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GMGT 3300 > Lecture 2 > Flashcards

Lecture 2 Flashcards

1
Q

What is the theory of precendent?

A

Is the foundation of the common law system and it states that lower courts must follow prior decisions made by higher courts.

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2
Q

From highest to lowest, list the hierarchy of courts.

A

Supreme court of Canada (final court of appeal)

Court of appeal

Trial court.

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3
Q

How many judges are there in trial court?

A

One.

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4
Q

Does a trial court have a jury?

A

It can, but doesn’t always.

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5
Q

What are the 2 main jobs of judges in trial courts?

A
  1. Make findings of fact
  2. Make findings of the law
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6
Q

What happens in a court of appeal?

A

There are an odd number of judges, but no jury. The documents (transcripts) and info from trial and the judges review it. No new evidence can be brought in and there will be no witnesses.

Very rarely will appeal courts change findings of fact.

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7
Q

How many judges are at the supreme court of Canada?

A

Nine.

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8
Q

Can principle of Stare Decisis (theory of precedent) be used if a case is not binding?

A

Yes. The lawyer may ask for the judge to consider it because it is “persuasive” or relates to the current case.

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9
Q

What are the principles of Stare Decisis?

A
  1. judges may be influenced by prior decisions, but a judge is only required to follow decisions from higher levels of court.
  2. precedents bind only the SAME circumstances.
  3. a past judicial decision is ONLY a binding precedent on lower courts in the SAME jurisdiction. However, not everything from higher level of courts is binding.
  4. non-binding decisions can be persuasive.
  5. not everything a judge says in deciding a case is binding on judges in later cases.
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10
Q

What is Obiter Dicta?

A

The other stuff judges say that is not part of Ratio Decidendi.
not binding, but can be persuasive.

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11
Q

What is Ratio Decidendi?

A

An important factual point or chain of reasoing in a cases that directs the final jugement.

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12
Q

When will you see a jury in higher courts for trials?

A

Sometimes for a non-criminal case, but super uncommon.

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13
Q

Is the Manitoba court of appeal binding on the trial court of Manitoba?

A

Yes.

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14
Q

Is the Maniotba court of appeal binding on the trial court of Alberta?

A

No.

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15
Q

What are the 3 traditional reasons for Stare Decisis (theory of precedent)?

A
  1. Certainty (law needs to be fairly predictable)
  2. Consistency (need like cases to be treated as such)
  3. Continuity (generally the rule should stay the same over time)
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16
Q

What is the constitution?

A

Fundamental law from which all other parties draw their power to create law.

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17
Q

Who creates law?

A
  1. Courts
  2. Legislatures
  3. Admin Legislation and Entities
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18
Q

What kind of law can courts make?

A

Case law.

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19
Q

What kind of law can legislatures make?

A

Statute law.

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20
Q

What kind of law can admin legislation and entities make?

A

Subordinate law.

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21
Q

Who makes up provincial cabinet?

A

Premier of the province and their ministers of government.

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22
Q

Who makes up federal cabinet?

A

Prime minister and their ministers of government.

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23
Q

What are the 4 roles of the courts?

A
  1. arbiter of the constitution
  2. interpreter of legislation
  3. protector of civil liberties
  4. arbiter of disputes between parties
24
Q

What is the main role of the constitution?

A

Specifies what level of legislature can create law in specific areas.

25
Q

Explain section 91 of the constitution.

A

Specifies heads of power for federal parliment.
Specfic named powers and the POGG clause.

26
Q

What does the POGG clause stand for?

A

peace, order, good government.

27
Q

Explain section 92 of the constitution.

A

Specifies heads of power for provincial legislature.

28
Q

What does ultra vires mean?

A

Beyond the scope of their powers.

29
Q

What does intra vires mean?

A

Within the cope of their powers.

30
Q

How can the validity of a statute be challenged?

A

The individual or group of individuals MUST be personally affected by the statute and can argue that the wrong level of government (legislature) created the statute.
Once those conditions are met, you can go to court to challenge the statute.

31
Q

What are the two possible rulings if it is found that the statute is invalid?

A

The court can declare ALL or part of it to be of “no force and effect”.

32
Q

Who is allowed to bring the challenges of the validity of a statute to court?

A
  1. a citizen negatively affected by a statute that they believe is passed by the wrong legislature.
  2. a citizen using the challenge as a defence
  3. one of the 2 levels of legislature can initiate a “reference”
33
Q

What are the 2 levels of legislature?

A

Provincial and federal

34
Q

At which level of courts does a reference by parliament start?

A

Supreme court of Canada.

35
Q

At which level of courts does a reference by provincial legislature start?

A

Provincial court of appeal.

36
Q

What happens when the wording of a statute is unclear?

A

You can ask what the legislature intended those words to mean.

37
Q

What evidence is the court permitted to use to come to their conclusion?

A
  1. what is apparent upon the face of the statute (dictionary, etc.)
  2. previous versions of the same statute can be compared to the current version
38
Q

What is NOT permitted by the courts to use as evidence to come to their conclusion?

A

Legislative history. (aka everything that happens before it becomes a statute)

39
Q

What methodologies can courts use to interpret what the legislature intended?

A
  1. literal method
  2. liberal method (constitutional documents but not statutes)
40
Q

Are civil liberties the only thing the charter does?

A

No!

41
Q

What are 5 main points about the charter?

A
  1. charter of rights is entrenched
  2. the GENERAL RULE is that statute are NOT allowed to violate the rights guaranteed to us in the charter of rights
  3. exception to the general rule (section 3.3)
  4. exception to the general rule (section 1 of charter)
  5. what the charter apply to
42
Q

Explain the exception to the general rule found in section 3.3 of the Charter.

A

Allows provincial legislature or parliament to override sections 2, 7-15 by inserting a clause at the beginning.

43
Q

What is a sunset clause (included in section 3.3)

A

States that the legislature must vote to keep that clause every 5 years. if failed to do so, the clause automatically gets removed from the statute.

44
Q

Explain the exception to the general rule found in section 1 of the Charter.

A

The rights are not absolute and there can be times where a minor violation is permitted with good reason (i.e., speeding to the hospital because your child is not breathing)

45
Q

Explain how the charter of rights is entrenched.

A

Simple majority vote of one legislative body is NOT sufficient for a change to be made to the charter. There is a general amending formula to follow.

46
Q

Explain the general rule.

A

A court can make a determination whether the statute (or a part of it) is invalid and then declare that statute (or part of it) to be of “no force and effect”

47
Q

What kind of law do legislatures, federal government, and provincial government make?

A

Statutue law

48
Q

What is administrative legislation?

A

Rather than the law being made my federal or provincial government, and the provincial and federal government make an entity and gives power that entity to create law in that area.

The level of government with lawmaking power in that area make an administrative entity and they can make law in that area. It is law made by an (administrative) entity.

49
Q

What is an example of administrative legislation?

A

Worker’s Compensation Board.

50
Q

What kind of law does administrative legislation make?

A

Subordinate legislation.

51
Q

What kind of law/legislature do bylaws fall under?

A

Subordinate legislation

52
Q

Why is municipal not considered a level of government in law?

A

Municipal stuff (i.e., City of Winnipeg) is an entity created by a provincial statute.

53
Q

What is city law called?

A

Bylaws

54
Q

What type of legislation are bylaws?

A

Subordinate

55
Q

When is judge made law overruled?

A

By a valid statute.

56
Q

If a statute is not valid, where do you go to find out if it is valid?

A

The court.

57
Q

What does the Charter apply to?

A
  1. not employment or tenancy situations
  2. it applies to government, its laws (statutes, regulations and orders in council) and governmental entities

GMGT 3300 (11 decks)

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