Fundamentals of Law (Final)

Law

Set of rules that govern society, enforced by the courts.

Public Law

Covers constitutional, administrative + criminal law.

Private Law

Governs relationships between individuals.

Burden of Proof (Criminal)

Beyond a reasonable doubt.

Burden of Proof (Civil)

Balance of probabilities.

Ownership

Most complete legal right that exists.

Possession

Having something in one’s personal control; the custody of an item. Can be legally separated from ownership.

Sources of Law

Legislation, Judge-Made Law

Civil Disobedience

Active or professed refusal of a citizen to obey certain laws, demands, orders, or commands of a government.

Quebec Act of 1774

Act of Parliament of Great Britain. Established Civil Law system in Quebec and Common Law in the rest of Canada.

Fungible Property

Commodities or goods exchangeable for another identical item of the same value (e.g $20 bill).

British North America Act

Legislation that united the provinces of Canada and established the framework for federal + provincial systems of governance.

Charter of Rights & Freedoms

Enshrines legal, social + political rights of Canadians. Entrenched within the Constitution.

Constitution Act

Forms the legal basis for the Canadian state. Incorporates BNA + Charter. Gives all residual power to the Federal Government.

Section 91 (Constitution Act)

Lays out 29 SPECIFIC areas where the federal government has legislative jurisdiction.

Areas of Federal Jurisdiction

Commerce Regulation, Taxation, Postal Service, Defense, Navigation & Shipping, Sea Coast & Fisheries, Currency, Banking, Bankruptcy, Patents & Copyrights, Marriage & Divorce, Criminal Law.

POGG Clause

Contained in section 19 of the Constitution. Empowers the federal government to enact legislation for “peace, order and good government” of Canada.

Section 92 (Constitution Act)

Lays out 16 areas of provincial government jurisdiction.

Areas of Provincial Jurisdiction

Direct Taxation within Province, Municipalities, Local Workers, Incorporation of Companies, Property & Civil Rights, Administration of Justice

Ultra Vires

Federal governments or provinces may only make laws which are within their authority. Legislation passed OUTSIDE of jurisdiction declared ultra vires, struck down + declared invalid.

Residual Powers

All areas of law not expressly allocated to the provinces are within federal jurisdiction.

Pieces of legislation that protect our rights + freedoms

Canadian Bill of Rights, Canadian Human Rights Act, Quebec Charter

Fundamental Freedoms (s.2)

Religion, expression + association, press.

Democratic Rights (s. 3-5)

Right to vote, elections every 5 years.

Mobility Rights (s.6)

Right to enter, remain or leave country. Right to move within Canada and to pursue work in any province.

Legal Rights (s. 7-15)

Habeas corpus, unreasonable searches + seizures, right to a fair trial, legal counsel.

Equality Rights (s. 15)

Equality before the law, regardless of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Language Rights

English + French are official languages, with equal status + privileges.

Minority-Language Education Rights

In predominantly English provinces, citizens whose mother tongue is french OR who OR their child attended French-language primary schools, have a constitutional right to send all their children to French-language schools (and vice versa).

Aboriginal Rights

Protects the rights of Aboriginal peoples (Indian, Inuit + Métis) of Canada. Rights & freedoms guaranteed by Charter CANNOT be used to deprive Aboriginal peoples of rights they have.

Section 1 Limitation (Charter)

Limitations and violations of Charter rights but be reasonable + justified in a free and democratic society and prescribed by law.

Section 33 (Charter)

Legislatures can override Sections 2, 7-15 of Charter with the notwithstanding clause. CANNOT override democratic, mobility, language + minority language education or aboriginal rights.

Jordan Ruling

Puts time limit during which trial MUST take place; ELSE case will be dismissed. 18 months for criminal. 30 months for civil.

Quebec Charter of Rights & Freedoms

Applies to + between ALL citizens, including the government.

Article 2 (Quebec Charter)

Provides everyone with a right to assistance. Good Samaritan Provision.

Article 10 (Quebec Charter)

Defines protected classes in Quebec.

Canadian Bill of Rights

First federal law that SPECIFICALLY set out fundamental human rights for Canadians. 

Canadian Human Rights Act

Protects human rights in areas of employment, housing + commercial premises.

Quebec Charter of Human Rights & Freedoms

Protects all fundamental human rights as well as political, social + economic rights. 

• Applies to discrimination both by private sector individuals + provincial government.

Notwithstanding Clause

Defined in Section 33 of Constitution. Must contain a 5 year sunset clause. Unique to Canada.

Common Law

Derived from English Law. Based on precedent (stare decisis).

Civil Law (Quebec)

Derived from Roman Law (Justinian). Courts rely on Civil Code FIRST, then refer to previous decisions for consistency.

Criminal Law (Canada)

Criminal law in Canada codified in Criminal Code; Common Law system.

Elements the prosecution must establish to convict

Identity of the Accused, Offence in Question, Actus Reus, Mens Rea.

Actus Reus

“Guilty Act” REQUIRED to prove commission of crime.

Mens Rea

“Guilty” mental state of person while committing actus rea. If mental component/element NOT there, crime NOT committed.

Transferrence

Mens rea for one crime can be TRANSFERRED to another crime. Both acts must be crimes. Both acts must be related.

“Thin Skull” Rule

Victims can NEVER be responsible for their own death. 

Responsibility BELONGS to offender.

Defenses available for a criminal charge

Affirmative (Justification, Excuse) + Negating (disproving elements of the crime)

Justification

I did it but I had a good reason.

Excuse

Acknowledges the wrongfulness of an action, but argues that circumstances justify it (e.g mental insanity, duress, necessity).

Contractual Elements (Common Law)

Intention to Create Legal Relations, Offer & Acceptance, Consideration

Intention to Create Legal Relations

What did the parties intend? Evaluated with reasonable person test.

Offer

Distinguished from an invitation to treat. Must be COMMUNICATED to and RECEIVED by offeree as an offer

Acceptance

Must be in RESPONSE to the offer upon IDENTICAL terms. Once offer is FULLY accepted, one party CANNOT break contract.

Consideration

Common Law courts will NOT enforce a gratuitous promise. Something of value MUST pass both ways.

Post-Box Rule

Determines when an acceptance has been communicated + a contract exists. AS SOON AS acceptance dropped in mailbox/sent by email, contract EXISTS.

Legal Capacity

The legal ability of a party to enter into a contract, which requires that they are of sound mind, of legal age, and not under duress or undue influence.

Peppercorn Consideration

Something value given in a contract to satisfy the requirement of consideration, even as small as a peppercorn.

Privity of Contract

Plaintiff must establish contractual link between them + defendant. Required to sue on the basis of contractual liability.

Fundamental Principles of Contracts (Civil Law)

Willful Consent, Good Faith, Public Order

Contractual Elements (Civil Law)

Consent, Capacity, Object, Cause.

Consent (Civil Law)

Agreement between parties to create binding obligations in a contract. Civil Law version of Offer and Acceptance.

Defects of Consent

Error, Fear, Fraud + lesion. Will vitiate consent.

Error

A mistake in understanding the facts or terms of a contract that can invalidate consent.

Fear

Defect where one party may be compelled to agree to a contract due to threats or intimidation.

Fraud

Defect where intentional misrepresentation of facts induces another party to enter into a contract.

Lesion

Defect where one party is exploited by the other, can be invoked only by minors + older people without mental capacity.

Object (Civil Law)

Main legal operation that the parties are agreeing upon (e.g sale, lease). Must not be illegal or against public order.

Cause (Civil Law)

Reason or motivation for entering contract. Must be legal + within realm of public order.

Contractual Defects (Civil Law)

Incapacity to contract, absence of writing, mistakes & frustration, duress, undue influence + unconscionable transactions, illegality.

Absolute Nullity

Anyone can invoke absolute nullity, if against public order.

Relative Nullity

Only the weaker party can invoke relative nullity. Choice to void belongs to the weaker party. Partly enforceable if weaker party chooses to remain.

Contracts of Adhesion

Conditions are drawn up by only ONE of the parties. ONLY choice available to other party is to ACCEPT or NOT

Contracts by Mutual Agreement

Both parties discuss + agree on ALL conditions of the contract.

Synallagmatic (Bilateral) Contracts

Both parties have AGREED to perform an obligation.

Unilateral Contracts

Only one party undertakes to perform an obligation.

Onerous Contracts

Each party receives something in return for undertaking obligation to another party.

Gratuitous Contracts

One party undertakes an obligation that benefits other party, with absolutely no exchange from the other party.

Commutative Contracts

BOTH parties know in detail how much EACH has to pay, and what EACH will receive in return (e.g buying apples at $3 per bushel for 10,000 bushels).

Aleatory Contracts

FULL EXTENT of obligations UNCERTAIN @ time of contract. Established at a later date (e.g buying $3 apples per bushels in fall for the summer crop).

Contracts of Instantaneous Performance

ONE-TIME discharge of obligations undertaken.

Contracts of Successive Performance

Obligation is to CONTINUE doing something on a regular basis for a specific period of time.

Consumer Contracts

Natural person (NOT a business) acquires, for personal use, some property or service from a business.

Nominate Contracts

Specific type of named contracts, with their own particular rules in the Civil Code (e.g sale, gifts, lease…)

Defective Performance

When someone does NOT fully comply with what they agreed to do in a contract.

Anticipatory Breach

Describes words or conducts by a contracting party that evinces an intention NOT to perform or NOT to be bound by a contract’s provisions.

Self-Induced Impossibility

Contract becomes IMPOSSIBLE due to the fault of any of the parties.

Remedies for Breach of Contract (Common Law)

Discharge yourself from the contract, sue for damages, specific performance (then sue them).

Remedies for Breach of Contract (Civil Law)

Specific Performance FIRST. THEN Resolution v. Resiliation. Refusal to Perform. Retention of Debtor’s Property. Damages.

Resolution

Annulls the contract + returns all that is given.

Resiliation

Cancels the contract + does NOT return all that is given.

Exceptio non Ademplti Contractus (Refusal to Perform)

Allows party to withhold his own performance until other party has completed his due obligations.

Retention of Debtor’s Property

Person who is owed obligation, if they have items belonging to person who owes them obligation, may retain such items until obligation is satisfied.

Types of Damages

Future damages, direct + immediate, punitive.

Strict Interpretation

Courts evaluate what is STRICTLY said. Grounds for appeal in Canada.

Liberal Interpretation

Courts evaluate surrounding circumstances. Standard approach in Canada.

Contra Proferentum Rule

Provides for interpretation in FAVOR of the weaker party to a contract that has been IMPOSED by another party.

Duty of Honest (Common Law)

Specific DUTY OF HONESTY in performance of contracts between two parties. Recognized in 2014 by the Supreme Court of Canada.

Civil Liability

Holds that people must be held accountable (liable) for their actions + consequences of their actions.