Law Review Lecture Notes

This flashcard set is based on the key concepts and definitions covered in the law review lecture notes, useful for exam preparation.

What characterizes law?

Law by equality, neutrality, force, morality, reason, certainty, flexibility, non-perfection, rule of law, publicity, non-retroactivity, and notice.

What is public choice theory?

An economic approach to law and policy making that assumes individuals are motivated by self-interest instead of public good.

What defines criminal law?

defines crimes and their punishments and requires mens rea, meaning the mental state or intention to do wrong.

What is procedural justice?

ensures fair treatment in decision-making processes, including principles like hearing both sides and the opportunity to be heard.

What is natural justice?

requires that judgments should be unbiased, involve hearing out both sides, understanding the opposing party's case, and having an unbiased decision-maker.

What are the differences between regulations, acts, and guidelines?

Acts are laws that can create or amend laws; regulations are detailed rules authorized by acts; guidelines are not laws on their own but can be incorporated into acts.

What is jurisdiction?

refers to the legitimate power of an entity to do certain things, which can be geographic or subject-based.

What is the burden of proof?

refers to the Crown's obligation to prove guilt beyond a reasonable doubt in criminal cases.

What is the Ontario Human Rights Code?

protects human rights regarding discrimination in areas like employment, services, and contracts.

What is strict liability?

refers to a rule where harm is caused by inherently dangerous activities, regardless of intent or negligence.

What is the Oakes test?

a criteria used to justify the infringement of rights in Canada, ensuring that the infringement serves a pressing and substantial objective.

What is the definition of assault?

applying force to someone without their consent, which can include attempts to threaten or aggressing towards someone.

What does 'express' mean in legal documents?

means stated clearly and definitively in legal documents, as opposed to being implied or inferred.

What is the paramountcy doctrine?

states that federal law takes precedence over provincial law in cases of conflict regarding shared subject matters.

What is undue hardship?

refers to circumstances where employers are not required to accommodate employees if the burden is too great.

What is mens rea?

refers to the mental state or intent required to establish guilt in a criminal offense, varying in degrees from intention to negligence.

What are 'causes of action'?

the legal basis for a lawsuit, including forms like negligence, trespass, and defamation.

What is the difference between 'ultra vires' and 'intra vires'?

means beyond the powers of an authority, while 'intra vires' means within the powers of an authority.

What is the definition of bribery?

 is when someone corruptly accepts or attempts to obtain something of value in exchange for influence.

What is the process for a bill to become an act?

through identification of a problem, drafting, readings, committee hearings, royal assent, and sometimes delays in coming into force.

Unit 1 – Foundations of Law

What characterizes law?

: equality, neutrality, reason, force, certainty, flexibility, morality, non-retroactivity, rule of law, publicity, notice, and non-perfection.

Example: Speed limits apply to everyone—clear, public, prospective.

Which of the following does NOT characterize law?

Moral opinions, private ethics, personal beliefs without legal authority.

Tip: If it’s not enforceable by the state, it’s NOT law.

What is the main function of courts?

To interpret and apply the law.

Example: A court decides if a public-health closure order was lawful.

What is Public Choice Theory?

Law and policy are driven by self-interest and lobbying, not pure public good.

Example: Industry lobbies for softer regulations.

What is the Economic Perspective on Law?

Law creates incentives and constraints to maximize efficiency and social welfare.

Example: Higher fines make compliance cheaper than violating.

What is the Kantian Perspective on Law?

Judges actions by intent and duty, not outcomes.

Example: Killing an innocent is wrong regardless of results.

What is Natural Justice and its rules?

Procedural fairness requires: hearing both sides, knowing the case against you, the opportunity to cross-examine, and an unbiased decision.

Example: A hearing must occur before revoking a licence.

What is Distributive Justice?

Fair distribution of societal resources based on need, merit or equality.

Example: Funding poorer communities more heavily.

What is Procedural Justice?

Fair decision-making process with notice and opportunity to be heard.

Unit 2 – Legal System

What is Common Law?

Judge-made law based on precedent (stare decisis).

Differentiate criminal, quasi-criminal, and regulatory law.

• Criminal: Requires mens rea (guilty mind) and carries potential punishment (federal jurisdiction).

• Regulatory: Focuses on compliance, involves strict liability offenses, and typically does not result in a criminal record.

What are Acts, Regulations, and Guidelines?

• Acts: Primary statutes passed by a legislative body.

• Regulations: Detailed rules enacted under the authority of an Act.

• Guidelines: Non-binding advice or recommendations, often clarifying how Acts or Regulations should be applied.

What is the Procedural Approach to lawmaking?

The law details how to do something step-by-step.

What is Jurisdiction?

Legal power to act in a specific geographic area or over a particular subject matter.

Example: Federal jurisdiction covers aviation; provincial jurisdiction covers education.

What is the typical order of legislation format?

Section → Subsection → Clause → Sub-clause → Paragraph.

How are Acts amended?

By passing a new Act specifically designed to modify existing legislation.

How does a Bill become law?

1. Problem identified

2. Bill drafted, goes through three readings and committee review in the legislature.

3. Receives Royal Assent.

4. Comes into force (takes legal effect).

How is a statute interpreted?

• Find legislative intent.

• Criminal law is interpreted narrowly for the accused.

• Regulatory law is interpreted broadly to achieve its purpose.

What is the Adversarial Court System?

Opposing parties present their cases before a neutral judge or jury, who then makes a decision.

What is the Commencement of a Statute?

This refers to the date the law officially takes effect.

What is Judicial Independence?

Freedom of judges from outside influence, including from the government, in their decision-making.

Unit 3 – Constitutional Law

What is Bijuralism?

Canada operates under two legal traditions: Common Law (in most provinces and territories) and Civil Code (in Quebec).

What is the Paramountcy Doctrine?

A constitutional doctrine stating that federal law overrides provincial law when there is a conflict regarding shared subject matters.

What is a Federal State?

A system of government with two constitutionally recognized levels of government (federal and provincial), each with its own powers. Municipalities are created and governed by provincial authority.

How do Municipal By-laws get their power?

Their power is delegated to them by provincial statutes.

What is the BNA Act?

The British North America Act of 1867, a foundational piece of legislation that created Canada and divided powers between the federal and provincial governments.

What is the POGG Clause?

The "Peace, Order, and Good Government" clause in Section 91 of the Constitution, which grants residual legislative power to the federal government for matters not specifically assigned to the provinces.

What is the National Dimension Test?

A test used to determine if a provincial matter has evolved to a point where it gains a national dimension, allowing federal intervention. Criteria include: the issue is mobile, cross-border, national in scope, or requires international treaties.

Meaning of “Express” in law?

Stated explicitly, clearly, and directly, rather than being implied or inferred.

What is the difference between "Ultra Vires" and "Intra Vires"?

• Ultra Vires: Beyond the legal power or authority of an entity.

• Intra Vires: Within the legal power or authority of an entity.

What are Sections 91 & 92 of the Constitution?

• Section 91: Enumerates powers of the federal government (e.g., criminal law, defence, banking).

• Section 92: Enumerates powers of the provincial governments (e.g., health, property and civil rights).

What is Amorphous jurisdiction?

Refers to areas of shared jurisdiction between federal and provincial governments, such as the environment.

What is Exclusive Jurisdiction?

Where only one level of government has the authority to legislate on a particular matter.

Unit 4 – Rights and Freedoms

Who has rights under the Charter?

Anyone in Canada affected by government action, including non-citizens, has rights under the Charter of Rights and Freedoms.

What does the Charter protect?

The Charter protects: fundamental freedoms (e.g., speech, religion), democratic rights, mobility rights, equality rights, and legal rights.

What is the difference between the Charter and Human Rights Code?

• Charter: A national constitutional document that binds government actions.

• Human Rights Code: Specific to a province (e.g., Ontario), binding on private actors and organizations.

What is the Oakes Test?

A legal test used by courts to justify limits on Charter rights. It requires the limit to serve a serious and substantial objective and to be proportionate (rationally connected, minimally impairing, and with salutary effects outweighing deleterious effects).

What is the Notwithstanding Clause?

Section 33 of the Charter, which allows federal or provincial legislatures to temporarily override certain Charter rights (specifically ss. 2, 7-15) for a period of five years.

What is Undue Hardship?

A legal standard where an accommodation is not required if it imposes an excessive cost or risk on the accommodating party (e.g., an employer).

Which Charter rights might inspectors breach?

Inspectors might breach legal rights (e.g., related to search and seizure) and equality rights.

What is the definition of Disability under the Code?

Any physical or mental impairment, including perceived ones, is considered a disability under human rights codes.

Compare the Democratic Parliament vs. Kantian Perspectives on Rights?

• Democratic/Utilitarianism: Emphasizes majority rule and the greatest good for the greatest number.

• Kantian: Focuses on moral duty and intent, asserting that certain actions are inherently right or wrong regardless of outcomes or majority opinion.

Unit 5 – Tort Law

What is a Cause of Action?

The legal basis for a claim or lawsuit, comprising a set of facts that entitle a party to seek a legal remedy. Examples include: negligence, trespass, nuisance, defamation, and battery.

What is Negligence?

Failure to use reasonable care, resulting in harm to another.

Example: Texting while driving and causing an accident.

What is Trespass?

Any unauthorized entry or intrusion onto another person's property, land, or goods.

What is Nuisance?

Unreasonable interference with another person's use or enjoyment of their land, such as excessive noise or odour.

What is Strict Liability (related to Rylands v Fletcher)?

Liability for harm caused by the escape of a dangerous thing brought onto one's land, regardless of intent or negligence. The case of Rylands v Fletcher established this principle.

What is Battery?

The intentional application of force to another person, causing harmful or offensive contact, without their consent.

What is Defamation?

The act of making a false statement about someone that harms their reputation.

What is False Imprisonment?

The unlawful restraint of a person's liberty or freedom of movement without their consent.

What are common Remedies in Tort Law?

Typically, remedies include: damages (monetary compensation) or injunctions (court orders to prohibit or mandate certain actions).

What is the significance of the Donoghue v Stevenson case?

This landmark case established the manufacturer's duty of care to the ultimate consumer, embodying the "neighbour principle."

Differentiate between Burden of Proof and Standard of Proof?

• Burden of Proof: Refers to which party in a legal case has the obligation to prove facts (e.g., the Crown in criminal cases).

• Standard of Proof: Refers to the degree of certainty required to prove a case (e.g., beyond a reasonable doubt in criminal cases, balance of probabilities (51%) in civil cases).

What is the Function of Tort Law?

The primary functions of tort law are to compensate victims for harm suffered and to deter wrongful conduct – it is not primarily intended to punish.

Unit 6 – Criminal Law

What are the Types of Offences?

• Criminal Offences (True Crimes): Require proof of mens rea (guilty mind).

• Strict Liability Offences: Do not require mens rea, but allow a 'due diligence' defence.

• Absolute Liability Offences: Do not require mens rea and allow no defence.

What are the Elements of a Crime?

A crime typically requires both:

• Actus Reus: The guilty act or prohibited conduct.

• Mens Rea: The guilty mind or mental state accompanying the act.

What is the alternative to refusing to take an oath in court?

An Affirmation, which is a solemn declaration instead of a religious oath.

What is the significance of the R. v. Sault Ste. Marie case?

This case established a 'middle ground' for criminal liability by creating the category of strict liability offences, distinct from absolute liability and true crimes.

What is a Hybrid Offence?

An offence for which the prosecutor can choose to proceed either as a summary conviction offence (less serious) or an indictable offence (more serious).

What is the typical Structure of an Indictable Offence prosecution?

It involves: a preliminary inquiry (for some serious offences), an indictment (formal charge), no statute of limitations on prosecution, and a mandatory appearance by the accused in higher court.

What is Bribery?

The act of corruptly accepting or attempting to obtain a benefit (e.g., money, favour) in exchange for influence or a specific action.

What is Assault?

Applying or threatening to apply force to another person without their consent.

What is Criminal Negligence?

A marked and substantial departure from the standard of care that a reasonable person would observe, showing a reckless disregard for the lives or safety of others.

What is the Perjury Penalty?

Perjury is an indictable offence, carrying a maximum penalty of up to 14 years imprisonment.

What was the legal finding in the HIV+ Blood Donation case (R. v. Cuerrier)?

The case involved charges of common nuisance related to endangering the public by donating HIV+ blood, highlighting the potential for criminal liability in such situations.

What is the difference in Mens Rea for Negligence vs. True Crime?

• Negligence (e.g., criminal negligence): Often determined by an objective standard, focusing on whether a reasonable person would have been aware of a high risk.

• True Crime (requiring specific intent): Often determined by a subjective standard, focusing on the accused's actual intent or knowledge.

What is Due Diligence?

Taking all reasonable steps to avoid committing an offence. It serves as a common defence for strict liability offences.