Ex. the rules relating to how a person was arrested, brought to court etc.

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31
Q

What is substantive law?

A

Sets out the underlying rights, duties or obligations giving rise to the dispute. In criminal law for ex. the substantive law includes the rules that determine what constitutes an offence (by defining the elements of crimes such as theft, assault perjury)

32
Q

What does quasi-criminal mean?

A

Latter laws are usually called “quasi-criminal” or “penal”, to distinguish from true crimes, which are always federal

33
Q

what is a “bijuralist” country?

A

Canada is a “bijuralist” country in that it incorporates both common law and civil law systems in one federal state

34
Q

What is the Supreme Court of Canada?

A

Ultimately all courts and tribunals in Canada are subject to the Superior Court of Canada (which is the final court of appeal for all Canadians). They only hear matters of public importance.

35
Q

What is the Ontario Court of Justice?

A

Each province has a trial court, in Ontario it is the ONCJ. In Ontario, a lawyer has to be called to the bar for 10 years b4 they are eligible to be appointed a judge of the provincial court. Justices of the peace are not required to have legal training prior, but, most often do.

36
Q

What is Judicial independence?

A

Provincial judges/ Justices of the Peace have judicial independance: once appointed by the provincial government, they have security of tenure, and generally, may only be removed prior to reaching the age of mandatory retirement.

37
Q

What kinds of matters are heard at the Ontario Court of Justice?

A

Provincial courts are the trial courts for most criminal prosecutions(including summary convictions, some but not all indictable offences), all provincial offences i.e. highway traffic violations etc, health and safety violations, also authorizes search warrants, and arrest warrants, also cases relating to spousal and child support, and child protection hearings. THEY DO NOT HEAR JURY TRIALS

38
Q

What is the jurisdiction of the Ontario Court of Justice?

A

Provincial courts have only the jurisdiction assigned to them by statute. They may decide only the types of cases set out for them by statute.

39
Q

Where are decisions of provincial courts (ONCJ) appealed to?

A

Provincial superior court.

40
Q

what are provincial tribunals?

A

there are many administrative tribunals created by provincial legislation to decide disputes under specific statutes. They are not judges but frequently have SPECIALIZED KNOWLEDGE or expertise relating to that tribunal. No judicial independence. Some ex.’s include Human Rights Tribunal of Ontario, OLRB, etc.

41
Q

where are appeals of administrarive tribunals conducted?

A

All provincial tribunals are subject to judicial review by provincial superior courts. Persons who are aggrieved by a decision or action of a tribunal may seek a remedy there.

42
Q

What is a Court of appeals?

A

Each province has a court of appeal all appeals are heard here. The losing party must must ask the permission of the Court of Appeal before an appeal can proceed its called “seeking leave to appeal”. Only granted if the case presents a legal issue.

42
Q

What is a Provincial superior Court?

A

Each province has a provincial superior court in Ontario its called the Superior Court of Justice. Judges are elected by parliament.This court has INHERENT JURISDICTION: they have jurisdiction to hear every kind of legal dispute. They hear matters like: most serious indictable offences, all civil actions, divorce, torts

42
Q

What is Divisional Court?

A

Apart of the branch of provincial superior courts, Divisional court hears appeals from certain decisions of the Superior Court and from certain administrative tribunals.

42
Q

What is the Small Claims Court?

A

Small Claims Court is apart of the branch of Superior court, they have “deputy judges”, less formal handle cases $35,000 or less.

43
Q

How many judges does the Supreme Court of Canada have?

A

9

44
Q
A
45
Q

What is an “appeal as of right”?

A

In criminal cases where the court of appeal convicted someone who was acquitted at trial has an automatic right to appeal at the SCC.

46
Q

What are Federal courts and federal tribunals?

A

Parliament has created a # of specialized federal boards and tribunals to deal with matters arising under particular federal statutes

47
Q

What is a “reference case”

A

THe federal government has the power to ask the Supreme Court of Canada to provide an advisory opinion on questions of law, they can also relate to hypothetical future events.

48
Q

what is a “head of power”?

A

“Heads of power: it divides subject matter that can be legislated upon that fall within FEDERAL or PROVINCIAL power according to the Constitution Act, “exclusivity” jurisdiction within its respected sphere

49
Q

What is “POGG power”?

A

Some federal powers authorizes Parliament to “make laws for the peace, order, and good government of Canada.. Known as “POGG POWER”. Laws in relation to (ex.’s of federal power: trade and commerce, criminal law, Indians and land reserved for Indians, interprovincial and international transportation and communication)

50
Q

In what circumstances does POGG power become available?

A

is available to authorize federal legislation In 3 circumstances: THE EXISTENCE OF A NATIONAL EMERGENCY, A “GAP” IN THE DIVISION OF POWERS, & NATIONAL CONCERN

51
Q

What are some provincial powers?

A

property and civil rights, health, education, municipal institutions, the administration of justice, judicial review on federalism grounds

52
Q

What happens when there is a dispute with each head of powers exclusive powers?

A

The courts have developed 3 doctrines for use in analyzing disputes concerning the federal division of powers: Pith and substance (test for validity), interjurisdictional immunity, and federal paramountcy

53
Q

Who is bound by the Canadian Charter of Rights and Freedoms?

A

The Charter applies to government action as opposed to private action.

54
Q

Who is protected by the Charter?

A

Freedom of expression (S. 2) and Legal rights (S. 8-14) apply to everyone even “non-citizens”

55
Q

democratic rights?

A

Democratic rights, mobility rights and minority language educational rights are reserved for citizens

56
Q

what is s. 7 of the Charter ?

A

The right to life, liberty, and security of the person: is available to all individuals physically present in Canada to whom Canada’s laws apply (but not corporations)

57
Q

What are all the sections. in order?

A

S. 1 R v Oakes, S. 2 Freedom of thought and expression, S. 3 Democratic rights, S. 6 Mobility rights, S. 7 Right to life, liberty, and security of the person, S. 8-14 Criminal Justice Rights (s. 8 right to be secure against unreasonable search or seizure etc.), S. 15 Equality Rights, S. 16-23 Language Rights, S. 24 , S. 33 notwithstanding clause , S. 52

58
Q

What is S. 1 of the Charter?

A

After a limit or infringement of a Charter right or freedom is found, that limit or infringement may yet be excused if it meets the criteria of s. 1 … The Charter gurantees the rights and freedoms set out subject only to SUCH REASONABLE LIMITS …

59
Q

what is R. v Oakes?

A

2 requirements must be met: first the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a “pressing and substantial concern.” Second, the means chosen must be PROPORTIONAL OR APPROPRIATE TO THE ENDS. The proportioniality requirement has three aspects: the limiting measure must be rationally connected, must impair the right as little as possible, and their effects must not so severely trench on individual.

60
Q

What is the override provision in the Charter?

A

S. 33: is the notwithstanding clause, Parliament and the provincial legislatures have the ability to override the rights and freedoms of hte Charter. RARELY USED.

61
Q

What is S. 52 of the Charter?

A

Provision that states any laws not consistent with the Constitution (including the Charter) are deemed to have no force or effect “striking down”.

62
Q

What is section 24 (1) & (2) of the Charter?

A

where a court concludes that evidence (or anyone whose rights or freedoms have been infringed) was obtained in a manner that infringed or denied any rights or freedoms, the evidence shall be excluded … the admission of the evidence would bring the administration of justice into disrepute.

63
Q

What is a sole proprietorship?

A

Most basic form of business organization. Relatively inexpensive to set up, exists whenever an individual carries on business for his or her own account. All benefits flowing from the business and obligations like losses and liability associated with the business are the sole proprietors responsibility, All business and personal assets may be seized in satisfaction of the sole proprietors .;.

64
Q

What is a partnership?

A

A partnership exists if two or more persons carry on business in common, contribute property or services to the business, share in its net profits and losses, and are involved in the affairs of the business. A partnership is NOT a seperate legal entity. JOINTLY LIABLE. In a partnership a person cannot be both a partner and an employee of the partnership. The law places a duty to act at all times tewards other partners loyally and in good faith. (AGENCY RELATIONSHIP) partnership agreememt

65
Q

what is a Limited liability partnership?

A

It is a cross between a general partnership, and a limited partnership. The assets of an LLP can be looked into in order to satisfy the debts of and claims against the LLP. A partner in an LLP is not liable for debts, obligations of the LLP or any partner arising from the negligent or wrongful acts of a partner while it is an LLP. A partner in an LLP is not a proper party to a proceeding by or against the LLP.

The minimum insurance requirement for each partner is $1,000,000)

66
Q

What is a limited partnership?

A

The liability of each limited partner is limited to the amount of money or other property that partner contributes or agrees to contribute. It must consist of one or more persons who are general partners and one or more who are limited partners

67
Q

What is a corporation?

A

The most common form of business organization. A corp. is a legal entity seperate in law from its owners and can carry on business and incur liabilities. Although shareholders own the corporation through shares, they do not own the property belonging to the corporation. they can sue in their own names and enjoy PERPETUAL EXISTENCE. Can be federally or provincially incorporated.

68
Q

IS partnership property divisible among partners?

A

No.

69
Q

How are partnerships dissolved?

A

on the expiration of a fixed term, by the death or insolvency of a partner, on application by one partner a court may order dissolution in some circumstances etc.

70
Q

Are extra-provincial limited partnerships allowed in Ontario?

A

No.

71
Q

What should corporations ensure they do?

A

Comply with all filing and other requirements i.e. maintain the register of individuals with significant control. Failure to do so may result in fines and/or imprisonment ($5,000- $200,000)

72
Q
A

P1 law exam notes (5 decks)

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