law exam jan

1st principle of the rule of law:

Individuals must recognize that law is necessary to regulate society and keep order.

• The law ensures legal response to unjust actions, preserving peace and civility.

• Society will function harmoniously when people know that wrongdoers will be punished for their actions

2nd principle of the Rule of Law

• The rule of law applies to everyone, despite their level of authority/ government

• Everyone is subject to the law, and no branches of government are above it.

3rd principle of the rule of law

• No one may have the authority have unrestricted power to take away or restrict rights unless authorized by law. .

• Democratic values and principles must be upheld- elected politicians and citizens all choose

Current event/case representing the rule of law

The suspension of Renato Greco in July 2025

• Greco, a constable at Hamilton police, had been caught with an alarming social media record of encouraging and interacting with extremist right wing groups.

• Ideals of white supremacy, Second Sons of Canada, they were described as an extremist, militia like organization.

• Once this was discovered, he was suspended from his position at Halton police, and investigations are currently taking place to ensure that his activity did not violate Halton Police’s standards.

• This exemplifies the first principle of the rule of law, as citizen know that their society will be more safe and regulated if offenders are punished for their offences and cannot continue to offend again.

• Sets a precedent to future offenders about the career consequences of engaging with extremist white supremacist groups.

Violation of the Rule of Law

• However, the second principle of the rule of law was also violated wit this.

• The Hamilton Anti Racism Resource center received various complaints about Greco’s truck, which was decorated with symbols and stickers assosciated to extremist groups. The Law Enforcement Complaint society investigated these complaints, but Greco kept his position at Hamilton police.

• Greco’s previous complaints were made in december 2024, and he was suspended in July 2025 for his social media history, which is an alarmingly long time to enable support for extremist groups.

• Greco’s longtime status as a police officer represents that he was held above the law for a period of time, indicating a violation of the second principle of the rule of law: No individual, no matter their position in the government, can be held above the law.

Primary Sources of law (Definition, Legal/Social Significance, Landmark case)

• Religious, philosopical, and social norms in society that change the beliefs and values that society has, which become present in the legal system of today.

• Religion as a primary source of law has signifiance in the moral standards society has- Canada has no official separation of church and state and most of its laws were rooted in Christian Values→ Morality, things like divorce, abortion, and homosexuality were forbidden according to Christian Values

• R V. Big m drug mart→ SCC that challenged the Lords day act of 1906, an act that stated that business transactions must not take place on Sunday’s, because Sunday is the Sabbath, in Christian faith

• The owners of Big M Drug mart were conducting business on sundays, and they were fined as a result of this. They took the case to the supreme court and argued that this was a violation of their section 2 charter rights- they had freedom of religion and they could not be forced to rest on a sabbath that they did not maintain, they could not be forced to implement a belief into their routine that wasnt theirs.

• This happened in 1985

What are the 4 historical influences of law (primary sources of law) and what contributions did they make?

Greek

• Jury system and participation of the people in court (Demos)

Roman

• Code of Justinian (Paid lawyers) and the codification of law, written rules (Law of the 12 tables, which separated civil law into groups.)

Aboriginal Law

• Gayanashagowa (Inheitance law)

• Ruling by a consensus, majority rules

British influence

• Rule of Law

• Habeas Corpus

• Case law and common law

• Adversarial system

• Character witnesses

• Trial by appointed judge (circuit judges in Indigenous communities who are faimiliar with specialized laws of that community)

Customs

• A long practiced, not formally enforced but ingrained value in the legal system

• Arose as a practice to deal with an every day condition

• The conditions sometimes fade over time, but the customs are kept in their wake

• Long standing practice that can take the form of an unformal, but practiced law

Conventions

• They can come from customs if theyre more formalized

• Not an ingrained mentality in a culture, but more of a formal standard/ agreemtn on how to act

• This is not enforced by courts, but it is more like an obligation that is placed on both parties on how to act

• Example: the Geneva Convention

Aboriginal Law

• Six Nations Great binding law- Gayanashagowa

• A well defined, complex constitution (along with religious and social systems)

Covered principles such as:

• Equity

• Justice

• Collective governance

• Peace

Also discussed legalities such as emigration and treason.

• Developed the concept of restorative justice, that the Canadian legal system uses to this day.

• US founding fathers drew from the great binding law to develop the U.S. Constitution.

Trial by ordeal

• Applied in medieval Britain

• When the divine authority of God was invoked for a trial- He himself would proclaim your innocence.

Trial by Water

• If you sank in water, this meant that God was accepting your holiness.

• If you floated, God did not want you (sinner! guilty!)

Trial by Fire

• Take a burning hot rod and walk over coals

• The wound will be blessed by a priest and bandaged.

• if it is healed within 3 days, with no infection or nasty stuff, then God had intervened to maintain your innocence.

Character Witnesses

• 12 witnesses who can swear to God to maintain your innocence (Jury!)

Magna Carta

• Established after King John, in 1215, had been funding his wars arbitrarily and was pressured by barons into signing it.

• After ignoring its provisions, he was killed (oops)

• The law has to apply to EVERYONE, even monarchs.

• The magna carta is regarded as the foundation of Western Law because it laid down the follownig principles

important

• Habeas Corpus

• The presumption of innocence and Due process

• Trial by jury

• Eveyone is equal under the law.

Jurisprudence

• The study or knolwedge of the law that goes beyond just rules and penalties.

• It is the philosophies of law and the societal factors that perceive our understanding o f the legal system.

• Science or pihlosophy of law.

Stare Decisis & precedents

Stare decisis: To stand by your decision as a judge. But the principle of a judge following legal rules (precedents) set by another judge in an earlier case if the cases are similar or the same. Like cases should be handled alike : uniformity.

Ratio Diciendi

• Reason why judges make the decisions that they do in court

• Judges make decisions influenced by general rules, but they have to take into consideration unique factors that pop up during the case.

• As time goes on, future judges dealing with similar cases may use this ratio diciendi as a broader guideline after using this narrowly during specific conditions for this one case.

Natural Law & Socrates

• Natural law refers to the philosophy that law should match unchangeable moral standards that are instinctual in humans.

• If a law is an unjust law, then it should not be a law at all. If a law is an unjust law, it is okay to break it

Socrates

• Natural law philosopher.

• He believed that laws should be in place to help humans become better people.

• Even in the face of death, humans should use laws to make the wrong or right choice.

• Laws should have a moral urgency that guides people to live a better life.

• People know what is right and wrong by usnig their rational minds.

• Laws are meant to help people become better.

Positive Law

• Laws have no moral purpose other than to ensure loyalty to the state and obedience to the state.

• Laws are laws because they are dictated by the head of the state and are meant to reflect the well being as the state as a whole.

• They have no moral purpose, and laws cannot be violated under any circumstances, what is written is law.

Social Contract Theory

• The idea, (Hobbes) that individuals would give up individual liberties and propoerty in exchange for security and a peace, subjecting themselves to the rule of the government.

5 principles why there are laws in society, or why individuals would want to give up certian liberties

• Harm Principle

To prevent physical harm to those who might otherwise be victimized

• Offense principle

To prevent offense to those who might otherwise be victimized

• Legal moralism

Prevent citizens from partaking in immoral activities (smoking, gambling)

• Legal paternalism

To prevent harm to everyone in society in general with regulations

• Benefit to others

To prevent actions that may victimize a segment of the population

Utilitarianism

• Jeremy bentham decided that laws should be beneficial based on how utile they are to society

• The idea that the consequences of an act must be greater than the benefits in order to be considered harmful.

• The laws should advocate for the happiness and utility of majority of society.

Mill’s Harm Principle

• Actions should only be limited to prevent harms to others.

Legal Formalism

• The theory that law should be applied scientifically as the set of written rules they are.

• No consideration of any other factors or circumstances, it must be applied in absolutes with no middle ground.

• Judges do not have an obligation to make social policy and judges cannot come up with any new applications of law, they must follow exactly what is already written down

• New cases must be delt with scientifically/exactly according to the precedent set in a previous case.

• Judges do not have any authority to go outside of how the law alrady exists.

Feminine Jurisprudence

• The philosophy of law that regards political, economic and social equality between the sexes.

• The idea that the law is an instrument used against women unjustly by men

• Ideas that oppress women socially and economically are constantly reinforced and upheld by men, creating unjust social attitudes about women.

• This is so systemic that even laws designed to protect women still support the view that women are property of men (ex, rape law)

• Applying this theory has led to new laws improving social conditions for women such as employment and divorce.

Law on Economics

• Law should be a social tool to ensure the fair allocation of resources and opportunity.

• Laws should only be perceived by how functional they are to the economy, and judges should not take into account subjective measures such as morality instead of it in their decisions.

eX: (e.g. a law that imposed a fine is successful only if it saved more money through fewer people’s use of state services than it cost to enforce the law)

or a law that forces people to wear helmets- if everyone does not wear it, then more state funds will have to be used to get police to enforce the rule. If everyone does wear it, then money is saved because less people go to the hospital. It is only functional if the latter happens.

Critical Race Theory

• Legal philosophy that looks into the way that racial oppression is imbedded into the legal system through oppressive policies and laws.

• Focuses on outcomes: Racists incidents are not just byproducts of individual prejudice but of ideas ingrained into the legal system.

• Calls upon the change of these systems and their contribution to race as a social construct.

Humanity

• Refers to kindness towards humankind

• Basic ethics of selflessness resulting from the human condition

Sovereignty

• The idea that a head of state only has legal authority over their own country.

• A state can only impose its legal authority over it’s own citizens

Ownership

• Having a legitimate right of dominion over a property or possession. Having a legal title to a property or a possession. Some things can contest this, such as outer space, the fish in the sea, etc.

Legitimacy

• Involves following a legal, ethical and fair path- After doing this, one can gain legimicacy by becoming recognized by law. Legitimacy refers to the lawfulness of something

Morality

• The idea of determining what is good or bad

• Religion, social factors can determine this in a society

5 social areas of your life that the Ontario Human Rights code protects- You cannot be discriminated against in these places

Services, goods and facilities

• Social facililties (restaurants, shops), Educational facilities, schools, hospitals

Occupancy of Accomodation

• In the place where you either want to live or u live, whether u rent or own it.

Membership in Vocational Assosciations or trade union organizations

• Ex- United Steelworkers

Contracts

• They can be written or verbal, but not discriminatory

Employment

• This includes hiring ads, job application forms, interviews, work training and assignments, and promotions

BFOR-> Definition, Legal/social definition, and case example (precedent setting)

Bona Fide Job Requirement.

• Job requirement that legally overrides human rights protections

• It is because the job requirement is necessary for the performance of the job but is related to a prohibited ground.

For example, theatre productions are allowed to hire by gender if it is obligated for the play without it being sex discrimination.

Ontario Human Rights Commission v Etobicoke:

• In 1982, the case was taken to the SCC. The firefighters in ON had a mandatory retirement age of 60.

• However, age discrimination was argued, as it was established that there was inadequate evidence that being over the age of 60 affected ability to do job.

A set of sandards was set out to determine the appropriateness of a BFOR:

• If the requirement is rationally connected to the performance of the job.

• If the requirement was established in honest belief that it was necessary to achieve the purpose set out in stage one (complete the performance of a job, one way or another)

• If the requirement is reasonably necessary to accomplish its purpose.

Racial Profiling

When an individual is subject to greater scrutiny, different treatment, or greater enforcement because of their race, etnicity, place of origin, religion, or color. These factors will bring this on instead of reasonable suspicion. This is more prevalent in law enforcement, but will happen in schools, the workplace, and businesses.

In the case of racial profling, stereotypes>individual behaviour

Jim Crow laws (origins, not effects)

• A set of legal & state laws that enforced discrimination against African-Americans

• Established essentially from the moment that slavery was outlawed (post-civil war) and ran until 1968.

• Establised segregation and pushed the doctrine that African American citizens were inferior to white citizens

Stripped African American citizens of political power through strategic disenfranchisement

• Poll taxes, literacy tests and grandfather clauses (men who had ability to vote before African Americans were ‘franchised’) were used to prevent african americans from voting

Segregation in private and public spheres was enforced, and extrajudicial enforcement (violence, lynching against any who spoke out) was enough to cause fear and maintain these laws

• Greenbook- African american travellers were urged to keep a book of safe ports of call and businesses when travelling because of the violence

Plessy v Ferguson (1896)

• Supreme court ruled in favor of segregation and upheld “Separate vs equal” in the realm of education.

• This allegedly did not violate the 14th amendment equal rights clause.

• Educational services were never equal, services for african americans were underfunded, under privileged, or non existent.

Brown v. Board of Education (1954)

• Supreme Court ruled that, in the field of public education the doctrine of separate but equal was not appropriate, because segregated schools were never equal

• Little Rock 9 attended school in Arkansas- they had to be escorted by the national guard because the governor tried to prevent them from entering the school.

• They faced harassment,violence and bullying throughout their time at school

Effects of Jim Crow

Wealth Gap

• Programs that were designed to build the middle class after WW2 pruposefully excluded black americans

• GI BILL and privileges given to white veterns were pruposefully designed to not give black veterans the same privileges- educations, home loans and businesses that would help build generational wealth

• Job opportuites that had stable, higher wages were reserved for white americans and tempoerary, usntable, service jobs with low wages were given to blacm americans

• When minimum wage was established udner the fair labor standards act, these types of jobs (agriculture, etc) were excluded, and so black americans were not protected under the fair labor standards act

• This created a continuous cycle of low wages and a disparity in generational wealth

• Home equity was the main way that generational wealth was built.

• Mortage organizations like the FHA that were gov backed got into the practice of redlining- making it difficult for black americans to own homes but also labelling black neighborhoods and areas a high-risk, undervaluing them and denying them access to capital.

Disenfranchisement of black voters (similar to jim crow)

• Many or some states have strict voter restrictions, such as requiring voter IDs, cutting off early voting days, or not permitting mail-in ballots. Black voters are disproportionately affected by this, facing geographical barriers, difficulty acquiring id, or work restrictions.

• Racial profiling leads to system of mass incarceration (also from Black codes & convict leasing) - where many states have restrictions on individuals who have felonies, leading to them not voting

Home ownership

• Landlords, under the Crime-Free housing ordinances, are permitted by many local policies to either evict or deny tenants based off their interactioons with the criminal legal system- even if there is no convictions.

Invisible Backpack

• Refers to the unseen privileges an individual has for being part of a dominant group, that they cannot even see

• The invisible backpack is the burdens that an individual has to carry becaue they do not have these privileges- ex, different treatment by police, seeing your race being represented in the media

Systemic Discrimination

• The way in which organizations uphold ideals of white supremacy-policies and practices do not reverse or address the ongoing dsicrmination that has been historically perpetuated.

• Practices, the way that services are structured perpetuate ideals of white supremacy, while individual racist action does not occur.

• Racialized groups are disproportionately affected by the institutions

Examples:

• RCMP and racial profiling, and missing and murdered indigenous women- whose cases are greater but more neglected by the RCMP

• In Canada, 23.9 of Black Canadians vs 12.2% of white canadians are considered low income

• Employment opportunities, hiring, unstable contracts, low wages

Indian Act (not effects)

• 1876, created by the federal government

• Controlled every aspects of Indigenous living, making Indigenous people into essentially, wards of the state

• Indian status, land, wills, education were all controlled by the Indian Act

• Rights and benefits were controlled by “good moral character”

Indian Act Effects

• Incarceration

Indigenous people make up 5% of Canada’s opoulation but make up 30% of incarcerations in federal prisons, indicating a systemic error in the justice system

Child services and care

• The Canadian Human Rights Tribunal found the federal government racially discriminating against Indigenous communities- child and family services on reserves were being chronically underfunded

• This resulted in an ovvereprestionation of indigenous children in child welfare services, often rreffered to as the Milleniu scoop

Infrastructure and resources

• Federal government continuously reuses to provide indigenous communities with adequate resources- water advisories stem from govs refusal to provide clean water, a basic service.

Section 2 of the Charter

A) Freedom of religion and expression.

• Right to hold and express your own religious beliefs without discrimination

• As long as this does not infringe upon others rights and freedoms.

B) Freedom of expression of thought, blief and opinion

• can be shared or received through the media

• Freedom of speech in press is included

C) Freedom of Assembly

• Right to peacefully express ideas through protests, marching, demonstrations

• As long as this does not prevent the peace in any kind of way or turn violent

D) Freedom of Assosciation

• Right to join unions, organizations or assosciations based off of shared goals

Section 7 of the Charter

Right to life, liberty and security of the person.

• This is the right of individuals to not be held without their will without a cause , autonomy to make their own choices, and the right not to be subjected to physical/mental harm

Section 9 of the Charter

• Everybody has the right not to be arbitrarily detained or imprisoned

Section 15 of the Charter

Everyone is equal under the law. Rights must be applied equally. Legislature cannot discriminate against groups disproportionately based on age, religion, race, gender, sexual identity, etc.

Equal protection and equal benefits under the law

Section 24

• Everyone has the right to seek remedy in court if their charter rights have been infringed upon or violated

• This can include excluding evidence from court if it was collected while infringing on charter rights, a slong as it doesnt bring the institution of justice into disrepute

Section 33 of Charter

NONWITHSTANDING CLAUSE

• Allows legislation of legislature that violates charter rights

• must be renewed every 5 years.

• Any form of government is given legal form of passing legislation that violates charter rights.

State-sanctioned discrimination (legal significance )

State sanctioned discrimination is where a government intentinally creates/enforces laws that discriminate against a group of people, can be because of their age, race, religion, sex, ethnicity, gender, sexual identity etc.

This is significant because laws that intentionally discriminate against certain groups create negative legal, and subsequently social conditions for them. This establishes a systemic disadvantage for these groups and alienates them from society. State- sanctioned discrimination ensures that not all individuals are considered as equal under the law, promoting inequality.

A current example can be seen in the United States, where certain adoption laws discriminate against LGBTQ+ individuals and couples. In 10 states, state-licensed welfare agencies are permitted to refuse to allow these people to adopt a child. This can be based on the agencies “moral or religious beliefs"

Question 1 arguments

yes, minorities are still msitreated by legal system

Indigenous groups

• Mass incarceration 30% of federal inmates are indigneous, despite only making up 5% of population, overrepresentation indicates systemic flaws in racial profliing and justice system

• Millenium Scoop & lack of infrastructure→ It was found by the canadian human rights tribunal in 2016 that indigenous communities’ child and family services were being chronically underfunded, leading to an overrepresentaition of indigenous children in child welfare systems

• MMIW→ Neglect in criminal justice system & enforcement, despite only making up 5% of population, 16% of female homicide victims are indigenous. This is unacceptable and overrepresentation. Sexual assault by RCMP also demonstrates how criminal justice system continuously fails indigenous women.

Question 2 arguments long answer

Indian act had more detrimental long term barriers.

• Education. 67% of indigenous teens graduated highschool, compared to 89% of white canadians. In the US, 81% of black americans in contrast to 90% of white americans. Even though jim crow laws promoted segregation in education until 1954, Indigenous populations, through reserve policies and highly controlled and underfunded educational facilities as an effect of the indian act provide more significant physical barriers that create a greater evident effect in education disparity.

• Healthcare. Life expectancy of indigenous canadians is 67 years, while it is 85 years compared to white canadians. In the USA, it is 73 years compared to 76 years, which is an immense disparity. Redlining and the segregation of black communities resulted in underfunding for infrastructure. However, some infrastructure was not provided at all, (lack of water has been constant debate, chronic underfunding of child and fmaily services) which is evident in the disparity between life expecntacy.

• Criminal Justice sytem and racial profiling.

• Indigenous Canadians, used to be judged under indian act for ‘good moral character’, setting a standard for unjust incarceraation. Despite making up 5% of overall population, 30% of federal prison inmates are indigenous. In contrast, african americans make up 40% of the federal prison population while making up 13% of the population, which is not as large as an overrepresentation.