Comm 315 Notes Chapter 2

CHAPTER 2: THE QUEBEC LEGAL SYSTEM:
 Sovereignty and authority to enact law:
-Sovereignty: each independent nation is sovereign= ppl of the country hqve within
their control the supreme and absolute power to govern themselves in whatever way
they choose. They can dictate their own laws and enforce them.
- Constitution act 1982 (BNA act) = with the adoption of this act Canada has been a
fully sovereign nation with the right to decide its government and makes its own
laws.
- Federal (s.91) and provincial (s.92) governments set by the constitution. There is a
difference between the two that is: the federal government(parliament) has the right
to make laws applicable to all Canadian citizens in different provinces. Provincial
doesn’t have a national allocation it’s a more local one.
- The authority is granted to elect representatives.
 The legislative Process: Structure= FIRST ELEMENT
- Cabinet (elected representatives/executives: ministers and the 25 of the house of

commons) usually introduces laws. Canada is a democracy in which the executives
have more power than a president in other nations. Or sometimes,
- “Private members Bills”: anybody who is in the house of commons who is not part of
the cabinet or government, can introduce an idea for a law. Ex: Trudeau with the
introduction of the Bill (number…) for cannabis legalization. Every member of the
cabinet on a certain day can introduce a new bill or a motion. Most politicians who
introduce bills come from the majority party no one can challenge them or refuse. Ex:
the change in the Canadian national anthem came from a member of the opposition
party and all the parties agreed.
- 3 elements in the process:
 Legislature (House of commons/ Provincial legislatures ): The house of commons
votes/readings. First reading is an introduction of a law. If it passes, it goes to a
committee. Once the committee is finished, it goes back to the house of
commons for a second reading/vote. If it passes the second reading, it goes to the
second committee which is now a public one (for example doctors and policemen
can be a part of it). Then finally a third reading/vote. It is to put pressure on the
government to think before giving out the final decision. (A TOTAL OF 3
READINGS/VOTES AND 2 COMMITTEES). A fter the third reading if it’s a yes it
goes to the Senate.
 Senate (abolished in Quebec): the prime minister chooses who sits in the senate.
The senate is always fixed. It does the exact same process as the legislature: 3
readings/votes and 2 committees, but it can’t decide on whether the law should
be validated or not. (They can embarrass the house of commons to change the
law but can’t directly contradict them. They are also called the body of second
sober thought).
 Queen (Governor general (GG) for Canada / Lieutenant GG for Quebec) - or her
representative: (Ex: Corporate tax rate 17% and personal income tax is around
35%). If it passes the senate it goes to the Queen. The moment the queen or
representative signs it, they give royal assent which means it has been accepted
by the queen.
 Laws: = THE SECOND ELEMENT
- Laws: are rules of behavior imposed or accepted in the society

- Six sources of law that develop or restrict new laws
 Sources of law:
1) The constitution: Only source of authority to make laws in Canada. We, the people,
have adopted it as the framework which governs us it tells us which of the
government has the right to enact a legislation and limits the governments from
imposing laws that contradicts the constitution.
- Sections 91 and 92 of the constitution Act , 1867 (Parliamentary Supremacy)
- The constitution Act, 1982 (Constitutional Supremacy)
The charter encourages the people to challenge the government by taking them to
court.
- Section 52 of the constitution “the supreme law of Canada”
2) Statutes:
- Statute is s a law passed by the government. It deals with one subject only such as
taxation, insurance, bankruptcy, = Canadian constitution is a special statute.
- Can be changed at any time
- There is a lot of statutes, but the main source of law is the constitution.
- Full intent must be found within the whole statute, interpreted more strictly VS.
Code deals with many subjects in a broad area EX: laws for marriages, birth
certificates, criminal code…
3) Jurisprudence:
- The need for consistency in case law.
- Precedence: courts decide similar cases in a similar manner. (common law is common
sense law). Everywhere in Canada under common law except in Quebec where it is a
mix of common and civil law (comes from both British and French governments).
- Doctrine of Stare Decisis: “let the decision stand”. Basically, it is a situation where the
decision goes to the upper level courts (higher courts). Lower courts must respect the
decision of higher courts. When it gets to the supreme court the lower court cannot
decide the opposite way.
- Who can change precedence? The government can make a new law, as well as, the
supreme court (it can reverse itself).
- Judicial activism: courts make law.
4) Doctrine: is written commentaries on the law (teachers, lawyers…)
5) Custom:
- A tradition or usage accepted by a community
- Accepted by court provided no conflict with existing statute
- Can be made into statute
- Can be used in court
6) Administrative Laws:
- They’re organizations that make laws and oversees the government’s decisions.
- Administrative Boards empowered by statute to pass regulations i.e. CRTC (Canadian
Radio-television Telecommunications Commission), CSST (Commission of heath and
security at work), etc.
 Administration and enforcement = THRID ELEMENT:
Forum (jurisdiction)
How do we determine which court will hear a case?
1. Nature of the case (type of case and amount of money involved).
2. Geography (location of issue or defendant).
PAGE 43 of the textbook.
 The court system:
1) Municipal court:
- Taxation tickets.
- Municipal by laws (traffic, zoning, taxes)
- Minor criminal matters (mischief, theft under $1000)
2) Small claims court:

- No lawyers
- Causes no more than $15000
- Process is speeded up (otherwise you’ll wait a long time before going to court)
- Business must be represented by an employee. It can’t hire a lawyer.
- Not available to businesses with more than 10 employees
- Employee can be a lawyer. But they can’t get a lawyer unless it’s one of the 10 or less
employees.
- Creditor can reduce debt to sue at this level (forfeits remaining debt).
- There are no appeals. If you lose, it’s debt.
- No jury just a judge.
3) The court of Quebec:

- All cases up to $85000
- Except alimentary pension and federal cases
- Appeals to Quebec court of appeal
- No appeals for cases under $60000 (Only if you can demonstrate that your issue
hasn’t been tested/ no case law for it yet)
4) Superior Court:
- Court of first instance (brand new cases no appeals)
- All cases over $85000
- No juries except in criminal court (for cases like murder etc…)
- Can go to appeal
5) The court of appeal:

- 7 Judges (3, 5 or 7 will hear a case)
- Decisions based on majority present
- Can argue error of law or error of fact (the judge used the law the wrong way or he
didn’t use the right facts)
- Apply for leave (permission) to be heard.
- No witnesses no evidence: the court has three options: 1- uphold the lower court
decision/ 2- it can squash and replace the lower court decision/ 3- it can send the
case back to the lower court
6) The supreme court:

- 9 judges (3, 5, 7 or 9) the more important the case the more judges
- 3 from Quebec because there is a civil law society, also based on the population
density
- Error of law or error of fact
- With leave (permission)
- Same three options as the appeal court.
7) Administrative Tribunals (Boards)

- Enacted by administrative regulations
- Internal review mechanism of administrative decisions
- No appeals usually
- Run by only one judge that is appointed by the government
 The legal profession:
1) The judges
- Selected by the government
- The court system is adversarial not inquisitive, except small claims court
- To be a judge you have to be a lawyer for at least 10 years
2) Lawyers
- Must be a member of your province’s Bar (in our case the Quebec Bar)
3) Notaries (only in Quebec)

- Can’t represent in court, except non-contested issues
- Exclusive right to prepare certain contracts
- Produce authentic documents, which “make proof of their own contents”. Ex:
statement of your will.
4) Arbitrators/ Mediators:
- Both can’t represent in court
- Objective third party
- the arbitrator has the last word and it’s enforceable
- The mediator has no power to rule

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Comm 315 Notes Chapter 2

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CHAPTER 2: THE QUEBEC LEGAL SYSTEM:

 Sovereignty and authority to enact law:

 The legislative Process: Structure= FIRST ELEMENT

- Cabinet (elected representatives/executives: ministers and the 25 of the house of

 Laws: = THE SECOND ELEMENT

- Laws: are rules of behavior imposed or accepted in the society

 Administration and enforcement = THRID ELEMENT:

 The court system:

2) Small claims court:

3) The court of Quebec:

5) The court of appeal:

6) The supreme court:

7) Administrative Tribunals (Boards)

 The legal profession:

3) Notaries (only in Quebec)

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