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Lecture 2

PSYC 268 Lecture Notes - Lecture 2: Ultra Vires, Constitution Act, 1982, Inquisitorial System


Department
Psychology
Course Code
PSYC 268
Professor
Deborah Connolly
Lecture
2

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PSYC 268 - Lecture 2 - The Canadian Legal System: An Overview
Legal Systems
In most legal systems, there are elements of both inquisitorial system & adversarial
system
However, each legal system will be more strongly associated w/ one or the other
Many European countries use inquisitorial system while most Common Law countries
use adversarial system
Division of Powers
S.91 of Constitution Act, 1982 lists areas for which federal gov can pass laws & s.92 lists
areas for which provinces can pass laws
Each area - called head of power
One level of gov cannot pass laws in jurisdiction of other level of gov
If it is attempted, law will be struck down as ultra vires
Sources of Law
4 sources of law
Canadian Charter of Rights and Freedoms
Legislation
Common law
Administrative law
Charter - supreme law of Canada
Rights listed therein are broad & general enough that they can adapt to changing
social values
Laws cannot infringe rights stated in Charter unless they can be demonstrably
justified in free & democratic society
Legislation - law written by govs, either provincial/federal
Language of legislation often general & requires interpretation, generally by
judges
Common law - law that can only be found in previously decided legal cases
Not written down in legislation
Administrative law - law governing administrative tribunals
Administrative tribunals - groups w/ delegated power to interpret & enforce
certain types of law
Canadian Court Structure
2 levels of court
Provincial courts
Superior courts
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Provincial appeal courts
Supreme Court of Canada
Stare decisis - means that some courts bound to follow decisions of some other courts
Important principle b/c introduces some certainty & predictability to law
Now all courts bind all other courts
If they did, there would be no meaningful appeal process & there would be no
way to change the law
Provincial courts are trial courts hearing both criminal & civil cases
There is no option to be tried by jury & generally, there is no preliminary inquiry
Decisions of provincial courts not binding on any other court, although other provincial
court judges from same province should find decisions persuasive
Provincial superior courts are trial courts hearing both criminal & civil cases
Generally, trials begin w/ preliminary inquiry & sometimes, there is option to be
tried by judge & jury
Provincial courts of appeal - appeal courts
They do not hear from witnesses & ordinarily, they do not hear evidence that was
not introduced at trial
Provincial courts of appeal hear arguments in panels of justices &
decision of majority stands
In certain circumstances, Crown & accused may apply to appeal decision
Either side may apply to appeal a sentence
Crown may apply to appeal verdict on question of law
Accused may apply to appeal verdict on question of law, fact, or mixed law & fact
Decisions of provincial courts of appeal are binding on superior & provincial courts in
that province & they are persuasive on courts in other provinces that have same law
SCC is appeal court
All cases going to SCC must have been heard in provincial court of appeal first
Either Crown or accused may apply to appeal verdict on question of law
If SCC agrees to hear appeal, will be heard by 5, 7, or 9 justices & majority
decision stands
Decisions of sCC are binding on all courts in all provinces subject to law that was under
appeal
Court Process
Most cases involving personal loss may proceed criminally, civilly, or both
There are differences in terms of purpose of proceeding, person responsible for
investigating alleged events, person initiating proceedings person paying for
prosecution, standard of proof, possible outcomes
Similarities lie in which side must prove case
Charter of Rights and Freedoms
Both human rights codes & Charter can redress human rights breaches
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