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Law > The Origins of Canadian Law > Flashcards

The Origins of Canadian Law Flashcards

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1
Q

Canada derived its legal system from two major European Countries:

A
  • Most of Canada=British system prevails
  • Quebec= French Civil Code is the foundation of law
  • Quebec=criminal law from G-B, Civil law=France
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2
Q

Great Britain (6)

A
  • British system= law existed independently of the monarch
  • British Monarchy: fountain of justice, not fountain of law
  • Monarch made sure justice was served, didn’t make laws
  • Customs+practices covered most aspects of law
  • Written statutes were only done when necessary
  • Customs have been enforced and enhanced by centuries of legal decisions
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3
Q

The Magna Carta

A
  • Latin for “the great charter”
  • Charter that King John granted at Runnymede, in England, on June 15 1215.
  • Guaranteed civil rights and liberties to Barons, the clergymen and freemen of GB
  • Limited powers of monarch
  • Contract that ppl made the monarchy sign, to give ppl rights.
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4
Q

British Common Law

  • Common Law is:
  • Definitions of Common law
A

-Common law=past court decisions in Canada+British Cmw (AKA Case law)

  1. The accumulated and organized body of previous court decisions, divided into categories according to subject matter (Codification)
  2. Judge-made case law which has its origins in the traditions, customs and trade practices of the people of Britain, and now Canada (Precedent)
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5
Q

British common law is also known as:

System of common law revolves around

A

unwritten system of law

Rule of precedent or stare decisis

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6
Q

Stare decisis

A
  • Latin for ‘let the decision stand”
  • Means that courts decide their present cases based similar cases that occurred in the past
  • Future cases have that similar facts will be decided by applying the rule established in earlier cases
  • Like cases are decided alike, judge relies on previous cases
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7
Q 
Judge gives..
(Precedent) (60
-changing Supreme Court laws
-Applying precedent fairly
-quote and meaning
A
  • legal force to what had previously been a custom or trad
  • Once established, a precedent remains in force until it is overturned by a higher court.
  • Precedent set by the Supreme Court of Can. (highest court) can only be changed by them, or by a new law that overrules the court’s decision (9 judges, appeal court)
  • Whenever a judge finds that a precedent cannot be applied fairly, there is ample support to come to a new and fair decision
  • “The present should not be strangled by the dead hand of the past”
  • certain customs which are not seen as normal now shouldn’t have power in court.
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8
Q

Advances of Precedent of Stare Decisis are:
(3)
-Other benefits:

A
  1. Uniformity: Similar cases, like decision. Court is more consistent and predictable. Similar probs=treat equally, Also considered as disadv, could be unfair to those who dont receive favourable decisions.
  2. Predictability: Lawyer can advise a client as to the probable outcome of a case and prepare accordingly
  3. Impartiality: Judge cant show favouritism, neutral
  • if precedent is no longer agreed upon due to change over time, can be replaced by more reasonable and acceptable rules.
  • Common law can be overruled by modern laws passed by legislatures
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9
Q

Common law remedies:

A
  1. Money damages: If one party wins a case, court could order the party to pay the first person money
  2. Write of ejectment: Written order from a court ordering a sheriff to remove the party wrongfully in possession of land
  3. Writ of Replevin: Order from a court judge to a sheriff telling the sheriff to seize the item wrongfully taken or retained and bring it to the court for return to the plaintiff.
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10
Q

Courts of Equity:

A

For people who want compensation other than land, items of value or money. Usually they want specific performances, want ppl to do exactly what they promised to do in the contract (paint house, wash car)

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11
Q

Remedies in court of Equity: (2)

A
  1. Injunction or restraining order: temporary order by a judge requiring a person to stop performing an act until the court can hear both sides and make a judgement. (stop tearing down a house w/ bulldozer)
  2. Specific performance: Abiding by the contract as it is written. (In a contract, the person promised to paint the house, or wash the car, so this must be done. Money damages are enough)
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12
Q

France

Codification

A

System of law used in France=based on earlier Roman law

  • All law proceeded from the emperor himself (Napoleon Bonaparte)
  • Codification: a system of organizing all laws into numbered volumes according to topic
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13
Q

The Civil Code

A

-Quebec doesn’t use common as the basis for its civil law
-Quebec civil law based on=Civil Code that was dvlp by Romans and adopted by French
-Civil law: every-day law for business relations with other ppl and all other areas that aren’t criminal
Penalty for losing a civil law cases are monetary, no jail
-Civil cases involve litigation (lawsuit) between citizens, not necessarily a trial.
-Civil code deals w/ ppl, property obligations, rules of contracts, sales, lease, partnerships and loans
-Quebec= no rule of precedent but cases are recorded for reference to help court interpret and apply civil code
-Criminal law of QBC is the same all over Can

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14
Q

Rule of Law:

A

-Western democratic system is governed by the Rule of Law
emphasizes that:
1.Everyobe is subject to law
2.If someone breaks the law, person is liable no matter how important they are in society (liable=legal respons)
3. No one can be found liable, condemned or punished except for a breach (break) of the law
4. A person can be punished only when the law specifically states that the act committed is contrary to the relevant provisions of the law (Only law can tell you that what you are doing is wrong)
5.Everyone is entitled to seek justice by recourse to the courts (Has the right to show up in court no matter how guilty you are)
6.No one is excluded from the judicial process
“NO ONE IS ABOVE THE LAW”

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15
Q

How the Courts are Organized

A
  • Four levels of court in Canada
    1. Provincial courts=majority of cases
    2. Provincial+territorial superior courts=serious crimes, takes appeals from provincial court judgements
  • -.Federal Court, Trial Division (same level as 2)=diff issues
    3. Provincial courts of appeal + Federal Court of Appeal
    4. Supreme Court of Canada
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16
Q 
Levels of Courts
4(1)
3(3)
2(3)
1(4)
A

4: Supreme Court of Canada
3: Court Martial Appeal Court, Provincial Court of Appeal, Federal Court of appeal
2: Provincial/Territorial Superior Courts, Federal Court Division, Tax Court of Canada
1: Military Courts, Provincial Courts, Provincial Admin Tribunals, Federal Admin Trib

Law (9 decks)

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