Law Exam Terms

FOR ALL THE NOTES FROM CLN4U.

Naming Cases

• R - crown / representing prosecutor / society.

• Name - offender.

• First name - plaintiff (person bringing action / lawsuit)

• Second name - defendant (person getting charged)

SCC New Trials

• The cases that come to the supreme court implies the law that is regarding the case is interpreted or written improperly. 

• 3 independent judges do a majority vote to determine grounds of appeal, then go to SCC or a new trial.

Substantive Law

— lists rights and responsibilities of each citizen, outlined by the government.

• Public Law - constitutional law and controls the relationship between governments and the people. 

  • Criminal law - rules that define a “crime”.

  • Constitutional law - body of rules regulating the functioning of the state.

  • Administrative law - controls relationship between citizens and governmental agencies.

    • LCBO, CRTC (Television and Telecommunications).

Procedural Law`

— procedures in which enforce substantive law. 

• Private Law - civil trial / case that outlines the relationship between individuals and the end result is monetary.

  • Torts - wrongs of a person, causing harm to another, recklessness/ neglect causing others harm

  • Property - right to live / enjoy property.

  • Labour

  • Contract

  • Family

Criminal Case

• Must Prove:

  • Mens Rea - guilty mind (intent)

  • Actus Rea - guilty action

    • conscious.

    • voluntary.

• Jury only exists in criminal cases, however, can exclude specific demographics. 

Civil Case

• Must Prove:

  • Duty of care - “legal obligation that is imposed on an individual” / bare minimum. 

    • Ex. driving a car and following traffic rules.

  • Standard of care - “ only degree of prudence and caution required of an individual who is under a duty of care.” / responsible individual. 

    • Ex. responsible for people in the car while driving. 

  • Proximal cause - “an event which is closest to, or immediately responsible for causing, some observed result”

  • Loss - death / monetary / etc.

Burden of Proof

• — responsibility in proving others guilt.

  • Civil Law - Low burden of proof (based on a balance of probabilities “50% or more shows that it is likely that the claim is true”)

  • Criminal Law - High burden of proof (“without reasonable doubt”)

What is Law and its Functions

• A series of rules that govern the relationship between individuals and government. 

  • Rules that govern state, business.

• Always need an objective.

• Functions of law: 

  • to aid in avoiding and settling disputes and provide remedies for losses.

  • Sets out rights and obligations of citizens.

  • Maintains order and protects people and property.

  • Sets up the structure of government.

Rule of Law

• Every dispute will be settled by peaceful means, namely “due process”in courts before the judges. 

• 3 Part Principle:

  • Law is necessary to regulate society.

  • Law is applied equally to everyone including people in power.

  • People are not governed by arbitrary rules. 

Mischief Rule

• — determines exact scope of “mischief” the statute in question has set out to remedy and to help court rule in a manner that will “suppress the mischief” and “advance the remedy”.

  • Intentions in acting the law and the exact wording. 

  • Ex. bandana law.

Stare Decisis

•  - to stand by a decision

• Precedent must be considered when ruling on a case w/ similar circumstances.

• Can change w/ time or differ in provinces / circumstances.

Changes to the Law

• Demographic Change.

• Technological Change.

• Changes in Value.

• National Emergency.

• Through informal (people / individual actions) and formal pressure (government officers).

Types of Justice

• — moral principle that determines what is just, equitable and morally right based on ethical, political, environmental and religious beliefs and values. 

  • How law is applied.

  • It is often linked with the concept of fairness and equality. 

• Substantive Justice - pertains to the need of law itself to be just, whether created through legislature or legal precedent. 

• Procedural justice - Fuller’s concept of procedural fairness when dealing with a country’s laws / the idea of fairness in the processes that resolve disputes and allocate resources.

• Purpose of Justice according to Sandel’s theory:

  • Maximizing welfare.

  • Promoting virtue.

  • Respecting freedom. 

Natural Law

• Philosophical basis of law.

  • Something is forbidden because it is wrong, being unsuitable to our human nature / law comes from morality.

• Theory that human laws come from eternal and unchangeable principles that regulate our world.

• NL Theorists believe that the state should minimally intervene because humans inherently know how to preserve order through natural law. 

Positive Law

• Body of rules formulated by the state that the citizen’s are obliged to follow for the good of the state. 

  • Something is wrong because it is forbidden / no inherent morality. 

• Written law of a particular society at a particular time. 

• PN Theorists believe that law is put in place for the state to function effectively, w/ no moral compass.

Pyramid of Law

• Primary - parts of the legal system that have the longest historical development and represent the system’s cumulative values, beliefs and principals. 

  • Religion & morality, historical influences, customs & conventions, social & political philosophy.

• Secondary - consists of laws and reported cases that have been written down by various law makers (legislators and judges). 

  • The constitution - rewind back, precedent of rules

  • Statute law - must be bound to constitutional law. 

    • Intra Vires - within power of…

    • Ultra Vires - beyond power of…

    • Stops (non elected) court to change laws / degrees.

  • Case law - how law is interpreted by certain cases that don't meet precedents of certain law, ultimately changing interpretation or creating entirely new laws.

Parliamentary Supremacy

• principle that parliament has supreme power of making Canadian laws.

  • If parliament make law, judge says not just, what the happs? – conflict

    • Value people or idea of justice

Judicial Independence

• - principle that judges independently from the government.

  • Gov. appoints them.

  • Not influenced by the opinions of people and government / unbiased.

Jurisprudence

• — philosophical interpretation of the nature and purpose of law.

  • Your ideas and beliefs, affected by your life factors. 

  • Allows for exploration of origins of laws and legal institutions which lead to an ability to understand principles upon which laws are founded. 

  • Laws must be understood w/ examining the philosophical and historical roots. 

Matrix of Jurisprudence

• Concepts - (democracy, sovereignty, rights, equality).

• Institutions (courts, parliaments, jury). 

• Principles (Innocent until proven guilty, no person above the law, etc)

• Philosophy of what law should be. 

• Theories (natural or positive law, divine rights). 

• Historical development (common law, civil law, criminal law).

Defining Law

• Legal concept. 

• Legal system. 

• A set of rules.

Legal Formalist

• Believes all law is established and the role of courts is to discover appropriate rules and apply it. 

• Application of legal precedent to new cases gives certainty and predictability of law. 

• Ex: battered wife syndrome → first degree murder.

Legal Realist

• Believes in the practice of examining law in a realistic manner in which is determined by the actual circumstances of the situation, and the judges interpretation / application of law. 

• Ex. battered wife syndrome → situation interpreted→ manslaughter…

Marxism

• economic and political theory that states law is an instrument of oppression and control that the ruling class use against the working class. 

Feminist Jurisprudence

• - women's liberation movement in the 60s that states the theory that law is an instrument of oppression by men against women. 

Concept of Procedural Justice

• - Fuller’s concept of procedural fairness when dealing with a country’s laws / the idea of fairness in the processes that resolve disputes and allocate resources. 

Concept of Restraint of Power

- Selznick’s concept that law is a predictable restrain of power, rather than a full exercise of it.

• Need an independent body (judicial branch) that challenges, reviews and limits laws. 

Concept Morality

• A set of personal ideals and attitudes that direct one's conduct.

• Conflict with morality is inevitable as it is difficult to determine whether one’s actions are morally right or wrong.

• Moral law is often linked with the theory of Natural law.

  • However, since the influence of the church is weakening in law, it has shifted towards utilitarian principles of positive law.

• Public Morality - standard of ethical behavior codified in law. 

• Private Morality - private conduct of an individual that is not of concern to the society or the gov and does not warrant an intrusion. 

  • Private moral positions derived from tradition, culture and religion. 

Concept of Equality

• In my own words, the concept of allowing everyone equal opportunity to achieve something, with treatment appropriate for their own circumstances. ?

• Idea of creating all rights and treatment to be the same, regardless of circumstances is neither practicable nor desirable. 

• Forms of preferential treatment are normally considered appropriate because they serve morally and socially desirable goals in our society. 

• Arguments:

  • People believe measures to reduce inequalities stifle human initiative and interfere with individual liberty that is essential to a free democratic society.

  • Distributive justice requires the government to reduce disadvantages and try to ensure equality of opportunity.

Discrimination

• - an action or decision that treats a person or group negatively for reasons such as race, age or disability (grounds for discrimination).

  • Therefore, a degree of differential treatment is inescapable and sometimes desirable. 

Plessy v. Ferguson:

• Plessy charged Ferguson on the accounts of discrimination on a “white” railway car, in which he believed violated his 14th amendment rights.

• Plessy’s petition was dismissed as the courts believed it was reasonable regulation that did not violate his rights due to the separate equal doctrine. 

• Separate but equal doctrine - “racial segregation did not necessarily violate the Fourteenth Amendment to the United States Constitution”.

Brown v. Board of Education of Topeka

• The courts ruled in favor that racial segregation in public schools deprived certain races of equal opportunities to education.

• Broke down the separate but equal doctrine, relating to the actual deprivation of children’s opportunities due to societal issues, challenged the segregation aspects. 

• Law denoted the inferiority of non white people through sanctions, which affected the schools as well. 

Regina v. Gonzales

• Harvey Gonzales appealed to his intoxicant charge with the reasoning that the Indian Act enforcing the law he violated, violated the right of “equality before the law” set in the Bill of Rights.

• The courts dismissed the appeal with the reason that it is unreasonable for all people in society to gain an equal opportunity and treatment regardless of circumstances and characteristics. They believed that “equality before the law” was never about how it was applied, rather it was a concept that certain laws were applied equally to everyone regarding it ?

  • All Indigenous people had to follow the Indian Act, specific to their demographic.

Jantunen vs Ross:

• Defendant Ross did not pay the plaintiff, Juantens, their money back. The Juantenens argued that they should be entitled to tips as it did not come from Ross’ employers, but his customers. 

• It was not directly specified that the Wages Act, however, the courts ruled in favour of Ross as the objective of such act was to provide debtors a source of income while paying the debt in question; in this definition, tips counted as a source of income. 

  • Mischief rule. 

Chae vs Min:

• Chae, the plaintiff, sued Min, defendant for the cause of his injuries from a car accident both parties were involved in. 

• Both had entered the car drunk and Chae did not wear his seatbelt for the entire ride. Because of this, Chae was charged under contributory negligence and the courts held Min only 25% liable for the injuries. 

Towne Cinema vs the Queen:

• Towne Cinema, Plaintiff, was charged for showing an uncensored sex scene which violated the Criminal Code according to the judge of their first trial.

• Courts believed the first judge outlined the “undue exploitation of sex” based on personal taste, rather than a community standard of tolerance. 

  • Movie had already been showcased in other places and had less severe ratings in other provinces. 

• Courts allowed for a new appeal and trial.

Little Sisters Book and Art Emporium (Plaintiff)

• This queer bookstore appealed to the SCC after the trial judge found that Customs Canada not guilty of product shipment prohibition

• Customs Canada (Defendant)

  • found the content being shipped for Little Sisters Book and Art Emporium to be”obscene” under the Criminal Code and therefore not allowed to be imported into Canada under the Customs Act.

• SCC

  • Canada Customs violated the bookstore’s freedom of expression and s.15 of equality rights

  • Found that this harmed their legitimate sense of self-worth and human dignity

  • Shifted the burden of proof to the Crown to decide whether incoming materials were obscene or not

  • Believed that the Customs still followed reasonable regulations towards their prohibition. 

Freedom Rights (Sec.1-2)

1. Guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free society.

2. Four fundamental freedoms: freedom of conscience and religion, freedom of thought, opinion, belief, freedom of peaceful assembly and freedom of association. 

Democratic Rights (Sec.3-5)

3. Right to vote.

4. No Parliament or legislative assembly can continue to sit for longer than five years. Only under extraordinary circumstances, such as a war or national emergency, may a government stay in office for a longer period.

5. Parliament and the legislative assemblies must hold a session at least once a year, and they must explain their reasoning to the people. 

Mobility Right (Sec.6)

6. everyone has the right to enter, remain in and leave Canada.

Legal Rights (Sec.7-14)

7. Everyone has the right to life, liberty, and security of the person.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Rights on arrest or detention.

11. Rights that apply when a person is charged with an offense.

12. Everyone has the right not to be subjected to cruel and unusual treatment or punishment.

13. Witnesses who give evidence in court cannot have their testimony used against them in other proceedings. The exception is where a witness commits the crime of perjury which is the offense of lying to the court.

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Equal Right (Sec.15)

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.

Sec.24

1. Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in their circumstances.

2. Where a court concludes that evidence was obtained in a matter that infringed or denied any right or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, allowing it would bring the administration of justice to disrepute.

   1. Connected to section 8 → unreasonable search can’t use evidence in trial.

Sec.33

Allows the government to pass laws without court challenges that infringe on rights, but only covers specific sections of Charter.

Composition of our Constitution

• A division of powers (fed/prov/municipal responsibilities) 

• The charter of rights.

Canadian Court Structure

• Supreme Court of Canada

  • Divided into two levels: trial and appeal.

  • Trial level courts hear civil and criminal cases: SCC, Court of Queens bench, SC of Justice. 

  • Represented by 9 judges (3 must be from Quebec)

  • SCC judgements are final.

  • It decides important questions about the Constitution and controversial, complex areas of public and private law.

  • The government can also ask the SCC for its opinion on important legal questions. 

• Federal Courts

  • Intellectual property 

    • Protection of ideas, inventions. 

  • Federal-provincial disputes 

    • Provincial pricing, taxes, etc.

  • Maritime law

    • Protection of hunting, resources, etc.

  • Terrorism

• Federal Court of Appeal

  • Reviews the decisions of both SCC and FC.

  • The highest court of the land for about 95% of all cases.

• Provincial Courts:

  • Try most criminal offenses, money matters and family matters.

    • In private law, cases involving breach of contract or other claims of harm. 

  • May also include specialized courts such as youth, family and small claims courts.

• Administrative Boards and Tribunals

  • deals with disputes over interpretation and application of laws and regulations.

    • Entitlement to employment.

    • Insurance or disability benefits.

    • Refugee claims. 

    • Human rights. 

  • Less formal than courts and are not part of the court system.

Types of Offences

• Summary Offenses – an offense which is resolved without a jury or indictment; sentencing takes place immediately and is usually a misdemeanor.

  • Max 2 years. 

• Hybrid Offense

• Indictable Offenses – a criminal offense which is resolved with a jury or indictment; sentencing is complex and is often delayed to allow the judge to make informed decisions. 

Sentencing Objectives

• 1. Denounce unlawful conduct 

  • Condemned the crime from society, but must consider the offender's character, revenge is not an objective.

• 2. Deterrence

  • A. General Deterrence - sentence discourages other members from committing the same crime.

  • B. Specific Deterrence - sentence should help prevent offender from committing crimes in future.

Intro 2 Charter of Rights and Freedoms

• Right - a legal, moral or social claim that people are entitled to, primarily from their government. 

• Freedom - a right, the right to live your life without interference from the government. 

• Charter came into effect on April 17, 1982 as part of the law called the Constitution Act 1982.

• The Charter was preceded by the Canadian Bill of Rights, enacted in 1960.

• Prior to the charter, courts only declared laws invalid if they were deemed an ultra vires. 

• Charter cases fall under the government power of infringement of rights.

• The Bill of Rights was only a federal statute rather than a constitutional document like the Charter. 

• Federal statute: 

  • Limited in scope and was easily changed by Parliament. 

  • It had no application to provincial laws.

  • The ineffectiveness of the Canadian Bill of Rights motivated many to improve right protections in Canada. 

Oakes Test

• Used to determine if legislation should be struck down, declared invalid and given exemptions, etc.

• To establish whether a legal action that limits/ infringes a right/ freedom is justified under a piece of legislation, 3 main criteria must be met:

1. The objective must be prescribed by law (within jurisdiction of the level gov that passed it) and also must be clear and accessible to citizens.

2. Objective of the limiting measures must relate to concerns that are pressing and substantial for canadians.

3. Gov must show that the means/way chosen to effect the rights limited are reasonable and justifiable. 

   1. With proportionality test of three parts:

      1. Rational connection – measured used to limit must be carefully designed to achieve the objective in question. 

      2. Minimal impairment – measures used should impair the right/freedom as little as possible. 

      3. Proportionate effect – balance between the effects /consequence of the measure / limit and the objective being sought.

Section 33: the Notwithstanding Clause

• – allows gov to pass laws wo/ court challenges that infringe rights.

• This clause permits the government to override certain rights/freedoms that are guaranteed by charter.

• Gives elected officials the ability to overrule the courts to speak for the interests of the people, they are entitled to make certain claims when rights are infringed. 

• Can only be used to override: section 2 (fundamental freedoms), section 7-14 (legal rights), section 15 (equality right).

• Only has a lifespan of 5 years or less; after that, courts can strike down the law that was previously protected → surpass election

  • Change parties, people change opinions/interests. 

• It can be re-enacted stating that the section will be invoked again.

• Benefits: ensure parliamentary supremacy, limited to 5 years, lack of use means respect.

• Disadvantages: does not apply to all of the charter, clause has broken stability and reliability of Charter, no substantial difference of having (or not having) the Charter. 

R v. Tutton

• Criminal case involving the conviction of Tutton parents, neglecting their diabetic child’s necessary insulin injections. The Tuttons were religious and held a religious belief that divine intervention could cure their son. 

• Criminal Negligence - the purposeful ignorance of not doing one’s specified duty that directly or indirectly regards another’s life.

  • Their lawful excuse was that they had no wanton in discontinuing the insulin injections. They believed that discontinuing the injections would not greatly impact their son’s life, due to their religious belief and had honestly believed divine intervention would occur to save their son. 

• To argue “mistake of fact” could prove reasonable at the first hospital visit, however, to continue with the Tuttons fully knowing their responsibility as parents, the graveness of the insulin injection and their first mistake of interpreting divine intervention, is to consider them as criminally negligent towards their child’s life. 

• The decision came to a conclusion that the Tuttons were guilty of manslaughter, due to their failure in providing necessities of life for their son. This came to be as having reckless disregard for their son’s life fulfilled the mens rea of manslaughter and the failure to provide.

RJR MacDonald Inc v Canada

• Challenged the new tobacco legislation as an infringement to their right of freedom of expression and that it was an ultra vires of Parliament. 

• Legislation forbids lifestyle advertising and promotion, appealing to young persons, and false advertising.

• Canada won on the basis that it was not vague and falls under reasonable means to protect public health. 

  • The harm engendered by tobacco and the profit motive underlying its promotion place this form of expression as far from the "core" of freedom of expression values as prostitution, hate-mongering and pornography. Its sole purpose is to promote the use of a product that is harmful and often fatal to the consumer by sophisticated advertising campaigns often specifically aimed at the young and most vulnerable. This form of expression must then be accorded a very low degree of protection under s. 1 and an attenuated level of justification is appropriate.

R v Oakes

• Respondent was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, but was convicted only of unlawful possession. 

• Respondent brought a motion challenging the constitutional validity of s. 8 of the Narcotic Control Act. That section provides that if the Court finds the accused in possession of a narcotic, the accused is presumed to be in possession for the purpose of trafficking and that, absent the accused's establishing the contrary, he must be convicted of trafficking.

•  The Ontario Court of Appeal, on an appeal brought by the Crown, found that this provision constituted a "reverse onus" clause (burden of proof onto the individual) and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms.

• Oakes won.

Ford v Quebec

• The Quebec Charter of making all public signs french was an infringement towards section 2b of the Charter and section 3 of the Quebec Charter.

• The appeal should be dismissed and Canada won. 

• The court ruled that Bill 101 violated the freedom of expression as guaranteed in the Canadian Charter of Rights and Freedoms.[3]

• Said it was not meant for exclusive use of French but it is allowed to for French Signs to serve greater importance. 

• Prov. legislature invoked sec. 33 for this ig…

Plea Bargain

• Advantages:

  • Guarantees a conviction.

  • Can be used to obtain evidence against other people who have committed much more serious offences.

  • Prevents victims from having to testify.

  • Saves time & money involved in conducting a trial.

• Disadvantages:

  • Confessions may be given due to pressure implicated on the accused.

    • One of the lesser evils.

    • No money to invest in a trial.

  • Length of the sentence may be too light in the eyes of the public.

  • Can lead to poor police investigations and attorneys who do not take the time to properly prepare their case if a plea bargain is assumed to be accepted.

The Arrests

• Officers must determine the crime has been committed and must have reasonable belief that the suspect committed the offence,

• Arresting officer has three options:

1. Give an “appearance in court” notice, for summary and hybrid crimes.

   1. Name offence and the accused.

   2. Officers must “swear in” information to a judge.

   3. Officer must have reasonable grounds and judges are not required to grant requests of arrest.

      1. Reasonable grounds: physical evidence, witness testimonies, etc.

2. Arresting the suspect – more reluctant (and dangerous ?) suspect

   1. Suspect is arrested and taken into custody.

   2. Elements upon arrest:

      1. Officers must identify themselves.

      2. Advise the accused they are under arrest amd inform them of the charges.

      3. Identify the right to counsel. 

   3. Goal: lay charges, preserve evidence and prevent accused from commiting further offences. 

3. Warrant for Arrest

   1. If accused flees the scene, officer must “swear in” information to a judge.

   2. A summons is given for the accused to appear in court at a certain time and place, and will be delivered to the accused by a sherrif or deputy. 

   3. Judge will issue warrant if accused will not show up to court voluntarily.

   4. Will name accused, offence and order arrest.

• Preliminary hearing – Crown, defence and judge determines if evidence/issue is enough to go to trial.

Sureties and bail

• when bail is set to an offender, someone called a surety may pay the bail and will be required to attend to the following

  • ensure that the accused attends court as required until the case is over

  • ensure that the accused abides by the conditions of their release, including any reporting, curfew and non-contact clauses

  • be the “jailer” of the accused as they must provide some measure of supervision over the accused’s daily activities

  • must maintain daily contact with the accused

• criteria of sureties

  • the following persons would not be acceptable to be a surety

  • co-accused, minors, people who are already sureties for another person, counsels for the accused, non-residents of the province, victims of accused (spouses who are complainants in a domestic assault)

Juries

• 12 people on the jury.

• Decision must be unanimous, if not = hung jury.

• Jury selection ← from jury panel

  • Arraigned – 1st stage of a trial where the court clerk reads charges before the judge and jury panel and the defendant enters a guilty plea. 

    • If not guilty, jury selections begins under the supervision of the judge.

1. 200 to 300 people are randomly selected from Ontario Health Insurance Plan (OHIP) records.

2. Name is called, that person goes to the front of the court and faces the accused.

3. Chosen to best support their according side, wo/ letting the other side know. 

4. A challenge for cause – the right of the crown or defense to exclude someone from the jury for a particular reason.

   1. Suspicion the juror has already formed an opinion

   2. Has been convicted of a serious offense. 

   3. Cannot physically perform their duties.

5. Peremptory Challenge since 2019

   1. Crown or defense can still reject suitable jurors without providing a reason (2019).

6. Take oath.