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Law 2101 (127)

Law 2101 - TEXT LS-2 TO LS-17

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Law 2101
Christopher Sherrin

Law 101 – LS-2 to LS-17 Sources of law - a) the constitution - b) statutes (enacted by federal parliament or provincial legislature) - c) federal or provincial regulations - d) decisions rendered by judges in the cases they decide - International law is also a source of law. LRWA Materials - Two major sources of law: o Law made by courts (common and case law) o Law made by legislature (statute law) - Common law deals with changing social or legal disputes only as the emerge in actual disputes (cannot anticipate them). - Response to new situations is built up slowly, case by case. - Common law is at a disadvantage in confronting rapid social change. - Legislation (statutes) are better equipped to deal with social change (e.g. can be enacted in anticipation of future events and are very broad). - Legislation is unable to deal with many of the details of the law. - The cabinet is responsible for filling these in. - These laws, enacted by the cabinet are knows as delegated legislation or regulations. Divisions of Law - Procedural law: generally deals with court and pre-trial procedure and rules of evidence. (e.g. law relating to how a criminal charge can be worded) - Substantive law: deals with the rights of individuals. (e.g. law relating to the parameters of self-defence). - Civil case: another way of referring to a private case or “suit” (where someone sues someone else). - Criminal case: involves a prosecution by the Crown under a public-law statute such as the Criminal Code etc. Territorial Issues - Under Canada’s federal system of government the authority or “jurisdiction” to make laws is divided between the Parliament of Canada and the provincial and territorial legislatures. - Parliament can make laws for all of Canada but only if assigned by the Constitution. - Federal parliament deals with Canada as a whole (e.g. national defence, trade between provinces, criminal law, money etc.) - Provinces can make laws about education, property, civil rights, hospitals etc. - Local/municipal governments have jurisdiction over such things as zoning, smoking, parking etc. - Aboriginal peoples have different types of government. Where our legal system comes from The common-law tradition - Canada’s legal system derives from various European systems brought to the continent by explorers and colonists. - After the battle of Quebec in 1759, Canada fell almost exclusively under English law (except for Quebec where civil law is based on the French Code Napoleon). - Common law developed in Britian. - Based on the decisions of judges in the royal court. - Evolved into a system of rules based on “precedent” – a rule that will guide judges in making subsequent decisions in similar cases. - Common law is flexible and adaptable to changing circumstances. The civil-law tradition - Based on Roman law. - Book compiling all of the laws to avoid confusion. - Contains a comprehensive statement of rules many of which were framed as broad, general principles, to deal with any dispute that may arise. - Unlike common-law courts, civil-law first looks at the code to refer to previous decisions of consistency. Two meaning of civil law - #1: Civil law in contrast to “common law”, based on the civil code. - #2: Refers to matters of private law as opposed to public law, and particularly criminal law, which is concerned with harm to society at large. - Quebec act of 1774 made Canada a “bijural” country, one with two types of law: o Common law was to be applied outside Quebec in matters of private law, while similar matters in Quebec were to be delt with under the civil code law. o For public law, the common law was to be used in and outside Quebec. Structure of the Courts - Supreme Court of Canada: o Highest court in Canada. o Hears appeals from the provincial appeal courts, the federal court etc. o Constitutional questions may be referred by the Attorney-General, directly to the supreme Court of Canada (called reference cases) o E.g. most recent reference case was about same-sex marriage. o Decisions of supreme court are binding on all other courts of Canada. - Provincial Courts: o Bounded by decisions of the supreme court. o Courts of one province are not bound by the decisions of other provinces. - Ontario Court System: o Court of Appeal:  Highest court in Ontario o Superior Court of Justice:  Second highest  Deals with civil matters and more serious criminal matters.  Three levels:  1. The Family court, 2. Small claims court (for minor civil matters), 3. Divisional court (an appeal court above the superior court of justice but below the court of appeal). o Ontario Court of Justice:  Third highest  Deals with less serious criminal matters and some family matters. - Also a Federal Court which operates across the country. - The U.S
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