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The legal system in Canada is primarily based on the common or case law system as commonly and historically been practiced in Britain. It was only natural for Canada to adopt such a system as it has been a United Kingdom colony in the past and subsequently went on to become one of the members of the Commonwealth Nations. However, it is to be noted that Quebec has still stuck to civil law system vis-à-vis matters pertaining to private law. Notwithstanding the type of legal system in place throughout Canada, they all come under the umbrella of the prime codified law, i.e. the Constitution of Canada as enumerated in the Constitution Act, 1867 (the Constitution Act).
Constitution of Canada: As is the case in any country with a constitution, the constitution of Canada, as codified in the form of the Constitution Act overrides and prevails over any inconsistent or conflicting piece of legislation (whether federal, provincial, territorial or in any other form) or law, given its supreme and paramount nature. It is undoubtedly treated as a sacrosanct piece of document which needs to be abided and respected in all instances. Such an act intends to consolidate the earlier amendments and schedules to the constitution over a period of time. However, as per the Supreme Court of Canada, such acts and orders as detailed in the schedule of the act are inclusive as opposed to being comprehensive.
An interesting aspect to the constitution of Canada was added by the all famous Reference issued in 1998 regarding the Secession of Quebec which highlighted four additional/supplementary rules and principles, as unwritten aspects of the constitution, namely federalism, democracy, constitutionalism and the rule of law, and the respect for minorities. Albeit enforceable in theory, the courts in Canada have treated them as supplemental and gap fillers and not to override the written constitution of Canada, which precedes such unwritten addition to the prime law of the land. Such conventions are duly recognized by the Supreme Court of Canada as the Constitution Act concurs that such conventions are in line with those principles as can be observed in the United Kingdom.
The Supreme Court adjudged three elements which are mandatory for the recognition of a constitutional convention namely a certain practice or concurrence amongst the politicians, an acceptance of such practice which is mandatory in nature to be followed or practiced and a specified purpose or purposes for such concurrence amongst them. It was also accepted that the conventions are not enforceable per se by the courts, as they are not a form of law, however, the courts may treat them as persuasive and give them certain recognition whilst deciding on a case. The Constitution Act confers powers on both forms of the governments in Canada, namely federal as well as provincial. Such powers are wide ranging and diverse in nature, for example, matters pertaining to banking, immigration, criminal law, trade and commerce etc fall within the purview of federal jurisdiction. Also, in a rather generic and sweeping manner, federal jurisdictions are also empowered to enact laws which are required for Canada’s “peace, order and good government”.
With regard to provincial jurisdictions, they are empowered to deal with matters pertaining to hospitals, real estate, civil rights, education etc. Moreover, where it is the provinces which set up their own superior courts, it is within the legal capacity of the federal government to appoint the judges for such courts. The federal government is also empowered to ‘put in place’ a court system for the practice of federal law which shall include a general court of appeal to hear cases which get to the appeal stage, pertaining to both, federal as well as provincial courts.
It is vital to comprehend that it is due to the foregoing power of federal government that led to the establishment of Supreme Court of Canada (by means of the Constitution Act) which is the most supreme and competent legal forum to decide on all matters of Canadian law. One of the additional features of the Constitution Act is that it allows the constitution of Canada to be amended/ modified based on a joint effort by the federal as well as provincial governments. The constitution also gave birth to the all famous Charter of Rights and Freedoms, which causes and ensures that the individual rights of people are not violated or undermined as a result of any federal or provincial law.
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