1-7 weeks Flashcards
Rule of law
Canada’s founding principles
and means that law applies equally to everyone, we must respect the law even if u dont agree
HISTORY of Canadian law
based on British Government
has 3 functions
Executive
- administer the law
- Public servants including law enforcement who administer the law
Judicial
- System of Courts and Judges
- interpret and enforce the law
Legislative
- create laws and procedures
- Parliament or Provincial Assembly
Sources of law in Canada
statute law, Common law, Case law `
Statute law
- written laws passed by government F or P by Parliamentary and legislative process
- Statutes, Regulations (orders in Council) by Parliament or Provincial assembly
- Examples of statue: Highway traffic Act R.R.O 1990 Reg 610: Safety Helmets
What are changes to Statute law called (2 things)
Amendment or repeal
Types of Law
Substantive, Procedural
Substantive law
creates offences and is never retroactive. The law in place at the times of the offence is what matters
the WHAT
Procedural Law
Law sets out powers, authorities and processes. the law in place at the time of the proceedings is what matters
the HOW
Common law
Legal custom
based of precedent
Are common law legal customs generally procedural or substantive?
procedural law
Where was common law system of law developed?
Feudal England
Rule of Precedent
Also known as the Doctrine of Stare decisis
which is latin for “to stand by decisions”
Furthermore it requires judges to follow legal principles established in other cases from a higher court in the same jurisdiction
The previous decisions are called precedents
What are the benefits of Precedents
Uniformity (same cases treated the same = fairness)
Predictability
Impartially (judge cannot be bias)
Whats the difference between binding and persuasive
decision from higher courts are binding and same level courts are persavsive
Example of a persuasive court
A decision from the Ontario Court of Appeal is persuasive to the Manitoba Court of Appeal
Example of a binding decision
A decision from the Ontario Court of Appeal (Ont. C.A.) is binding on the Ontario Superior Courts of Justice and the Ontario Provincial Courts
From what court do all the other courts have to follow
Supreme court of Canada
what are areas of Law
CCA
Criminal: (Regina (Rex) vs Accused, Fines Orders, Imprisonment (Public law)
Civil: A vs B penalties, remedies, orders, (private law)
Administrative: - regulations which licence, permit or prohibit activities interpreted and enforced by tribunal (decision making body not a court) penalties, remedies, orders, regulations) HOW TO GUIDE
What defines our relationship as citizens of the state
Perceptions of justice and injustice
What does law reflect and influences?
Movement of political actors and changing social mores
Strict separation of law and morality
Positivism
Law has its roots in judeo-Christian conceptions of social life: lex injusta non est lex (an unjust law is no law at all)
Natural law and the natural law response
Laws develop from social, political, and economic bases as well as doctrine
Legal realism
Difficult to define a single Marxist response
- still has relevance for social issues rooted in unequal distribution of wealth
Marxist theory of law and the Marxist response
Looks to the pirposes, values, and assumptions of the legal system, challenging their contemporary relevance, rationales and validity
Critical legal perspective
Both language and logic of law reinforce male values and perpetuate male power structures
Feminist theories of law
- _________endorse a communitarian ethic
- _________ by contrast, celebrate the rights of the individual over the rights of the community
Anarchist and libertarian perspectives
Indigenous Perspective on Law
- they recognize
…….. Tradition, original owners of a land, their culture and values, their forms of governance
their is diversity among indigenous systems of law
emphasis on diminishing inequalities
What is Feudalism
granted nobility and land in exchange for military service of serfs or vassals
British nobles demanded, and got, concessions from the king in the form of agreement or charter
Magna Carta 1215
- Dutch and Spanish left the area
- British won a major war defending the French but concessions had to be made to indigenous and french inhabitants
- indigenous rights
- english laws and courts
- elected to govern
- Roman catholics allowed to participate
- french civil and french language
Royal Proclamation of 1763 and the Quebec Act
- The four original provinces were ontario, quebec, Nova Scotia and new brunswick, which were given parliamentary representation according to Section 37 of the British North America Act, 1867
- Need to for a protective union but also balance:
- french vs english
- Catholic vs Protestant
- Central vs local interests
- Industry vs Agriculture
- Massive infrastructure
- Projects vs domestic issues
Confederation 1867
- repatriate the British North America (BNA) Act
- Add a charter of Rights and Freedoms
- Changes the way in which conflict and compromise intertwine and evolve
Individuals
Social Groups
Courts
Become more involved, and the process is more disruptive, less predictive, less proactive discussion, more reactive response
Constitution Act of 1982
Judgements, judicial decisions or precedent
Subsequent courts turn to ______ when making judgments about similar issues
Case Law
Problems with case law
- in trying to situate a current case in the framework of a previous decision, intention of the legislators may be lost
- Occasional need to reverse earlier judgments recasts court as quasi legislative power
Treaties
Important in defining rights and obligations of settler governments in relation to indigenous peoples
historic treaties are problematic because of exploitative practices of settler governments
Modern-day treaties prompted by Supreme Court decision in Calder v Attorney- General of British Columbia
As source of law, derives practices and patterns of behaviour through which society has come to order itself
Custom
Indigenous example of Custom
Gitxsan govern themselves through ayook
innu govern dispute resolution through conflict avoidance
Books
