law 201 midterm

law

is all around us, affects ur life in ways both big and small, can grant rights and priveledges or set out obligations, always changing “a living tree”, impacts everythings

the canadian law

combination of rights + obligations when taken collectively

functional and predictable

laws ensure society is this. same conduct (input) results in same result ( output)

without law

conducting business would be impossible + criminal punishment wouldn’t have consistency

legislation

source of law, law passed by a democratically elected body (crim code)

common law

source of law, law from judicial decisions. aka case law or jurisprudence. sometimes role of judges is to interpret legis, then that interpretation becomes part of the law

property law

example of a law that is not set out in legislation but is wholly established thru the common law

international treaties or indigenous laws and customs

law can also come from these

rule of law

rules are not arbitrary, nobody is above the law, history shows us that without this disaster usually follow, foundational tenet of our sys

human error

law is a human sys - all actors involved are humans, all have biases and sympathies which makes this natural. checks and balances to guard against these human tendencies r in place

multiple readings

check and balance for human error in legis

appeals

check and balance for human error in common law

public

law where relationship between individuals and society is assessd. crim law, constitutional law, administrative law

private

law where relationship between individuals is asessed. civil law, contract law, tort law

illegal

in regular use this usual means criminal activity as criminal law generally reflects societys values and morals. often means morally wrong. in the sense that it is uneforceable but not in the sense of being immoral or unethical

lawful

not synonymous with moral or ethical

law as a vehicle for change

law has driven social change in the past

legitimacy/sovereighnty

why we have constitution, given to parliament + prov legis

rules of the game

why we have constitution, creates structures of gov

ideals and aspirations

why we have constitution, of how we live in Canada

constitution act 1982

what the constitution is made of: includes canada act, the acts + orders referred to in the schedule, any ammendment to any act or order referred to in paragraph a or b. includes the charter of rights and freedoms which protects lots of our rights. established a process for amending the written parts of the constitution which no longer req approval from britain, finalizing canadas independence

components of the constitution of canada

indigenous constitutionalism + treaty relationships, constitution act 1867 (prev called the british north america act), unwritten constitutional principles + conventions, constitution act 1982 including the canadian charter of rights and freedoms and s.35 “Aboriginal and treaty rights”

constitution act 1867

piece of legis that originally joined together ontario, nova scotia, quebec, and new brunswick creating the dominion of canada. other provs and territories were added thru var legis + those acts r also considered part of canadas written constitution

amending the constitution

rarely done cuz process req the agreement of most or all of the fed + prov govs. one of the reasons the constitutions still has outdated terms

treaties with indigenous nations

and the rights established thru them are part of canadas constitution. solemn agreement between indigenous nation + european sovereign powers after contact. ensured good relations withthe sovereign indigenous nations in those territories

the royal proclamation of 1763

issued by king george III of great britain issued this decree that established indigenous ppls would be protected from the encroachment of settlers on unceded lands. this began the treaty-making era in north america as far back as the treaty of niagra of 1764

dark age

of indigenous canadian relations (mid 1800s-1969). numbered treaties (historic)

modern treaties

veru detailed + highley complex in their terms of rights. set out complex regulatory regimes that can govern a # of diff matters within the territories 2 which they apply

unwritten principles

not outlined in legis yet still part of our constitution. these principles might be briefly mentioned in the constitutional legis without exp, might be implied, or might not be mentioned at all. there are many cases written by judges that identify, exp, or expand on these principles

prime minister

this role is established thru convention (trad) + is not outlined in any pieces of constitutional legis but is still part of our constitution

broad concepts

such as constitutional supremacy, federalism, judicial independence, democracy, and protection of minorities. considered part of our constitution

constitutional supremacy

one of the core traits of our constitution, meaning it is supreme and the ultimate set of rules that everything else in our legal sys must follow

52 (1)

constitution act 1982 section, states that the constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of no force or effect

inconsistent

if legis is ______ with the constitution it does not automatically become invalid, people have to apply to the courts to argue that a law is invalid

judiciary

the guardian of the constitution

constitutional remedies

striking down legis, reading in or reading down (broadening or narrowing law)

parliamentary supremacy

can contrast constitutional supremacy, where gov can essentially over rule the constitution. defining feature of British constitution

canadian constitutional law

in this, parliamentary supremacy was never supreme

1. written constitution

2. division of powers between fed parliament + prov legis and the judicial power to strike down laws

adoption of the charter

with this, the canadian sys of gov was transformed to a significant extent from a sys of parliamentary supremacy to one of constitutional supremacy

s 1

charter section. charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic soc