Law Exam prep

Democracy

form of government in which the power resides/exercised by the people

sovereignty

principle that nation-states are free to impose whatever law they choose within their borders w/o interference from other countries

jurisdiction

parameters within which power or authority may be exercised

judicial impartiality

canadians have the right to have legal matters heard/resolved by a fair and unbiased decision maker

judicial independence

courts and judges can perform their duties without undue influence or control from other branches of government or private interest, ruling can't be overruled

judicial uniformity

principle that similar cases should be treated alike by courts --> consistent application of law

parliamentary supremacy

parliament has the ultimate power to create and analyze laws

ultra vires

beyond the power of the government jurisdiction

intra vires

within the power of the government

Demographic change

one of the four factors that change law

shifts in composition of population: age, race, migration, socioeconomic status

technical change

how advancements in technology impact law --> reinterpretation of law

changes in values

shift of public attitude and cultural values/ societal norms

ex: same sex marriage, increased penalty for DUI

National Emergency

temporary enactment/modification of laws to address urgent, critical and unforeseen situations that threaten public safety, health security or sovereignty

ex: security certificate system

Why is it easier to effectuate change in a democratic government

citizens have a direct say in government through voting, independent judiciary --> fair application of law

Rule of Law

1. law is necessary to keep peaceful order

2. law is applied equally to everyone

3. no one is above the law *no one has arbitrary power to take away other's right

--> avoids arbitrary power by division of power

Constitutional law

law of principle rule and regulations

establishes political and legal structure, establishes and limits public power and reigns supreme

Custom

long established way of doing something that, over time, has required FORCE of law.

Convention

way of doing something (political practice) that had been accepted so long that it amounts to an UNWRITTEN RULE

stare decisis

legal principle --> "to stand by the decision" lower courts must follow higher court's precedent

international law

the law that governs the relations between or among nations

procedural law

prescribes method of enforcing rights, duties, responsibilities found in subjective law (the procedures of law)

substantive law

defines rights, duties, obligations of citizens and government

Public law

regulates activities between state and its citizen

Private law

regulates disputes between individuals, business/organizations

Criminal Law

punishes people that injures people, property, society (public)

Administrative law

interactions between people and government agencies (public)

Family law

relations among members of family (private)

Contact law

agreements between people and companies (private)

Tort law

Involving an act that brings harm to a person or damage to property (private)

Property law

buying, selling, renting of property (private)

labour law

mediates relationships between workers, trade union, government (private)

estate law

regulates wills and probates (private)

domestic law

legal system within country's boundary (jurisdiction)

patriate

transfer control over a constitution from a mother country to its former dependency

plaintiff

party bringing claim (civil court)

defendent

party accused of wrongdoing (civil court)

Appellant

party bringing appeal (appeal court)

Respondant

party who won previous trial and is now responding to appeal (appeal court)

Primary sources of law: religion and monarchy

assumes existence of god: supreme being --> OG source of law (bible, Torah, Quran) Laws differentiate right/wrong behavior. Mosaic law: moral religious life Theocracy: 10 commandments

Primary sources of law: historical influence

Greek: democratic ideal, only men above 18yo considered citizens

Roman: codification of traditional roman laws --> law of the twelve tablets

FNMI: Tribal Laws passed down orally (legend)

Indian Act: living in reserve

British: Trial by jury, case law, Magna Carta, "innocent until proven guilty"

French: Quebec Law is unique in canada

Secondary sources of law

constitution: most important source

statute: if statute is found to conflict with it --> revised/repealed

case law: takes precedent only when courts find statute unconstitutional

jurisprudence

"the science, study and theory of law"

justice

fairness, moral rightness, whatever rule of law lays down must be just

natural law

based on human nature, (unjust law --> no law)

world follows fundamental rules of fairness and justice that are always morally correct

nature law > government made law

legal positivism

law does not need to be moral (differs by person) laws: decided by formal institutions, systematically written down, enforced by government

law's authority --> government: reflect needs of society for order

legal realism

branch of legal positivism (values vary) laws based on real actions not just govvernment.

law = flexible, judges interpret it. when judges make decisions, they make the law by applying it

Critical legal theory

powerful group resist giving others (less power) the power to change. Legal realism + criticism of law and society. Laws reflect individual values (often biased) laws seem fair but benefits the powerful more than marginalized. laws actually maintain social inequality

Superior Court of Canada

Canada's higest court, final court of appeals for all litigants

includes civil/common law of provinces

has jurisdiction over disputes in all areas of law

Steps of how a bill becomes a law

1. First reading: Bill is considered read for the first time

2. Second reading: members debate the bill's principle

3. committee stage: committee members study bill clause by clause

4. Report stage: members can make other amendments

5. Third reading: members debate and vote on the bill --> senate

6. Royal assent: bill recieves Royal assent after being passed by both sides

Constitutional history

UNDHR (1948): broad recognition of Human Rights around the world

Canadian Bill of Rights:(1960) first federal law protecting civil liberty (only statute)

Provincial Human Rights Code: 1960s-70s, some provinces enacted their own anti-discrimination laws (legally binding)

Canadian Charter of Rights and Freedom: 1982, protects human rights against government activity

judicial activism

philosophy where judges are willing to go beyond the strict text of law and consider broader societal implications and their own policy preferences when making decisions

S1 of Charter: Reasonable limits clause

allows the government to legally restrict rights and freedoms if limitation is reasonable, justified and necessary in a free and democratic society determined by Oakes test

notwithstanding clause

allows the government to pass laws that can interfere with CCRF. government does not need to justify reason for usage. Only applies to sec 2,7-15 and can't be used for mobility, democratic, language. Power: temporary, only valid for 5 years, after renewed. gives government absolute power

Strike down

infringing laws nullified

partial invalidity

only the specific provision will be invalid (unconstitutional ones)

reading down

interprets the law more restrictively --> implies with charter

reading in

modify law by inserting missing words/concepts

S2 Fundamental Freedom

guarantees freedom of religion, thought, belief/opinion, expression, peaceful assembly

S7 of the Charter: Life, Liberty, Security

right not to be deprived thereof

S8 Seearch and Seizure

protect a reasonable expectation of privacy (only to your property)

S9 Detention/imprisonment

Can't hold/detain without reasonable ground

S10 Arrest/Detention

retain and instruct counsel without delay. validity of detention --> Habeas Corpus

S11 Criminal Proceeding

informed without unreasonable delay of offense

tried within reasonable time

presume "innocent until proven guilty"

S12 Cruel and Unusual punishment

government can't punish individual excessively

S15 Equality rights

individuals are equal under the law: equal protection and benefit of law without discrimination

balance of probabilities

proving claim is more likely true than not. truth likely hood > 50%

bona fide

allows employers to consider sex/religion/nationality when hiring if essential in job performing

undue hardship

providing accomodation for individual's need - excessively costly for employer

stereotyping

act of assigning characteristics solely based on their specific group

discrimination

unjust/prejudicial treatment of different categories of people

prejudice

preconceived opinion that is not based on actual experience

affirmative action

policies addressing systemic discrimination by giving advantages to underrepresented groups

Building a human rights case

file a complaint --> dismiss complaint --> mediation of commission --> remedies

state

a nation/territory considered as an organized political community under one government

NGO

non government organization, nonprofit, voluntary group, independent from any government

corporation

legal entity, separate from its owners, that can conduct business, own property, enter into contracts

Extradition

formal process by which one jurisdiction surrenders a person to another jurisdiction for trial

sanction

penalties imposed by country/group of counties on another (economic, embargoes)

diplomatic immunity

foreign diplomats protected from being arrested, sued, persecuted under the host's countryu's laws so they can do their job without interference

diplomatic aslyum

protection offered by foreign embassy to individuals seeking refuge from their home country

genocide

crime committed with intention to destroy national/ethnic/racial/religious group in whole/part

Why World failed Rwanda during Rwandan genocide

ignored early conflict warnings, UN security council did not intervene, UN madate work (not enough troops or resources to protect civilians), failure to call it "genocide", evacuation for foreign nationals only, after genocide international tribunal failed to prosecute all responsible parties (ignored crimes by RPF)

General Assembly

"town meeting" brings up international issues that they want security council to deal with. holds election for security council members. meets once a year

UN security council

maintains world peace (most powerful branch) 15 counties --> 10 non permanent (voted 2Y), 5 permanent. Maintains international peace --> economic sanctions, military sanctions, diplomatic sanctions

Economic and social council

works with UN's economic, cultural, health and educational activities

Trespass

Tort, entering someone's property without permission

Negligence

Tort, legal concept that arises when a person fails to exercise reasonable care —care that a reasonable person would take—resulting in harm or injury to someone else.

private nuisance

Tort, when someone's action unreasonably interfere with your use of your property

public nuisance

Tort, when someone's action interfere with rights of general public

Injunction

Tort, court order telling someone to stop doing smt or to do something specific

riparian right

right of owner of land bordering lake/river to sue someone interfering with quality of water

EPA

sets rule to prevent pollution and protect the environment --> making people and company follow standards and regulations

EBR

gives people right to participate in government decision on environment "citizens have a right to healthy environment"

R v. Big M Drug Mart

Big M Drug Mart accused of selling merchandise on sunday, contrary to Lord's Day act.

held: lord's day act (statute) was unconstitutional violating freedom of religion

*statue's constitutionality can be judges based on its purpose/effect. Constitutional law reigns supreme. Canadian value of religion (lord day act derived from Christian --> source of law)

Pandori v Peel Board of Education

Pandori wanted to wear kirpan to school. School had 0 weapon policy (statute)

held: Kirpan permitted if reasonable size, tucked in clothing since it has never been used in an assault before, doesn't compromise any safety rights

*constitution reigns supreme over statute, religious rights (freedom of religion)

R v Powley

Father and son Powley hunted a moose (they're Metis) without a liscence and tagged that moose with their Ontario metis number and stated it was for winter food. Conservation officers came and Powley admitted hunting without liscence. Weeks after, charged with unlawful hunting and possessing moose meat

Held: apealed to superior court of appeal --> accepted

*appeal system, stare decisis of SCC, procedural law of fish act, courts acknowledging metis culture, Dangers of court defining culture

Rodriguez v BC and Carter V Canada

Sue Rodriguez, 42yo mother diagnosed with ALS in 1992, had 1 year to live wanted assisted suicide --> denied. Wanted to strike down s241b which made euthanasia illegal, felt that law violated s7 of Charter --> failed

Lee Carter suffering from spinal stenosis + Gloria Taylor suffering ALS. Feb 2015, courts unanimously voted that for "a competant adult who clearly consents to termination of life, has grievous, irremendiable medical condition causing intolerable enduring suffering" --> legal

* laws can change due to social factors and circumstances and if enough people advocate for change

R v Harkat

2002, Harkat (refugee) arrested bcs of IRPA law that detains and deports suspected terrorists without trial. He was jailed for 3Y under strict surveillance.

Held: SCC in 2007 ruled that this law violated his basic rights (ppl not allowed to challenge evidence against them)

* case law: important guidelines for how secret evidence can be used in security related legal proceedings, reinforced that accused must be given a summary of case against them

Roncarelli v Duplessis

Quebec restaurant owner and Jehova's witness posted bail for 350+ fellow members. Premier Duplessis ordered the revocation of Roncarelli's liquor liscence

Held: Duplessis abused power

* rule of law: government isn't above the law --> can't abuse, politicians can't interfere with independent regulatory bodies, separation of power, individual rights protected: prevents targeted discrimination on religious beliefs.

R v Khadr

Omar Khadr, Candian 15yo, captured in Afghanistan after a firefight where he was accused of killing a US soldier. He was sent to Guantanamo bay where he was sleep deprived during interrogations. Khadr pleaded guilty to war crimes in 2010 and returned to Canada. In 2015, he was released on bail, 2017, the government compensated 10.5M$ for right violation

*Canadian Charter protects individual even outside Canada, even top terrorist (canadian citizen), Child soldier vs terrorist? does terrorist deserve Charter protection?