intro to Canadas legal system

Judiciary: the third branch of government that exercises its power by rendering decisions in our country's courts. Also, might be the judicial authorities of a country? 


Inferior courts: the inferior courts fall into two categories: provincial/territorial and federal. 

Provincial and territorial courts whose jurisdiction is limited to less serious criminal matters, family and youth matters, and small claims disputes; the federal courts-martial, part of the military court system, are also inferior courts. 


Superior courts: like the inferior courts, the superior courts fall into two categories: provincial/territorial and federal. 

Provincially constituted courts have inherent jurisdiction to hear all matters (unless taken away by legislation) and with two levels, a trial level and an appeal level, sometimes referring just to the trial level. 

Provincial 

are provincially constituted courts with inherent jurisdiction to hear all matters unless taken away by legislation and with two levels, a trial level and an appeal level, sometimes referring to the trial level

Section 96 courts 

Provincial superior courts so called because their judges are federally appointed under section 96 under the Constitution Act, of 1867

Federal 

->the federal court

-> the federal court of appeal

-> The Tax Court of Canada

-> The court martial appeal court 

Constituted under federal legislation with federally appointed judges. The Federal Court and the Federal Court of Appeal have jurisdiction throughout Canada. The authority of these courts overlaps with that of the provincial superior courts and this has given rise to a number of jurisdictional disputes. 


Supreme Court of Canada (SCC): Canada’s highest court and final court of appeal. 

All of the provincial and territorial courts of appeal 

The federal court of appeal 

The court martial appeal court


Reserve: to postpone rendering its decision after a hearing has concluded so that the court can carefully prepare the reasons for its judgment 


Majority: refers (in the context of a split decision on appeal) to the group of justices who form the majority and whose decision becomes the decision of the court  

 

Dissent: refers (in the context of a split decision on appeal) to the judgement of one or more justices in the minority 


Judicial independence: principle that judges should be free to make decisions based on the law and free from outside interference 

Security of tenure 

Financial security 

Administrative independence 


Plaintiff: individual, corporation, or other entity who initiates a non-criminal lawsuit 


Defendant: individual, corporation, or other entity who defends a non-criminal lawsuit initiated by the plaintiff 


Appellant: individual, corporation, or other entity who lost at trial and who initiates an appeal to a higher court 


Respondent: individual, corporation, or other entity who won at trial and is responding to the appellant on an appeal to a higher court 


Judgment: final outcome or disposition of the dispute heard before the court or, when the court provides reasons for its judgement, the entire set of reasons 


Decision: depending on the context, refers to the outcome or disposition of a case, to the holding in the case, or (where the court provides them) to the entire set of reasons the court gives for its judgement 


Case: depending on the context, refers to the reasons for judgment (where the court process 


Case brief: summary of a case with the constituent parts of the court's reasons for judgment arranged in a set order 


The evolution of civil liberties in Canada: civil liberties in Canada eventually gained legislative protection because of four main factors: 

  1. Growing dissatisfaction in Canada, after the Second World War, with having only an “implied” bill of rights 

  2. The influence of the civil rights movement in the united states 

  3. Dissatisfaction with the Canadian bill of rights (1960) 

  4. The advent of the Canadian Charter of Rights and Freedoms in 1982  



Bone fide occupational requirement: in the context of employment, a bona fide (Latin for “in good faith”) requirement is one that exists for a legitimate reason - for example, safety - and that cannot be removed without undue hardship on the employer 


Fee simple: interest or estate in land that is the closest to absolute ownership an owner can have, entitling her to possess the property, build on it, and transfer it to others during her lifetime or in a will at her death.  


Leasehold interest: a form of property ownership that implies an obligation to pay rent 


Mortgage: a kind of charge against land that secures a debt owed by the landowner 


Joint tenancy: a form of co-ownership that features the right of survivorship as well as the “four unities” of possession (each co-owner has an equal right to possess the entire property), interest (each co-owner has an identical interest in the property), time (the co-owners receive their interests at the same time) and title (the co-owners receive their interests under the same instrument, such as a will) 


Tenancy in common: a form of co-ownership that does involve the four unities or the right of survivorship, meaning that a co-owner can transfer his interest to others during his lifetime or leave it to others in his will 


Personal property: tangible, moveable objects as well as intangible interests, such as shares in a company 


Chattels: tangible, moveable objects such as furniture, equipment, and cars 


How cases come before the SCC

Three ways 

  1. Leave to appeal 

  2. Appeals of right

  3. On a reference 


To qualify for appointment as a provincial superior court judge, a candidate 

  1. Be a barrister or advocate of at least ten years standing at the bar of any province. 

  2. Have had a total of at least ten years in which the candidate (a) was a barrister or advocate at the bar of any province and then (b) served full-time as a member of a body that performed duties of a judicial nature 


The required qualifications as a SCC judge are

  1. Prior appointment as a judge of the superior court of a province 

  2. Being a barrister of at least ten years standing at the bar of a province 

Style of cause: name of the case or title of the proceeding, consisting of the names of the parties to the dispute.

Canadas implied bill of rights is based on the Constitution Act 1867, which states in its preamble that canada is to have “a constitution similar in principle to that of the UK”.

Some examples of the civil liberties and safeguards that canada has derived from england,

a respect for the rule of law and due process, or fairness in criminal matters which include 

-> legal rights upon arrest

-> the presumption of innocence

-> the right to an open and fair trial

In addition to these legal rights, certain political civil rights developed that stemmed from englands system of government

-> rights to freedom of speech

-> freedom of religion

-> freedom of the press

-> peaceful assembly

These were only ever implied