law unit 1 test

Murdock v. Richards, R. v. Vaillancourt

Murdock v. Richards (Civil) 

• Teacher (defendant) had some trouble in class with an infant pupil

• Teacher then strapped the student on the hand; student did not suffer any serious or permanent injuries

• Due to criminal code of Canada, schoolteachers are allowed to use force as a way of correction as long as it does not exceed what is reasonable

• Parents sought relief for damages for assault, but due to the lack of serious injury, the action was dismissed with costs (parents were unsuccessful and needed to pay for the other party’s legal fees a well) 

R. v. Vaillancourt (Criminal) 

• The appellant and an accomplice committed armed robbery in a pool hall 

• Appellant had a knife, accomplice had a gun 

• Accomplice got into an altercation with the staff and shot and killed them, then escaped and was never found

• Appellant was found and arrested at the scene

• Appellant said they only planned to commit the robbery with knives, and when he found the accomplice with a gun, he insisted he unload it (where there was proof of) 

• Since the punishment for murder is most severe, culpable homicide (death caused while committing robbery) can’t be treated just like a murder

• Since the charter says that everyone needs to be assumed innocent until proven guilty, the ratio decidendi states that there must be more solid evidence and be able to prove that the appellant knew harm would ensue. 

Legal principles e.g the burden of proof, reasonable doubt, etc

1. The presumption of innocence - (CCRF s.11(d)): One is presumed innocent until proven guilty by a fair and independent tribunal.

CCRF - Canadian Charter of Rights and Freedoms, section 11d

2. Double jeopardy - (CCRF s. 11(h)): that means that someone cannot be accused of the same crime twice and be in trouble forever.  In the words of the Charter: “if finally acquitted of the offence, not to be charged for it again; if found guilty and punished, not to be punished for it again.”

Eg. a longer sentence cannot be tagged along to the original, Judge cannot change after punished

• Can’t be tried twice for the same offence, only have one shot 

• Different agencies of government can punish twice, just not in same agency, eg. DUI

• Doesn’t apply to mistrials

3. The right to a jury trial - Someone accused of a serious crime (one in which the minimum sentence is longer than 5 years) has the option of having his/her trial decided by a jury.  Minor offences are heard by a judge alone.

Serious crime: murder, sexual offence, kidnapping, abuse → accused can have option to have a jury present at the trial 

Having a jury can provide more perspectives, depends on crime (Judge has seen more, Jury can have emotional aspect) 

4. Everyone has the right not to be subjected to cruel and unusual punishment.  As a result, the death penalty has been abolished in this country since 1979. (CCRF s.12)

Cruel and unusual: death penalty, torture

Maximum sentence is a life sentence 

5. Someone charged with a crime has the right to be tried within a reasonable period of time.  The Supreme Court of Canada has asserted that a “reasonable” time would be 2 years.

If longer than 2 years, can dismiss charges, even if the crime is serious. 

Presumption of innocence may not apply; right to a fair trial is diminished if witnesses pass away or forget

• Person is detained for long time

6. One has the right to be secure against unreasonable search and seizure.  Simply put, the police cannot randomly go up to a person and search that person unless there is evidence that the person likely committed the offence. (CCRF s.8)

Even if sometime was found, if the person was searched improperly, the evidence would not count. 

• If something is just visible to officer, doesn’t count as search 

7. Everyone has the right to be informed of the reasons why he/she is being arrested.  A person told that he/she is arrested for murder would be less cavalier than someone arrested for trespassing.

8. Habeas corpus - someone accused of a crime in Canada has the right of habeas corpus (the right to appear in Court to answer to those charges).  Habeas corpus means “to have the body”, which has two different meanings - one, to have the body of evidence presented in Court to the accused , the second, to have one’s body in Court to answer to those charges.

9. Res Judicata - this is latin for “the matter is already settled”.  The legal matter has already been settled by a competent Court and the issue will proceed no further.

10. Disclosure - the rule that the Crown prosecutor has to share whatever evidence and information he/she has on the case (e.g forensics reports, police notes, video recordings, etc) to the defence. 

11.  Precedence (aka stare decisis) - to “stand on a decision”; to base a trial on a previously decided upon case that acts as a reference.  

Reference: case ending should be similar to others before it 

• Equal treatment if the circumstances are similar 

Civil v. Criminal law

                                                    Criminal (Public)                                 Civil (Private) 

Legal brief e.g facts, ratio, dissent, issue, etc, legal citation

Criminal case : starts with R., as it is against the country 

A legal citation is the legal title for a case.  It presents pertinent information about it.

The following is a criminal legal citation:

R. v. Marshall (1985) 2 O.C.A 311

R = denotes the Crown, R stands for Regina or Rex. 

Marshall = the accused

1985 = the year of publication

2 = volume

0.C.A = Ontario Court of Appeal

311 = page number

The following is a civil legal citation:

Does not start with R, has 2 private parties. There are more civil cases than criminal cases. 

Murdock v. Richards et al. (1954) 1 D.L.R 766 (N.S.S.C)

Murdock = plaintiff The person suing/ accusing

Richards = defendant The accused

• Collectively, Murdock and Richards are referred to as the litigants.

Plaintiff and defendant are litigants.

Et al = and the others

1954 = the year of publication 

1 = volume

D.L.R = Dominion Law Reports

766 = page number

N.S.S.C = Nova Scotia Supreme Court

A situation can be trialled both in criminal and civil court; eg. a stabbing can count as assault (criminal) and battery (civil) or turn into murder/ wrongful death 

• The 2 trials can have 2 different outcomes

The case brief are the recording of trial proceedings and they begin with a legal citation:

Legal citation: R. v. Marshall (1985) 2 O.C.A 311

Facts: This information identifies the crime, the people involved, the circumstances and relevant facts of the case.

Issue(s): the state of mind, was there intent, did Marshall act in self defence?

Held: This is a one sentence statement of the outcome e.g was Marshall granted a new trial?  Was he convicted?

Ratio decidendi: Latin for “reasons for the decision”. The ratio always begins with: (Vadori J.) J = judge/justice.  

Vadori is the last name of the judge

The ratio allows for the majority judges to offer their reasons why they found the accused guilty/not guilty.

• The reason why

Dissent: The dissent will also always begin with: (Smith J.) The dissent allows for the minority judge(s) to air their opinion.  The dissent may or may not be present in a case brief. 

• Allows for minority opinion to be expressed that is contrary to the ratio

Murdock v. Richards

In loco parentis - in place of a parent

Civil case: defendant won’t go to jail, but court can make them do something, not do something, make amendments, or make payments

English Common law v. French Civil Code

Comparing English Common Law with the French Civil Code

Development of English Common law and the French Civil Code

Development of English Common Law KNOW DATES OF YEARS

The Norman invasion of 1066 led to the introduction of the feudal system in England.  William the Conqueror compiled the Domesday book that accounted for every parcel of land in England. The lands were then given over to his knights as a reward for their loyalty.

The knights were also given titles and were made Lords of these tracts of land.  These Lords pledged allegiance to the King and collected taxes from the people of different social classes with the serfs at the bottom.

Over time, the feudal system became unjust as depending on the Lord, the administration of justice was being meted out inconsistently.

In 1184, Henry II created traveling judges (aka assizes) that went about looking at how crime and punishment were being handled in the different counties.  These judges presided on trials and consulted with each other to create uniformity in the law. (rule of precedence developed from this practice)  The assizes later evolved to become the curia regis. (court of appeal)

The Kings of England also ruled by divine right (the idea that kings were blessed by god, and thus could only answer to him. basically gave them powers), or the notion that they were God’s chosen representative and hence above the law.  This would end in 1215 with the signing of Magna Carta. 

• Magna Carta: the first document to put into writing the principle that the king and his government was not above the law. It sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself. 

King John would now have to consult with parliament before he could pass any spending Bills (basically a receipt, becomes modern day law).  Over time, the law became “common” to all.

French Civil Code

Roman law was the forerunner of French Civil Code.  Roman law evolved to be complex and was passed on to the many foreign lands with each Roman conquest.

Roman law was based on the extensive codification of the law with the busy Roman citizens hiring experts on dealing with bureaucracy to act on their behalf.  These experts were to become the early lawyers.

Justinan’s Code - Roman law was then revived under the tutelage of Emperor Justinan.  Under him, Roman law was further codified but simplified.   

In the 19^th Century, Napoleon Bonaparte inherited and used the Roman system in the administration of his empire.  The Napoleonic Code was passed on to France and the many overseas French colonial empire.  In Quebec, aspects of the French Civil tradition (procedural law) is followed even though the province does adhere to the Criminal Code of Canada (substantive law)

Procedural law – deals with the process and the administration of the law e.g the trial process,  jury selection, being read your Miranda rights.

Substantive law – anything that is written down as part of the law e.g CCRF, the CCC, the Canadian Bill of Rights. 

Legalization means the practice is no longer illegal and, generally, that a legal framework has been created to regulate it. Decriminalization involves avoiding the application of certain criminal sanctions to a practice without making it legal.

• allowed if certain rules are followed, decriminalization doesn’t mean legalization 

Primary v. Secondary sources of law

Primary sources of law are law sources that have influenced human behavior over a long period of time.

1. Customs and conventions – Customs deal with practical solutions for daily living.  Conventions refer to situations that may not have been formalized but nevertheless impose an obligation on certain groups for example, a newly assigned ambassador from another country presents his/her credentials to the Governor General even though this act is not prescribed for in any formal piece of legislation. 

2. Religion – Religion plays a big part in Canadian law stemming from the Judeo-Christian tradition.  For example, the preamble of the Charter contains the following statement: “Whereas Canada was founded upon principles that recognize the Supremacy of God (Natural law) and the rule of law (Positive law)…

3. Social and political influences – Our laws continue to be influenced by the social, economic and political impulses of the day.  For example, changes in the law that recognize same sex marriage in the early 2000s.

Secondary sources of law pertain to the codified (written down) laws and rules made by the Courts which are oftentimes influenced by primary sources of law.  Secondary sources of law include:

1. Constitutions

This country’s Constitution is a living document because it has changed and continues to change with the addition of content.  Canada’s original Constitution was the BNA Act (1867) and over time, the Statute of Westminster (1931), the Bill of Rights (1960) and the Constitution Act (1982) was added.

2. Statutes

These are laws created by the provincial and federal governments.  Examples of statutes include the Education Act, the Criminal Code of Canada, the Highway Traffic Act of Ontario.

3. Judicial decisions

These are decisions made by the judges at the Provincial and Federal Court system.  Oftentimes, the rule with regards to judicial decisions is that they must be (i) impartial (ii) uniform.

Natural and positive law, Natural law philosophers, Positive law philosophers

Natural law philosophers 

Natural law is law that is based on the divine, nature and/or God.

1. Plato - In his Dialogues and The Republic, he explained justice through question and answer conversations with Socrates.  That each individual has to live according to his/her own abilities; society is inherently unequal and hence its members cannot be treated equally.

2. Aristotle – He was a student of Plato.  Aristotle asserts that justice can be discerned in how a society allocates wealth.  Again, a society cannot be truly egalitarian as some people are more deserving and should be given more.  Aristotle also believed that for the most part, citizens should be obedient to the state.

3. Cicero - He viewed that all laws should be judicious, fair and righteous.  He stated that “law…is a natural force…in the mind and reason of the intelligent man.”  Cicero believed that the state cannot legislate laws that are evil.  He supports civil disobedience in order to reform laws that fail to conform to the laws of nature.

4. Justinian - Roman emperor.  By natural law, all men are born free.  He also went about reforming unjust and antiquated Roman laws into the Justinian’s Code.

5. Saint Augustine - He believed in the city of God on earth.  This city was to be a utopian society on earth with the Church acting as a moral compass.   

Positive law philosophers

Positive law–law based on human reasoning (rationalism). It is a reaction against ecclesiastical (church/religious) power. 

1. Thomas Hobbes – He viewed life as nasty, brutish and short.  Hobbes saw Natural law as inadequate since it was up to individuals to define meaning.  Instead, he saw a need for a sovereign to define and create laws so that human desires are kept in check.  Hobbes believed that obedience to civil law was part of the law of nature.

2. John Austin – He believed in the greatest possible advancement of human happiness. Influenced by utilitarianism, the purpose of law was not to seek justice but rather to ensure social good and utility.  He advocated civil disobedience so long as it helped maintain social utility.

3. Jeremy Bentham - The founder of utilitarianism.  Bentham believed that laws should be judged on how it creates the greatest happiness for the greatest number of people.  He believed in a system of hierarchy as it maintains civil obedience and well as enforcement as it allows for legal sanctions (punishment).

4. Jean Jacques Rousseau - He wrote The Social Contract in which he believed that “man is born free; and everywhere he is in chains…”  He believed that society has succumbed to self interest rather than goodwill towards every human being.  The state should be governed based on the general will of the people.  The state can be removed if the people believed that it was no longer conforming to the general will.

The Need for Law

The law suits these 4 purposes, they are:

1. The law is an instrument of society – we entrust the laws with civic aims such as universal education, unemployment insurance.

2. The law is a mechanism for resolving disputes – when individuals and groups take the law into their own hands because they feel that the law is ineffectual or too cumbersome.  The law needs to demonstrate that it can be trusted to resolve disputes otherwise anarchy and other fringe groups can arise to take matters into their own hands.

3. The law exists to protect persons, property and rights – the law is entrusted with protecting the most vulnerable in society but increasingly it has been called upon to protect the property rights of individuals.

4. The law exists to provide for order in society – lastly, society cannot function if people are distrustful of the laws.  Society needs laws so as to fulfill the economic, social and political aspirations of its citizenry. 

       Law in response to societal change e.g The Onco Mouse, anti-terrorism laws,    the War Measures Act, Family law, Alberta famous five, etc (worksheet) 

Substantive law versus Procedural law

Justice occurs in the application of both substantive and procedural law.  For instance, anyone suspected of drinking and driving will be administered a breath test according to what was stipulated in the criminal code.  Anything that is written down in law can be termed substantive law.  Procedural law is the application of those laws.  Procedural law demands that the police officer administering the test will proceed in the same way no matter who the driver is.

The administration of justice, according to Aristotle, should be based on distributive justice – the idea that there should be a fair distribution of rewards based on a person’s record and conduct, to punish the bad and reward the good.

The legal pyramid, The early history of law 

1. The Code of Hammurabi (1700 BCE)

• The world’s earliest codified law code.  

• Enacted by the King of Babylon (modern day Iraq)

• Codification allows for the existing laws of the land to be written down for all

• Reflected laws that were still very much patriarchal e.g women and children were considered the property of men.

• Laws were also based on the idea of retribution and there was no distinction based on deliberate versus accidental acts e.g 1) if a doctor performs treatment on a patient and the patient dies, the doctor’s hands is to be cut off; 2) if a man strikes a woman and if she dies, the man’s daughter shall be put to death.

2. Mosaic Law (ten commandments) (1300 BCE)

• One of the greatest influence on Canada’s Judeo-Christian tradition

• Mosaic law are laws said to be given to Moses by God on Mount Sinai

• Under Mosaic law, it is forbidden to commit adultery, murder, theft and to worship other gods.

3. Greek Law c. (400 BCE) c = circa = in and around that time

• The development of early democracy took place in Athens, Greece where land-owners voted in men to represent them in the ecclesia (Greek parliament)

• Though a democracy, it was not full democracy as women and slaves did not have the franchise (the right to vote)

• Athens was also a representative democracy as people elected individuals to represent them in parliament

• The jury system developed with the fate of an individual decided by his peers.

4. Roman Law (450 BCE to 100 CE)

• The 12 tables were the codification of the earliest Roman law

• As the Roman empire expanded through much of Europe, it developed a complicated system of bureaucracy (office holders)

• Roman citizens had to hire “experts” to help them deal with this complicated system and the legal profession developed as a result

5. Justinian’s Code (527 CE)

• The clarification of Roman law was made by Emperor Justinian

• This Code served as the foundation for the modern concept of justice as creating a basis for civil law (laws governing private relationships)

6. Napoleonic Code (1789 CE)

• The Napoleonic Code, also known as the French Civil Code was spread throughout most of Europe.

• The Napoleonic Code was influenced by elements of Roman law, Greek law and the Justinian’s Code.

Legal concepts – democracy, equality, justice, morality, etc

DEMOCRACY

Limitations with democracy - 

Is a country democratic simply in having its citizens vote for representatives who will make the laws on their behalf?  These representatives can turn repressive once elected in power

What happens if the elected representative does not vote in support of something that you hold dear?  What happens to the “losers”?

The true measure of a democracy is how it treats its minorities.  

Nazi Germany wasn’t democratic despite people “freely” voting in Hitler.  

Neither is the United States in her treatment of Muslims and in history, African Americans.  This is because people usually associate human rights and justice with the democratic system.

SOVEREIGNTY 

Sovereignty is a fairly recent concept.  The treaty of Westphalia (1648) ended the wars of religion and demanded that states respect each other’s boundaries.  Of course, this principle was challenged when the world stood by while Germany killed millions of its own citizens.

The United Nations was created after WW2 to limit the sovereignty of rogue member states.  Nation states committing war crimes and genocide can be subject to intervention by other members of the UN.

Internal sovereignty – this deals with who controls power within a country e..g Canada currently has a Liberal government headed by Justin Trudeau.

External sovereignty – the recognition of a country by another country in the community of nations. E.g Australia, Nigeria and Malaysia are countries but Transistria, Palestine, Quebec and Taiwan are not countries.

JURISDICTION

In a general sense, refers to the parameters in which power or authority may be exercised.  Eg. The BNA sets out the scope of power and responsibility between each level of government.  Jurisdiction also sets out limitations.  For instance, a school board has the power to make decisions for all schools within its jurisdiction but not outside of it.

Intra vires – inside or within the authority of the government

Ultra vires – outside the authority jurisdiction of the government

EQUALITY AND EQUITY

Equality means treating everyone in the same manner.  Equity means treating everyone with fairness.  To illustrate, there is equality in hiring everyone to the police force over 5”8.  However, equity would mean to hire people that are from certain groups who could be shorter e.g women.  

Equality and equity are not the same.  Equity serves to address a situation that takes into account other factors for that condition.

MORALITY

Morality refers to what might render an action wrong or right.  Morals are oftentimes based on personal, religious, cultural or societal beliefs.  In Canada, the laws are more based on the values of the community (public morality)  rather than what may seem wrong or right according to an individual or to a group (private morality)  This is known as the community standards test.  Therefore, in rendering a decision, a judge cannot apply what he or she feels but rather confide in the tolerance and attitudes of that community e.g gay pride parades, porn, nude beaches.

JUSTICE 

Justice occurs in the application of both substantive and procedural law.  For instance, anyone suspected of drinking and driving will be administered a breath test according to what was stipulated in the criminal code.  Anything that is written down in law can be termed substantive law.  Procedural law is the application of those laws.  Procedural law demands that the police officer administering the test will proceed in the same way no matter who the driver is.

The administration of justice according to Aristotle, should be based on distributive justice – the idea that there should be a fair distribution of rewards based on a person’s record and conduct, to punish the bad and reward the good.

The Wolfenden Report

The Wolfenden Report was published in Britain in 1957 over the conviction of well known men charged with homosexual offences.

The committee that put out the Wolfenden Report was asked to consider whether or not the state has any business in regulating private affairs.

Disregarding the conventions of the day, the committee recommended that homosexual behaviour between consenting adults done in private should no longer be considered criminal.

We have 2 reactions to the Report:

1.  The conservative view - Lord Devlin disagreed with the recommendations of the Report.  He argued that community and morality are inextricably intertwined.  For instance, there are laws prohibiting euthanasia despite it being a “private matter”.  He argued that the state must consider moral issues in law making.

2. The liberal view - In response to Lord Devlin, H.L.A Hart countered that it is in fact difficult to legislate morality.  Positive law philosophers like Hart argue that the purpose of criminal law is to prevent harm done to others (this is known as the public harm doctrine).  What he/she does to himself/herself is irrelevant.  For instance, the law does not punish anyone who decides to gamble away his/her money.  Furthermore, you are criminalizing people who otherwise might not be criminal.

Nevertheless, the recommendations of the Wolfenden Report were adopted into law.  Homosexuality was decriminalized.  The Report highlights the tension between public and private morality.