Chapter 3/4 Flashcards
Know some regulations of provincial regulations (what needs to be present E.g motorcycle helmet)
For a regulation to lawfully exist, the statute must include a provision that designates regulation-making authority. If no such provision exists, no regulations can be drafted. Regulations are available online on government websites. For example, in Ontario, statutes and regulations are available on e-Laws. While convictions under these regulatory laws may result in steep fines or even incarceration in severe cases, they cannot result in a criminal record for the offender and so are quasi-criminal in nature.
Can the criminal code we use be used in court?
No
Common Law
They don’t really add anything new to the state of the law.
They serve only to apply existing law to a novel set of facts without changing the existing law.
In retrospect, the decision that was reached is considered by future decision-makers to be wrong and is explicitly overruled—that is, rejected or contradicted in a decision of a court of higher jurisdiction.
The decision is for some reason unpopular, and while not actually overruled, it is ignored by future decision-makers.
The decision is superseded by a decision of a higher court within the system of precedent.
New court judgments act as potential links in the
common law chain
* Ratio decidendi are the few words or phrases
that form the most essential part of a legal
decision for the purposes of precedent
* For a link to be binding:
* It must be from the same territorial jurisdiction
* It must not be from an inferior (lower) court
Substantive Law
Substantive law describes the type of conduct that is acceptable and unacceptable.For example, colleges have codes of student conduct that cover cheating. Cheating, as described in its various forms in a college’s code of conduct, is the substantive law. in civil law, there are statutes and cases that describe the substantive aspects of civil claims, such as liability for injuries suffered in a motor vehicle accident or in a slip-and-fall accident on an icy sidewalk.
Where in the statute do you find its objective
Preamble An introduction, made up of one or more provisions, the preamble sets out the objectives and guiding philosophy of the statute. The preamble can often provide some interesting insights into the socio-political context of the statute. It is also an official component of the statute for interpreting and enforcing the statute.
Know that consequences can arise from a law even though it is not explicitly communicated
Yes, consequences can arise from a law even if they are not explicitly communicated or anticipated. This can happen in a few ways:
- Implied Provisions: Some laws have implied consequences, meaning that while the statute doesn’t directly state a particular outcome, the interpretation of the law by courts or enforcement agencies may lead to certain consequences.
- Judicial Interpretation: Courts play a significant role in interpreting the law. When cases are brought before them, they often have to decide how broadly or narrowly a statute applies, which can create legal consequences that were not explicitly mentioned in the law itself. For example, the application of a vague or general law can lead to unexpected interpretations.
- Unintended Consequences: When laws are enacted, legislators cannot always foresee all possible outcomes. Laws may have unintended consequences, affecting individuals or entities in ways not explicitly stated in the law. For example, a regulation intended to protect public health might inadvertently harm small businesses due to increased compliance costs.
- Regulatory or Administrative Interpretation: Regulations or guidelines issued by administrative bodies to enforce laws can also create consequences that go beyond the original text of the statute.
- Common Law Principles: In some jurisdictions, common law principles (case law developed by courts over time) can fill gaps in legislation, leading to consequences that are not directly stated in the statute itself but are inferred from legal precedents.
In any case, legal outcomes are not always fully predictable just from the text of the law. Interpretation, enforcement practices, and judicial rulings play significant roles in determining the actual consequences.
The effect of religious laws in other countries
Cultural Influence: Canada is home to a diverse population that includes many religious communities. The practices and values of these communities can influence Canadian society and, indirectly, its laws. For example, discussions around marriage, family law, and dietary regulations can be affected by the beliefs of different religious groups.
Legal Pluralism: While Canadian law is based on secular principles, certain provinces (like Quebec) have recognized some aspects of religious law in specific contexts, such as family law and personal status matters. This can create a framework where religious practices coexist with Canadian legal norms.
International Human Rights: Canada is a signatory to various international human rights treaties that emphasize the importance of religious freedom. This means that while Canadian law operates independently, it is also influenced by international standards regarding the treatment of religious minorities.
Judicial Decisions: Canadian courts occasionally consider religious laws or customs when making rulings, especially in cases involving Indigenous rights or community practices. For example, courts may look at traditional practices in determining matters related to family law or land use.
Public Policy and Debate: The presence of diverse religious groups can shape public policy debates on issues like education, health care, and immigration. For instance, discussions on religious accommodations in public institutions often arise, reflecting the influence of religious beliefs on societal norms.
Secularism vs. Religious Freedom: The tension between maintaining a secular state and respecting religious freedoms can lead to legal challenges and discussions about the extent to which religious laws from other countries should impact Canadian law.
The flexibility of a law once its been codified
When a law stops meeting the needs of the society or stops taking into account the circumstances of the society, it must evolve or be amended.
This need to respond to change and to be flexible is the reason that all of our laws cannot simply be written down in one comprehensive (and lengthy!) final code for everyone’s reference.
The aspects of the Quebec civil code
Codification of Law: The Civil Code is a comprehensive codification of private law, consolidating various laws into a single framework. It was first enacted in 1866 and has undergone several revisions, with the most significant update occurring in 1994.
Structure: The Code is organized into several books, each addressing different areas of law, including:
Persons: Covers legal status, capacity, and family law.
Property: Deals with ownership, possession, and property rights.
Obligations: Addresses contracts, torts, and liability.
Successions: Governs inheritance and wills.
Family: Includes marriage, divorce, and child custody.
Mixed Legal System: Quebec operates under a civil law system, which is different from the common law systems in other Canadian provinces. This influences how laws are interpreted and applied, with a focus on written statutes rather than judicial precedents.
Contract Law: The Code places significant emphasis on the principles of freedom of contract while also imposing certain mandatory rules to protect weaker parties, such as consumers.
Family Law: The Civil Code has specific provisions regarding marriage, separation, and child custody, aiming to balance the rights and responsibilities of family members.
Rights and Duties: It outlines the rights and duties of individuals, including the protection of personal rights and privacy, and includes provisions for the protection of minors and vulnerable persons.
Legal Capacity: The Code addresses legal capacity, detailing who can enter into contracts, sue, or be sued, and it provides for the protection of individuals who may lack capacity due to age or mental state.
Interpretation and Application: The Civil Code emphasizes the importance of interpreting laws in a manner that respects individual rights and promotes justice, with courts often relying on the principles laid out in the Code when making decisions.
Accessibility and Modernization: Recent reforms have aimed to make the Civil Code more accessible and relevant to contemporary society, addressing issues such as digital contracts and consumer protection.
The rules of contract law
elements are offer, consideration, acceptance, and mutuality.
Offer
The offer, explains the educational center, involves one party promising to do something, or conversely, promising to refrain from doing a particular action.
Consideration
Consideration, it adds, is when something of value is offered in exchange for the above-stated action or inaction.
Acceptance
Acceptance, with respect to a contract deals, with the unambiguous nature by which an agreement is solidified. This may be done verbally, or through performance or deed, notes the university.
Mutuality
The fourth element of a valid contract is mutuality. Simply stated, this element requires both parties to understand the terms and substance of an agreement.
What does procedural law govern
Procedural law describes the process to be followed when there is a violation of substantive law.
For example, colleges have codes of student conduct that cover cheating. Cheating, as described in its various forms in a college’s code of conduct, is the substantive law. If a student violates the prohibition against cheating, there is also a prescribed process whereby members of faculty and/or administration conduct an investigation and render a decision, in which a penalty may be assessed. This process is the procedural law and includes such matters as what forms are used, what the student is expected to do, and whether the student can appeal.
The procedures that govern requirements, such as the documents to be served and filed and the time limits that must be met, are contained in a separate instrument; the Ontario version is called the Rules of Civil Procedure.20
Procedure for changing the the charter
Specifically, section 38(1) describes the general amending formula which is more commonly described as the “7/50 formula.” According to this formula, at least two-thirds of the provincial legislatures in at least seven of the provinces, representing at least 50 percent of the population of Canada is required to approve any change to the Constitution. This is a high threshold to meet and so has the effect of maintaining the Charter’s stability and the values it protects over time and through changes in government and popular opinion.
Who has jurisdiction over cell phone technology
in R v Ambrose,3 the Ontario Court of Justice determined an Apple WatchTM was “no less a source of distraction than a cell phone taped to someone’s wrist” (at 10) and so met the definition of a hand-held communication device, the operation of which while driving is prohibited by section 78.1(1) of the Highway Traffic Act.4 Even though the decision in Ambrose was reached at the province’s inferior trial court, it had wide-ranging impacts because it settled how the Ontario courts would apply existing driving laws to a new technology. As a result, the decision was reported in several case reporters.
Do commercially produced have official status
Current, commercially published editions of the Criminal Code will serve most research needs, but because such editions are usually published once a year, new provisions or amendments may not be included. To be absolutely sure that the information is up to date (for example, to prepare for a court appearance), one needs to update, or note up, research results by consulting an official source—that is, a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency—for the legislation
official source
a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency
What is meant by jurisdiction
jurisdiction
authority to make law, either by governments or by courts
assigning jurisdiction is important because it prevents legislative overlap while ensuring that all of the issues that need to be addressed are covered.
