Chapter 1 book/powerpoint Flashcards
Positive Law
All Laws duly enacted by a body having the authority to enact and enforce them
Natural Law
Laws that are JUSTIFIABLE on moral, religious or philosophical grounds. Regardless of whether or not the state has enacted/failed to enact them
Legal Realism
Whatever a judge says it is
Divisions of Law
Public and Private
Public Law
Government & Public Interest constitutional law criminal law administrative law taxation
Private LAw
interpersonal matters contract law family matters property law employment law tort law
Criminal Law
Enacted to protect the political security if the state and personal security of its citizens
Civil Laws
All other laws (damages, orders and injunctions)
Substantive Law
rights & remedies
Procedural Law
technical and procedures by which substantive law rights are protected and enforced
Federal Law
must be passed by both the house of commons and the senate and then proclaimed into force by the governor general
Players
legislators judges jurors lawyers clients police
Notary
certifies but does not draft documents in BC
Royal Prerogatives
Exercised through the governor general and the lieutenant governor
British North American Act (BNA Act)
A statute enacted by the British paliament in 1867. Imported in Canada certain British constitutional principles such as those expressed in the Magna Carta
Section 91 of the BNA Act
Sets forth the powers of the federal government.
trade, commerce, tax, national defence, banking, patents, marriage, criminal law
Section 92 of the BNA Act
Sets forth the power of the Provincial government
Beyond the Power
Ultra Vires.
When the government passes laws that are constitutionally within the purview of another level of government.
Paramountcy
Parliament reigns supreme
Common Law
accumulated body of decisions made under king henry II
Equity Law
Court of Chancery dealt w/ cases when people felt that common law would treat them unfairly. Equity>Common law
It Stands Decided
Stare Decisis
Makes laws predictable b/c judges follow precedents. Constant as to avoid unnecessary appeals from lower courts
Supreme Court of Canada (SCC)
9 federally appointed judges
Hears 4 Types of Cases:
Criminal Appeals
Civil Appeals
Federal Appeals
when there is sufficient public or legal importance
references on constitutional matters at the request of the government
Federal Court of Canada
Hears: federal-provincial interprovincial maratime law trademarks copyrights and patents has residual jurisdiction when other no other court has jurisdiction
Superior Provincial Courts
Handles:
Serious Criminal Code offenses ( treason, murder, conspiracy)
Serious Criminal Code offenses that proceed by election
Civil cases over a set amount of money
Family Law matters (divorce, custody, guardianship)
Administrative law
Appeals of summary convictions
Appeals of small claims courts
Lower Provincial Courts (4)
Certain indictable Criminal Code offenses (summary conviction and offenses under provincial statutes)
family division
youth division
small claims court
5 Stages of Civil Action
PLeadings Examination of Discoveries Pretrial/mediation Trial Appeal
3 Types of Criminal Offenses
Summary Conviction (minor)
Indictable (serious)
Hybrid (the Crown chooses to proceed by summary or indictable)
PRESUMED INNOCENT UNTIL PROVEN GUILTY
Actus Reas
Guilty Act
Mens Rea
Guilty Mind
Criminal Court Procedure
Arraignment
Trial
Sentencing
Appeal
4 Purposes of Sentencing
Specific Deterrence
General Deterrence
Rehabilitation
Protection of the Public
Divisions of Law 6
Public ( associated w govn’t and public interest)
private ( ass’t with intrapersonal matters)
criminal ( protection of the the security of the state and its citizens)
Civil Law (non-criminal resolution of disputes)
Substantive ( rights and remedies)
Procedural ( procedures through which substantive rights are protected)
Sources of Canadian Law
Royal Prerogatives (governor general & lieutenant governors)
legislative enactments
delegated law making
judge made
