Unit 2: Introduction To Legal System Flashcards
What is Law?
Law is the body of rules made by government that can be enforced by the courts or by other government agencies.
What is substantive Law?
Substantive law establishes, not only the rights an individual has in society, but also the limits on his or her conduct.
Procedural law
Procedural law determines how the substantive law will be enforced. The rules, governing arrest, investigation, and pre-trial and court processes in both criminal and civil cases are examples.
Public law
Public law includes constitutional law, which determines how the country is governed, and laws that affect individual’s relationship with government. Criminal law, and the regulations created by government agencies are also examples of public law.
Private Law
Private law involves the rules that govern our personal, social, and business relations. Contract law and tort law are two examples.
Civil Law Legal System
The most important feature of French civil law is it central code— a list of rules stated as broad principles of law, that judges apply to the cases that come before them. Under this system, people wanting to know their legal rights or obligations referred to the
civil code.
Stare Decisis
Judges are required to follow each other’s decision.
“Following precedent”
Most significant features of common law
The most significant future of the common law legal system today is that the decision of the judge at one level is binding on all judges in the court hierarchy who function in a court of lower rank, provided the facts in the two cases are similar.
Why was Law of Equity Developed?
Common law courts had some serious limitations. Parties seeking Justice before them, found it difficult to obtain fear and proper redress for the grievances they had suffered because of the rigidity of the process the flexibility of the rules applied, and the limited scope of the remedies available. People often went directly to the king for satisfaction and relief. The version of this process made it necessary for the king to delegate the responsibility to the chancellors, who intern appointed several vice chancellors. This body eventually became known as the court of chancery, sometimes referred to as the court of equity.
Will common law and Equity law be overridden by statue?
Yes, because the parliament is supreme.
Equity
Legal principles found upon fairness, as developed in the court of chancery to relive the harshness of the common law.
Statues
Law, in the form of legislation passed by parliament
Parliament supremacy
The principle that the primary law making body is parliament, or the provincial legislatures in the respective jurisdictions, and that statues take priority over the common law.
When was Canada Born?
1867 - With the Constitution Act, 1867
Constitution Act -1867
It created dominion of Canada
It divided power among the executive, judicial and legislative branches of government
It determined the structure and powers of the provincial and federal levels of government.
What are section 91 and 92 of Constitution Act.
These section divide the power between federal and provincial governments.
What is Rule of Law
An unwritten convention inherited from British that recognizes that although Parliament is supreme, and can create any law considered appropriate, citizens are protected from the arbitrary actions of the government.
What does the federal government have power over?
The federal government has exclusive power over such matters as the military, trade and commerce, banking, currency, the Postal Service, criminal law (not it’s enforcement), taxation and the appointment of judges in the federal and higher level provincial courts.
What does the province have power over?
Hospitals, education, the administration of the courts, and commercial activities carried on the provincial level.
Look
Loook
What Three branches have law making power?
1- Legislative Branch: Consists of Parliament, which creates legislation or statue law
2- The Judicial Branch: Court system, and judiciary interprets legislation and makes case law.
3-The executive Branch: prime minister, cabinet, deputy ministers, and government departments and officials; also known as the Crown
How are Jurisdiction disputes are resolved?
By courts
What is Paramountcy?
There are occasions where the laws truly conflict between provincial and federal laws, and it is not possible to obey both. In those situations the principle of paramountcy may require that the federal legislation to be operative, and the provincial legislation go into abeyance and no longer apply.
Royal Ascent
Formality that grants royal permission from representatives of queen ( Governor General and Lt. Generalas) for a bill to become law. (last stage of making a bill into a law)
Process of making a Law
look at the photo
Canadian Bill of Rights
The first attempt at limiting the federal governments power to pass legislation that violates basic human rights was the passage of the Canadian bill of Rights
What was the problem with bill of Right?
Because it was not entrenched in the constitution, the courts viewed the Canadian bill of rights as just another statute that could be repealed amended, or simply overridden by subsequent federal statue.
What is charter of Rights and Freedoms?
A constitutional guarantee of basic rights and freedom set in Canada Act 1982
— Government cannot override or modify the charter because it’s part of the constitution
Which sections Limit the charter of rights?
Section 1 and Section 33
How does section 1 of Charter of rights limit the rights?
Section 1 allows “reasonable limits” to be placed on those rights and freedoms when limiting them can be “demonstrably justified in a free and democratic society” that gives the courts to uphold a law even if it violates rights so as to avoid an unreasonable results.
— the rights and freedoms set out in charter, therefore, are not absolute.
What is section 33 of the charter (non-withstanding clause)
It allows each of the provinces and federal government to override the basic rights contained in section 2, and section 7 through 15 of charter, simply by stating that the new legislation operates non-withstanding (regardless of) the charter.
What is a sunset clause?
A sunset clause is applied to the operation of section 33. If the non-with standing clause is invoked, this statue must be reenacted by that legislative body every five years.
Which Rights are provided to everyone?
Fundamental Freedoms:
- Freedom of conscience and religion;
- Freedom of belief
- Freedom of opinion
- Freedom of Expression
- Freedom of Assembly
- Freedom of Association
Legal Rights
Equality Rights
What are democratic rights?
Every citizen of Canada has the right to vote in an election of members of the house of commons or of a legislative assembly and to be qualified for membership at therein
What are mobility Rights?
Every citizen of Canada has the right to enter, remain in and leave Canada.
Legal Rights
Protects individuals from unreasonable interference from the government or its agents
Protection from:
-Life, Liberty and security of person
- Search or seizure
- Detention or Imprisonment
- Arrest or detention
- Treatment or punishment
- Interpreter
Equality Rights
The equality rights set out in section 15 of the charter prohibit discrimination in the application of the law On the basis of gender, religion, race, age, or national origin, and ensure that all people in Canada have the same claim to the protection and benefits of the law.
Charter
Charter only applies to the the activities of government
Section 52, Constitution Act of 1982
Section 52 of the Constitution Act, 1982, establishes that the Constitution is the supreme law of Canada, invalidating any laws that conflict with it.
Human Rights Legislation
Protecting individuals against human rights violations by the public at large. (Civil)
Human Rights Legislations can cover which parts and are there anywhere that they can be ignored?
The protections extend only to certain areas as identified by the specific federal or provincial legislation— typically employment, tendencies, public facilities, and services, and public signs and notices. Private clubs can still discriminate as to who they evil admits as members because discrimination by private facilities is not prohibited by the legislation.
