Law Exam

Act of Union 1840

led to establishment of responsible government - united Upper/lower canada into new colony of canada. Upper became known as canada west, lower as canada east. Each region is given equal representation in legislature even though Canada east had more people.

Alibi

Defense by the accused person of having been elsewhere at the time an alleged offense was committed.

Amending formula (canada’s constitution)

the constitution can be changed with the approval of the federal parliament and the legislature of 67% of the provinces which comprise a majority (50% + 1) of canadian population.

Arbitration

neutral 3rd party imposes an agreement on both parties

Arraignment

charge should be read and accused must enter their plea; guilty or not guilty. when plea’s not guilty; trial will start its course.

Bail

property or money given as surety that a person released from custody will return at appointed time.

Balfour report 1926

declared that britain and its dominions were constitutionally equal to each other- established canada as a fully independent country as an equal partner in the british commonwealth.

ballistics

study of bullets

bill of rights

a law passed by parliament which listed rights of citizens including: freedom of speech, freedom of religion, equality rights, right to life, liberty and security of the person, justice rights, enjoyment of property. Note* this was a statute which could be easily repealed in the future and did not apply to provincial jurisdiction.

BNA act (1867)

Section 91 (federal powers) section 92 (provincial powers) provinces given control over areas not considered that important at the time (social services, health, education) education included the establishment of catholic separate schools in ontario.

collective bargaining

the formal process of negotiating conditions of employment between organized employees and their employer.

common good

Thomas Aquinas believed that the purpose of law is to defer to the common good. common good refers to anything that benefits and is naturally shared by all members of a given community.

constitution

legal framework outlining the operation of a government and the authority of that government - in a federal system, the division of powers between the federal and provincial / state levels of government.

convention

the way something has always been done is the established practice and becomes part of the law. ex/ theres no law which states that the leader of the party with the most seats in the house of commons becomes prime minister but thats always been the accepted practice and a binding convention of house of commons of canada.

criminal law

system of law concerned with the punishment of those who commit crimes. regulates social conduct and prescribes punishments for those who commit crimes. concepts such as motive and intention dictate whether an accused is criminally responsible.

discovery

where a party before a trial can obtain evidence from the other party or parties by means of discovery devices such as a request for answers to interrogatories or requests for production of documents.

duty

is a responsibility; a moral or legal obligation - rights and duties work together

exculpatory evidence

is evidence favourable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt

federal powers

ensuring “peace, order, and good government” national embassies, consulates, criminal law, income tax collection, interprovincial issues, immigration management, ocean management, interprovincial transportation, federal police force (RCMP), trade, treaties.

forensics

application of science to police work

french civil code

quebec act 1774 established french civil code for private matters and kept english common law for public matters. used for non-criminal cases and allows for the judge to have a more active role in the trial. today its still used in france, quebec, and the state of louissiana.

general assembly

193 voting sovereign nation-states 2 observer states (vatican city and palestine) vote on non-binding resolutions which are not enforceable but carry great moral authority. approves budget including how much in fees to charge each member and how to spend the money in the organization. elect non-permanent members of the agencies, UN security council, and judges on the courts and tribunals.

good faith

states are expected to be reasonable and use common sense in the way they interpret international law. latin term for ‘good faith’ or ‘credibility’ is bona fides.

government authority

authority is the legal right to make laws to the government which is granted by the constitution (BNA Act - 1867). governments enforce laws they make through punishments (fines, parole, imprisonment). right to make decisions, enforce laws and regulate society.

habeas corpus

a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person’s release unless lawful grounds are shown for their detention.

head of government

leader of the executive branch of government, responsible for the daily administration of the state. our head of government is the prime minister; currently the liberal party leader justin trudeau.

head of state

ceremonial representative of the country and a symbol of our identity. head of state is the monarchy, currently king charles III who is represented by the governer general mary simon.

inculpatory evidence

evidence that shows, or tends to show a person’s involvement in an act, or evidence that can establish guilt.

international court of justice

to settle, in accordance with international law, legal disputes submitted to it by states plus to give advisory opinions on legal questions reffered to it by authorized united nations organizations and specialized agencies. there are 15 justices from different countries. each judge serves a 9 year term and is chosen by the united nations general assembly / security council.

international law

set of rules, norms and standards generally recognized as binding between states. it establishes norms for states across a broad range of domains, including war and diplomacy, economic relations and organized international relations.

judges and personal views

the assumption in the rule of precedent is that cases will reach the same judgement if the material facts are the same; uniformity in decisions ensures consistency and fairness in the judicial system. judges have to be impartial but flexibility is allowed for the judges to deviate from precedent on differing facts in cases.

Judicial committee of the privy council JCPC

JCPC at the time was the final court of appeal for canada, the JCPC ruled that qualified persons included women. also noting that canada’s constitution was flexible like a living tree.

jurisprudence

the philosophy or science of law. by understanding the law, changes to law should be made carefully and based on the writings of scholars and law-makers. refers to exercise of good judgement, common sense and caution, especially in the conduct of practical matters.

jury and duties

a group of citizens who rule on a case in criminal or civil court; the jury size could be 6-12 and they must agree on a verdict. their duties are to evaluate the evidence presented, follow the judges instructions on the law, deliberate to come to a unanimous verdict and deliver that verdict of guilty or non-guilty based on the evidence and the law.

living tree doctrine

decision handed down by the JCPC that ruled women were person’s. the court wanted to allow for a ‘large and liberal interpretation’ of the BNA act so that the federal government and each provincial government may each be a ‘mistress in her own house’.

mediation

attempt to resolve disputes through a neutral 3rd party without the necessity of a full oral hearing.

mens rea

legal phrase used to describe the mental state a person must be in while committing a crime for it to be intentional. it can refer to a general intent to break the law or a specific, premeditated plan to commit a particular offense.

not-withstanding clause

federal and provincial governments can pass laws which override charter rights which would need to be renewed every 5 years. only applies to fundamental freedoms, legal rigths, equality rights. doesnt apply to other rights such as mobility rights, democratic rights and language rights.

nuremberg trials

prominent leaders of the NAZI party (military, political, economic) were put on trial by the international military tribunal (1945-1946) also known as the major war criminals trial. made up of 4 judges from each of the allied powers (great britain, france, united states USSR nuremberg trials (beginning in 1945). Trials held individuals responsible for their own actions, rejecting the ‘following orders’ defense. when an individual follows an order thats illegal under international law, theyre responsible for that choice, except under certain circumstances. for instance, if the individual could prove he was ignorant of the fact the order was illegal they would not be responsible.

PURPOSE: 1) convict defendents 2) assemble irrefutable evidence of NAZI crimes 3) offer a history lesson to the defeated germans 4) delegitimize the traditional german elite.

CHARGES: 1) conspiracy to commit aggression; crime against peace 2) commission of aggression “aggression and other crimes against peace” 3) crimes in the conduct of warfare “war crimes” 4) crimes against humanity.

parole

permanent release of a prisoner who agrees to certain conditions before the completion of the maximum sentence period

peace of westphalia

established the idea of sovereign countries as nation-states. equality of sovereignty of countries regardless of size and power. legitimacy of borders, development of predictable and widely accepted rules and guidelines with regard to relations between countries. non-interfereable in the domestic affairs of sovereign states (this practice came to an end in 1945).

perjury

lying under oath

persons case 1928

woman’s right activist Emily Murphy petitioned the government to be considered for a senate appointment. prime minister robert borden refused saying that women were not considered legal persons according to the BNA act. Murphy and 4 others (famous 5) asked the government of canada to refert the question of status of women to the supreme court, which ruled women arent eligable to be appointed to senate. famous 5 then went to great britain and took their case to the JCPC / final court od appeal at the time, which ruled qualified persons included women.

plea bargain

to make an agreement in which a defendant pleads guilty to a lesser charge and the prosecutor in turn drops more serious charges

plebiscite

a direct vote (direct democracy) by the electorate on a specific issue, often to gauge public opinion or to make an important decision

precedent

when rendering decisions on new cases, prior judgements are used as a guide; this is known as the rule of precedent. latin term is stare decisis, sometimes known as settled law.

pro bono

legal work undertaken without charge for a client with low income

provincial powers

responsibilities considered not important at the time of confederation in 1867. education, health care, natural resources, inter-city roads, fishing, hunting, trapping, transportation, stock market regulation, incorporation of businesses, insurance, hydro-electric power, civil law, birth/marriage/death

reasonable doubt

the standard of proof required in a criminal trial, indicating that if there’s any reasonable uncertainty about the defendant’s guilt, they must be acquitted. Ensures that a persons only convicted if the evidence establishes their guilt beyond a reasonable doubt.

referendum

(direct democracy) a vote by the electorate on a specific issue, often used to approve or disapprove laws / changes to the constitution

residual powers

powers not mentioned in the constitution automatically goes to the federal government ex/ space program, electronic communication

restorative justice

requires an offender to recognize, accept and take responsibility for the offense

right

power, privilege or demand that the state is obligated to provide

royal proclamation 1763

establishment territory of colonists and the native people. first official document which recognized aboriginal rights of self-government, claims to land and land-use the relationship bewteen the crown and the aboriginal people was nation to nation.

security general

chief administrative officer of the UN, voice of the un. position is based on a recommendation of the security council and voted on by the general assembly. term is 5 years (unwritten rule that theres a maximum of 2 terms), secretaries general typically come from middle powers. our security general is antonio guterres.

security council

15 members; 5 permanent- US, russia, china, france, UK. 10 non-permanent members. current non-permanent: Mozambique, sierra, leone, algeria, south korea, japan, guyana, ecuador, malta, slovenia, switzerland. countries are selected in an attempt to have regional representation (from different parts of the world). different sized countries. ensuring international peace and security. powers include: establishing peacekeeping operations, enacting international sanctions, authorizing military action, issue binding resolutions on member states.

sentencing

judicial determination of the punishment to be inflicted on a convicted criminal (fine, community service, house arrest, or jail time in a provincial or federal jail)

social contract

Jean jacques rousseau believed in this, betweem the rulers and the ruled in a society. government ought to govern according to the ‘general will’ of the people. the governed can remove those in power if they choose to do so.

sovereignty

absolute right for a country to govern itself. govern, create laws and apply laws over its territory at the exclusion of other states. all sovereign states have equal status regardless of size of territory, military power or population.

statute laws

statutes are laws passed by federal or provincial legislature; from statutes, governments pass regulations ex/ ontario has minimum wage law stating there must be a minimum wage, government would pass a regulation which states what the minimum wage would be.

statute of westminster 1931

british law which officially made canada independent. canada didnt need to follow british law anymore, supreme court of canada became the final court of appeal. future cases could not be appealed to the JCPC anymore

strike

a group of workers withhold their labour during contract negotiations. rotating strike- strikes affecting different parts of a workplace

textualism

interpretation of the law is primarily based on the ordinary meaning of the legal text. a method of interpretation that asserts that a statute or words in a constitution should be interpreted according to its plain meaning and not according to the intent of the legislature, statutory purpose or legislative history. theres no room for interpretation or analysis of the intention of the lawmakers when examining the text of laws.

treaties

binding, written agreements which detail the rights and obligations they have to each other: some examples include treaties involving trade, military alliances, environment, borders and extradition

trial by combat

the accused would challenge the accuser to a duel (shooting pistols at each other) the one who won was considered innocent since God would be on the winner’s side.

trial by ordeal

the accused would be tortured and guilt or innocence would be determined by how the wound healed

warrant

legal document from a judge which gives the police the right to search property or a place of business.