Chapter 2 - Canadian Legal System.docx

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

Description
Chapter 2: The Canadian Legal System - Statement of claim: a document setting out the basis for a legal complaints - The Canadian legal system is the machinery that comprises and regulates government - Government is divided into three branches: o Legislative Branch: creates law in the form of statutes and regulations o Executive Branch: formulates and implements government policy and law o 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. It is also charged with uploading the values of a nation. These values are tied to the political philosophy known as liberalism. - Liberalism: a political philosophy that elevates individual freedom and autonomy as its key organizing value. - 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 businesses operations o Ex: When the govt enacts a law, failure to comply can result in fines or other penalties, such as foreclosure of the business - The executive branch implements and generates policy that may be directed at business. o Ex: General Motors has a corporate and environmental affairs department charged with monitoring govt policy as well as tracking and contributing to debates over public policy - The judicial branch provides rules that resolve existing legal conflicts but also impact on future disputes o Ex: The Supreme Court of Canadas determination of whether commercial expression is protecting speech under the Canadian Charter of Rights and Freedoms has an impact on any number of industries, from cigarette producers to toy manufacturers Rothmans challenge to the Tobacco Control Act involves all 3 branches - The legislative branch passes the law to which Rothman objects - The executive branch formulated and advanced the govt policy that led to the legislation being enacted - The judicial branch, by applying constitutional law, will determine whether Rothmans objections to the law are valid or not The Canadian Constitution - The Canadian Constitution is not contained in one document it is located in a variety of places, both legislative and political, written and unwritten - This means that the Constitution is not always specific, but it also means that the Constitution can more easily grow to resolve questions or issues related to govt - Constitution Act (1867): o contains the written elements of the constitution o divides legislative power b/w the federal and provincial govts - The Canadian Charter of Rights and Freedoms: identifies rights and freedoms that are guaranteed in Canada - Relevant decisions by judges concerning constitutional law also form part of the Constitution - Constitutional Conventions: o important rules that are not enforceable by a court of law but that practically determine or constraint how a given power is exercised o code of ethics that governs out political processes o they are in place b/c historically, politicians have agreed to abide by them - Canadian Constitution also attends to a number of other matters: o Admission of new provinces and territories to Canada o Provisions for amending the Constitution o Autonomy from the United Kingdom Parliament o Provides for the 3 branches of govt (legislative, executive, judicial) The Legislative Branch of Government - Legislative branch: the branch of government that creates statute law - Statute law: formal, written laws created or enacted by the legislative branch of govt. Ex of statute law: the Criminal Code of Canada, which prohibits a variety of offenses, such as assault, fraud, and theft - The three levels of govt: federal, provincial, municipal, make legislation in Canada - Parliament = the federal legislative branch, comprises the House of Commons and the Senate - In order for legislation to become law, it must first pass through the House of Commons and then the Senate - Senate = the change of sober second thought b/c the Senate assess the work of the House of Commons - Each province has a law making body. Ex: In BC = the Legislative Assembly, in Nova Scotia = House of Assembly. - At the provincial level, there is no Senate or upper house - Municipalities are created by provincial legislation, have legislative bodies often called city councils their power is delegated to them by the province they are in Statute Law and Jurisdiction - The Constitution, through the Constitution Act, 1867, dictates whether each level of govt can make a given law or not - Expressed in legal language, each level of govt has the jurisdiction to pass laws within its proper authority or sphere - Jurisdiction: the power that a given level of govt has to enact laws- Canada is a federal state, which means that the governmental power is split b/w the central, national authority (the federal govt) and the regional authorities (provincial govts). - Federal govt also empowers territorial govts to engage in a form of limited self- government. The provincial govts in turn empower municipal govts to legislate in specifically defined areas. - The Constitution specifies that the federal govt has jurisdiction over criminal law, which includes the power to define new crimes, provide penalties for breaches to the criminal law, and pass laws with the purpose of protecting the public - Since the criminal laws fall under federal jurisdiction, there is a Criminal Code of Canada, but there are no provincial criminal codes The federal govt has exclusive jurisdiction over criminal law Exclusive jurisdiction: jurisdiction that one level of govt holds entirely on its own and not on a shared basis with another level Sometimes the federal and provincial govt has shared or concurrent jurisdiction Concurrent jurisdiction: jurisdiction that is shared b/w levels of govt This means that the area being regulated does not fall neatly into the federal or provincial jurisdictions, but straddles both of them. Ex: public health has both federal and provincial govt legislation Does the provincial govt have jurisdiction to pass a law such as the one in Saskatchewan that prohib
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