LAWS2501 Midterm

Treaty of Paris (1763)

Agreement between Britain and France that led to British conquest of New France and the imposition of British law in the territory.

Statute of Westminster (1931)

Legislation that allowed Canada to modify or abolish British laws, request constitutional changes, and assert its own sovereignty.

Constitution

The supreme law of Canada, including the Canada Act of 1867 and 1982, which includes the Charter of Rights and Freedoms.

Section 52

The most important section of the Constitution, granting the power to invalidate laws and interpretations that are inconsistent with the provisions of the Constitution.

Case Law

Also known as common law, it refers to the body of law created by judicial decisions and interpretations in individual legal cases.

Legal Precedent

Established case law that is used to argue for a particular interpretation of the law or to demonstrate how similar cases were decided in the past.

Persuasion

The use of case law to persuade the court to adopt a particular legal reasoning or to support a legal position.

Distinguishing Cases

The attempt to differentiate the facts or legal principles of a case from previous cases in order to argue for a different outcome.

Challenging Precedent

The act of challenging existing case law and arguing for a departure from precedent based on changes in societal norms, legal understanding, or circumstances.

Custom

Established through consistent, public, and peaceful actions or abstentions over a specific duration, without protest, and possessing morally good, reasonable, and clear obligations.

Constitutional Conventions

Non-sanctionable rules between political actors that are treated as binding due to a sense of political necessity and are often based on important political events and agreements.

State

An organized and autonomous territory or community with the ultimate authority over its jurisdiction and the monopoly on violence within that jurisdiction.

State Sovereignty

The expression of autonomy and independence of a legal order within a state's own territory, with ultimate decision-making power.

Canadian Sovereignty

The evolution of Canada's sovereignty from being under the authority of the British Empire to becoming a sovereign country with control over its own laws and external relations.

Legislative Function

The adoption of laws by the state, either at the federal or provincial level, with jurisdiction over specific areas.

Judicial Function

The application of laws and resolution of disputes by the judiciary, including the interpretation of norms and the exercise of judicial discretion and independence.

Executive Function

The power of the government to regulate, administer, and make decisions in public administration activities, including regulatory power, discretionary power, and purely administrative power.

Sovereign State

The concept of sovereignty belonging exclusively to the state, exercising power through making laws and sovereign acts, and being immune from lawsuits in certain situations.

Managerial State

The state's management of itself, including actions such as purchasing decisions and contract cuts, which can lead to potential lawsuits and fines.

Concept of Sovereignty

The distinction between the concept of sovereignty, which historically belonged to a personal sovereign, and the evolution towards collective sovereignty.

Public Property

Property owned by the state and distinct from private property.

Enforcement of Laws

The state's exercise of power not only through land ownership but also through the enforcement of laws, rules, and regulations.

The constitution is very hard to amend

True, the charter has in place many sections that govern the amending of the constitution.

Canada is a confederation.

False, Canada is a federation.

The most important part of the constitution is S.52.

True, this section states that all law not consistent to the constitution is null and void. It also gives power for the courts to invalidate and interpret laws.

Not all modification to the constitution are part of the constitution.

False, all modifications of the constitution are part of the constitution

The constitution of 1867 is Canadian

False, not completely, the constitution act is very much still British and based off of the British constitution, even if enacted in Canada.

After the constitution act of 1982 the British no longer had any power on our laws and constitutions.

True after 1982, Canada truly became independent from the British government, excluding the inclusion of the monarch.

Law that the Canadian parliament incites is not necessarily important to the rest of the provinces.

False, the Canadian Parliament's laws must be respected in each province, despite the independence of each province.

The territories are similar to provinces in that they are sovereign.

False, the territories are technically legislated by the Canadian government, however, the Canadian government delegates those rights to the territories. At any point though, the Canadian government can remove those rights without changing the Constitution.

Provincial laws must adhere to the constitution.

True, laws enacted by the province must be constitutional.

When judges set a precedent in regards to the constitution it is then a rule of the constitution

True, any decisions made in regards to the constitution is now a part of the constitution.

When a court makes a decision on a case it only affects that particular case.

False, all decision made by judges are Erga Omnes (towards all) i.e. Case law.

Courts apply & interpret the constitution.

True, courts are there to fill the gaps made by legislators.

Statute law is a type of law that is enacted and codified by a legislative body, such as a parliament or congress.

True, statute is a written law passed by the legislative branch of a government/parliament.

Common law trumps statutes.

False, statutes trump common law. When Parliament or a provincial or territorial legislature passes a statute, it takes the place of common law or precedents dealing with the same subject.

A custom is ___

Susceptible of sanction

A custom is created through continuous repetition of an act.

True, moreover the act is supposed to be peaceful and public and can also include refusal of carrying out an act (as long as there is no large protest).

What are doctrines?

Writings of law professors and lawyers or scholars

Doctrines are sanctionable.

False, doctrines are not sanctionable, however, a SECTION of a doctrine may become sanctionable if quoted by a judge but only in the context the Judge intends

How is the House of Commons and senate chosen?

The senate is nominated while the House of Commons is elected.

Not adhering to a constitutional convention is illegal.

False, it is only illegitimate.

Not adhering to a convention holds no consequences.

False, is does hold political consequences.

Convention are the same as customs.

False, customs are created through time whereas conventions can be made through one important event.

Judges can impose sanctions on conventions.

False, conventions are only sanctionable by government officials (only politically sanctionable not legally sanctionable).

The state is the only one that can exercise coercion.

True, the state in order to keep the peace has been allowed to use methods of violence and coercion so as to allow for a better society.

The state is not necessarily an apparatus.

False, the state is an apparatus and has the right to make laws and enforce said laws.

There can be multiple states in one state

False, a State must be one.

Provinces are states.

False, provinces are subordinates to the state, but provinces are sovereign within their own jurisdiction.

Provinces may engage in public affairs.

False, provinces are excluded from public affairs and must only act as private individuals.

What is a sovereign state?

- Organized and autonomous territory

- No Material Limits

- Ultimate power over its jurisdiction

What is a mean of expression?

Most fundamental notion of law

What is an ideal of a nation?

People get together to form a nation

A state mustn't be the main apparatus.

False, the state should be the main apparatus, meaning its the main holder of power (not an abstract holder).

There can be multiple states in a state.

False, there must only be one state in a state or else it is not a state. (centralized power).

What are ways a state can be born?

- Legal parentage

-Merging

-Through a new order

How can a state be destroyed?

-Literal destruction (through natural disaster or other)

-New order

-War

Canada had some jurisdiction over international relations before 1867

False, we had no jurisdiction over international relations.

Municipalities are soverign

False, a province can assume control right away of a municipality.

What is managerial?

The business the government conducts (rather than formal legal proceedings which are sovereign).