Canadian and Quebec Law - Exam One

Law is reactionary:

• Evolution forced greater interaction between individuals, requiring established rules and regulations to maintain order within communities.

• As population, technology, and immigration patterns advanced, so did the law

Law does not always equal justice:

• Law is written: objective and difficult to deter

• Enforced by judges: Singular body often interprets and has discretion over law

• Produced by majority: cannot meet needs of all; minorities often excluded

Ethical values become law when:

Gains large consensus amongst population; addresses issue(s) considered a threat to community

Ex: legalizing marijuana; same-sex marriage; 

Private law:

Regulates legal relationship between individual citizens 

Examples: Contract, commercial, employment, property

Public law:

Governs relationship between citizens and their state

Examples: criminal, highway, tax, bankruptcy 

Civil law:

• Basis for law lies in legislation.

• Does not take into account precedence.

• Legislative supremacy (France).

• Doesn’t interpret law; solely applies it.

Common law:

• Judge made law

• Basis for law grounded in precedence and jurisprudence

Quebec Legislative Process:

National assembly; three readings; royal ascent from Lieutenant Gov. of Quebec  

3 element make up legal system:

• Legislative mechanism: how laws come into existence 

• Laws themselves: rules accepted by society

• Administration and enforcement of laws: punishment for breaking a law

Statutes:

• Deals with singular subject; Human Rights Act

• Statutes override jurisprudence

• Interpreted stricter than Code

• Must pass 3 readings in HOC and Senate (Federal)

• Simple majority to pass and amend

Jurisprudence:

• Case Law

• Stare Decisis - let the decision stand. Lower courts must respect higher courts’ decisions.

• Past judgements guide future decisions (precedent)

Doctrine:

• Written commentary 

• When experts write something used in court of law (attorneys, legal scholars, former judges, politicians)

Custom:

Tradition or usage accepted by a community. Accepted by court, provided no conflict with existing statute.  

Administratives:

Committees, boards, or commission in charge of application of particular law

Code:

One broad statute that covers many subjects in a specific area of law; Civil Code of Quebec 

Municipal Courts: 

• Municipal by-laws (traffice, zoning, taxes)

• Minor criminal matters (theft under $1000) 

• Typically open 1-2 days per week; Montréal exception 

• “Judges” typically lawyers that live in that community 

• Does not hear cases where one party sues another

Small Claims Court

• No attorneys

• Cases no more than $15,000

• Creditor can reduce debt to sue at this level

• Must arise from contract, or accident resulting in damage

• Not applicable to businesses w/ more than 10 employees

• Inquisitive method

Court of Quebec:

• $15,000 to $75,000 ($100K if plaintiff opts)

• No alimentary pensions or federal cases 

• Criminal cases w/ 2 years or less of prison time 

• Appeals to Court of Quebec Appeals; no appeals for cases <$60,000

• Appeal: Allowed if question of law, principle, or new issue vs. precedent

• Hears cases to cancel lease when claim is <$85,000

• Adoption matters

Superior Court:

• All cases >$75,000 / not assigned to other courts

• Only court where jury can be present. Defendant chooses jury or judge

• Criminal cases, 2+ years of prison

• Court of first instance (jurisdictional and criminal exceptions)

The Court of Appeal

• 7 judges (3,5, or 7 will hear the case) 

• Argues if there was an issue with lower courts and retrial as a result 

How to recieve an appeal: 

• Error of law or fact (questionable evidence, witnesses) 

• Must apply for leave (permission) to be heard

Supreme Court of Canada

• 9 judges

• 3 from Quebec

• Highest appeals court; with leave needed (permission)

Administrative tribunals

• Mini-courts for specific issues (human rights, immigration)

• Typically no appeals (error of law, didn’t follow rules)

Inquisitive vs. adversarial

Judges:

• Former attorney

• Minimum 10 years experience 

• Must terminate private practice and business relationships 

• Appointed for life

Notaries:

• Exclusive right to prepare certain contracts

• Authentic Acts: Documents signed by a notary are presumed valid; judge accepts without further proof.

• Cannot represent in court, except uncontested matters (real estate)

Mediators / arbitrators:

• Cannot represent in court; objective third party

• Find agreement between both parties

Mediators: resolve conflict prior to court, no binding decision

Arbitrators: resolve disputes outside of court through decisions agreed upon by both parties

Entrenched rights:

• CA 1982 included Charter of Rights and Freedoms

• Charter entrenched in Constitution

• Charter not for private matters; applicable if wronged by government

• Changing constitutional amendment: 7/50 (7 provinces, representing 50% of population)

Fundamental freedoms:

Religion, thought, expression, association, press

R v. Big M Drug Mart Ltd

• Charged for opening Sunday under Lord’s Day Act

• SCC: Act violated freedom of religion

• Even if corporation not religious, law itself unconstitutional

• LDA struck down

Democratic rights

Right to vote and run for office

Sauvé v. Canada

• Law barred prisoners serving 2+ years from voting

• SC: Ban violated Charter and was not justified.

• Prisoners serving 2+ years are allowed to vote.

Mobility rights

Freedom to travel and work anywhere in Canada

Canadian Egg Marketing Agency v. Richardson? 

Legal rights

Right to life, liberty, security, judicial protections

Right to attorney; promptly informed for cause of arrest; innocent until proven guilty

Carter v. Canada

• Struck down Rodriguez, which banned assisted suicide. Ruled adults who endure intolerable suffering who can clearly consent have the right to end their life.

Equality rights

• Protection from discrimination. Only listed rights protected

• Applicable anywhere owner opens doors for public (malls, cafes)

• Undue hardship: difficulty or expenses which makes complying with law unreasonable (drunk; elevators at every Metro station) 

• Cannot discriminate potential employee on basis of criminal record if not related to job/ obtained a pardon

Law v. Canada?

• Established test for equality rights (Charter)

• Law challenged survivor benefits; claimed age discrimination

• SCC found no violation

Gosselin v. Quebec

• Challenged reduction of welfare benefits <30yrs

• Claimed violation of life, liberty, security of Charter

• SCC rejected claim; gov. goal to encourage work is valid

Notwithstanding Claue

Authorizes Parliament or provincial government to pass legislation that overrides Charter rights.

Democratic, mobility, language rights

Sunset Clause: Override lasts 5 years

The Oakes Test

• Government must demonstrate the limitation imposed on a right is serious enough to be addressed

• Must prove limitation is the least intrusive option

• Benefit vs. harm 

Enforcement:

• Injunction (cessation of violation): ask court to tell defendant to not infringe on your rights

• Material damages: value of lost property, profits, income

• Moral damages: limited; violation created stress, anxiety, altered lifestyle 

• Punitive damages: Punish defendant to teach a lesson. Must prove intentional. Defendant cannot have criminal record for same act. 

Quebec vs. Canadian Charters

• Quebec Charter used for violation between private individuals 

• Quebec Charter not entrenched in Constitution; easier to change