Module 1 Flashcards
Canadas Constitution is described as a what?
Living tree (something thats always growing and evolving)
What is Public Law?
The relationship between individuals and society as a whole
ex. criminal law, constitutional law, administrative law
What is Private Law?
The relationship individuals have between each other
ex. contract law, tort law
What is another name for private law, and what is it called when an individual files a law suit against someone else?
Civil Law
A civil suit
Why do we need law?
to ensure our society is functional and predictable,
What are the two major sourcs law comes from?
Legislation and Common law
What is Legislation?
Law passed by a democratically elected body (government).
- Provincial legislation is passed by the provincial legislator
- Federal laws are passed by parliament
What is Common Law?
Law that comes from judicial decisions
Also called “Judge made law”
What is the most well known example of legislation in the country
the Criminal Code
What are the 3 branches of government?
Executive
Legislative
Judicial
We elect our representatives to a body called what?
The provincial legislature
Federally we elect our representatives to parliament, where are they elected?
House of Commons
What are Municipalities?
Cities/towns/districts that are the 3rd layer of government. They have elections and pass bylaws, but isnt a true source of legislation. They act on authority thats been transfered from provincial government.
What are the five steps of passing a bill?
Bill
First reading
Second reading
Committe stage
Final reading
What is a Bill?
An idea or proposal
What happens in the First Reading?
A bill is put forward by an elected represetnative and an inital draft is voted on by members of that legislative body
After the five steps of passing a bill, what happens next?
It has to go through federal legislation where the process repeats itself seperately in the HOC and the Senate starting at the first reading. Each bill has to go through 3 readings in each of these seperate halves
Because the readings have to go through both the senate and HOC, what is this system called?
“Bicameral system of Government”
When legislation passes, it must recieve ______ _______ before it can take effect.
Royal Assent.
The King himself isnt the one reviewing these acts. who does this on his behalf?
His representative: the Governor General, approves the legislation
When a bill is passed, its called an Act. What are 3 things Acts can do?
Acts can create new laws
Acts can change existing laws (Amending)
Acts can remove existing laws (Repeal)
It takes a long time for legislation to pass, sometimes even years. What do we do insead when change needs to happen fast?
We use Regulations
What are Regulations?
They are attached and enabled by a particular act. They contain more specific details whereas an Act has general ideas and broad principles
A regulation is attached to an act. What is this relationship called?
an “enabling statute”
Sometimes legislation is unclear as there are new situtions and legislation can also conflict other legislation. To resolve these difficulties, what tool do we use?
Driedgers principle: it means that we need to combine 3 approaches.
1) Plain meaning approach
2) contextual approach
3) propulsive approach
What is the Plain Meaning approach?
Reading the words of an act and deciding what they mean (straight forward)
What is the contextual approach?
Asking: does your interpretation conflict w/ other sections of the act or other acts.
Considered the “golden rule”
What is the Purposive Approach?
Asking: What is the objective of the act? what problem is trying to be solved?
Also called the “Mischief Rule” because you examine the mischeif sought to be prevented
What is “Common Law”
Judge made law that comes from the Judicial branch. It refers to previous decisions. It originated in the English legal system
What is another name for common law?
Precedent or jurisprudence
What type of system does Canada have?
Its mostly a common law system. Some issues in Quebec are dealt with under the “civil system”
Judges in Canada are _______, not elected, and are usually ________ lawyers.
Appointed; Senior
Being a judge is _________ and mandatory retirement is at ___.
Permanent;75
Canada has an “Adversarial System,” what does this mean?
Meaning a court case will always involve a conflict or dispute between 2 or more parties.
Usually at least 1 rule emerges from a case, we call this general rule “______ ______” or “_____.”
This is part of the case thats binding on lower courts.
The other parts are called “_______ _______,” things that are beside the point and are not strictly speaking.
Ratio Descendi or Ratio
Obiter Dictum
Can common law be overruled by legislation? Why?
Yes, if the legislative body doesnt like a common law rule, they can override or change it.
This is because our judiciary is not elected, our legislative bodies were elected and have “parliamentary supremacy.”
What is a Democratic Mandate?
A mandate is ligitamate power given through popular support, conveyed through elections
In what cases can a judge (court) overturn legislation?
All acts and reguations need to be conistent with the constitution and if its not then its unconstitutional. in these cases judges can overturn legislation
What are the “Rules of Law?”
- rules are not arbitrary decided
- you cant ignore the law because you dont agree with it
- no one is above the law
Where does our legal system come from?
Canadas legal system is based on the English and French systems, explorers and colonists brought these systems to Canada in the 17th and 18th centuries
How is Civil Law different than Common Law?
Common law isn’t written down as legislation, it evolved into a system of rules based on precedent (past examples)
Civil law is a statement of rules to deal with any dispute. Courts look first at a civil code, then after refer to previous decisions to see if their consistent
