Roles of the Courts Flashcards
1
Q
Outline the structure of the Nature & Roles of the Courts?
A
Constitution Act 1867
- Section 91
- Section 92
- Arbiter of the Constitution
- Determining whether a Statute is or Act is Valid
- Who might bring the Challenge to Validity to Court
- Protector of Civil Liberties
- Charter of Rights & Freedoms
- Interpreter of Legislation
- Arbiter of Disputes between Private Parties
- Standards of Proof
- Civil
- Criminal
- Res Judicata
- Adversary System
- Standards of Proof
2
Q
What are the Roles of the Courts?
A
APIA
arbiter of the constitution,
protector of civil liberties,
interpreter of legislation,
arbiter of disputes between private parties
3
Q
What is the Consitution Act 1867?
A
Canada was created as a Statute of Britain.
It details what law the Federal Parliament can make and what law the Provincial Government can make.
4
Q
What is Section 91 of the Constitution Act 1867?
A
Section 91 - Federal Laws (Criminal, Tax, Defence)
Section 91 lists out areas where the Federal Parliament gets to make law, also there is a fall-back provision that states that if an area is not covered in the list then the Federal Level gets to make the law in that area.
- Section 91 sets out a list of areas where only Parliament gets to make law (federal level)
- e.g. Criminal Law, National Defense, Income Tax law
- Second part of Section 91 – It is hard to list out all sets of law. There has to be a fall-back law which states that if it is not listed in section 91/92 then “For the peace, order, and good government of Canada, if an area of law exists that is not covered in our constitution, it is a federal law making area.” In other words, it is a fall back provision
5
Q
What is Section 92 of the Constitution Act 1867?
A
Section 91 - Provincial Law (Education, Healthcare)
Section 92 gives Lawmaking Power to Provincial Legislatures.
e.g. Education, things of a purely local nature (non-national things) e.g. Health (Provincial Health Care) In Canada, the health care system is similar in every province because the Federal government provides money for it. So in a way, the federal level has indirect power (power of the purse)
6
Q
List and explain the facts of the Arbiter of The Constitution?
A
Where a Judge acts as an umpire or referee dealing with issues involving Canada’s Constitution
- Arbiter is a person who settles a dispute or has ultimate authority in a matter (like an umpire or referee). Arbitrators are a type of arbiter – a private party who has been hired by contract to hear a dispute and make a final binding decision. Therefore, judges are arbiters and not arbitrators.
- Arbitrators exist because it causes a lot of money to go to court and Judges are not experts in all matters
- Canada’s Constitution specifies what level of the Legislature (Federal or Provincial) can make Statutes
- Only people who are affected by Statutes can bring the laws to court asking for a Declaration
- The Judge determines whether a Statute or Act is Valid
7
Q
How to determine whether a Statute or Act is Valid?
A
- If a Body of Government passed Legislation on something that is not within their rights, it must be taken to a Judge to have the Legislation proved of No Force and Effect
- E.g. A criminal law was made by the provincial government, but a private citizen will be affected by the law and takes it to a judge to be proven invalid
- E.g. A body of government takes another body of government to court to get the legislation overturned because it wasn’t within their authority. The Federal Level takes Provincial Level of government to court because they made a Statute regarding Criminal Law which is beyond their power
- E.g. a lady was given a ticket for loitering in Calgary (this is a city by-law; therefore, it is delegated from provincial authority). She admits to being in the area loitering; however, the loitering law was put into effect to stop prostitution (criminal area) – this is a federal area; therefore, she did not have to pay the fine. Ultra vires – acting beyond their powers
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The Courts need to find out what the Statute or Act is about.
- However, the statute may touch several areas that other governments have authority over. Therefore, the courts must decide what the pith and substance of the statutes are. Pith and substance are determined by asking the question, “What is the statute primarily for?” This is what the courts must decide.
- The Validity of a Statute can be Challenged if a party feels the Wrong Level of Legislature created the Statue or part of it.
- You go to a court to challenge validity. The court can declare all or part of the statute to be of “no force and effect”. Do not use the word void.
- A Judge determines whether the wrong level of government created a Statute based on Section 91 and 92. A valid statute overrides all judge-made law.
- There are 3 main ways it can get to court i.e. Challenge to Validity to Court
8
Q
Who might bring The Challenge to Validity to Court?
It comes under determining whether a Statute or Act is Valid.
A
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A citizen negatively affected by a statute that they think is passed by the wrong legislature
- E.g. if a statute is passed on making widgets and it negatively affects you because you’re a widget maker, then, you can take the statute to court if you feel it is created by the wrong level of legislature. When a legislative level makes statutes beyond the scope of their powers, it is called Ultra vires – acting beyond the scope of powers.
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A citizen using the challenge as a defense
- E.g. A lady was given a ticket for loitering in Western Canada. She argued the provincial legislature made that statute to curb prostitution, which is part of the criminal code, and thus outside the scope of the provincial legislature. The provincial legislature was trying to curb prostitution by disguising the statute under loitering. The provincial legislature acted in Ultra vires.
- One of the two levels of legislature can start a “reference”
- One level of government refers a law to their top court in the province jurisdiction (Ultra vires)
- When the federal level is challenging a provincial statute, the federal level can start the case at the top court of the country, the Supreme Court of Canada. This is called a reference.
- When a reference is done by a provincial legislature, it starts at the Court of Appeal which is the highest provincial court
- Reference is called that because the question is referred to a judge. You can’t bring witnesses to a higher court, but for references, you can bring witnesses. Other provinces can stand in on references since the reference may affect other provinces.
Exam Question: Arbiter of Constitution
Ultra vires – acting beyond the scope of powers
Intra vires - acting within the scope of powers
9
Q
List and explain facts of Interpreter of Legislation?
A
- If wording in a statute is unclear and/or ambiguous and it affects you, you can ask a Court to declare how that wording is to be interpreted. You have the right to ask a judge to make it clear what the act/statute means.
- The judge decides this by asking the key question, “what did the legislature intend those words to mean?”
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What evidence can a court/judge use to come to their decision about what a statute means?
- What is apparent on the face of the statute? (Wording and dictionary only)
- Previous versions of the same stature can be compared to the current version of it.
- CANNOT use legislative history e.g. (Hansard, white papers). The judge cannot look at Hansard – which records everything that was said in the provincial/federal legislature. The judge cannot look at what the legislators were thinking of/talking about when making the decision. White papers are policy papers about what they should be done in a particular area. The judge cannot look at anything before the statute came into power.
- The statute makes laws that govern everyday people. Everyday people don’t look at Hansard’s thus a judge should not have to look at those things.
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Courts may use different methodologies to interpret what the legislature intended
- Literal method is used for statutes
- Liberal method is used to interpret meaning in Constitutional documents but not statutes. The reason being the Constitution is an old document that must govern from when it was created till the end of time.
- There is a chicken and egg type of relationship between case law and legislative law (statutes). Which came first the chicken or the egg? This is because if there is ambiguity in a statute, it must go before the court for clarification. Therefore, we still need the courts because we cannot go back to the legislature for clarification. When a statute is unclear, the court will typically pick out a narrow interpretation (the one with the smallest change/impact) instead of a broader interpretation.
10
Q
List and explain the facts of Protector of Civil Liberties?
A
- The civil liberties are freedom of expression, freedom of religion, freedom of association, freedom from arbitrary arrest and detention, and freedom from discrimination. When our civil liberties are abused, we can go to the courts
- Since Canada was started, the courts have been protecting our civil liberties. However, in 1982 the courts were given more power to protect our liberties.
- In 1982 Canada’s constitution was revised (repatriated but not changed). Canada had the authority to make changes to its own constitution without the Queen’s approval
- Added the Canadian Charter of Human Rights and Freedoms (aka the charter). This changed our civil liberties as well as the rights of the courts.
11
Q
What are the 5 Charters of Rights and Freedom (aka “the charter” or “the charter of rights”)?
A
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Can it be Changed? Entrenched in the constitution meaning the charter cannot be repealed (revoked or changed) by an ordinary statute or Act of legislature/parliament.
- Since it cannot be easily changed, the government cannot easily abuse our rights. The amending formula (what is takes to change the Charter) is as follows:
- A majority for the change in the House of Commons
- A majority vote from the senate
- A majority vote from at least two-thirds (2/3) of the provincial legislatures (7 legislatures) where the provinces represent a total of at least 50% of the Canadian population (i.e. legislature voting in favor represents 50% of Canada’s population)
- Since it cannot be easily changed, the government cannot easily abuse our rights. The amending formula (what is takes to change the Charter) is as follows:
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What is General Rule: Statutes are not allowed to violate the rights guaranteed to us in the Charter of Rights.
- A court can decide whether the statute or part of it is invalid and declare that part to be of no force and effect. Therefore, the Supreme Court of Canada (SCC) is enormously powerful, as it has the power to revoke a whole act or just parts of the legislation.
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Are there any exceptions? The 2 exceptions to the above rule are: Section 33 of the Charter permits legislatures to expressly override the application of section 2 and sections 7 to 15 of the Charter by inserting a Clause at the beginning of a statute (a notwithstanding clause) - expressly means “in writing.”
- Sunset clause provision in section 33: if a legislature puts a notwithstanding clause into a statute, every 5 years they must vote for it again, or else it disappears
- It’s never used; people get angry because they think that their rights are being infringed upon, therefore it is political suicide for the parties that create the legislation
- Has only been used twice – once is Quebec (when the Charter was created, Quebec was very angry with the federal level, so they used the notwithstanding clause out of spite) and the other time in Saskatchewan (it was an angry political situation, but they stopped using it after about one month)
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Are the rights absolute? The rights that are “guaranteed” to us are not absolute. It’s not like they can never be overwritten.
- Section 1 says that the rights given to us are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, sometimes minor violations of our rights is allowed if the violation is for the good of society
- Everyone has the right to not arbitrarily be detained.
- E.g. Ontario’s first legislation on drinking and driving. When they started using the breathalyzer, the legislation said that police could detain people and make them blow into the breathalyzer (Charter says we have freedom from arbitrary arrest and detention). Someone got into the situation where they have to blow into it (if you don’t you automatically get charged), and they refused to blow, therefore they got charged. However, this person took it to court because they had been detained initially without reason, but the court ruled that they demonstrably justified that the law is necessary. (“An excusable breach”)
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Who does it apply to? The Charter applies to the Government, its laws, and governmental entities. Therefore, it applies to legislation. The Charter is in place to protect people from unfair/inappropriate government.
- E.g. Discrimination (on a personal level, i.e. getting fired on account of your race) is in an Act written by legislature. We are not protected by the Charter of Rights and Freedoms (although the Charter was considered when the Act was written)
- The Charter has nothing to do with discriminators - applies only when the government is involved
12
Q
What is the role of Arbiter of Disputes between Private Parties?
A
Quite self-explanatory – not all private parties, but disputes between different parties
13
Q
What do Standards of Proof means?
What are the 2 Standard of Proof in our System?
A
How convincing evidence must be for a judge to rule in favor of the party that brought the matter to court.
The 2 Standards of Proofs are:
- Civil
- Criminal
14
Q
Differentiate the two Standards of Proof?
A
CIVIL
Plaintiff -> Initiates the Action
Defendant -> Action taken against
Rulings -> liable, or not liable
CRIMINAL
Crown -> Initiates the Action
Accused -> Action taken against
Rulings -> guilty, not guilty
- For civil matters, if someone is suing, they’re the plaintiff. The person being sued is the defendant. Who has to prove the case in a civil matter? The plaintiff must prove their case (be the convincer) i.e. the person who starts the action has the burden of proof
- Who has to prove the case in a criminal matter? The burden of proof is on the Crown Attorney to prove the accused guilty
15
Q
List 5 facts about Civil Standard of Proof?
A
CIVIL - on a balance of probabilities
- Not as difficult for a plaintiff to prove their case as compared to the crown
- The judge sees all the evidence, then weighs the evidence in their mind and decide who they think is correct. I.e. who do they believe more?
- Leads many people settle out of court because they don’t want to risk it
- System geared towards settlement because do you want one judge determining your future? If you settle, you don’t have to admit you are liable
- You can settle at any time up to a judgment
- Defendant must testify
