In your own words, describe the central characteristics of the “Common Law?” How does it function? How does the common law relate to other forms of law in Canada? (e.g. Statute Laws and Constitutional Laws)
Describe the central characteristics of the “Common Law?”
Communities and Public Law: Short Answers:
Optimal Response: 3-4 paragraphs for each question (students will be evaluated on their capacity to be as clear and specific as possible ~ using specific examples where necessary)
1) Law and Categories of Law (Chapter 2)
A) In your own words, describe the central characteristics of the “Common Law?” How does it function? How does the common law relate to other forms of law in Canada? (e.g. Statute Laws and Constitutional Laws)
Answer- Apart from Quebec, the Canadian federal and provincial legal system follows the tradition of the English common law. The characteristic that makes the common law distinct from other laws is that it has no codified set of rules on a legal document, but instead relies on the accumulation of judicial precedents. In case of a dispute between two parties and/or ambiguity in certain laws, judges render decisions that clarifies law. Future judges then rely on previous decisions made from cases that are similar to the case in hand, to make impartial judgments. This entire process – particularly when applied by lower/provincial courts- is called stare decisis. The flow of precedents is from top (SCC) to bottom (provincial courts). When a case has no binding precedent, a new precedent can be created.
Another key characteristic of common law is the adversarial system. In this system, lawyers representing each side are allowed to argue; a judge – making little to no interference- acts as a referee that chooses which side is legally right, and consequently making decisions.
2) The Judiciary (Chapter 5- pg.: 110…)
B) What role does the Supreme Court of Canada play in the Canadian Court System (hierarchy of the courts/flow of precedent)? What role does the SCC play in ensuring that the laws and activities of government are legitimate ones?
A) Administrative Agencies are the result of ‘delegated power.’ Meaning, government delegate its powers to: a tribunal, board, commission or agency. What are the reasons for ‘delegating power?’ Stated otherwise, why would governments hand over power to these administrative bodies? In your own words; what advantages (for both government and the public) do they serve?
4) Criminal Law (Chapter 10 -pg: 236…)
A) In your own words explain the core elements of a criminal offence (the requirements of establishing criminal liability)? Why is the burden (on the Crown Attorney) for proving criminal guilt so high?