Week 2 Lecture

These flashcards cover key concepts, terminology, and principles related to the sources of law and judicial interpretation as discussed in the lecture.

Sources of Law

The various origins from which law is derived, including customs, religion, statutes, judicial decisions, and scientific commentaries

Constitution Act 1982

Creates 11 legislative bodies, 10 provincial legislatives and 1 federal parliament

s. 91

Federal government - shipping and criminal law

s. 92

Provinces - property and civil rights

Ultra Vires

When a branch of government passes a law outside its authority

Act (Primary Legislation)

Grants power to make regulations, goes to committee after legislature to be debated

Regulations (Secondary Legislation)

Not debate and does not go to committee and usually provides specific details to implement Acts

Common Law

Law developed by judges through decisions of courts and similar tribunals, distinguished from statutes.

Public Bill

Introduced by governing party member, deals with general legislation

Private Bill

Introduced by governing party member, limited to a particular entity

Private Members’ Bill

Introduced by private member, a member of opposition party, or backbench (rarely successful)

Stare Decisis

To stand by things decided, referring to the doctrine of precedent in law.

Ratio Decidendi

The reason or rationale for a court's decision, which is binding in future cases.

Obiter Dicta

Statements or remarks made by a judge in a decision that are not essential to the case and thus not legally binding.

Trial Courts

Courts of “original jurisdiction” decisions are not binding

Facts

What trier-of-facts (judge and/or jury) says after hearing all the evidence

Parliamentary Supremacy

Parliament has sole authority to make/enact any laws it want and can replace or correct the common law

Case Law

Law established by judicial decisions instead of by statutes

Customs and Convention

Practices over time becomes accepted (legally enshrined) by those with no law stating rank or position of Prime Minister

Rules of Interpretation (Canons of Construction)

Rules to determine how to understand and apply the wording of a statue which can not be randomly picked

Judicial Interpretation

Using ordinary meaning, context, purpose of the statue for interpretation, just read and apply the law as written, though still must make deiciosn about legitimacy of legislation

Judicial Activism

When court exceeds it function and Judges strike down legislation (power given by the Charter), as a representative of the will of the people

Types of Interpretation Rules

Mischief Rule, Literal Rule, Golden Rule, and Modern Rule

Mischief Rule

Interpret the law to suppress the mischief, or advance the remedy intended by the law, purposive approach

Literal Rule

Read and apply the words literally, borrow meaning, believes if bad results the legislature should fix it

Golden Rule

Where logical absurdity results, allows court interpretation to correct the problem

Modern Rule

Must read the whole law, using everyday/plain language, while making it all fit together and considering why the law was made

Parliamentary Debates and Interpretation

Not admissible in Canada to determine purpose, but textual history and amendments can be used

Civil Lawsuit Format

Smith (Plaintiff) and Jones (Defendant)

Plaintiff

Person doing the suing

Pleadings

Civil Law, the documents used in the case (Statement of Claim, Defence, etc.)

Criminal Case Format

R v Jones, a criminal case with the state as the prosecutor

Information or Indictment

Criminal Case, Legal documents charging a person with a crime, detailing the evidence against them, all allegations

Burden of Proof

Civil: balance of probabilities (plaintiff) Criminal: beyond a reasonable doubt (Crown).

Balance of Probabilities

The standard of proof in civil cases, meaning the evidence must show that something is more likely true than not

Beyond a Reasonable Doubt

The standard of proof required in a criminal trial, requiring that the evidence be so convincing that there is no reasonable doubt of the defendant's guilt

Appellant

A party who appeals, when unsatisfied with the outcome, can only be done on the question of law

Respondent

Party responding to appeal

Ontario Court of Appeal

The highest court in Ontario for civil and criminal appeals, reviewing decisions made by lower courts, as few as 3 and as many as 5 Judges on an appeal

Supreme Court of Canada

As many as 9 and as few as 5 judges may hear appeals, serves as the highest court in Canada, addressing significant legal issues and providing final decisions on appeals

Majority Decision

The wining decisions, binding

Dissenting Opinion

An opinion in a legal case written by one or more judges expressing disagreement with the majority, can still provide persuasive arguments and commentary

Concurring Opinion

An opinion by one or more judges that agrees with the outcome of the majority decision but offers different reasoning.

Discovery - Civil Case

Parties examined under oath before trial, must disclose all evidence

Discovery - Criminal Case

Crown fully discloses but defendant has no disclosure obligation

Trial Evidence

Witnesses give direct evidence and present physical proof to support claims made in court, examination-in-chief than cross examines

Reading Cases of Trial Court

Only has one judge

Reading Cases of Appeal Court

Majority, Dissent, Concurring

Head Note

Prepared by the reporting service to summarize the case