Quiz 1 Module 1-5 Flashcards
Why have laws ?
Provide order - provide certainty and order
Protect - protect people and property
Give authority - give our government
Rule of law concept
- the idea that everyone in our community will follow the laws, whether we are private individuals or public authorities
- even our leaders cannot do whatever they want to do - they can only do what they are authorized to do in our legal system
- we are governed by laws as opposed to the whims of our leaders or government agencies
- no one is above the law
- laws are enforced equally and impartially ( due process )
- no one can be punished by the government except in accordance with our laws
Public law vs private law
Public law: rights of government, rights of individuals with respect to government
Private law: sometimes referred to as civil law, laws that can be enforced by individuals against one another
Sources of hierarchy
At the top - constitutional
Middle - statutory law
Bottom common law and law of equity
Why is Constitutional Law unique ?
It is entrenched law, it’s very difficult to change, and can only be changed with an amending formula.
2/3 of the provinces comprising at least 50% of the Canadian population plus approval of the Senate and House of Commons
Constitution Act 1867
Establishes framework for our government
Establishes court system
Divides legal powers between provinces and federal government
How power is divided in the constitution act 1867 federal powers vs provincial powers
Federal powers: trade, postal service, navigation and shipping, seacoast and fisheries, currency, national defence, patents and trademarks, criminal law, banking, federal corporations, anything not given to the provinces
Provincial powers: hospitals, schools, manuicipalities, property and civil rights within the province, court system for administering justice, local matters, incorporation of provincial corporations
Concepts
Ultra vires- government cannot do something outside its powers ( unconstitutional)
Doctrine of paramountcy - if overlapping jurisdiction, the federal law prevails
Who must comply with the charter ?
The Rights in charter can only be enforced against the government and its agencies
The charter protects us from the government
Fundamental freedoms in the charter
Section 2
This applies to everyone - individuals and corporate persons
Includes freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of the press, freedom of peaceful assembly and freedom of association
Equality and protection from discrimination in the charter
Section 15
The right to the equal protection and equal benefit of the law without discrimination based on:
Race, national or ethnic origin, colour, religion, sex, includes orientation, age or mental or physical disability
Also makes affirmative action constitutional
Legal rights and protections in the charter
Sections 7-14
Rights to due process
Freedom from cruel and unusual punishment
Presumption of innocence
Right to know reasons for detention and right of counsel
How does the common law system work?
Distinguishing precedent cases in order to ensure fair results
Advantages/ disadvantages of the common law system: flexible but not easily accessible by the public
History behind law of equity
Historically was less rigid then common law and was more concerned with fairness and the relative innocence of the parties before the court
Courts of equity developed specialized remedies and rules
Examples of equity law - injunctions, specific performance of a contract
Law of equity today- now our judges wear ‘two hatts’ and courts use common law and equity law
What laws protect employees and require businesses to respect human rights?
Private employers and businesses must comply with federal and provincial human rights statutes
