SOME HIGHLIGHTS OF LECTURE 1 ON CHAPTERS 1 AND 2.doc

SOME HIGHLIGHTS OF LECTURE 1 ON CHAPTERS 1AND 2 The Canadian Legal System In addition to the Constitution, and written and unwritten law, the Canadian Legal system is comprised of three Branches of Government: 1. Legislative Branch: creates law in the form of statutes. Synonyms for statutes are legislation, and Acts if Parliament or Acts. As between the federal government and the provincial governments, in order to determine which government has the right to enact a statute or legislation, you must refer to the Canadian Constitution which is comprised of both the British North America Act, 1867 (now called theConstitution Act, 1867); and the Canadian Charter of Rights and Freedoms. In the ConstitutionAct 1867, sections 91 and 92 of this Act set out the division of powers between the Federal Government (section 91) and the Provinces (Section 92) or, in other words, the jurisdiction of the Federal Government and the provinces. For example, the federal government has exclusive jurisdiction over criminal law, navigation and shipping, bankruptcy and insolvency, national defence and currency etc…, while the provincial governments have jurisdiction over property and civil rights, matters of a local or private nature in a province, the solemnization of marriage, administration of justice (the court system) etc…. Exclusive jurisdiction means that the jurisdiction held by that particular level of government is not shared with another. In other words, if the federal government has exclusive jurisdiction in a specific area such as criminal law, the provinces cannot enact or make or pass any laws in that area. Sometimes, however, a given area does not fall into section 91 or 92 so that both the provinces and the federal government can pass laws relating to that area. For example, “public health”. This is called concurrent jurisdiction. However, where both the federal government and a province or provinces pass laws that conflict with one another, something called the doctrine of paramountcy applies. This doctrine states that where there is a conflict or inconsistency between federal and provincial legislation, the federal legislation prevails. 2. Executive Branch: The branch of government that formulates or makes and executes or puts into force government policy, as well as administering all departments of government. It is comprised of the prime minister (federal) or premier (provincial) and their Cabinets (made up of ministers of various governmental departments). Generally speaking, the Executive branch is responsible for making regulations for particular statutes. These regulations often provide procedures and rules under a given statute and/or fill in blanks left in the statutes. Regulations and the making of rules form the basis of Administrative Law which is an area of law that relates to the various boards, agencies, tribunals and commissions who exercise some form of governmental function provided for by legislation and the regulations that apply to them. 3. Judicial Branch: This branch is composed of judges who are appointed by both federal or provincial governments. These judges preside over civil disputes and criminal proceedings and administer justice in the courts of the provinces. Generally, in Ontario and most provinces, the system of courts, is divided as follows: 1. Small Claims Court: In Ontario (Ontario