Wk1 Flashcards
The Constitution
-Supreme law of Canada
-Defines the powers of the federal and provincial governments
-Contains the Charter of Rights and Freedoms
-Cannot be amended by regular Act of Parliament
Historical Context and Dates Constitution
-The British North America Act (1867 Act of the British Parliament) the original Constitution of Canada
-Patriated (made an Act of the Canadian Parliament) in 1982
-Charter of Rights and Freedoms also entrenched in the Constitution in 1982
Division of Powers in the BNA Act
-Federal Parliament has jurisdiction over matters of national importance (e.g. foreign affairs, criminal law, trade and commerce)
-Provincial legislatures have jurisdiction over matters of local importance (e.g. ownership of land, regulation of professions, civil law)
Charter of Rights and Freedoms
-Sets out the rights held by all residents of Canada
-Broad rights that reflect the nature of Canadian society and democracy
-These rights are guaranteed
-The federal and provincial governments cannot pass laws that violate these rights
Rights and Freedoms Guaranteed
-right to a fair trial and due process
-freedom of conscious and religion
-freedom of thought, belief, opinion and expression
-freedom of peaceful assembly
-freedom of association
LIMITS to the Charter of Rights and Freedom
-applies only to govt action (s.32)
-limits justifiable in a free and democratic society (s.1)
-“notwithstanding clause” (s.33)
Common Law
-“judge-made law”
-developed over-time through judicial decisions (precedent)
-authority derived from usages and customs of immemorial antiquity
-may be altered by legislation
-evolved into bodies of law, including TORT & CONTRACT LAW
The common-law tradition
the common law is law that is not written down as legislation. Common law evolved into system of rules based on precedent. This is a rule that guides judges in making later decisions in similar cases. The common law cannot be found in any code or body of legislation, but only in past decisions. At the same time, it is flexible. It adapts to changing circumstances because judges can announce new legal doctrines or change old ones.
Contract Law
enforces the rights that arise out of an agreement
Tort Law
a civil wrong - seeks to provide compensation (usually monetary) for losses suffered by a party as a result of wrongful conduct of others
-e.g. false imprisonment, defamation, negligence
Quebec Law
is unique in Canada because Quebec is the only province in Canada to have a juridical legal system under which civil matters are regulated by French-heritage civil law.
Public law, criminal law and federal law operate according to Canadian common law.
The Civil-Law Tradition:
civil codes contain a comprehensive statement of rules. Many are framed as broad, general principles to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to the civil code, then refer to previous decisions to see if they’re consistent.
Civil Law
the term “civil law” is used to mean two quite different things, which can be a little confusing at first for people trying to understand the justice system. Sometimes the term is used in contrast to “common law” to refer to legal system that is based in a civil code, such as the Civil Code of Quebec. In its other sense, civil law refers to matters of private law as opposed to public law, and particular criminal law, which is concerned with harm to society at large. It is usually clear from the context which type of civil law is intended.
Law in Quebec
Quebec is the only province with a civil code, which is based on the French Code Napoleon. The rest of Canada uses the common law. The Criminal Code is also considered a code, and it is used throughout Canada.
Indigenous Law
-First Nations apply their own legal traditions in daily life, creating contracts, working with govt and corporate entities, ecological mngt and criminal proceedings and family law. Most maintain their laws through traditional governance alongside the elected officials and federal laws.
-legal precedents through stories and derived from actions and past responses as well as through continuous interpretation by elders and lawkeepers.
Aboriginal Law
is an area of law related to the Canadian Government’s relationship with its Indigenous peoples (First Nations, Metis and Inuit). Section 91(24) of the Constitution Act, 1867 gives the federal parliament exclusive power to legislate in matters related to Aboriginals, which includes groups governed by the Indian Act, different Numbered Treaties and outside of those Acts.
