Crim week 3 (2) - sources of law

The Magna Carta of 1215 is significant for bringing the English their first true shift from monarchy to democracy.

In clauses 60 to 63 of the Magna Carta, King John provided an important political and legal concession by ceding to a council of 25 barons

What are the two houses of the legislative branch of government?

Legislative Council and Legislative Assembly

How was the Legislative Council appointed?

It was appointed by the British Parliament.

Who could be elected to the Legislative Assembly?

Landowners in Upper or Lower Canada.

Royal Proclamation of 1763

A proclamation to where the colonists couldn't move and expand to the west of the Appalachian mountains. That was preserved for the Native Americans.

Quebec Act (1774)

provided the right of Roman Catholics to participate in government and the use of the French language in civil law.

What is the Constitution Act of 1791?

It is a British Statute that divided Canada into Upper and Lower Canada.

What did the Constitution Act of 1791 create in Canada?

It created legislative and executive governments in Canada.

To whom were the legislative and executive governments in Canada answerable after the Constitution Act of 1791?

They were answerable to Britain.

Pluralistic legal framework

where several legal traditions operate concurrently within society

example of pluralistic legal framework

for instance, in Canada, there's the English common law, the French civil law (in Quebec), and Indigenous laws and legal orders practiced with Indigenous groups.

the primary sources of law are found in…

both legislation and judicial decisions, as well as treaties that govern the relationships between settlers and Indigenous peoples

case law

also known as judgments, judicial decisions or precedent, is the written reasons for a decision that a judge provides to the people involved in a dispute at the end of a trial.

ratio decidendi

the judge's determination of the law, in relation to the particular set of facts

obiter dict

statements by the way

What is one problem with judicial precedents as sources of law?

The danger in trying to mesh current situations with pre-existing case law, which may lead to illogical distinctions.

What is the second problem related to the Supreme Court and judicial precedents?

The Supreme Court must occasionally depart from its past decisions to weigh new evidence or respond to new conceptions of a problem.

What power does the judiciary exercise when reversing previous decisions?

The judiciary exercises, at the least, a quasi-legislative power.

Party

a person who commences or defends an action or proceeding

What is the style of cause in legal terms?

The title of a case, comprising the parties to the case.

Who are the parties involved in a case referred to as the style of cause?

The plaintiff and defendant, or appellant and respondent in the case of an appeal.

Plaintiff

a person who has been harmed by the actions of another and commences a lawsuit to redress the wrong, usually by seeking an award of damages

Defendant

the person against whom a private law proceeding has been brought, as well as a term used for the person who is charged in criminal law

Keywords

words included in the headnote of a reported decision indicate the main legal topics involved in a case

Headnote

a summary of the facts of the case, issue in dispute, and the court's analysis.

What is custom in the context of law?

A source of law that derives from the practices and patterns of behaviour through which society has come to order itself.

What is another term for custom used in Canada?

Convention

Books of authority

authoritative texts or commentaries on the meaning and development of specific forms of law and their applicable principles.

All forms of Canadian domestic law can be further classified as…

as public or private and as substantive or procedural.

What determines the classification of law as private or public?

It depends on the issue of public as opposed to private interest.

When is law classified as private law?

When it is primarily concerned with the definition and regulation of individual matters.

When is law classified as public law?

When it is primarily of collective interest.

absolute discharge

involves no penalty other than a courtroom appearance and a finding of guilt.

conditional discharge

involves the completion of a condition, typically probation or community service, prior to discharge