Structure
Sovereignty
Every independent nation is sovereign. Basically, people within the country can govern
themselves can govern themselves in whatever way they choose. Make laws, enforce
them, collect taxes, make war/peace, enter into treaties. Each sovereign nation must
decide how it will function. Who will have the power. When nations get bigger, they will
have representatives of groups who will have meetings to represent their respective
groups. These groups then make the laws. If the people like them they get re-elected.
Limits of sovereignty: borders.
Authority to enact Law
Canada sovereign since 1982 due to the Constitution Act. Adopted the British North
America Act for the basis of the constitution which set up the structure of
our government (fed and provincial). Fed parliament of Ottawa passes laws for all
Canadian citizens (residents and visitors too). Constitution restricts fed gov to make
laws relating to the provinces. Provincial legislatures passes law on subjects of
the Constitution specifically for them. They are 10 provincial lawmaking bodies.
Canadian Legislative Process
How does a government (prov or fed) pass a law?
Three elements to the federal Parliament:
1 House of commons (elected members)
2 Senate (appointed members)
3 Queen
Fed gov wants to introduce new law:
1 Starts by proposing law to a Minister of the government for a first reading.
2 If not rejected, printed and distributed to members of the House of Commons, referred
then as a Bill and given a number.
3 Weeks later, discussed in the House and Minister explains why the gov wants it to
become a law.
4 Opposition members debate the bill in this second reading.
5 Committee reports back to the house with any changes then Bill is ready for third
reading, last chance for final changes.
6 If Bill passes third reading, sent to the Senate where it goes through the same
procedure and another three readings.
7 If passes House of Commons and Senate, it is ready for Royal assent. Signed into
law by the Queen or her representative. Then becomes a law and called by its
proper name
Quebec Legislative Process
Legislative: having the powers to make laws
Laws made in each province are by legislature (term to describe lawmaking
mechanism), and consists of two elements:
1 National Assembly
2 Queen
Steps:
1 Bill is introduced into the National Assembly and must be read three times
2 After readings, signed by Queen or representative and becomes law
Representative of the Crown and Role in Lawmaking
Representative of the Queen: Governor General and has the right to exercise all Her
Majesty’s powers and authorities in respect of Canada.
Most important role: always make sure there is a Prime Minister.
Other roles: summons Parliament (calls member into session), prorogues Parliament
(ends current session), and dissolves existing Parliament (terminates pending new
election). Also, gives assent to the those bills passes who become Act of Parliament
and Law. Also, Host to visiting heads of state and other distinguished visitors.
Lieutenant Governor: Queen’s representative in each province.
Branches of Law
Laws cover pretty much every type of personal and business activities that Canadians
engage in.
Labour, Family, Packaging, Railway, Environment, Communication, Copyright,
Highways, Patents, Food & Drugs, Custom, Contracts, Education, income tax,
competition, companies, bankruptcy etc.
Law: has six sources
Canadian Constitution: cornerstone of confederation and Canadian society
Only source to make laws is the constitution. Any law that is inconsistent with the
Constitution has no force or effect. The document tells us which government has the
right to enact legislation and limits all gov from imposing any arbitrary laws contradicting
the rights granted by the Constitution. If there is an area of ambiguity, the courts help us
solve this problem.
Federal and Provincial Statute Law
1st source of law: constitution. 2nd is federal and provincial laws. Many statutes (laws)
are passed throughout the year. From time to time, the laws are revised, changed or
even repealed. Gov consolidates the statues every 15years. If you are a lawyer, you
must stay up to date on these changes.
A Code (like Civil Code of Quebec) is a statute (law) since it is passed the same way.
However, a statute deals with only one subject. A code deals with many subjects in a
broad area. Criminal code & Civil code cover different areas.
Statute interpreted more strictly than a code. If unclear in statute, must look somewhere
else within the Act to clarify. If something unclear in the Code, you can look at outside
sources (previous laws or decisions) to help clarify.
Case Law - Jurisprudence
Third source of law. Judgments of courts rendered in past cases. Which ultimately form
an ever-growing body of case law. Laws must applied the same way in all cases. One
decision for one case, if similar case two years later, same decision should still apply.
Judgments in previous cases is a reference for how the law should be applied.
Common law system: once a Court has made a decision, it is considered to have the
force of law unless changed by new statute. Stare decisis: let the decision stand and
courts must follow previous decisions.
Quebec courts are not bound to follow past judgments but judges still consider them to
maintain uniformity of law.
Doctrine
4th source. Written commentary on the law. Written material of experience lawyers and
judges on what they found about the law. Help understand the underlying principle of
the law.
Custom or tradition
5th source. Customs or usage accepted in a particular community or industry. When
something has been done in a particular way for a long period of time can eventually
become law.
Administrative Regulations
6th source. Body of regulations brought into force by the authority of various statutes.
Special committees, boards or commissions formed by fed gov. These groups pass
regulations for how the law is to be respected, enforced and applied.
Administration & Enforcement
System of courts set up at every level. Judges and humans see and apply laws
differently.
The court system
People disagree with each other and go to a court to seek a judge to render a decision.
Level of court depends on nature of case and amount of money involved. Quebec
courts are: court of appeal, superior court, court of Quebec, municipal court.
Each court has their own jurisdiction and different level of competencies: nature or type
of cases or Amount of money the court is allowed to decide upon and Geographic area
of the province.
Municipal court
>80 municipal courts in Quebec. Usually part time court since not enough cases to fill
them (except for MTL, Laval, Quebec cities)
Authority: hear cases on municipal by-laws (traffic, health, zoning, noice, municipal
taxes) and minor criminal matters.
Court of Quebec
Heard by one judge, court of First Instance (cases heard for the first time).
3 divisions: Civil division (small claims court), youth division and criminal and penal
division. Example of cases: value between 15K and 85K, cancel lease where amount
claimed for damages is less than 85K, recover unpaid school/municipal taxes, hear
adoption matters.
Decision can be appealed if value is more than 60K, if not, court of Quebec has final
say. Appeal can be allowed if new evidence emerges or is a question of law. In Youth
matters, court has absolute jurisdiction. Court is allowed to hear appeals from
any administrative tribunal that allows appeals. Judges appointed by provincial gov for
life.
Small claims court
Goal: obtain faster and less expensive settlement of minor cases. Uses inquisitive
method: one judge hears the parties, ask for facts and makes a decision.
Criteria: value less than 15K, claim must arise from contract or accident that led to
damages, debtor does have to reside in Quebec, debt must be owed personally, if it is a
business can’t have more than 10 employees in past 12 months, lawyers do
not represent people. If person can’t show up, a mandate is permitted. If a business,
must be represented by a stakeholder.
Appeal is not permitted and money owed must be paid within 10 days.
To file a motion, creditor must pay fixed amount. Debtor must pay as well if decides
to contest the action,
Superior court
Cases heard by one judge. Court has powers over all other courts in the province,
except for court of Appeal and corporations. If court exceeds its jurisdiction, request can
be made to the superior court.
Decisions for firms, only consider whether the firm can make the decision or not. It won’t
question the soundness of the decision unless it hast to.
Court of appeal
Court of appeal for the province. Hears cases from the superior court and Quebec
court. Has appellate jurisdiction (right to hear appeals) over all cases where an appeal
is allowed by law. Cases heard by more than one judge. Decisions does not have to
unanimous. Disagreeing judges can write dissenting opinion. Only transcripts and
evidence are reviewed by the judges and lawyers will argue solely on the reasons for
the appeal.
Court has 3 decisions: allow lower court decision to stand, overly the decision, or order
the case to be heard again.
Supreme Court of Canada
Highest and final court of Canada. Hears appeals from all the courts in all the provinces
of the country. 9 judges appointed by fed gov, 3 from Quebec. Same 3 decisions as
court of appeal.
Federal court of Canada
Deals with concerns of the fed gov. First instance and appeal section. Deals with admin
stuff, disagreements between citizens and gov, hears appeal of other federal courts.
Administrative tribunals (boards)
Impose rules as to how a particular law is to be enforced. Can appeal decision of these
boards through review board built into the law or through Quebec administrative
Tribunal.
Legal Profession
Judges
Fed courts: appointed and paid by fed gov. prov courts: appointed and paid
by prov Gov.
Must be a lawyer for minimum 10 years. Legally required to make decisions on matters
that are brought before him/her. Unlike France system of inquisitive, our system is
based on adversarial approach (parties are opponents and argue until judge decides
who presented a stronger case based on the evidence). Inquisitive method is used in
small claims court.
Lawyers and Notaries
Lawyer: legal advice, helps set up a business, does contracts, has exclusive rights
to represent clients, only one allowed to make a claim on the behalf of someone else.
Notary: legal advice, exclusive right to prepare certain contracts (real estate, mortgage,
marriage, wills, authentic documents). Cannot appear in court.
Evolution of these professions:
England and other common law countries, 2 legal professions. Solicitor: deals with the
public, legal advice on all matters. Barrister: court cases, specializes in litigation.
France, 4 lawyers. Avocat: court cases, civil and criminal. Avoué: deals directly with
clients, prepares documents and pleadings. Agréés: commercial court cases. Notaire:
specialist who handles real estate deals, marriage and liquidation contracts. A person
cannot be more than one of these professions.
In common law Canada, only lawyers exist and handle everything.
Lawyers and notaries in Quebec receive same legal training. Lawyer takes the
Bar, notaries takes course by the Board of Notaries. Can be lawyer or notary, not both.
The notarial system
Unique to Quebec. Notaries chief duty is to prepare and execute deeds and
contracts. Regulated by the boards of notaries. Can be called legal advisors, title
attorney or notary public for affidavits to be used outside Quebec.
Great use in Quebec, expert in drafting legal documents and has authority to prepare
authentic acts. Certain documents need to be signed in from of a notary. Also expert in
real estate titles.
Authentic acts: docs drawn up by notary and both parties sign in presence of notary
(pain & gain scene). Original copy stays with notary and parties receive
copies. These documents do not have to be proven in court since it contains the
notaries signature on it.
Notarial deeds (docs) prepared en minute (kept separate and are numbered
consecutively in records, parties receive copies). Deeds en brevet executed with one or
more originals which are delivered to parties.
Notary must observe certain facts: identify parties involved, parties understand
the document they are signing, that they consent to the obligations, date and place of
signing is indicated.
Commissioner of Oaths
Necessary for someone to sign a document and declares that everything in it is true.
This can be done through a lawyer and/or notary. However not always
convenient, Quebec gov authorizes certain people to be Commissioners of Oaths.
Same validity as if made in court.
Law also authorizes councillors, priests, ministers, Justices of the peace to
receive sworn statements.
Legal aid
Goal: provide services of a lawyer or notary free of charge. For those who cannot afford
these services. Gov sets minimum financial requirements to be eligible for these
services.
Fill and submit application, if approved, just lawyer. Once case
is concluded, lawyer sends bill to the Legal Aid Office.
Available for the following cases:
• First instance criminal defence
• Certain family matters
• Alimentary obligation
• Case under the Youth Protection Act
Excluded from legal aid:
Contest the results of an election, breach of promise of marriage, parking
violation, taking action for defamation or libel (false statement or lies)
but available to the defendant.