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54 Cards in this Set

  • Front
  • Back

Functions of Law

-Social Control
-Social Change
-Dispute Resolution

Natural Law

-Universally valid set of legal principles
-an unjust law is not law at all
-Applied in common law by judges
-Endows natural rights
-Unalienable universal rights
-Law will always require interpertation

Legal Positivism
-Law is scientific + measurable
-power to make law absolute
-Law prescribes
-Law comes from the top own
-Validity is based one whether it it made by the sovereign
-Law is specific
Legal Realism
-Sociological theory
-Law is not independent
-Judges inject their personal beliefs
-Emphasis on the human element
Critical Theories
-Race
-Feminism
-Queer
Canadian Legal System is organized on the principles of....
-Democracy
-Federalism
-Parliamentary Supremacy
-Responsible Government
-Rule of Law
Constitutional Monarchy
-Ceremonial Head of State is the English Monarch
-However still has written constitution

Democracy

-Citizens have a say in government affairs
-Through their elected representatives
Federalism
-Sovereignty and state power are divided between the national government and the provinces
-Written in the constitution
-"Division of power"
Separation of Power
-Each level is further separated into 3 branches
-Legislature, Executive, Judiciary
-Separation of powers acts as a check and balance
Parliamentary Supremacy
-The legislature is elected and the most powerful of the three roles
-The legislature can make any law, repeal or amend existing laws subject only to the constitution
Responsible Government
-Executive cabinet must answer to the legislature for their actions
-Responsible to the people
Rule of Law
-Due Process
-Only be punished for identifiable breach of the law
-No one is above the law
Fuller's Criteria to measure the Rule of Law
-Generality
-Publicity
-Prospective
-Clarity
-Consistency
-Capable of obedience
-Stability
-Enforceability
The Legislature
-Laws made by the legislature prevail over laws made by other branches
-Two levels
-Federal (Parliament) --> House of commons (elected MP's) and Senate (appointed)
-Provincial (Legislative Assembly)

The role: law-making, conflict management, integration
The Judiciary
-Interpret and apply law to the citizens
-Make laws in the process of interpreting and applying (common law)
-Impartial and independent (free of influences)
-Manned by judges and jury
-Unitary court system: both federal and provincial government have a role in establishing principle court system

Levels of Courts

-Provincial (Superior / Inferior)
-Federal (Trial / Appellate)
-Specialized (Tax Court, Military Court)
-Supreme Court of Canada
Provincial Courts
Inferior: no inherent power; handles most preliminary criminal matters, trials of lesser offenses
Superior: (Two Levels - Trial and Appellate) inherent jurisdiction, may have juries, concurrent power with inferior courts ---- Appellate: appeals from superior court trial, review transcripts, may overturn decisions
Federal Court
-Trial and Appeal Division
-No inferior court below, both are superior
-Reviews decisions of federal agencies and tribunals
-Issues of federal matters

Specialized Courts

-Tax Court: hears disputes related to federal taxes
-Martial Court: National Defense Act, superior court, no inherent jurisdiction
Supreme Court of Canada
-Highest and final court
-9 Judges
-Decisions binds all courts in Canada but relevant in provinces with similar laws
-has to be something that will impact the entire country
The Role of the Jury
-Juries only deal with facts; judges deal with law
-Issues of facts emerge in the description sand interpretation of events
-Jury has authority in deciding which version of events are accurate
The Executive
Cabinet and Administration
-Cabinet: Comprised of PM and chosen individuals, majority seat holder; they propose laws and control legislative agenda; make regulations; appoint judges
-Administration: government departments; day to day work of government;
Sources of Law
Primary: Legislation, Cases
Secondary: Legal textbooks; Legal encyclopedia (Halsbury Laws); scholarly articles
Types of Legislation
-Constitution
-Ordinary Legislation
-Subordinate Legislation
Ordinary Legislation
-Called statues or Acts
-Sets out broad framework of the policy
-Authorized by constitution
-Ex. Criminal Code
Subordinate Legislation
-Provides additional rules necessary to implement broad policy framework
-Given to non-lawmaking bodies by enabling statues
-Ex. Bylaws, Regulations
Legislative Process
Step 1: Preparation: impetus for statute; drafting of bill
Step 2: Approval in house: 3 readings, clause by clause; goes to a committee for approval; read again; sent to senate and repeat process
Step 3: Royal Assent: Singed by Governor General or Lieutenant Governor
Step 4: Proclamation: comes into force as law; can come in whenever they want
Law-Making
-The legislature (federal and provincial) makes statues or acts in accordance with powers given to them by the constitution
-The executive (federal and provincial) makes regulations and rules in accordance with the powers give them by the legislation statues and acts to fill details
-The Judiciary makes laws via stare decsis while interpreting and applying the statute regulations made by the legislature and the executive

Common law

-Judge made law
-Unwritten
-It can only be known after a careful case analysis
-Takes a long time to uncover
-Obitar Dicta, Ratio Decidendi
Constitutional Law

-Grundnorm
-Three Components
(1) Constitution Act of 1867
(2) Constitution Act of 1982
(3) Unwritten conventions (customary practices)

Constitution Act of 1867

-Formally BNA Act
-United colonies into New Dominion of Canada
-Created provinces
-Division of power was concentrated in federal government

Division of Powers...
Federal: 29 heads of power plus POGG (Peace, Order and Good Government); taxation; trade + commerce, unemployment insurance, criminal law, military, banks, currency, Indian affairs
Provincial: 16 heads of power; natural resources, local and private interests, administration of justice, licensing, civil procedure, education
Shared: agriculture, immigration

Watertight Compartment Interpretation

-Emphasized exclusivity of the powers allocated to the federal government
-Constitution is a living tree
Double Aspect Interpretation
-Both levels of government can legislation on a subject/policy area provided it can establish a proper link to its head of powers
-Laws in the same area are allowed to co-exist as long as they are complimentary and not conflicting
Constitution Act of 1982
-Declares the constitution supreme
-Guarantees the Rights and Freedoms
Charter of Rights and Freedoms
S1. Charter guarantees the rights and freedoms set out in subject only to reasonable limits prescribed by laws and can be demonstrably justified in a free and democratic society
(Gate Keeping Function)
Charter of Rights and Freedoms: Section 2
Fundamental Freedoms:
Freedom of conscience, religion, thought, belief, opinion, expression, freedom of press, assembly, association
Charter of Rights and Freedoms: Section 3-5
Democratic Rights:
-Right to vote
-For citizens only
Charter of Rights and Freedoms: Section 6
Mobility Rights:
-Right to enter and leave Canada
-Move to different province
Charter of Rights and Freedoms: Section 7 ****
-Right to life liberty and security of person and not to be deprived thereof except in accordance with the principle of fundamental justice
Charter of Rights and Freedoms: Legal Rights 8-14
8: Safe from unreasonable search and seizure
9. Not to be arbitrarily detained or imprisoned
10. Rights upon arrest or detention (habeus corupus)
11. Rights upon Charge with an offense (presumption of innocence)
12. Rights against cruel or unusual treatment/punishment
13. Against self-incrimination during a testimony
14. Right to interpreter
Charter of Rights and Freedoms: Section 15
Equality Rights:
-Equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental and physical ability

Charter of Rights and Freedoms: Other rights; section 16-23

-Official language rights
-Minority language education rights
Charter of Rights and Freedoms: Section 24
Charter Remedies:
-according to the courts discretion
-Strike down parts
-Damages (very rare)
Charter of Rights and Freedoms: Section 32
Application of Charter:
-how government works and enforces charter
Charter of Rights and Freedoms: Section 33
Not-With-Standing Clause
-Allows legislature to pass laws that violate section 2
Lovus Standi (Standign)
The right to challenge a law or government action in the charter of rights and Freedoms
Criminal Offenses:
-Mental component consisting of some positive state of mind such as intent, knowledge or recklessness, which must be proved
-Two elements must be proved: mental element (mens rea) and physical element (actus reus)
-Burden of proof is beyond reasonable doubt
-Crown has responsibility to prosecute
-Accused is entitled to notice of the case against them and disclosure of all information used against them

Strict Liability

-The doing of a prohibited act, based on the belief of a mistaken set of facts that if true would render the act innocent. Allowed defense
-Regulatory
Absolute Liability

-the doing (the physical element) of the prohibited act imports the offense, no defense is allowed
-Regulatory

Natural Justice

rule against bias, right to a fair hearing

Harm principle

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

Hart-Devlin Debate

Devlin “… destroys freedom of conscience and is the paved road to tyranny”. Devlin appealed to the idea of society's "moral fabric." He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling.


Hart warned against the dangers of “populism”. Why should the conventional morality of a few members of the population be justification for preventing people doing what they want?