LGST 230 Athabasca Final Review

What is the seperation of powers doctrine? (Ch.4)

Separate powers are assigned to the legislative, executive and judicial branches of government.

What legal functions does the executive, legislative and judicial branches of government fulfill?

The legislature MAKES THE LAW, the executive IMPLEMENTS THE LAW, the judiciary APPLIES AND INTERPRETS the law.

What is substantive and procedural law?

SUBSTANTIVE LAWis a body of law concerned with rights and obligations, as opposed to PROCEDURAL LAW which concerns how to enforce and defend such rights and obligations.

For example, murder is a criminal offence (substantive law) while the rules to be followed in prosecuting an offender of that law are referred to as procedural law.

What is legislation?

written laws made by legislative assemblies

Why is Canada considered bijural and bicameral?

Canada recognizes both the Civil Code and Common law, and is therefor considered bijural. Canada has both an elected legislature (house of commons) and a senate (currently appointed).

If the facts in a precedent case differ from a case before the court, what is the precedent is considered to be?

Distinguishable and therefore not allowed.

What is customary law?

Laws based on the traditions of a community and often unwritten.

What kind of court process is found in European civil law systems?

European courts follow an inquisitorial type of process.

Where did the common law orginate?

In decisions made in England's Court of King's Bench.

What are the 2 core beliefs of the Rule of Law (rol)?

1. Everyone should be treated equally before the law.

2. Power under the law should not be used arbitrarily.

In Canada, what were the four main factors in the development of legislative protection for civil rights?

1. Growing dissatisfaction in Canada of having only an ‘implied’ bill of rights in the aftermath of WWII.

The SCC determined that the Canadian constitution is similar to that of the UK, meaning our constitutional rights are similarly protected against the misuse of government power. However, after WWII and atrocities committed, the newly formed UN proclaimed the 1948 Universal Declaration of Human Rights. This prompted many Canadians to believe that Canada also needed codified, legitimized and protected civil liberties through Constitutional legislation.

2. The influence of the civil rights movement in the USA

During the 1950s and 1960s, the desegregation of schools, the creation of the NAACP and the rise of the civil rights movement led by Dr. Martin Luther King Jr. and other anti-discriminatory protests, marches and boycotts was reflected in calls to end anti-discrimination legislation in Canada. However, an implied bill of rights doesn’t address practiced and commonplace discrimination.

2. Canadians’ dissatisfaction with the Canadian Bill of Rights (1960) by Diefenbaker.

In 1960, the conservative party enacted the Canadian Bill of Rights. The CBofR removed the implied element, however, unlike the US bill of rights, the Canadian version was not entrenched in the constitution. This meant that it was an ordinary act of the federal government and applied only to federal laws. The SCC was also hesitant to interpret and apply section 1 in cases where the ‘equality’ statement would invalidate other federal legislation that addressed men's and women's equality.

3. The advent of the Canadian Charter of Rights and Freedoms in 1982.

In 1982 the Canadian Charter of rights and freedoms was entrenched in the Canadian constitution, and fundamental rights were legitimized in Canada.

What are AV Dicey's 3 ROL principles?

1. the law must have supremacy over the influence of arbitrary power.

2. the law applies equally to everyone.

3. Anyone who is denied a right or liberty may seek a remedy in court.

Rule of Law (rol)

Cornerstone of the Canadian legal system. Concerns fairness in the administration of the law.

What type of justice justifies the incarceration of criminals?

Retributive justice

NAtural law is a good example of what type of legal theory?

Normative legal theory

What are rules about the documents that are required to start a legal claim an example of?

Procedural law

What type of justice allows compensation to be awarded to victims of careless driving?

Retributive justice

What does legal realism focus on?

Legal realism focusses on understanding how and why judges make decisions.

Legal Positivism is an example of what modern law theory?

Legal positivism is an example of an analytical legal theory.

Is contract law part of public or private law?

Private law.

What are laws that do not form part of international law known as?

Domestic laws.

What is jurisprudence and what 2 types that are associated with it?

Jurisprudence is the philosophy or science of the law and can be broken down into Normative and Analytical segments.

What is the difference between normative and analytical jurisprudence?

Analytical jurisprudence is concerned with what the law IS, whereas normative jurisprudence is concerned with what the law OUGHT to be.

What is Natural Law?

The theory that there is a source of law higher than man-made law, with which man-made law must try to comply (reason, divine law, human nature, etc.).

Plato, Aristotle, Aquinas, Grotius, Hobbes, Locke and Rousseau were all adherents to what type of law theory?

Natural law theory.

What 3 factors are used for the development of precedence?

1. the existence of similar cases

2. the approach taken in other jurisdictions

3. policy considerations that weigh whether a new rule would benefit society by providing a useful deterrent to some problematic behaviour.

List the 5 points than summarize Civil law (from the textbook)

1. older system than common law

2. authoritative law is set out in comprehensive legislative documents called codes

3. judicial decisions are not binding and there is no formal recognition of precedent or stare decisis

4. the court process is based on the inquisitorial system

5. scholarly writing can have significant weight when interpreting civil codes

What are administrative agencies?

Administrative agencies are government bodies created under various federal, provincial and territorial statutes to administrate particular statutory regimes. Many names refer to agencies, including commission, council, institution, office, organization board or service. Several constitutional provisions relevant to administrative law and agencies are spelled out in sections 91 and 92 of the constitution act. These provisions address the federal and provincial spell out what tasks are delegated to administrative agencies.

Name and briefly describe the three general types of functions or powers that are delegated to administrative agencies.

Legislative - passing by-laws or rules of procedure for appearing before a tribunal.

Administrative - executive functions, including issuing business licences.

Quasi-Judicial - rendering decisions in labour disputes.

What are 2 benefits to having adminstrative agencies? What are some examples?

Speeds things up – more decision-makers allow the government to respond more quickly and efficiently to the public’s needs. Specialization – officials are appointed based on their familiarity with the area of regulation. It produces better decisions and increases government credibility.

Administrative agencies can include licensing bodies, commissions, securities, labour boards, hospitals, universities, self-regulating professions, and trade associations.

What 3 elements do both civil code and common law systems try to attain?

Stability, predictability and certainty.

What are the 3 ways English law can be accepted into a colony?

1. Imperial Statute / Settlement

2. Conquest or cession

3. Adoption

How was English law introduced into Canadian law?

Quebec & East: Settlement or Conquest/Cession

Ontario, West and Territories: Adoption

What was the Quebec Act (1774)?

Restored the French Civil Law code to Quebec

What 5 factors influenced confederation?

1. language, culture, regional and religious rivalries

2. worries of a yankee invasion/ manifest destiny

3. expansion of a railway across BNA

4. hopes for a larger domestic market

5. British support fir colonial independence for financial reasons.

What powers fall under federal regulation? (8)

1. Taxation

2. Trade and Commerce

3. Military and Defence

4. Currency

5. Indigenous issues

6. Criminal law

7. Appoints federal senators and provincial lieutenant governors.

8. Creation of a general Court of Appeal for Canada

What were 5 problems with the BNA Act (1867)?

1. It had no domestic amending formula, meaning the English parliament had to make requested changes.

2. No entrenched Bill of Rights - they were implied.

3. Formulated without consultation with Indigenous peoples.

4. Establishment of the Court of Appeal was not stated to be the final Supreme Court of Canada.

5. No instruments to resolve problems between the feds and the provinces were included.

In the constitution, the provinces are given jurisdiction over Property and _________________ .

Civil Rights

Canada's 1960 Bill of Rights applied only to the _______ government.

Federal

Evidence in a trial may be ________ if it has been obtained by infringing on someone's rights under the charter.

Excluded

Banks and Railways are subject to the federal ________ _____ ______ ___.

Canadian Human Rights Act

___________ action is lawful under the Charter of Rights and Freedoms

Affirmative

Section 15 of the Charter contains the primary protections for ________ rights.

equality

All provinces and territories have legislation protecting _____ ______.

human rights

According to the "_______________ clause" of the Charter, governments may override some protected rights.

notwithstanding

Discrimination in employment may be lawful if it is related to a ____ ____ ____________ ___________.

bona fide occupational requirement

The rights and freedoms protected under the Charter are subject to __________ ______ as provided by Section 1.

reasonable limits

What is a unicameral system of government?

A legislature with one house involved in the passage of legislation.

What are the four types of statutes, distinguished according to jurisdiction or type?

1. Constitutionally entrenched statutes, which are mainly British

2. federal statutes

3. provincial statutes

4. territorial statutes

What are constitutionally entrenched statutes?

Statutes that fall within the definition of the Constitution of Canada as set out in section 52 of the Constitution Act (1982).

What are the 4 key Constitutional Statutes?

1. Constitution Act 1867

2. Statute of Westminster 1931 (2nd step to independence - could form laws contrary to English laws of general application.

3. Canada Act 1982 -

4. Constitution Act 1982

What is the Supremacy clause?

establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. If a provincial law is not consistent with the federal law it can be:

1. struck down

2. severance of the portion that is not consistent

3. reading down

4. reading in

5. constitutional exemption

6. temporary suspension

What kind of Constitutional Amendments require unanimous agreement of parliament and provinces?

1. Changes to the office of the Queen

2. the use of english or french language when dealing with federal institutions

3. the composition of the SCC and

4. any changes to the amendment procedure itself.

What is the division on powers argument?

Refers to the divided jurisdiction between parliament and provinces to make legislation in a federal state such as Canada

Why is there an argument for government regulation over law societies?

The argument revolves around how law societies police themselves. Many people suspect that the prof. orgs. will be more lenient when investigating or sanctions involve their own. However there is no evidence of these societies abusing their power. In addition, the law and lawyers, must be free from political interference or control.

What does the term POGG mean?

POGG refers to Peace order and good government and is held at the federal level. Section 91 seems to give residuary power to the feds - that is jurisdiction in any are that the constitution does not explicitly assign to either level of government. Section 91 fills in the constitutional gaps.

What does the term prorogue mean?

Prorogue is the formal closing of a legislative session.

What are the main sections of the Constitution that give the feds power?

Section 91 (trade, taxation, military, etc.), 94A (OAP) and 95 (agriculture and immigration, those these are share with provinces).

Why is the assisted human reproduction act (SCC, 2004, c 2) important?

IN 2004 parliament passed the AHRA which regulated what it considered to be unethical practices. However, the Quebec Court of Appeal, when asked for an opinion on a related matter, found that while most of the federal was okay, there were some parts of it that were not and that the feds had strayed into the provinces' areas of control. The SCC of Canada had the matter before them and held that some of the portions of the Act involved criminal matters but that others attempted to regulate the medical profession in the field of human reproduction and these provisions were struck down.

What does double aspect mean?

A double aspect law is one whose subject matter falls withing a federal area and a provincial one, like dangerous driving.

What is a federal paramountcy doctrine?

IN the event of a conflict between a federal and provincial law in an area both levels of government have jurisdiction, the federal law governs and overrides the provincial one.

How many readings do a federal bill require before receiving royal assent?

6 readings, 3 in the H of Commons and 3 in the Senate.

What is the difference between a private bill (not a private members bill) and a public bill?

A private bill is introduced and sponsored by a government, opposition (#C-1001 and up) or senate member (#S-1 and up) and deals with a private matter that relates to a charity, individual or corporation. A public bill is a bill that deals with a matter of public policy and can be introduced by the government (C1 - C-200)or a private member (C-201 - C-1001).

What is the process used to pass a bill in the H of C?

1. Canadian society

2. Pre-parliamentary response

3. Parliamentary response

a. 1st reading

b. 2nd reading

c. committee review

d. 3rd reading

e. Senate (or House of Commons)

f. royal consent

4. Implementation

Bill Process: a motion by the initiator, the bill is read and passes without debate or amendments. at the 2nd reading, members of the house will read and debate the general principle and main features. No amendments are allowed. If the bill is approved for a second reading, it is referred to a house committee. If it is an urgent or money bill, the committee may be the whole house. The committee will examine the bill clause by clause and make amendments at this point. Ministers and servants may be called upon for further explanation and public input is sometimes invited. It goes back to the house, which can either concur with the amendments made (if any) or suggest further amendments. A motion is then held to have the bill to be adopted and proceed to a 3rd reading. At the 3rd reading, the debate is limited and then a vote is held. If it passes the house it goes to the senate for approval. In the Senate, it goes through the same process.

What does devolution mean?

A legislative arrangement whereby a central authority (feds) grant power to regional authorities that are subordinate to the central authority.

What is Subordinate legislation and are limits on the primary legislator's power to delegate?

Subordinate legislation is passed pursuant to a statute whereby a the principle lawmaking power has been delegated authority to another body to make laws. The 2 limits to this are:

1. the primary legislator cannot give away its power to legislate completely, and

2. the primary can delegate only powers within its jurisdiction.

What are regulations?

Regulations can only be made under the authority of a particular statute and are always associated with that statute. Regs expand or fil outs a statutes legislative scheme.

What does delegatus non potest delegare mean?

Delegatus non potest delegare is a principle that a person or body to whom power is designated cannot subdelegate that power.

What are quasi-legislative materials?

Non-legislated written rules that relate to and affect a legal process, like policy statements or court directions.

What is parliamentary sovereignty and what are its 3 implied principles?

P.S is a doctrine that parliament has ultimate and complete power and implies that:

1. parliament can make or unmake any law,

2. parliament cannot bind itself against using its power in the future, and

3. a procedurally valid Act of parliament cannot be questioned by the courts.

How does Canada limit or qualify parliament's 'total power'?

1. Canada is a federation, with power split between the feds and provinces/territories.

2. Canada has an entrenched charter that limits legislative power.

3. The power to amend the Constitution lies outside of the sole power of either the feds or provinces/territories.

What are 4 external aids to interpretation of statutes?

1. Dictionaries

2. Words and Phrases Reference sets

3. Interpretation Acts

4. Hansard

What is Hansard?

The official report of what was said in Parliament when the Act was debated. Used in determing in parliament's intent in passing a specific statute.

What are the components of a Statutory citation?

1. Title (Access to Information Act)

2. Jurisdiction and year (R[evised]S[tatutes] C[anada] 1985)

3. Chapter (c[hapter] A-1),

4. Section (s[ection] 2(1))

What are the 3 main features that distinguish the system of responsible government?

1. A dual executive (a formal head of state, like the Queen),

2. elected office (members on the executive must hold elected seats in the legislature)

3. reliance on convention (that is, the established traditional rules on which our gov't is based and which qualify as rules of government. Not technically, legally binding).

What does the term responsible government mean?

Responsible government is a system in which the members of the executive are drawn from the elected members of the legislative branch and in which their only power continues only so long as the enjoy the support of the majority in the legislature.

What are some of the key conventional practices relating to the federal executive? (5)

1. Prime minister - head of the political party controlling the majority in parliament

2. members of the Privy council (elected members of the legislature) appointed to cabinet /minister positions

3. political and legislative agenda (the PM sets the agenda, composition, organization and procedures of cabinet)

4. ministerial responsibility (ministers who are responsible for their portfolios, their subordinates and are required to answer to cabinet and parliament for their activities within the ministry.

5. confidence convention (the government must resigns if it loses the support of the majority of the elected reps in the H of C, and if a new government cannot be formed an election must be called.)

What is the official name for a provincial Cabinet?

Lieutenant Governor in Council

What is the official name for a territorial Cabinet?

Commissioner in Executive Council

What are a couple of examples of royal prerogative?

1. royal proclamation

2. letter patent

What is the Standard of proof in criminal versus civil claims?

Criminal—Beyond a reasonable doubt

Civil—Balance of probabilities

Although most areas of private law fall under provincial auspices, section 92 of the charter place some elements under the feds jurisdiction. Name 2 areas.

Parliament's role is more significant in some areas of private law, such as Intellectual property and Family law (marriage and divorce, but property rights are under provincial/territorial jurisdiction).

What does private law govern and what are its subdivisions? (10)

Governs relationships between persons.

Subdivisions:

1. Torts

2. Contracts (making and enforcing)

3. Equity (trusts)

4. Company (structure and deals of corporations)

5. Property (real, personal, intellectual)

6. Insurance (policies, companies and claims)

7. Succession (wills and estates)

8. Family (rights and obligations within family relationships)

9. Evidence (what and how it can be used in court)

10. Other (business, employemtn, credit, conflict of laws, etc.)

What is Tort law?

Deals with certain types of wrongful conduct and the remedies available to affected persons • Primarily concerned with providing a means of compensation but may also serve to deter and punish.

What does "tort" mean?

Type of civil wrong for which the person wronged can obtain damages or some other remedy. Latin: tortum ("something twisted" or "something crooked")

What are the 4 categories of torts?

1. Intentional torts

2. Negligence

3. Strict liability

4. Miscellaneous group of torts (unique liability principles).

What is an intentional tort? What are the 2 categories of intentional torts?

The defendant's intentional behaviour makes these the most serious torts. The defendant intended to bring about the consequences of his actions OR knew the consequences were likely. Many intentional torts are crimes for which the defendant could also face criminal charges.

Two categories are:

1. Intentional interference with persons or property

2. Intentional interference with other interests.

What comprises intentional interference with persons or property under intentional torts?

Trespass torts includes:

Trespass to person—assault, battery, false imprisonment Trespass to land

Trespass to goods ("trespass to chattels")

Other: Invasion of privacy, harassment, intentional infliction of nervous shock.

What comprises intentional interference with other interests under intentional torts?

Intentional interference with other interests includes: Deceit, passing off, inducing breach of contract, intimidation, abuse of power.

What are 3 defences to intentional torts?

1. Consent - Claimant agrees to the interference expressly or implicitly

2. Self-defence - Defendant must show he committed the tort to protect himself (requirements: (1) Honest and reasonable belief in prospect of attack, and (2) reasonable response in the circumstances)

3. Legal authority - A collection of defences based on various statutory rules, each of which allows for intentional interferences in specified circumstances.

What is the tort of negligence? What types of 'negligence' are there?

Largest area of tort law where one set of rules cover most instances of carelessly inflicted injury.

Two meanings of "negligence"

There are 2 types of negligence:

1. Misfeasance

2. Nonfeasance

What are the 5 elements of a negligence claim?

Elements of a negligence claim include:

1. Duty

2. Standard of care and breach

3. Factual causation

4. Legal causation

5. Damages

What are some common areas of negligence?

Common areas of negligence include:

Motor vehicle accidents, sports, manufacture of defective products, substandard construction, professional malpractice, careless words (negligent misrepresentation), careless inspections.

What are forms of loss/injury in negligence torts?

Forms of loss/injury include:

Personal injury,

psychological injury,

property damage,

pure economic loss

What are defences to negligence torts?

Defences include:

1. Contributory negligence

2. Consent

3. Illegality

(Occupiers' liability: Related tort)

What are strict liability torts? What do they involve?

In some cases, the defendant can be held responsible even if the consequences of his tortious actions were not intended and he was not negligent.

In Canada, strict liability torts usually involve:

1. The use of dangerous substances

2. The ownership of animals

3. The employment of agents (vicarious liability as seen in employer-employee relationships)

What are 2 kinds of miscellaneous torts?

Nuisance and defamation

What is the main type of remedy available for torts?

The main remedy available is

Damages, such as:

1. Compensatory: Compensation for proven and recognized types of losses; special versus general

2. Nominal: Breach of right but no actual loss sustained

3. Punitive: Damages to punish defendant for socially objectionable behaviour; primarily seen with intentional torts.

Other remedies include:

Injunctions: Order to stop doing something

Common with nuisance claims

Extrajudicial remedies:

(1) Abatement of nuisance, and

(2) recapture of goods (Available in limited circumstances; rarely used).

What is contract law?

Contract Law empowers us to enter into agreements with others and thereby create a legal relationship based on our own set of rules, however it also limits on our freedom to make contracts according to our own rules (e.g., judge-made or statutory rules).

What are the elements required for a valid contract?

Up to six elements are required for a valid contract:

1. Offer—Offeror displays an intention to be bound

2. Acceptance—Offeree unequivocally agrees with terms

3. Consideration—The exchange of something of value (unnecessary for promises under seal)

4. Certainty of terms—Important terms expressed with sufficient clarity

5. Intention to contract—Parties intend to create a legal relationship (presumed in commercial settings)

6. Formal requirements—Required for certain kinds of contracts (Capacity is presumed unless the defendant raises the issue).