Lecture 2

Question 1

What is the theory of precendent?

Answer 1

Is the foundation of the common law system and it states that lower courts must follow prior decisions made by higher courts.

Question 2

From highest to lowest, list the hierarchy of courts.

Answer 2

Supreme court of Canada (final court of appeal)

Court of appeal

Trial court.

Question 3

How many judges are there in trial court?

Answer 3

One.

Question 4

Does a trial court have a jury?

Answer 4

It can, but doesn’t always.

Question 5

What are the 2 main jobs of judges in trial courts?

Answer 5

1. Make findings of fact
2. Make findings of the law

Question 6

What happens in a court of appeal?

Answer 6

There are an odd number of judges, but no jury. The documents (transcripts) and info from trial and the judges review it. No new evidence can be brought in and there will be no witnesses.

Very rarely will appeal courts change findings of fact.

Question 7

How many judges are at the supreme court of Canada?

Answer 7

Nine.

Question 8

Can principle of Stare Decisis (theory of precedent) be used if a case is not binding?

Answer 8

Yes. The lawyer may ask for the judge to consider it because it is “persuasive” or relates to the current case.

Question 9

What are the principles of Stare Decisis?

Answer 9

1. judges may be influenced by prior decisions, but a judge is only required to follow decisions from higher levels of court.
2. precedents bind only the SAME circumstances.
3. a past judicial decision is ONLY a binding precedent on lower courts in the SAME jurisdiction. However, not everything from higher level of courts is binding.
4. non-binding decisions can be persuasive.
5. not everything a judge says in deciding a case is binding on judges in later cases.

Question 10

What is Obiter Dicta?

Answer 10

The other stuff judges say that is not part of Ratio Decidendi.
not binding, but can be persuasive.

Question 11

What is Ratio Decidendi?

Answer 11

An important factual point or chain of reasoing in a cases that directs the final jugement.

Question 12

When will you see a jury in higher courts for trials?

Answer 12

Sometimes for a non-criminal case, but super uncommon.

Question 13

Is the Manitoba court of appeal binding on the trial court of Manitoba?

Answer 13

Yes.

Question 14

Is the Maniotba court of appeal binding on the trial court of Alberta?

Answer 14

No.

Question 15

What are the 3 traditional reasons for Stare Decisis (theory of precedent)?

Answer 15

1. Certainty (law needs to be fairly predictable)
2. Consistency (need like cases to be treated as such)
3. Continuity (generally the rule should stay the same over time)

Question 16

What is the constitution?

Answer 16

Fundamental law from which all other parties draw their power to create law.

Question 17

Who creates law?

Answer 17

1. Courts
2. Legislatures
3. Admin Legislation and Entities

Question 18

What kind of law can courts make?

Answer 18

Case law.

Question 19

What kind of law can legislatures make?

Answer 19

Statute law.

Question 20

What kind of law can admin legislation and entities make?

Answer 20

Subordinate law.

Question 21

Who makes up provincial cabinet?

Answer 21

Premier of the province and their ministers of government.

Question 22

Who makes up federal cabinet?

Answer 22

Prime minister and their ministers of government.

Question 23

What are the 4 roles of the courts?

Answer 23

1. arbiter of the constitution
2. interpreter of legislation
3. protector of civil liberties
4. arbiter of disputes between parties

Question 24

What is the main role of the constitution?

Answer 24

Specifies what level of legislature can create law in specific areas.

Question 25

Explain section 91 of the constitution.

Answer 25

Specifies heads of power for federal parliment. Specfic named powers and the POGG clause.

Question 26

What does the POGG clause stand for?

Answer 26

peace, order, good government.

Question 27

Explain section 92 of the constitution.

Answer 27

Specifies heads of power for provincial legislature.

Question 28

What does ultra vires mean?

Answer 28

Beyond the scope of their powers.

Question 29

What does intra vires mean?

Answer 29

Within the cope of their powers.

Question 30

How can the validity of a statute be challenged?

Answer 30

The individual or group of individuals MUST be personally affected by the statute and can argue that the wrong level of government (legislature) created the statute. Once those conditions are met, you can go to court to challenge the statute.

Question 31

What are the two possible rulings if it is found that the statute is invalid?

Answer 31

The court can declare ALL or part of it to be of "no force and effect".

Question 32

Who is allowed to bring the challenges of the validity of a statute to court?

Answer 32

1. a citizen negatively affected by a statute that they believe is passed by the wrong legislature. 2. a citizen using the challenge as a defence 3. one of the 2 levels of legislature can initiate a "reference"

Question 33

What are the 2 levels of legislature?

Answer 33

Provincial and federal

Question 34

At which level of courts does a reference by parliament start?

Answer 34

Supreme court of Canada.

Question 35

At which level of courts does a reference by provincial legislature start?

Answer 35

Provincial court of appeal.

Question 36

What happens when the wording of a statute is unclear?

Answer 36

You can ask what the legislature intended those words to mean.

Question 37

What evidence is the court permitted to use to come to their conclusion?

Answer 37

1. what is apparent upon the face of the statute (dictionary, etc.) 2. previous versions of the same statute can be compared to the current version

Question 38

What is NOT permitted by the courts to use as evidence to come to their conclusion?

Answer 38

Legislative history. (aka everything that happens before it becomes a statute)

Question 39

What methodologies can courts use to interpret what the legislature intended?

Answer 39

1. literal method 2. liberal method (constitutional documents but not statutes)

Question 40

Are civil liberties the only thing the charter does?

Answer 40

No!

Question 41

What are 5 main points about the charter?

Answer 41

1. charter of rights is entrenched 2. the GENERAL RULE is that statute are NOT allowed to violate the rights guaranteed to us in the charter of rights 3. exception to the general rule (section 3.3) 4. exception to the general rule (section 1 of charter) 5. what the charter apply to

Question 42

Explain the exception to the general rule found in section 3.3 of the Charter.

Answer 42

Allows provincial legislature or parliament to override sections 2, 7-15 by inserting a clause at the beginning.

Question 43

What is a sunset clause (included in section 3.3)

Answer 43

States that the legislature must vote to keep that clause every 5 years. if failed to do so, the clause automatically gets removed from the statute.

Question 44

Explain the exception to the general rule found in section 1 of the Charter.

Answer 44

The rights are not absolute and there can be times where a minor violation is permitted with good reason (i.e., speeding to the hospital because your child is not breathing)

Question 45

Explain how the charter of rights is entrenched.

Answer 45

Simple majority vote of one legislative body is NOT sufficient for a change to be made to the charter. There is a general amending formula to follow.

Question 46

Explain the general rule.

Answer 46

A court can make a determination whether the statute (or a part of it) is invalid and then declare that statute (or part of it) to be of "no force and effect"

Question 47

What kind of law do legislatures, federal government, and provincial government make?

Answer 47

Statutue law

Question 48

What is administrative legislation?

Answer 48

Rather than the law being made my federal or provincial government, and the provincial and federal government make an entity and gives power that entity to create law in that area. The level of government with lawmaking power in that area make an administrative entity and they can make law in that area. It is law made by an (administrative) entity.

Question 49

What is an example of administrative legislation?

Answer 49

Worker's Compensation Board.

Question 50

What kind of law does administrative legislation make?

Answer 50

Subordinate legislation.

Question 51

What kind of law/legislature do bylaws fall under?

Answer 51

Subordinate legislation

Question 52

Why is municipal not considered a level of government in law?

Answer 52

Municipal stuff (i.e., City of Winnipeg) is an entity created by a provincial statute.

Question 53

What is city law called?

Answer 53

Bylaws

Question 54

What type of legislation are bylaws?

Answer 54

Subordinate

Question 55

When is judge made law overruled?

Answer 55

By a valid statute.

Question 56

If a statute is not valid, where do you go to find out if it is valid?

Answer 56

The court.

Question 57

What does the Charter apply to?

Answer 57

1. not employment or tenancy situations 2. it applies to government, its laws (statutes, regulations and orders in council) and governmental entities