L1 - Introduction Flashcards
What are the 3 basic elements of a legal system?
- Laws
- Lawmaking structure
- Administration and enforcement of the laws
What is private law?
The law regulating the relationship between individuals (contract law, family law, etc)
What is public law?
The law regulating the relationship between individual and the state/government
What is Common Law?
It comes from England and judges are bound by previous judicial decisions (stare decisis)
It is used everywhere in Canada, except for private law in Québec
What is Civil Law?
It comes from France and judges aren’t bound by precedents, but they do tend to use them. Used for private law in Québec
What are the 2 main sources of law?
Constitution Act of 1867
and
Act of 1982 - Canadian Charter of Rights and Freedom
What is the Constitution Act of 1867, ss.91 &92 about?
Division of Power between Federal and Provincial
What is the Act of 1982, s. 52, about?
The constitution is the supreme law in Canada
“any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”
What are provincial and federal legislations?
Laws passed by the government levels
What is special with judicial decisions? (aka jurisprudence)
The judges can interpret the laws and apply them, but it can sometimes lead to some changes.
To avoid this ambiguity, government should make some amendments
What is an amendment?
A change or addition to a contract
What is the objective of the court system?
To resolves issues and disputes
However, going there is lengthy and costly, so it’s not necessarily the best
Consider arbitration or neutral mediation
Is the court system hierarchical?
Yes, with the supreme court at the top
What are the 3 professions?
Lawyers, Judges, Notaries
What are the 2 types of lawyers?
Litigation: They usually go to court
Transactional: They usually don’t go to court
Both use their knowledge of the law
What do notaries do?
They tend not to go to court, as they mostly deal with non-contentious issues
What are the 3 branches of government?
Executive
Legislative
Judiciary
What composes the executive branch?
Comprised of the prime minister, the Cabinet, the public/civil services
Cabinet member are elected as ministers by the prime minister
What is the function of the executive branch?
It has an important function in setting policies, administrating law, and government spending
What is the distinction between the executive branch at the federal and provincial levels?
They work similarly, however, at a provincial level, the premier appoints MLAs and MPP (Member of Legislative Assembly and Member of Provincial Parliament (Ont))
What composes the legislative branch? (fed)
The Parliament, the House of Commons, and the Senate
How are senators chosen?
They are appointed by the Governor general, on the cabinet advice
Also, they retain their seat until they’re 75 or when they die
What is the function of the legislative branch?
They pass statute law
What are the differences between the legislative branch of the federal and the one of the provincial level (2)?
The parliament is called Legislative Assembly
It works the same, but without a Senate
What is the function of the judiciary branch?
It’s made up of judges that interpret the laws and provide judgments
What is the particularity of the judiciary branch?
It works independently of the other 2 branches (executive and legislative)
When is statute law subject to changes?
When there’s enough pressure from people, pressure groups, or events that influence the government into amending the law.
It follows the same process as creating a law
e.g., Anti-terrorism act following 9/11
What is a government bill?
And idea to create or change a law introduced by a Cabinet member
They are rarely defeated if the government holds the majority of the seats in the House of Commons
What is a private member bill?
A bill initiated by citizens, lobby groups, or corporations. It still needs to be introduced by a member of Parliament.
The procedure is the same as a government bill, but it does not start with the Cabinet’s support
What are the steps to create a law? (8)
- Member of Parliament develops a bill to present before the House
- 1st reading and presentation to the House of Commons (no vote)(to the MLAs or MLPs on a provincial level)
- 2nd reading and vote (if majority is against, it is defeated)
- Committee of the house studies the bill. May propose changes or amendments. Then the bill is sent back to the House for debate on the changes.
- 3rd reading, debate and vote again
- Bill is passed to the Senate, and undergoes a similar process (rarely overturned)
- Bill is passed to Governor General for final approval (or Lieutenant for provinces)
- a) Royal Ascent: Act brought into force and becomes law
b) Particular date: Act come into force at a specified date
c) Proclamation: Act to come into force at a date to be announced later
We do we use precedent judicial decisions in the Common Law system?
For Consistency, Predictability, and Fairness
It is not a foolproof system however
What is the Oakes test?
(Constitution Act of 1982, s.1)
It’s a test used to decided whether government infringing action on Human Rights (act of 1982) is justified
2 prompts, with the 2nd one having 3 sub-prompts
What is arbitration?
A neutral 3rd party arbitrator DECIDES the outcome of the conflict (private sphere judge)
What is neutral mediation?
A neutral 3rd party helps both parties find common ground but doesn’t decide the outcome
