CRIM1160 Final Exam

1849

Enactment of the Administration of Justice by the UK Parliament.

1858

Government of British Columbia Act. Creation of the Mainland Colony.

1856

Vancouvers Island colony.

1865

Colonial Laws Validity Act. Imperial statutes are seen as a 'higher law,' beyond an easy change made by the colonial assembly.

1866

Vancouvers Island and Mainland merged into one. Had received different laws due to colony creation at different times. Latest law was decided as true.

1867

The BNA Act; the legal basis for the founding of the Dominion of Canada. Legal mechanism behind Confederation and enacted on July 1st (Canada Day).

1871

British Columbia joins the Confederation.

1873

Judicature Act. Developed the law of equity (merged into one court system by England, Canada follows right after).

1875

Supreme Court of Canada created.

1931

Statute of Westminster; no longer will a statute from the UK impact or apply to Canada.

1949

Supreme Court of Canada becomes the final court of appeal. Judicial Committee of the Privy Council will no longer consider these cases.

1982

Constitution Act, 1982.

Date of Reception

When Colony is self-governing in a sense, and U.K laws don't automatically come into effect upon the colony.

Imperial Statute of the UK Parliament

Applies to the entire British Empire or overseas territories.

Domestic Statute of the UK Parliament

Applies to the UK only.

Constitution Act, 1982

Canada can't amend its own Constitution; involves going back to England to ask for the change.

The Road to 1982

Pierre Trudeau wants to amend the Constitution without full consent of all of the provinces.

The Gang of Eight

The group of provinces united in opposing the federal government's plans to patriate and centralize the Canadian constitution. Includes Quebec and separatist Premier Rene Lévesque.

Patriation Reference

A reference to the SCC on the issue of repatriating the constitution.

What questions were asked in the Patriation Reference?

1. Does the federal gov's proposed plan affect the rights and powers of the provinces? Yes.

2. Is it lawful/constitutional? Yes.

3. Is there a constitutional convention that requires the consent of the provinces before a change is made that affects the rights and powers of the provinces? Yes.

Constitutional Convention

A substantial measure of provincial consent is required. A convention cannot be enforced in law.

The Night of the Long Knives

An agreement is reached between the provinces without Rene Lévesque present about changing the Constitution. He feels 'stabbed in the back' by English-speaking Canada.

The Canada Act (1982)

Statute enacted by the Parliament of the UK that requests that the UK reaches into Canada and changes the Constitution. Last imperial statute.

Amending Formulas

Procedures for changing the Canadian Constitution.

CA Act s.1-34

Canadian Charter of Rights and Freedoms.

CA 1982 s. 35

Rights of the Aboriginal Peoples of Canada.

CA 1982 s. 36

Equalization and Regional Disparities

CA 1982 s. 38-49

Procedure for Amending Constitution of Canada.

Significance of the BNA Act, 1867

Key limit on state power in the written constitution before 1982 was federalism/federal line. Federal cannot cross the line into provincial and vice versa.

Significance of the Charter 1982

Draws another line, containing where political action (legislatures & parliament) can be taken by provs & feds.

The Charter of Rights and Freedoms

Federal law enacted in 1982 that guarantees fundamental freedoms to all Canadians.

Section 8 of the Charter

Protects Canadians from unreasonable search and seizure.

Section 2 of the Charter

Protects freedom of speech & religion.

Section 1 of the Charter

The limitation clause; Charter rights are not absolute, guaranteed up to reasonable limits prescribed by law.

Reasonable Limits Clause (Section 1)

Where there is a law that violates a charter right, the law can be left to stand anyway as a reasonable limit.

Section 24 of the Charter

The remedy clause; if Charter rights are violated, there are remedies available. Applies specifically to charter issues. Enforcement of guaranteed rights or freedoms.

Section 52

The supremacy clause; the Constitution is the highest law. It is the supreme law. Any law inconsistent with the Constitution is of no force and effect.

Imperial Statutes (Section 52)

Imperial statutes once considered a "higher law" and those statutes evolved into the Constitution.

The Charter (Preliminary Issues)

Charter issues generally heard first in a criminal case.

Evidence Inadmissible

Evidence obtained in a manner that infringed or denied rights and freedoms guaranteed by the Charter.

Burden of Proof

Beyond a reasonable doubt in a criminal case. Balance of Probabilities in a civil case.

Section 1 Issue

If you raise a section 1 issue, then you bear the burden of proof on a balance of probabilities.

Presumption of Law

If fact A is proven… Fact B is presumed. From R. v. Oakes, 1986.

Example of Presumption of Law

Narcotics Control Act

If one is found in possession of narcotics, the distribution of them can be assumed.

Section 11(d) of the Charter

Presumed innocence until proven guilty.

Section 10(b) of the Charter

Everyone has the right on arrest or detention to retain and instruct counsel without delay, and to be informed of that right.

Application of the Charter

Charter applies to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories.

Section 33 of the Charter

The notwithstanding clause. Exception where to express declaration.

Section 33(1) of the Charter

Lets Parliament or a provincial legislature pass a law that overrides fundamental freedoms (Section 2), legal rights (Sections 7-14), and equality rights (Section 15) for up to five years.

Section 33(2) of the Charter

A law containing a notwithstanding declaration shall have effect as if it does not include the specified Charter provisions.

Section 35 — Rights of Aboriginal Peoples of Canada

Recognition of existing aboriginal and treaty rights; recognizes and affirms them. Defines "aboriginal peoples of Canada" as Indian, Inuit, and Métis.

Calder v. Attorney General of BC 1973

Recognized that Aboriginal title had survived European settlement.

The Meech Lake Accord 1987

• Meech Lake was an effort to complete the constitutional progress and meet some of the Québec's demands. It included:

• 1) the confirmation of distinct society status for Quebec in order to bring province in the constitution

• 2) The right to allow provinces to nominate Supreme Court judges

• The accord was not ratified by all 10 provinces and failed

Charlottetown Accord (1992)

By 1992, the issue of constitutional amendment again came to the forefront. As a result of the failure of the Meech Lake Accord, Quebec was still not included in Canada's constitution. Again, all leaders met in Charlottetown to try and reach a new agreement.

Quebec Referendum, 1995

In 1995, Premier Jacques Parizeau of Quebec this second vote on Quebec sovereignty. The results were extremely close. This time, it was defeated 50.6% to 49.4%. The "near death" experience resulted in the federal government's introduction of the Clarity Bill.

Secession of Quebec, 1998

Parizeau & Bouchard make it clear that when the time is right/climate is right, there will be a third referendum.

SCC Response to Quebec Referendum

SCC says: Trying to separate would violate Canadian & international law, Gov of Canada has an obligation to enter negotiations with Quebec if there is a clear question and clear answer in favour of separation, SCC has no role in deciding clear question and clear answer.

Key Courts of British Columbia

Provincial Court of BC, Supreme Court of BC, BC Court of Appeal, Supreme Court of Canada.

Provincial Circuit Courts

Judges & staff travel to remote locations to hear cases.

Section 92(14)

Provincial attorneys general handle criminal law prosecution.

Indictable Offence

Most serious criminal offence.

Summary Offence

Least serious criminal offence.

Hybrid Offence (Dual Procedure)

An offence that the crown can try either as a summary or an indictable offence.

The Supreme Court of BC

Highest trial court in BC.

BC Supreme Court.

• Superior trial court in the province.

Section 96 of the BNA Act

Section 96 of the BNA Act makes the superior courts appointed federally.

• Jury trials must be heard in the BC Supreme Court.

The BC Court of Appeal

Reviews court of the law, if it's an indictable offence it goes right to the BC Court of Appeal, criminal appeals of indictable offences are tried in Provincial Court.

Supreme Court of Canada

Court of appeal (does not hear trials, only appeals). Final court of appeal for Canada.

Federal Court

Handles legal disputes that are purely in the federal domain. Judicial review of federal administrative agencies are done in federal court.

Federal Court of Appeal

Handles federal appeals.

Tax Court

Deals with tax issues; income tax.

The Open Court

One of the hallmarks of free societies. Means that courts are open to the public, members of the public can watch trials.

Jeremy Bentham

British philosopher and economist who advocated utilitarianism.

The Star Chamber

Secret English court used as a political weapon for bringing action against King's opponents; secretive process; not open to public; no right of appeal.

Exceptions to the Open Court

No television cameras permitted as a general rule.

Publication Bans

Cannot publish or broadcast what they've seen, but people can enter the courtroom; can apply in youth cases, victims or complainants in sexual assault cases & preliminary hearings.

In Camera Proceedings

In-private (nobody except the accused, the parties, the lawyers, the people necessary to run the trial); can apply in youth cases, victims, or complainants in sexual assault cases & preliminary hearings.

Adversarial System

A trial system that is a contest between opposing sides

Alternative Dispute Resolution (ADR)

A negotiated settlement where lawyers on different sides of the case get in touch with each other and reach a settlement.

Mediation

Very common in civil cases. One side sends the other a notice to mediate. Mediation is a more formal attempt to settle a matter.

Arbitration

Decides the case; used in civil matters; set up a private court; much faster than a formal trial.

Settlement Conference with a Judge

Available in supreme court; mandatory in small claims court; go into court & meet with the judge, the clients will listen to the judge typically.

Appointment to Bench

Lawyer must have 10 years experience to apply, Judicial Advisory Committee for British Columbia (JAC).

Doctrine of Precedent (DoP)

Court cases rely on precedent decisions.

Stare Decisis

Stand by what has been decided.

Material Facts (DoP)

An important fact or legally significant fact (ex. a northbound vehicle driving through a red light at 90km as opposed to the gender of the driver).

Ratio Decidendi (DoP)

The very fundamentals of the case, the reason for the decision. The "Ratio" is what the case can be boiled down to; the precedential value.

Obiter Dicta (DoP)

In contrast to the "Ratio" of the case. Obiter is where the judge makes a "collateral comment" or a comment that is unnecessary for the judge to decide the case. Ex. "if this had happened just twice before, I probably would have ruled otherwise."

Binding Precedents

Not all earlier decisions are binding; generally a higher court in the same jurisdiction that is binding on the lower court.

Persuasive Precedents

Precedents in other jurisdictions can also be used with certain questions asked; how close is this society and legal system to our own, what level of court, was it a well-written and carefully considered decision, who was the judge?

Distinguishing (DoP)

Where you articulate how the material facts are different from the case currently before the judge.

Statutory Interpretation

Debate about what a statute really is; statutes are interpreted differently by different people. Nix v. Hedden; vegetables subject to tariffs, caused a debate over if tomatoes are a fruit or vegetable.

Basic Rule of Statutory Interpretation

If you have a debate about the interpretation of statutes, you look at it from an ordinary sense (how it is accepted by society) and then come to a solution.

Aids to Statutory Interpretation

Interpretation statutes, definition sections contained in statutes, every province has an Interpretation Act that deals with the statutes in its province.

Pickton Case

Active serial killer from 1985-2001.