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40 Cards in this Set
- Front
- Back
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What is a ratio?
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The legal principle upon which a decision was based in a precedent case. It is the binding aspect.
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What is Stare Decisis?
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It means to stand by a previous decision. It is the theory of precedents. In common law, judges base their decisions on previous cases (precedents). It is comprised of the Ratio Decidendi (the binding aspect) and Orbiter Dictum (everything else).
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What is subordinate legislation?
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Legislation made by a person or body other than the sovereign in Parliament, by virtue of power conferred through statute or through legislation which is made under statutory law. E.g. CRTC regulating TV
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What are the 2 basic rules of delegate bodies?
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1. Delegate bodies can only create legislation within their jurisdiction. Everything else is ultra-vires.
2. Delegatus Non Protest Delegare: delegates cannot delegate. |
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What is responsible government regarding the Constitution?
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The principle that ensures the de facto executive has the power in its selection and to the degree that the legislative branch is selected. It's a convention of the constitution.
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What is a convention of the Constitution?
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Generally accepted traditions or principles political actors should act over time. They guide political actors but are not enforceable by law. Some are more important than most constitutional law.
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Define legal positivism.
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Seeks to answer "what is law?" It uses scientific method to distinguish between law and morals.
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Define legal realism.
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Looks to solve why law is the way it is. It examines why legal decisions are made the way they are. It assumes legal positivism exits. Emphasis is on individual judges, their decisions and differences between judges.
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What principle is Jeremy Bentham known for?
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Jeremy Bentham created the Principle of Utility, meaning the greatest happiness for the greatest number of people.
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Roscoe Pound is adherent for what school of Judisprudential thought?
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Social Engineering: by scientific study of people's needs and expectations and of prevailing values, more rational adjustments of the rights given to competing interests could be made to improve the lot of society.
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What are the roles of Court?
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1. Arbiter of the Constitution
2. Interpreter of Law 3. Protector of Civil Liberties 4. Arbiter of disputes between private persons 5. Arbiter of public law disputes |
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List the Courts in the Federal System.
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1. Trial Division
2. Appellate Division 3. Supreme Court of Canada |
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Explain the 3 meanings of Common Law.
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1. Common Law court based on precedent.
2. Court of Equity 3. Combination of both |
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What is the law of Equity?
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Court of Equity branched off from Common Law for people seeking equity from the king. They could receive damages other than money. Since has merged with Common law. Equity trumps common law when inconsistent.
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To whom are "costs" awarded?
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Funds paid by litigants to cover a portion of the funds of government in maintaining the court system.
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What is a contingency fee?
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A fee paid for a lawyer's services only if client is successful. There's no charge if unsuccessful. Usually used when chances of winning are low but if rewarded, it is large.
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Name the 2 main systems of Law.
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1. Common Law - based on the ratio in precedents found in previous cases.
2. Civil Law -based on precedents found in the code |
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Give 2 examples that encourage settlement.
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1. Costs litigants must pay
2. Party and Party Costs - award that shifts cost to losing side |
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Explain the concept of res judicata.
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A case has already been decided by a court and therefore can not be brought before a court again.
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What is Civil Law?
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system of law derived from Roman Law developed in continental Europe and was greatly influenced by the Code of Napoleon in 1804. Judges always report to the code for the principle to use in a case.
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What is a court of first instance?
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Lowest level of court where actions initiate and trials take place. E.g. Small Claims Court, Provincial Division, Youth Court
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What is the Standard of Proof necessary?
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Civil - prove facts are more likely than not, outprove defendent by 51%
Criminal - prove evidence beyond reasonable doubt, 2 pieces of evidence to prove each essential fact |
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What is the Royal Prerogative?
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The historical recognition of the Crown and its prerogative powers. The legal power residing in the Crown and passed to the Governor General.
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What is JCPC?
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The Judicial Committee of the Privy Council. It is the House of Lords and it has no jurisdiction in Canada.
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Define the 2 amending formulae.
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1. General Procedure: resolution of the HOC and senate and legislative assemblies with at least 2/3 of provinces with 50% of the population.
2. Unanimity Provision: requires unanimous approval of all provinces. |
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What does mutatis mutadis mean?
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With necessary changes being made by the Canadian Parliament and Provincial legislatures.
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List 3 sources of Law.
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1. Courts
2. Legislatures 3. Delegate Bodies |
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What does Quasi Federal mean?
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Canada isn't federal, at best in law is quasi federal. Canada acts as a federal country, however there are practices in law that make it only partly federal. E.g. power of disallowance
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What is the adversary system?
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In civil disputes it is generally up to the parties, not the court to initiate and prosecute litigation, to investigate the pertinent facts and to present proof and legal argument to the decision making tribunal. The courts function is to adjudicate the issue and apply appropriate sanctions.
- Factual proof and appropriate law will most likely occur from the bilateral investigation motivated by self-interest - The legitimacy and acceptability of the decision will be greatest where it is made by one who doesn't have a psychological commitment to the outcome. |
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What are the roles of statutes?
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1. Create new law
2. Repeal existing case law 3. Alter existing common law 4. Codify existing case law |
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Why was legislation used so seldom in earlier periods?
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1. Uncomplicated Society
2. little changed in society 3. no difference between welfare and regulator states 4. difficult process to create statutes 5. expensive to generate statute |
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Hierarchy of Court in MB
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1. Supreme Court of Canada
2. Manitoba Court of Appeal 3. Court of Queen's Bench 4. Provincial Court |
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ADRs
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1. Mediation
2. Arbitration 3. Concilliation |
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3 tiered court system
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1. courts of first instance
2. court of queen's bench/prov courts 3.court of appeal/supreme court |
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Residual Powers of Governor General
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1. appoint pm
2. dismiss pm 3. declare war 4. appoint ambassadors |
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Corollaries of Federalism
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1. Final arbiter of constitution is required
2. Method of constitutional amendment required |
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Argument Canada is Federal
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1. Subject to laws 2 authorities with jurisdictions
2. Statutes entrenched, can't eliminate provinces 3. Existence of amending formulae 4. Colonies to be federally united 5. Judicial decisions |
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Argument Canada isn't Federal
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1. Power of Disallowance
2. Federal gov appt lieutenant governor 3. Prov denied ability to alter office of lieut gov 4. Power of reservation 5. Remedial legislation 6. Declaratory Power 7. Appt judges federal 8. Charter 9. Amendment process old |
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Conventions of Responsible Government
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1. Leader of party with most seats in HOC is PM
2. Monarch/rep acts under advice of PM |
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1982 Amendments
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1. Domestic amending process
2. Charter 3. Addition subsection for division of power 4. Conference for Aboriginal Rights 5. Provisions for equalization pmts 6. UK Parliament signed off 7. Name changes |
