M1: Legal System Overview Flashcards
Legislative Branch
- makes & expresses law
- pass laws (statute laws)
- introduce, vote on, pass legislation
parliament, senate, provincial legislatures (MLA)
Executive Branch
- administers and implements law
- manages day to day govt
PM, premiers, cabinet, civil servants
Judicial Branch
- interprets & applies law
- can strike down laws
Fed and Prov appointed judges
Why Separation of Powers
- prevent corruption
- protect public
Who creates statutes?
Parliament (Legislative branch)
Legislative x Executive branch function?
Statutes proposed by legislative branch inspire regulations that the Exec branch implements
Where do laws come from?
- constitutional law: constitution act of 1867 and charter of rights and freedoms
- statute law (legislature) and regulations (Executive branch)
- common law (interpretations and applications of law from court decisions)
2 constitutional laws
- constitution acts:
Structural, set the framework of legal systems, codify provincial powers, separation of powers, object: create fed govt while allowing each province to maintain autonomy - charter of rights:
substantive, defines the limit on the substance of laws defined by government, outlines civil rights
What sections of const act separate pwoers
s91. outlines fed govt jurisdictions + how territorial govts are subject to fed governance
s92. outlines prov govt jurisdiction + municipal govts led by prov governance
Federal, s.91 powers
- POGG!!!!! Residucal category allowing govt to make new laws
- trade & commerce
- EI
- Crime
- Banking currency
- Air travel
- broadcasting
- copyrights
-marriage - military
- patents/copyrights
- FN affairs
- immigration
- marraige divorce
Provincial s.92
- local or private matters
- education
- hosptial
-socail service - property righs
- civil rights
- employment matters in province
- implementation of justice
- incorping of companies w prov objectives
- solemnization of marriage (?)
Common Law
- Canada + Provinces use it (precedent law)
Judgment
a formal ruling in the matter as well as reasons for the outcome
what two rules can judges apply ?
common law
rules of equity
What are equity rules?
focus on what would be fair given the specific circumstances of case rather than strict rules of common law
Are all precedents equal?
no! the higher the court that created precedent the more valued it is
What is binding precedent
??
What are persuasive decisiions?
??
how can supreme court decide a case
any way they see fit
court structure
highest: supreme court
2nd highest: court martial, appeal court, prov courts, fed courts
low: trial courts/ military courts/ tribunals
the lower courts must follow higher courts judgmeent
what is the goal of charter
to protect citizens from acts from the government actions, not really protect citizens from citizens (this is human rrights law to address)
When was charter developed
When canda brought the constitution home in 1980, passed it in 1982
how many categories in charter rights
7
mobility
minority language
freedoms
democratic
legal
official language
equality
who enforces charter or strikes down legislation
COURTS
what is supreme law?
the charter!!! nothing is greater
S1 of charter? Operative branch of rights
Grant of right: the given right GREEN
qualification: limit of rights RED
the rights and freedoms of canadian citizens are guaranteed but can be infringed if it is justified
Freedoms vs rights
Freedoms: political liberties that are given in a democracy, these pose negative obligations for govt (What the government can NOT do). expression, association, religion, assembly
Rights: meant to ensure equality, generally means negative obligations (govt can not interfere) but can be positive at times (govt must do something to protect and provide)
Negative obligation vs positive
Negative: govt SHOULD not do something,
Positive: govt must do an act
4 fundamental freedoms
- religion, conscience,
- thought, belief, opinion, expression
- assembly (protest)
- association (form groups to bargain negotiate and match powers of bigger parties!)
Charter rights
sections 2-22 of charter
- democratic rights: vote and run for elections, limiting election terms
- mobility rights: enter, remain in, leave canada as they please, work as they please
- legal rights: right against unreasonable search and seizure, police need warrants, cant arrest without good reason THEY NEED TO TELL YOU WHY YOU ARE BEING ARRESTED
- equality rights: no discrimination
- language rights: English and french
- minority language rights: gives educational rights to minority language communities across canada
if a court finds govt to violate charter what cna it do?
- order govt to remedy the infringement
- strike down the law
Vriend v Alberta
LGBTQ prof in chrisitan college unfairly fired
alberta HRC said it was okay to fire him cuz sexual orientaiton not in law yet
he brought it to supreme court as violation of equality rights
SCC said alberta govt is discriminatory, alberta said nuh uh we dont protect anyone! SCC said brotha eughh use common sense who disciminates against straighties?? no one
Notwithstanding clause S.33
made to ensure that province can do what they want even if fed says they cant
- this is only valid for 5 years (sunset clause)
- this section can only be used to violate legal rights, equality rights, and fundamental freedoms
NOT mobility, languagge, democratic rights
who enforce not withstanding clause a lot
QC, never by feds
Alberta Legislative Process
- MLA or Prov govt or lobby groups or anyone comes up with an idea
- Bill is introduced to the legislature (first reading: no debate, each MLA goes to study it to see how much they agree)
- second reading: first chance for members to debate for it or against it. speakers maintain order in the chambers. speaker calls for a vote.
-> if majority says yes: passed second reading - committee of the whole: bill is disucssed and details edited. Chaired by deputy speaker and chair of committees.
- third reading: debate and vote. if passes: moves onto royal assent stage.
- lieutant governor passes it! they do the proclamation: set the date for it to come into force
What is analogical reasoning?
method of reasoning that lawyers and judges apply. it is common sense.
how is precedent applied horizontally?
it does NOT apply across provinces!!! only the SCC can be binding across provinces\
they dont have to follow another provinces rules, but the authority of another court is PERSUASIVE but not binding
Binding authority
Perusasive authority
B.A: smaller courts HAVE to follow the larger courts decisions in their province + SCC
P.A: courts can recgonize the benefits of adopting similar resolutions to issues wherever possible even across provinces, so unless there is a good reason, the same law must apply, courts can also look at american and british courts as well
stare decisis= precedent
how do judges idenftify what cases qualify as precedent?
ANALOGICAL REASONING: reasoning by analogy
ANALOGICAL REASONING: reasoning by analogy
identify similar characterisitcs in two cases
making inference of unkown factors based on observations
how can analogical arguments break down?
- when there are irrelevant similarities!
- failing to account for critical differences in the case!! things that are important to take note of
How to do analogical reasoning
- identif similarities
- assess if similarities are relevant to conlcusion
- identify distinguishing characeriesics
- asess if dist characters are relevant to legal conscluion
- decide which facttors (sims or diffs) are dominant
- eval strength of analofical arg based on balance of sims and diffs
- consider legal precedent and its weight
- Analyze wether cfhangesin law or policy may affect relevance of analogous features or dist characteristics
- assess overall persuasiveness of analogical arg
plaintiff
person making a claim
defendant
the person being accused
how are business conflicts managed
- to achieve a goal
- avoid time consuming and $$ litigation
- certainty
- positive long term relations
Why do 95% of civil lawsuits not go to trial?
alternative dispute resolution
3 approaches to ADR
- negotiation
- mediation
- arbitration
Negotiation
Most common
private/quick/cheap/ customizable
lawyers can help
Mediation
when a neutral 3rd pary (mediator) helps settlement
- parties choose mediator, mediator dont make deciison, cheap ish, private, preseve relationships
Arbitration
- 3rd party comes in and makes decision
- involved hearing where resolution not in parties control
- cheaper than LITIGATION!
- private, slow, conofidential
- BNIDING: whatever arbitror says goes
IF adr doesnt work??
LITIGATIONN
Litigation charac terisitics
- legal claim
- slow $$ unpredicatble
- public
- ruins relation, no guarantee sucess, diverts ops from business acts, procedural rules
substantive law is the what and procedural law is the how
procedural vs substantive
Stages of a lawsuit
- Pleading
- Discovery
- Trial
- Enforcement
S1 of Lawsuit: PLEADING
1) Pleading docs:
-pleadings: docs filed to court and exchanged among parties (ALLEGATIONS)
- sparks notes of the case so plaintiff and defendant know what the lawsuit is about
AVOIDS trial by ambush! so people dont incriminate themselves unkwonigly
2) If defendant files counterclaim:
- def saying I dont owe u money, u owe me money
- OR issuing a 3rd party claim- shifting the blame by adding someone else to the proceeding
**these counterclaims require statements of defenese to respond to these claims
Statement of Claim
pleading doc made by plaintiff, it includes who is being sued, what happened to cause loss, legal principles involved in case, amount of damages requested
OUTLINE OF ALLEGATIONS! this is a statement of claim
Statement of Defence
pleading doc made by defendant, it is filed in response! contains different version of events, explains why defendant is not responsible
Are pleading docs evidence?
NO!!! these aerr all just allegations
In AB, dispute <$100,000 are heard in
Alberta Court of Justice (Civil)
AB court names for pleading docs
Statement of defense: dispute note
statement of claim: civil claim
counterclaim: third party claim
S2 of Lawsuit: Discovery
1) Discovery
- takes 2-4 years
- requires all parties to disclose all of their documenary and oral evidence to each other. NO surprise evidence to the other side. All evidence is disclosed early on even if it hurts own case.
- First: doc evidence is exchanged; Secon: parties examine each other oral evidence
DISCOVERY AVOIDS TRIAL BY AMBUSH!! cuz waste of time and money
2) questioning for discovery:
parties in the law suit are exmained under oath. doesnt happen in court. every word spoken iis recorded by court reporter as official evidence. can have multiple rounds of q’s
S3 of lawsuit: trial
- judge knows of what went down in step 1, but knows nothing about the step 2.
- parties want their evidence to come out before the court and judge in an understandable manner that supports their case.
Trials are usually in front of one judge no jury
in civil cases how is a tril ruled
the burden of proof on PLaintiff to prove their case on balance of probabilities!
S4 of Lawsuit: enforcement
the winner enforcing judgment with assistance of the court. typically big companies pay, only small companies or people need this stage to take place.
jUDGEMENT DEBTOR: party ordered to pay for lawsuit
JUDGEMENT CREDITOR: party recieving payment for lawsuit
rules created and applied by those with govt powers
procedural law
administrative law
Rules created by political execuitve that have the force of law
REGULATIONS
ALBERTA SMALL CLAIMS COURT ISS
ALBERTA COURT OF JUSTICE CIVIL
