mos 2275 midterm 1

what is the definition of law?

body of rules made by government that can be enforced by the courts or by government agencies

can unwritten social norms be enforced by the law? give an example of what's not considered law

no! someone entering a restaurant shirtless does not fall under law because courts do not enforce them

what are the 3 approaches to law?

1. natural law

2. positivist

3. legal realist

explain natural law (what does it focus on, what's wrong with it)

focuses on mortality

• law being moral, pre-existing humanity, part of being human

• anything written complies with natural law

• if something is unfair, arbitrary, or discriminatory, it should not be called "law"

• hazy because who decides what's right and wrong? (e.g. capital punishment)

what is positivist?

law that is enacted by an authority

• was the rule of law passed by someone who had the authority to pass it?

• if yes, then it's a law (doesn't matter if it's right or wrong)

what is legal realist?

law that is enacted by authority but also enforced

• positivist but next level

• "it might be in the criminal code but since we are all ignoring it, it's not law"

what are the 4 categories of law?

1. substantive law

2. procedural law

3. public law

4. private law

what is substantive law and what are 3 rights guaranteed by this law?

establishes an individual's rights in society but also the limits on their conduct

1. right to vote

2. right to travel

3. right to own property

"what you get"

what is procedural law?

determines how the substantive law will be enforced

• how do we appeal, what court do we go to, etc.

• "how you get it"

what is public law (and constitutional law)?

includes constitutional law - determines how a country is governed, and laws that affect individuals' relationships with government

• e.g. criminal code (relationship between gov't and state)

• many procedural laws that govern public law

• does it revolve around the state and the person?

what is private law?

involves rules that govern our personal, social, and business relations

• e.g. tort, contract, property, wills and estates

• two private people suing each other

• enforced when one person sues another in a private or civil action

what are the two main legal systems in Canada and where are they used?

1. common law (British) -> used in commonwealth countries, and all provinces except Quebec

2. civil law (French/Roman) -> used in Quebec and most countries in South America, Africa, and continental Europe

why do we use both legal systems in Canada and which provinces use which?

because we have both French and British roots

• civil law system -> Quebec ("judges don't make laws, it's all inside a book")

• common law system -> rest of Canada

tell me more about the civil system (5)

• emperor Justinian had Roman Law codified with Roman times

• modified by Napoleon

• not the same as "civil law" -> that is under common law system (civil law is a type of practise)

• courts are not bound by decisions of judges

• bound only by the rules written in the code

tell me more about the common law system

• France and England adopted this

• conquest by William 1066

• evolved from sharing of power between King and noles

• development of concept of stare decisis

what is stare decisis and following precedent?

• stare decisis -> if judge makes decision in one territory, a lower judge in another territory needs to follow the same decision (allows for parties to predict outcome of litigation)

• following precedent -> one judge establishes precedent, another judge follows it

what is the state represented by and what does it mean?

R, meaning the Crown

what is binding precedent?

judge directly above you in the same province sets a precedent, you have to follow it unless you can distinguish based on facts

what is persuasive precendent and what does it mean?

judge in another province sets a precedent, meaning it is not mandatory to follow

same level between judges (e.g. both in Supreme Court) is _______, not _______

persuasive, binding

e.g. Court of Appeal may be __________ but _________ on everyone below it

persuasive, binding

what are the 3 sources of law in Canada?

1. common law/case law

2. equity/constitution

3. statutes/ legislation

what is common law and where is it borrowed from?

• judge-made law (aka established by a judge)

• borrowed from: Roman civil law, Canon (Church) law, law merchant

why was equity established (2) and when are principles of equity applied (2)?

• established when common law isn't fair enough

• Court of Equity (aka Court of Chancery) was created to respond to unfairness and rigid Common Law

• principles of equity are applied -> meant to fill in gaps that Common Law and statutes didn't fill and limited so equity is last resort source of law

what were Court of Equity cases dependent on, when were they merged, and what is it used as?

• the "right thing to do", more aligned with morals

• merged in 1873 but the bodies of law (equity and common law) remain distinct

• equity is a supplement, not a replacement

what does it mean if a person today asks a judge to apply equity?

they are not asking for fairness but that the rules developed by the courts of chancery be applied to the case

_________ is complete without _________ but _________ would be nothing without _________

common law, equity, equity, common law

what are statutes and what happens in 17th century?

• actual laws passed by the Parliament

• in 17th century, Parliament becomes supreme

what has more authority: statute law or case law?

statute law

what are the 3 branches of government?

1. legislative - consists of Parliament, which creates legislation/statute law

2. executive - and its agencies administer and implement law

3. judicial - court system

what is the rule of law?

recognizes that although Parliament is supreme and can create any law considered appropriate, citizens are protected from the arbitrary actions of the government

statutes -> ___________ -> _____________ -> create regulations

legislation, create bodies and delegates power

regulations = _________ ________

subordinate legislation

Example: Ontario Disability Support Programs

• act sets out what is means to be disabled (definition)

• __________ sets income and elgibility criteria (procedural)

what does constitutional law start with?

creation of Canada as an indepedent country

what are the 3 elements of the constitutional law and which one is most important?

1. statutes -> most important

2. unwritten conventions: Rule of Law

3. Case Law aka Common Law aka Judge-made Law

what is the established statute in the constitutional law and what did it create?

British North American Act (Constitution Act, 1867)

• created the division of powers between provincial and federal government

what are the unwritten conventions and why do we follow them, give example?

whole series that are unwritten but are established conventions

• follow them because we always have and it's established but it's not in writing

• e.g. Rule of Law

who is the Head of State of Canada? who is the Acting Head of State (federally and provincially) and who do they act on behalf of? who is the Head of Government?

Head of State -> King Charles

Acting Head of State

• Federal -> Governor General

• Provincial -> Lieutenant General

• act on behalf of the monarch

Head of Government -> Justin Trudeau

BNA, 1867 assigned different powers to __________ and _______ meaning that the _________ _________ cannot intervene, and the _________ has sole jurisdiction in certain categories

provinces, feds, federal government, provinces

what are the federal powers and the 2 important ones? (6)

1. banking -> important

2. shipping

3. navigation

4. criminal law/criminal code (e.g. bail system) -> important

5. Indigenous (Indian Act)

6. POGG (residual)

any Indigenous issue is _________ regulated

federally

what are the POGG powers?

catch-all phrase that was inserted in the Act - federal in charge of peace, order, and good governance (residual power, anything we didn't think of is here)

why does the federal government had tiny edge over the provinces' power?

Doctrine of Paramountcy - overlap between federal and provincial laws so this says that "federal is paramount" -> goes with the federal government's law

what are the provincial powers? (3)

1. property and civil rights - how property is sold, landlord/tenant laws, marriage rights

2. municipalities

3. administration of justice - includes administration of criminal law

what is ultra vires and intra vires?

ultra vires - if federal goes outside their bounds, they are able to get sued by the provinces

intra vires - inside federal jurisdiction

what is pith and substance?

one of the two powers might try to pass a law by pretending it's something else but judges want to know what the "pith" and "substance" of the law is

• if the substance is not what it reports to be, it is ultra vires

what is conflict of laws?

every once in a while, a law that passes that is iffy between federal and provincial jurisdiction

what is colourable legislation?

"colouring it up" is trying to make something look different than what it is

• trying to pretend law is within your jurisdiction but pith and subtance of your law is not in your jurisdiction

direct ____________ of __________ is prohibited (insert example) but there can be agreements to __________ power (insert example)

delegation, power

• e.g. provincial giving federal government power over municipalities

share

• e.g. control of provincial government but get federal funding and federal has some say over how it is used

what 2 things happened in 1982?

1. Canada was given power to amend its constitution (ending remaining legal ties with England)

2. Established the Charter Rights and Freedom into Constitution Act -> limits supremacy of Parliament

   1. rules of laws/rights/freedoms for everyone in Canada

   2. Charter > Parliament -> Parliament cannot pass a law that violates the Charter with an exception

Charter of Rights and Freedom is _______ law (everyone must follow), and ___________ (impossible to amend the Constitution)

supreme, entrenched

what is in Section 24 of the Charter?

built in section for remedies -> what happens if someone breaches the Charter

what are the 3 limits of the Charter?

1. applies to government action only

2. S.33 - Notwithstanding Clause

3. S.1 - Reasonable Limits Clause

what sections does the Notwithstanding Clause apply to and how is it used (give example rather than explaining)?

applies to: freedom of expression, freedom of religion, and freedom of assembly, fundamental freedoms: life, security, liberty

used:

• e.g. allows gov't to pass law that bans Catholic religion

• Law: notwithstanding section 2 of the Charter, from now on the Catholic religion is banned

what is the Reasonable Limits Clause (absolute right)?

all Charter rights are subject to reasonable limits, as long as they can be justified in a free/democratic society

• nothing such as "absolute right"

• e.g. absolute right of religion -> killing someone as part of your religion

if you are treated badly at Walmart, if they discriminate against you because of your gender, is that a breach of the Charter?

NO! the Charter ONLY applies to government actions and government agencies (e.g. police). it does not apply to private entities/citizens

what do you use to establish a reasonable limit under S.1 of the Charter, what did it provide, and what happens if you pass it?

Oakes Test -> provided the test on how to determine whether or not a law was justifiably reasonable

• if you pass this, it will be a reasonable limit to the Charter rights

• Section 1

what is the Oakes Test?

1. legislation must relate to a pressing and substantial concern in a free and democratic society -> needs to be an important reason

2. proportionality test (does the limit meet the objective?)

3. measures must be carefully designed to achieve objectives

4. must be rationally connected to objective and impair the right as minimally as possible

5. there must be proportionality between effects of the measures and the objective

explain the R. v. Oakes case of 1986

David Oakes was accused of possession of drugs for the purpose of trafficking. He claimed that the drugs were his own and he did not intend to sell them.

• by Charter law, you are presumed innocent until proven guilty

• by criminal law, with lots of drugs, you are presumed guilty

• local defense lawyer took this case

• convincted on unlawful possession

section 15 (equality rights) is subject to ___________ clause (you can _____________) but section 32 (gender equality) is not subject to ___________ clause (you cannot _________ based on ____________)

notwithstanding, discriminate, notwithstanding, discriminate, gender

what is Section 7?

right to life, liberty, and security of the person

• includes sex work and abortion

• "life, liberty and security of a person and right not to be deprived of except in accordance with the principles of fundamental justice" - section 7

• we can put you in jail, but you have the right to fundamental justice (right to hearing, right to lawyer, etc.)

what is Section 13?

right to not self-incriminate

• "pleading the fifth" in US

• "pleading the Section 13" in Canada

difference:

• in US, you go quiet and that's end of questioning

• in Canada, you still have to testify but it cannot be used against you later

what is UNDRIP and what is the Section 35 Constitution Act, 1982?

• United Nations Declaration on the Rights of Indigenous Peoples

• duty to consult -> anytime project is undetaken, that has impact on traditional hunting land, reserves, Indigenous rights, there is duty to consult by gov't of Indigenous people

• -> do not need permission or approval

• -> just need to have a "discussion"

how does a provincial bill get passed?

1. first reading -> bill introduced and passes without debate

2. second reading -> bill is read again, with debate (Committee of the Whole must approve bill before 3rd reading)

3. third reading -> bill is read against, final debate, vote held

4. if passed -> goes to Royal Assent (Lt. Govenor)

5. Royal Assent decides to make it effective immediately OR effective on proclamation

how does a federal bill get passed?

1. first reading -> introduction, bill is printed

2. second reading -> bill is debated and goes to all-party committee (may recommend amendents)

3. third reading - final debate and vote

4. if passed -> goes to senate and repeated 1-3

5. if passed senate -> goes to Royal Assent (Governor General)

6. Royal Asset decides to make it effective immediately OR effective on proclamation

once a bill is passed by majority vote, it must still receive __________ __________ to become LAW

Royal Assent

what is the standard of proof in civil court?

balance of probabilities - requires person making claim to show the court sufficient proof that there is greater than 50% likelihood that the events took place as claimed

• aka "more likely than not, 50 + 1"

what is the standard of proof in criminal court and when is the accused found not guilty?

beyond a reasonable doubt - gov't must provide evidence to convince the court that the accused committed a crime beyond a reasonable doubt (very sure)

• accused will be found "not guilty" if there is reasonable doubt that he committed the crime

difference between trial and appellate

trial

• has witness, assessing credibility, etc.

appellate court

• if you do not like outcome of trial, you may be able to get an appeal

• NOT retrying (no witness, no cross examinations), just lawyers arguing

all courts are _______ to the public, slowly moving towards ________ court systems which would have _______ that are very knowledgable in specific areas of the law

open, specialized, judges

what are regulatory offences (criminal or provincial)?

e.g. traffic ticket, speeding ticket, unsafe working conditions

might appear criminal but it's actually provincial

What is the court hierarchy (highest to lowest)?

1. Supreme Court of Canada

2. Provincial/Federal Court of Appeal

3. Provincial/Territorial Superior Courts AND Federal Court

4. Provincial Courts

5. Provincial/Federal Administrative Tribunals

6. Superior Court of Justice / Ontario Court of Justice

unlimited ________ jurisdiction in civil matters and deals with serious criminal issues, __________ courts operate within the ___________ __________ _________

monetary, bankruptcy, superior court system

what are the 2 types of trials and how do they work?

1. trial by jury and judge -> judge makes finding of law, jury makes finding of fact

2. trial by judge -> judge decide both law and fact

what do appeal courts deal with, why are they reluctant, and what is it not?

• deal with questions of law, NOT fact (e.g. did the judge make an error of law?)

• reluctant to intervene too much because they didn't have opportunity to assess witness credibility

• not trial de novo (not a retrial)

what is the process of civil litigation?

1. statement of claim / statement of defence

2. discoveries -> affidavit of documents / examinations

3. mandatory mediation -> offers to settle

4. pre-trial conference

5. TRIAL

what is a statement of claim?

outline of side of story, basis of lawsuit, what you are asking for

what are discoveries meant for? (depositions in US)

• meant to prevent trial by ambush (not in Canada)

• disclose everything here (good, bad, ugly)

• cannot bring new information during trial (it will not count)

what is the pretrial?

• judge tries to get both sides to settle

• judge keeps client realistic

• pre-trial judge cannot be actual trial judge

what are 5 other issues surrounding trials?

1. jurisdiction -> where you can bring your lawsuit

2. geographic -> sometimes cases are moved when they feel like the person won't get a fair trial in a certain place

3. monetary -> depending on $ amount, it might determine what court you are in (small claims court is anything under $35,000)

4. court

5. limitation period

during the trial, plaintiff has to have ________ of ________ (if you sue, you have to have a case)

burden of proof

if you are examining your own witness, what can you not do and what's the exception to this? give an example of what you cannot do and what you should do instead

• cannot ask leading questions

• only exception is if you have a hostile witness

• e.g. "so you were driving a car" (BAD)

• e.g. "what were you doing that night?" "driving" "driving what?" "a car" (GOOD)

what is a cross examination?

• cross examining an opposing witness and trying to prove that they are not credible/memory is faulty

• can ask many leading questions

• whole point is trying to get your side looking better

follow rules of ________ and judgement is issued by ________

evidence, judge

tell me about the costs if you win or loss

• if you win, possibly 100% of legal fees back

• if you lose, 30-60% of legal fees backs

what is the law of actionable wrongs?

someone did something wrong, you can bring an action

what is compensation and deterrence?

• what you hope to gain from the tort

• deters them from repeating the action for which they are being sued

what are the 2 types of damages? (and the 2 subcategories in one of them?)

1. compensatory (aka money)

   1. specific damages: exact number of $

   2. general damagees: pain and suffering

2. punitive damages (punishing the person, in addition to compensation)

what is vicarious liability? give an example

• makes an employer liable for the torts of the employee

• e.g. UPS driver hits you, the guy doesn't have that much money, you can go after UPS for vicarious liability for the damages

what is intentional torts? what do you have to and not prove, and what do you have to bring to court?

• actionable per se (even if no injury) -> damages are presumed

• even if no real damage, it is still actionable

• prove: extent of your damages (if you go to court)

• do not have to prove: damages

• bring evidence of injury to court

intentional tort does not mean the wrongdoer ___________ to do harm, only that the __________ itself was wilful, as opposed to inadvertent

intended, conduct

what are the 7 types of intentional torts?

1. trespass to person

2. trespass to land

3. trespass to chattels

4. false imprisonment

5. malicious prosecution

6. private nuisance

7. defamation

trespass to person: what is assault and battery in criminal code and private civil court?

• assault -> criminal code: physical contact, private civil court: reasonable grounded fear of imminent physical violence

• battery -> intentional application of force on another person without their consent