Studied by 8 people
how do law and politics influence each other
politics is bound by law
law is shaped by politiics
how might law be influenced by politics
statutory law:
the outcome of the law can be affected by politics (HoC)
politics of judicial appointment:
the process of being appointed as a judge is political
judicial decision-making can be political:
attitude, gender, subjectivity, ideology of the judge
how is politics influenced by the law
primacy of legal norms and instruments:
law trumps the wishes and interests of politicians
must go through legal processes to become the law
constitutional supremacy:
if a bill goes against the constitution or charter it is irrelevant
legal rules can be inhibiting argument stoppers
judicial decisions create precedent and affect the political processes
what does Loughlin say about law and politics colliding
it is possible for them to coexist effectively together
what does Loughlin say about political power
political power can only be exercised through institutions and processes and therefore, in part at least through the medium of law
law can only restrict most of the time not all the time
formalism
Weber
primary approach in the US until 1930s
law is the main thing that determines an outcome
is independent and has its own internal logic
lacks humanistic qualities
realism
Schmitt
refutes the main underpinnings of formalism in reaction to formal decision making and judges
can be manipulated and changed in any way you wish in accordance to who is shaping it
everything is relevant to social behaviour
non-legal factors are more important than legal factors
positivism
John Austin and Hart
law is separate from morality
relationship between the sovereign and individual citizens
four elements of law: body of rules, enacted and applied by public officials, formulated by legitimate means, backed by state means
problems with segregation (Hitler)
naturalism
John Locke and Thomas Aquinas
law is enacted with morality
two key procedural protections: nemo iudex in causa sua and audi alteram partem
doctrine about impossibility: protects from contradictory laws
if there are not external principles that are followed it cannot be law
three important things about natural law: rationality and logic, due process, civil disobedience
what are the two key procedural protections in natural law?
nemo iudex in causa sua:
no one should be the judge of their own case
there needs to be an impartial judge
no conflict of interest
audi alteram partem:
listen to the other side
you need to have the opportunity to be heard
three important things about natural law
1. rationality and logic
2. due process (charter)
3. civil disobedience (Martin Luther King)
what is civil disobedience
- not consenting to the law and contesting it
- claiming it is unjust- Gandhi, Mandela, Martin Luther King
what is pseudolaw
nonsense that is framed as the law by using advanced working or legal jargon
what is meant by law as coercion
Schauer:
- doing things that we don't want to do
- restrictions to our behaviour for the benefit of the state
Hart:
- law often empowers rather than coerces
what is legal fiction
we can get rid of material things but not the idea
how do humans exist physically (material) and legally (ideation)
physically:
- we have a physical being in the world
legally:
- we would still exist if we didn't have a physical form (passport, SIN)
how do corporations exist physically (material) and legally (ideation)
physically:
- do not have a physical being
legally:
- they exist in ideation as they can enter contracts, experience harm etc.
the conceptualization of political power
political power is highly complex but can only be exercised through institutions and processes
what do skeptics say about the conceptualization of political power
in order to understand legal processes, one must be aware of the political, economic, and social contexts in which law arises, changes and persists
what are the two sources of law
public and private law
what is public law
- the state is directly involved (usually a party)
- constitutional, criminal, administrative, taxation law
what is private law
- non-state actors involved in a dispute (corporations or citizens)
- contract, tort, property, family, estate, corporate law
- actions between private citizens
types of federal public law
- criminal law
- administrative law
- tax law
types of provincial public law
- quasi-criminal
- administrative law
- tax law
types of federal private law
- family law
- copyright law
- commercial law
- private claims against the Crown
types of provincial private law
- family law
- tort law
- contract law
- commercial law
when would civil law be relevant in Quebec
when it is a private matter in Quebec (tort, contract)
what is the hierarchy of authority
1. constitution - the supreme law
2. statutes - enacted by legislation
3. common law/regulations - borrowed authority
what is s.1 of the charter
reasonable limits clause
what is s.2 of the charter
fundamental freedoms:
1. freedom of religion
2. freedom of expression
3. freedom of assembly
4. freedom of association
what are s.3-5 of the charter
democratic rights:
3 - right to vote
4 - maximum duration of legislative bodies
5 - annual sitting of legislative bodies
what is s.6 of the charter
mobility rights
what are s.7-14 of the charter
legal rights:
7 - life, liberty, security of the person
8 - unreasonable search or seizure
9 - arbitrary detainment or imprisonment
10 - rights under arrest or detention
11 - proceedings in criminal and penal matters
12 - cruel and unusual punishment
13 - rights against self-incrimination
14 - right to an interpreter
what is s.15 of the charter
equality rights
what are s.16-22 of the charter
language rights:
- official languages of Canada
- minority language rights
what is s.23 of the charter
minority language educational rights
what is s.24 of the charter
enforcement rights
what is s.25 of the charter
aboriginal rights and freedoms not affected by charter
what is s.26 of the charter
other rights and freedoms not affected by the charter
what is s.33 of the charter
the notwithstanding clause
what is s.91 of the constitution
federal government responsibilities
what is s.92 of the constitution
provincial government responsibilities
what is s.52 of the constitution
the supremacy clause
- the constitution is the supreme law of Canada
- laws inconsistent with it are of no force or effect
- it is an inclusive definition (things not explicitly stated)
the constitution act of 1867
- adoption of responsible government
- creation of s.91 and s.92 in the charter
- ultra vires vs. intra vires
the constitution act of 1982
- general commitment to the rule of law and God
- charter of rights and freedoms
- conventions
covid and the constitution
- were the measures that were taken constitutional
- interprovincial jurisdiction: provinces closing their borders which might have been unconstitutional
- travel is federal jurisdiction (provinces acting outside their jurisdiction)
does Macfarlane believe the measures we took during the pandemic were justified (border restrictions)
- yes
- he can see where things could get cloudy
- federal government responsible for intra-provincial
- could be against the charter
Henry VIII Clause
- Nova Scotia wanted Cabinet to have the authority to create and execute laws
- this did not go through
statutes
- written law passed by a legislative body
- passing new or amending existing acts/statutes
- by-laws are created by municipalities
years of statute consolidation
federal: 1985
provincial: 1990 - if it is newer than the consolidation date, that was the year the bill was enacted
- if it is the consolidation date, it existed previously and was updated
regulations
- delegated legal authority
- they are legally binding but are not laws
- danger of overregulation
what are examples of federal statutes
- Criminal Code of Canada
- Income Tax Act
- Emergencies Act
what are some examples of Ontario statutes
- Highway Traffic Act
- Liquor Control Act/Liquor License Act
- Residential Tenancies Act
what is the core of the judicial process
dispute resolution
what is mediation
- 3rd party person interested in helping the individuals involved come to an agreement
- not biased and agreed upon by both parties
- encourage discussions (decisions are not legally binding)
arbitration
- selected by both parties
- licensed individual
- their decisions are legally binding
judges
- impartial
- cannot select your judge
- their decisions are legally binding
what are the two systems of law
civil law and common law
what is common law
- judge-made law (case law)
- Canada uses common law systems (except for Quebec)
- uses precedent and stare decisis and judicial hierarchy
what is civil law
- defined as civilian law (codified law)
- follows the 'rule book' of the law
- applying the rules to disputes as they emerge
what does 'Canada is bijuridical' mean
we use both common and civil law
how do you determine if something is common and civil law
- determine if it is federal or provincial
- automatically common law, unless it is a tort or contract case happening in Quebec, then it is civil law
what happens if a common law rule conflicts with a statute
the statute trumps the common law rule
what is a precedent
- accepting past judgements
- treating like cases alike
what is stare decisis and why is it important
'to stand by decided matters'
- consistency within the law
- treating like cases alike
what are courts
- core of the judicial process
- adjudicate disputes by applying the law to the facts of the dispute
- accepted by both parties as it is impartial
what are the three wings before getting to the SCC
- court marshall (military law)
- federal court of appeal (federal jurisdiction and federal courts, must be stated that this goes to federal court)
- court of appeal (provincial wings, more popular)
what is the geographical distribution of SCC judges
3 judges from Quebec
3 judges from Ontario
2 judges from western provinces
1 judge from atlantic provinces
who are the federal judges appointed by
the federal government
who assigns the bench for Court of appeal and court of queens
the federal government
how many judges does the court of queens have
one
why is the court of queens important
- it can cause exceptions
- court of the first instance often through this court
- single judge
does the USA have a duel track system
yes, they have federal supreme court and state supreme court
what is standing
a procedural threshold that establishes whether a litigant may sue in court
what is the name for a court case title
style of cause
what is a dissenting opinion
a statement written by a justice who disagrees with the majority opinion
what is a concurring opinon
an opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning
what is vertical stare decisis
- courts below in the judicial hierarchy must apply the precedent of the courts above
- ex. SCC decisions must be followed by all other courts
what is horizontal stare decisis
courts maintain their own precedents
if the BC court of appeal makes a ruling, it is legally binding on...
all courts below the court of appeal in BC
if the federal court of appeal makes a ruling, it is binding on...
all other federal courts in Canada, except the SCC
include v. means
include:
open listed, there could be more than what is explicitly stated
means:
exhaustive, only means what is exclusively listed
notwithstanding vs. subject to
notwithstanding:
giving primacy or making something superior
subject to:
given lesser status
mandatory language (shall/must) vs. permissive language (may)
shall/must: there is no discretion, it must be done
may: have the power to decide whether or not to do it
and vs. or
and: checklist, all must be completed
or: only one of the criteria must be checked off
what is the Interpretations Act
- allows judges to rely on this act to follow
- gives rules and guidance
what does the 1867 Address discuss
- discusses the topic of language rights (bilingualism)
- Canada 'will be ready to provide that legal rights of any corporation, company, or individual within the same shall be respected'
what is an inclusive definition
includes all that is listening, but also can include many other things
Robert is being prosecuted for some very serious offences. He is being charged with murder and treason. What court would he go to for his criminal trial
superior courts (ex. court of queen's bench Alberta)
judge Zanoni was appointed to a court with a civil legal system (France). He is tasked with resolving a property dispute over a landlord and tenant. However, he has forgotten what the law is. What is the first step?
civil code - locate the pertinent provisions to apply them to the case
what is legally binding in the precedent case?
- the decision of the majority
- ratio decidendi
judge Zanoni was kicked out of a civil legal system (France). He became a judge in Alberta (where he is from). He was appointed as a judge in Alberta and, specifically, the s.96 Court of Queens Bench of Alberta. Who appointed Judge Zanoni
the federal government
true or false: every province has a provincial, federal, appeal, and supreme court
true
morality of law: eight ways to make a law fail
1. failure to achieve rules (issues must be decided on an ad hoc basis)
2. failure to publicize or make available
3. abuse of retroactive legislation
4. failure to make rules understandable
5. enactment of contradictory laws
6. rules requiring conduct beyond the power of the affected party
7. frequent changes to the law
8. congruence between what laws mean and how they are administered
true or false: politics is bound by law, law is shaped by politics
true
what does malum is se mean
evil in themselves (murder, robbery)
what does malum prohibitum mean
wrong because it is prohibited (waterskiing at night)
true or false: the SCC invalidated felony murder
true
why did the SCC invalidate felony murder
- mens rea was not present
- death of a person has to be foreseen and immanent
what is the highest interest rate one can give out
- 60%
- anything higher, both are eligible for jail
Note 
Flashcard (21)