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Legal research > Chapter 1-2 > Flashcards

Chapter 1-2 Flashcards

1
Q

What is the def of law?

A

Body of rules in which a particular group or community recognizes as binding on its members or subject.
*binding: obligation

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2
Q

Legislative Power:

A

The lawmaking powers of a legislative body whose functions include to make, alter, amend and repeal laws.

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3
Q

Two parts of leg power:

A 
Federal:
House of Commons (elected)
Senate (appointed by PM)
Governor general (Queen’s rep in Canada) royal ascent 
Julie Payette is the G.G of Canada

B. Provincial:
Members of National Assembly (MNA)
Lieutenant Governor (J. Michel Doyon), appointed by Queen

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4
Q

Who can adopt laws?

A

legislative, executive, judicial

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5
Q

Executive Power

A

A. Federal:
PM
Cabinet (all ministers)

B. Provincial:
Premier
Cabinet (appointed by premier)

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6
Q

What is the definition of a Regulation?

A

Law made by the executive branch of government by virtue of an enabling statute
*enabling statute: Law that allows a regulation to exist

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7
Q

Who can adopt regulations?

A

Executive Power; Law made by the executive arm of government. It implements and enforces all the laws created by legislative power.
*A regulation cannot exist without a law

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8
Q

According to BNA Act 1867:

A

The federal can adopt laws and regulations under s.91

A province can adopt laws and regulations under s.92

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9
Q

What is jurisprudence (Or case law?)

A

Written decisions rendered by judges

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10
Q

Judges are part of which power?

A

Judicial Power; the authority vested in court and judges to adjudicate upon and protect the rights and interests of persons or property and to that end declare construe and apply the law.
*construe= interpret the laws *adjudicate= render judgement

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11
Q

Who are the actors of the judicial power?

A

Judges
Courts
Tribunals: administrative

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12
Q

Appointment of Judges:

federal gvt:

A
  1. Superior Court of Canada (fed)
  2. Federal Court of Appeal (fed)
  3. Federal Court (fed)
  4. Court of Appeal
  5. Superior Court
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13
Q

appointed of judges: prov gvt

A
  1. Court of Quebec

2. Municipal Court

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14
Q

To summarize the first two sources we can say:

A
  1. They are called primary sources of the law

2. Each finds its source in the law

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15
Q

What is the definition of doctrine?

A

A collection of works and treaties written by authors.

*Treaty: can be a form of a book

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16
Q

2 types of doctrines:

A

Books: Bounded documents written by one or more authors on a single topic of law. Editions, less updated
Periodicals: Law journals written by many authors on various topics of law, thinks of a “law magazine”. More up to date articles, updated more recently.

17
Q

The documents we find in QBC often come from authors in:

A 
Quebec
France (civil)
Other Canadian provinces (especially for criminal)
Great Britain (common)
USA (historial, criminal)
18
Q

Doctrine research

A

Although it is the 3rd source of law, it should be the 1st one you use when you start a research

Example: Marcus was asked by his boss to research all the grounds to dismiss a director from a corporation. Marcus doesn’t know much about corporate law, where should he start?

19
Q

Customs:

A

Customs will vary depending on a country, culture and religion.
Last source of law

20
Q

A custom is a non written rule and must be:

A
  1. A practice current and generalized in a field
  2. A uniform, general and frequent practice
  3. A public practice, known to all
21
Q
  • Examples in law:
  • You find examples of c&u:
  • Section 1434:
A
  • Examples in law are rare as many become legislatures with time
  • You find more examples of customs and international law rather than national law
  • Section 1434 in CCQ still refers to usage: “…according to its nature and conformity with usage, equity or law”
22
Q

The hierarchy of civil law:

A
  1. Legislation and regulations: organized alphabetically, law comes first and regulation comes second

  2. Law/Jurisprudence: Organized by highest court (Supreme Court of Canada- Municipal Court)
  3. Doctrine: Books first, organized by authors, next periodicals organized by authors as well
  4. Customs and usage: Not written
23
Q

the order is different in common law:

A

Jurisprudence/Case law
Legislation/Regulation
Doctrine
Customs and usage

24
Q

Most important source of law in civil law:

A

Leg and reg, but doctrine when you do research.

25
Q

Public international law:

  • Body of rules governing:
  • It takes its sources in what?
  • What is the most famous international organization?
A

-Body of rules governing interactions between sovereign States
Ex: USMCA (US-Mexico-Canada agreement)

  • It takes its sources in international treaties, conventions, bilateral and multi-lateral agreement.
  • The United Nations
  • It is virtually impossible to create one body that would be obeyed by all states
26
Q

ICC

A

In the last decade, we have seen the creation of the ICC as a mechanism to prosecute, not states but individuals…with mixed results
*ICC: International Criminal Court

27
Q

Private international law:

  1. Definition
  2. When conflicts arise between individuals from different states:
  3. 3090:
  4. To summarize
A

1.Body of rules governing the relations between individuals (corporations) from different states
Ex: Brad from QBC orders a t-shirt online from a Mexican foundation

2.private international law will tell you which jurisdiction will have a competency (or which national law will apply)
Ex: The CCQ contains Book 10 called Private International Law

  1. Art 3090, separation from bed and board is governed by the law of domicile of the spouses.
  2. To summarize, the main difference between public international law and private international law.
28
Q

Recap

A

Public: relationship between nations, originates largely from the direct agreements or treaties between nations
Model laws or direct agreement with nations
Nations become signatories

Fields of international law include criminal law, maritime law, the law of war, refugee law, and the law established between nations.

Private: Concerns disputes between individuals or businesses (not nations)
Referred to as international conflict of law
Largely subject to agreement between individuals

Addresses the question of:
Which jurisdiction may hear a case
The law concerning which jurisdiction concerning the issues in the case.

29
Q

National Public Law

A

Body of rules governing the relations between individuals (corporations) and the state.

There are 4 categories:

Constitutional: Rights granted under the constitution ( everything under 91 and 92)
Includes the Canadian Charter

  1. Administrative: Board (Regie), Commission, Office
  2. Penal and Criminal:
    Penal=Statutory law (Provincial highway safety code)
    Criminal=Criminal Code
  3. Tax: All levels (Federal, provincial, municipal)
30
Q

National private Law

A

Body of rules governing the relations between individuals (corporations) without the interventions of the state.

-There are 3 categories:

Civil: In QBC it refers to the principles elaborated in the CCP and the CCQ.

Commercial: Regulates the acts of commerce ($)

Social: All the laws regarding the well-being of an individual
(Labour Laws, work unions, pension plans, adopted by government for our well being, CNESST)

Legal research (2 decks)

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