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Law exam 2017

Terms in this set (16)

Canadian constitutional law is comprised largely of the Constitution Act,1867 (aka the "British North America Act, 1982 (though there are a variety of other instruments)). The entry into force of the Constitution Act, 1982 essentially completed the process of securing Canada's constitutional autonomy and legal independence from Britain. Canada's federal bill of rights—the Charter of Rights and Freedoms—forms part of the Constitution Act, 1982.
- 2 Constitution Acts that are of great importance (1867 and 1982)
- 1867: sets up the division of powers (between the federal gov and the provinces)
divides and allocates power federal and provincial govs all have legitimacy, it's just about who deals with what
"fixes" the distribution/allocation of power, frequently differs the governmental authorities in the process
federal = banking, currency, criminal law/criminal code, national defense, unemployment insurance, naturalization of foreigners
provincial = health and education (2 main focuses), municipal institutions, civil and property rights, sale of publicly owned lands (can be owned provincially), incorporation of companies (what are their objectives?), marriage
- 1982: protecting the individual rights of the people from the gov
Charter of Rights and Freedoms = sets up all of the dif rights (general and individualized/specifiable rights, abstract rights)
sets up basic fundamental rights and rules that Canadian law protects
secures the recognition of individual rights in a political character (social/economic rights) a lot of individual rights guarantees get defined in civil terms (as it is a different kind of right than the right to housing, the right to employment—it's about the right to vote, freedom of speech, etc.
constitutionally recognized rights and freedoms of Canadians = freedom of religion, conscious, association (groups, like unions, political parties, etc.), minority rights, language rights, right of the life/liberty/security of the person, right to equal protection and benefit of the law w/out discrimination based on race/colour/religion/gender/sex, etc. no exclusive list of discriminatory grounds
key dispute-resolution institutions, entrusted w/ the responsibility of presiding over contentious cases (and, in some cases, also issuing advisory opinions)
can preside over private disputes (one person bringing action over another one person), resulting in a private action/suite
can preside over a publicly initiated dispute
public defendant dispute = where the public is the plantiff (a party defending itself against an action), an action being brought against a State (or public thing) by a private party
courts are not independent—they wait for one party to bring an action against another party, to file a requisite notion to bring before the court disputes are brought to them
- Basic hierarchy of courts in Canada (the higher you go, the more power)
1) Supreme Court of Canada (highest court, has jurisdiction over all types and areas of law, case must reach national level concerns in order to be heard by the Supreme Court)
2) specialized federal courts (preside over very specific matters)
3) federal courts (civil jurisdiction, property disputes, trademarks, naturalization and citizenship, disputes between provinces)
4) appellate courts (hear appeals of decisions made by provincial/territorial superior courts, they listen/read transcripts, do not re-examine evidence or hear witnesses, they review what happened in the lower level court and determine whether or not it's valid)
5) provincial and territorial superior courts (highest courts of original jurisdiction (the right to hear a case for the very first time within the province/territory in question))
6) provincial and territorial courts
- LEGISLATURES makes laws—laws that are then interpreted and applied by the courts. In Canada, this law-making power is distributed between Parliament (i.e. the House of Commons and Senate) and the various provincial legislatures. Again, section 91 and 92 of the Constitution Act of 1867 plays a crucial role in this distribution of power
certain issues the provincial govs have authority over dealing with
- ADMINSTRATIVE BODIES specialized boards, tribunals, and other agencies to which a significant degree of decision-making authority has been delegated through federal or provincial legislation. These bodies are typically provided with considerable discretionary authority, and they often also exercise quasi-judicial (?) power. They must abide by the Canadian law, including the Charter of Rights and Freedoms and basic principles of procedural fairness. Their decisions are capable of being re-examined by courts of law under certain circumstances
if society gets so complicated, that it's not enough to have simply legislative bodies/courts, then you need other things that can help manage and deal with everyday matters and issues
modern administrative states = where claims and disputes are sorted out day-to-day
naturalization and citizenship, you are dealing with the Immigration Board first and foremost, before anything is brought forward to the court if there is an issue
helps make sure that the courts aren't totally overwhelmed, as a lot of it involves a certain level of expertise and experience—administrative bodies have these expertise and experience