Chapter 2

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Department
Marketing and Consumer Studies
Course
MCS 3040
Professor
Joseph Radocchia
Semester
Winter

Description
Chapter 2: The Canadian Legal System Midterm Notes Introduction • The Canadian legal system is the machinery that comprises and regulates government. Divided into three branches: ◦ 1. The legislative branch creates law in the form of statutes and regulations ◦ 2. The executive branch formulates and implements government policy and law ◦ 3. The judicial branch adjudicates on disputes • Government Policy: The central ideas or principles that guide government in its work, including the kind of laws it passes • Constitutional Law: The supreme law of Canada that constrains and controls how the branches of government exercise power ◦ also charged with upholding “the values of a nation” • Liberalism: Apolitical philosophy that elevates individual freedom and autonomy as its key organizing value ◦ any interference with freedom including freedom to display legal product in one's business premises is inherently suspect and must be justified according to the principles of constitutional law • Canadian Legal System: The machinery that comprises and governs the legislative, executive, and judicial branches of government ◦ The legislative branch of government passes laws that impact on business operations. ▪ Ignorance of a law means that business loses out on opportunities to influence government policy and to take advantage of favorable laws ▪ Failure to challenge laws that are unconstitutional means that business is needlessly constrained ◦ The executive branch implements and generates policy that may be directed at business ▪ smaller business may work to influence government on a more modest scale by monitoring issues in-house, hiring lobbyists and working through industry associations ◦ The judicial branch provides rulings that resolve existing legal conflicts but also impact on future disputs • READ PG 22 for good use of these terms Statement of Claim: Adocument setting out the basis for a legal compliant The Canadian Constitution • not contained in one document but rather located in variety of places, both legislative and political, written and unwritten • constitution can more easily grow to resolve questions or issues related to government • Constitutional Conventions: Important rules that are no enforceable by a court of law but that practically determine or constrain how a given power is exercised ◦ are a “code of ethics that governs our political processes” ◦ not binding the way that constitutional rules contained in legislation would be ◦ cannot be enforced in a court of law ◦ they are placed because politicians historically have agreed to abide by them • The Canadian Constitution attends in the admission of new provinces and territories to Canada, provisions for amending the Constitution, and autonomy from the United Kingdom Parliament • The Canadian Constitution provides three branches of government: ◦ legislative ◦ executive ◦ judicial The Legislative Branch of Government • Legislative Branch: The branch of government that creates statute law ◦ example: Criminal Code of Canada & Tobacco ControlAct • Statute Law: Formal, written laws created or enacted by the legislative branch of government • three levels of government make legislation in Canada: ◦ federal ◦ provincial ◦ municipal • Parliament, the federal legislative branch, comprises the House of Commons and the Senate • For the legislation to become law, it must first be passed by the House of Commons and then approved by the Senate ◦ Because the Senate assesses the work of the House of Commons, it has been called “the chamber of sober second thought” ◦ at provincial level, there is no Senate, or upper house • Municipalities, which are created by provincial legislation, have legislative bodies often called city councils ◦ There powers are delegated to them by the province in which they are located Statute Law and Jurisdiction • The Constitution Act dictates whether each level of government can make a given law or not • Each level of government has the jurisdiction to pass laws within its proper authority or sphere • Jurisdiction: The power that a given level of government has to enact laws • Jurisdiction is divided in this way because Canada is a federal state, which means that governmental power is split between the central, national authority (the federal government) and regional authorities (the provincial governments) • Federal government empowers territorial government to engage in a form of limited self- government • Provincial governments empower municipal governments to legislate in specifically defined areas • The Constitution specifies that the federal government has jurisdiction over criminal law, which includes the power to define new crimes, provide penalties for breaches of the criminal law, and pass laws with the purpose of protecting the public ◦ The federal government has exclusive jurisdiction over criminal law • Exclusive Jurisdiction: Jurisdiction that one level of government holds entirely on its own and not on a shared basis with another level • Sometimes the federal and provincial government have shared or concurrent jurisdiction • Concurrent Jurisdiction: Jurisdiction that is shared between levels of government ◦ Example: Environment, public health • The provincial government cannot enact legislation that would create a conflict with federal legislation • Paramountcy: Adoctrine that provides that federal laws prevail when there are conflicting or inconsistent federal and provincial laws ◦ this makes the federal legislation paramount or supreme and the provincial law inoperative, but only to the extent of the conflict ◦ Through a significant doctrine, it is also a limited one ◦ The judiciary has held that paramountcy generally applies only if there is an express contradiction between the two laws ◦ If a person could simply obey the stricter law – and thereby comply with both pieces of legislation- then paramountcy would not apply ◦ Note: Section 30 (1) of the federal legislation makes virtually any form of tobacco advertising illegal.An exception is the display of the actual product, which is expressly permitted under section 30. The provision states: “any person may display, at retail, a tobacco product” ◦ The Saskatchewan legislation eliminates a portion of this permission since section 6(3) of the provincial act provides that “no retailer shall permit tobacco … to be displayed … if young persons are permitted access to those premises” ◦ The supreme court has recently addressed the matter of paramountcy in the Tobacco case, determining that two questions were at issue: ▪ 1. Can a person simultaneously comply with section 6 of the Saskatchewan Tobacco Control Act and section 30 of the federal Tobacco Act? ◦ A: The supreme court determined that compliance with both pieces of legislation could be effected by following the standard of the stricter one, that is, the provincial law. In other terms, adherence to the provincial law would not lead to a violation of the less strict, federal law ▪ 2. Does section 6 of the Saskatchewan Tobacco Act frustrate or otherwise work against Parliament's purpose in enacting section 30 of the Tobacco Act? ◦ A: The court found that the provincial legislation did not frustrate or impede the purpose of the federal act. That is, while section 30(1) of the federal act provides that “subject to the regulations, any person may display, at retail, a tobacco product or an accessory that displays a tobacco product-related brand element” this legislation does not grant retailers a positive entitlement or right to display such products. • Business is affected by all levels of government, but it is not affected by the provincial and municipal government • An important exception relates to businesses in banking, international or inter-provincial transport and communication ◦ these are areas of federal jurisdiction and such businesses are subject to federal law concerning licensing, labor and occupational health and safety • The regulation of business is generally a provincial matter because the provinces have jurisdiction over property and civil rights • Municipalities have jurisdiction to legislate in a broad variety of matters, from levying appropriate taxes and regulation local zoning, parking and subdivision to requiring the licensing of businesses and dogs. • Municipalities legislation takes the form of bylaws • Bylaws: Laws made by the municipal level of government BusinessApplication of the Law: Violating Municipal Bylaws • municipalities have much less legislative power than their federal or provincial counterparts, violation of a municipal bylaw can carry serious consequences, including fines and other penalties International Perspective:Anti-smoking Treaty • Ratified: To authorize or approve • Treaty: An agreement between two or more states that is governed by international law ◦ According to the World Health Organization, “the treaty requires countries to impose restrictions on tobacco advertising, sponsorship and promotion; establish new packaging and labeling of tobacco products; establish clean indoor air controls; and strengthen legislation to clamp down on tobacco smuggling” The Executive Branch of Government • Has a formal, ceremonial function, as well as a political one • Form a formal or ceremonial perspective, for example, the executive branch supplies the head of the Canadian state, the Queen • Formal Executive: The branch of government responsible for the ceremonial features of government ◦ has a significant role in the legislative process, since the executive branch of government, represented by the governor general or lieutenant governor, issues approval as the final step in creating statute law • Political Executive: The branch of government responsible for day-to-day operations, including formulating and executing government policy, as well as administering all departments of government ◦ It is also the level of government that businesses typically lobby in order to secure favorable or improved treatment under legislation or with respect to policy formation ◦ The chief executive of the federal government is the prime minster, while the chief executive of the provincial government is the premier ◦ Other members of the political executive – both provincial and federal = include cabinet ministers, civil servants, and the agencies, commissions and tribunals that perform governmental functions ◦ It is the political executive at the provincial level • Cabinet: Abody composed of all ministers heading government departments, as well as the prime minister or premier ◦ It is often the cabinet that passes regulations providing detail to what the statute in question has enacted ◦ When the cabinet enacts regulations, it is known by its formal name: the lieutenant governor in council (provincially) and the governor general in council (federally) • Regulations: Rules created by the political executive that have the force of law Business and Legislation: Tobacco Regulation by the Federal Government • Regulations are a form of legislation that is more precisely referred to as subordinate legislation ◦ This is because regulations can be passed only if that power is accorded by the statute in question. Such power is routinely given • Example: The Tobacco Control Act states that the governor general in council (i.e. the federal cabinet) may make regulations respecting information that must appear on cigarette packages. ◦ This occurred through the Tobacco Products Information Regulations which require that graphic health warnings and other information be placed on cigarette packages The Judicial Branch of Government • Judiciary: Acollective reference to judges ◦ Abranch of government, given that the judiciary is supposed to be independent of government ◦ The judiciary is to be independent from the legislative and executive branches of government ◦ Composed of judges who are appointed by both federal and provincial governments ◦ These judges require to adjudicate on a variety of matters, including divorce and the custody of children, civil disputes such as those arising from a will, breach of contract, car accidents, wrongful dismissal, and other wrongful acts causing damage or injury ◦ Judges also preside over criminal proceedings ◦ Businesses predominantly rely on the courts to settle commercial disputes • Judges: Those appointed by federal and provincial governments to adjudicate on a variety of disputes as well as to preside over criminal proceedings The System of Courts • Each provincial and territorial system of courts has three basic levels: ◦ trial ◦ intermediate appeal ◦ final appeal • Trial courts are of two types: ◦ Inferior: Acourt with limited financial jurisdiction whose judges are appointed by the provincial government ▪ These courts are organized by type of case, such as criminal, family, and civil ▪ The civil court- sometimes called small claims court – handles disputes in
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