exam Flashcards
What is Statute law, where do you find it an give and example?
Passed by legislative (federal) (legislative is acts or regulations)
Found in the criminal code (and a example)
- found in criminal code, etc…
Extraffic laws
What is Case law, where do you find it and give an example?
- How law changes by case, courts can adjust the law (since 1981)
- Found on CANLI
- based on the concept of precedent
- Ex. R v Morgentaler
- from judicial interpretations
what is Common Law, where do you find it and give an example
- Unwritten law
- Found on CANLI
- Ex. Contempt of court
- Ex. Police can search someone they arrested
Explain stare decisis and how each applies to judicial interpretations
Once the case is decided it is decided
Explain precedent and how each applies to judicial interpretations
Persuasive or binding depending on the level of court (question of was the ruling important)
What is the Standard of Proof in criminal trials
beyond a reasonable doubt
What is the Standard of Proof in civil trials
on a balance of probabilities
Describe a criminal trial jury and how it functions
12 juries
Unanimous vote
Decide question of fact
How would you address Superior Court Judge:
“your honour”
How would you address Provincial Court Judge: “
“your honour”
How would you address the Justice of the Peace:
“your worship”
Describe and Explain Substantive Law
**Creates offences **
law creates offenses and is never retroactive. The law in place at the time of the offense is what matters
Describe and explain Procedural Law
**How you process things **
law sets out powers, authorities and processes. The law in place at the time of the proceedings is what matters
Charter Section 1 (explain Limitation Clause)
**Exceptions **
no right is absolute
Charter Section 2: Describe Fundamental Freedoms
- Freedom of conscience and religion
- Freedom of thought, belief, opinion, and expression
- Freedom of peaceful assembly
- Freedom of association
A lot of cases come out of section 2
Charter Section 7: Summarize Legal Rights
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Charter Section 8, 9 and 10: Summarize Legal Rights
→ 8. Everyone has the right to be secure against unreasonable search or seizure.
→ 9. Everyone has the right not to be arbitrarily detained or imprisoned.
→ 10. Ensures that people have a chance to challenge the lawfulness of an arrest or detention”,
Charter Section 11: Explain Rights of accused
An accused person is entitled to reasonable bail (section 11 e) and, for very serious charges, has the right to trial by jury (section 11 f).
What is the purpose and effect of Charter Section 24
Section 24 of the Canadian Charter of Rights and Freedoms provides a remedy for people whose Charter rights have been violated
**If you feel as though your rights have been violated/infringed upon you can appeal and get a case thrown out **
→ 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Approaches to Law
Positive
Parliamentary supremacy
Natural law
Is that just and fair (depends on who the person is)
Civil Law is all____ ___
common law
What is a Tort?:
A private wrong. Can only be pursued as a private matter by or against another individual, corporation, or arm of government.
How does a tort differ from a crime?
a Crime* A public wrong. An offence against the public interest.
* Theft
* Attempted Murder
* Fraud
* Threat
* Mischief
Tort: A private wrong
* Tort
* Conversion
* Battery
* Breach of Contract
* Assault
* Damage to Property
*
Can something be a tort and a crime?
YES
Intentional tort
occurs as a result of a wrongdoer intentionally (or apparently intentionally) harming another either physically or mentally
Negligence torts:
doing something that a reasonable person would avoid doing, or failing to do something that a reasonable person would do
Civil Court Standard of Proof:
the party bringing the action must prove their case on a balance of probabilities
Tort civil actions are about recovering?
YES
Intentional Torts, Explain each: (3)
Assault: When someone intentionally causes another person to fear for their safety.
Trespass: When someone enters another person’s property without permission or causes an object to enter it.
Defamation: When someone intentionally makes a false statement about another person that causes harm to their reputation. Written defamation is called libel, and spoken defamation is called slander.
5 Defences for Trespass
CLSND
- Consent
- Self-defence
- Defence of property
- Necessity
- Legal authority
Negligence and the reasonable person test.
→ Negligence:
doing something that
a reasonable person would avoid doing, or failing to do something that a reasonable person would do
It can be used to determine negligence in both criminal law, tort law, and contract law to determine contractual intent, or if there has been a breach of the standard of care
4 Defences for Negligence
CAVN
- Contributory negligence
- Accident
- Voluntary participation
- necessity
Types of Damages
- Compensatory
- Punitive
- general
Vicarious Liability:
when a person or entity is held responsible for the actions of another party due to their relationship with that party.
Social Host Liability:
an Ontario law that holds someone responsible as a social host of any party on their property
Contract - Define:
an agreement (or alleged agreement) between two or more parties
contracts may be in writing or verbal
Formation of Contract, Explain each:
Offer: the proposal of a contract or a set of contract terms; an offer is NOT a contract until it is accepted
Acceptance: the contract is completed at the time the offeror hears or knows of the offeree’s acceptance
When an offer ends (4) RCLR
**1. Revocation: **as long as the offer hasn’t been accepted, the offeror may revoke (withdraw) or change the offer at any time. Revocation is effective only where it has been communicated to the offeree in some way (directly or indirectly).
**2. Rejection: **once an offer is rejected, it is no longer valid.
3. Counteroffer: a new or revised offer is substituted for the original offer.
**4. Lapse: **the offer expires after a certain time or event
Consideration:
refers to the benefit flowing to each party under a contract
Remedies (4) contract law
RRES
- Restitution
- Reliance
- Expectation
- Specific performance
Trends in Tort Law CIE
New torts or new applications of older tort concepts being tested in courts across the country
- Invasion of privacy (e.g., Jones v Tsige)
- Cyber-facilitated harassment or defamation (e.g., Caplan v Atas)
- Environmental impacts on land (Huanng v Fraser Hillary’s Limited)
Describe the shared jurisdiction of family law in Canada
Federal (Essential Validity)- power to legislate marriage and divorce
Provincial (Formal Validity) - power to solemnize marriage and to legislate in relation to:
Matrimonial property, support of spouses and children, and custody
Related matters of succession, adoption, and guardianship
Are Same-sex marriages legal?:
in 2005, same-sex marriages were recognized as being valid
Is polygamy legal?:
no
What is the legal age for marriage?
16 with consent
List the requirements for Essential Validity
2ABCCFM
- “Two persons”
- “Ability to consummate”
- Consanguinity and affinity”
- Bigamy (marrying someone while you are already married
- “mental competence”
- “Consent”
- Fraud or mistake as to the nature of the ceremony (“I thought it was just a party!”)
List four possible causes for increased divorces
- Sexual liberation and feminist movements
- Introduction of birth control pill
- Greater reproductive freedom
- Influx of women into workforce
Grounds for Divorce Under the Divorce Act of 1968 were based on fault: List 7 of the Sec. 3 grounds:
Adultery, Conviction of a sexual offence, Bigamy, Mental or physical cruelty, and Desertion.
List and explain: The Divorce Act of 1985 permitted divorce based on divorce “breakdown of marriage” established by proving 1 of 3 issues
- Spouses have lived separate and apart for at least one year, or
- a) committed adultery, or
- b) treated their spouse with physical or mental cruelty of such a kind as to render continued cohabitation “intolerable”
The Divorce Act Amendments of 2021 Replaced:
“Custody” with “parenting order” or a “contact order” “access” with “best interests of the child”?
What is Administrative Law?:
A form of public law that obligates the state to act fairly in the practice of government
Public or private? public
What does it obligate the state to do? act fairly in the practice of government
Is there one statute describing it?NO
Describe the role of administrative agencies, tribunals, and other boards
Agency: What is the standard of review
Tribunal: how they are held accountable
Explain and give example of:
Administrative Agency
Administrative Tribunal
****Administrative Agency **
A body created by a statute to administer that statute. derive their authority from the federal or provincial
government through a delegation of power
- Example: Canada Revenue Agency (CRA) – Administers tax laws, collects taxes, and ensures compliance with tax regulations.
**Administrative Tribunal **
Special board composed of quasi-judicial decision-makers responsible for resolving disputes between an administrative agency and the individual affected by a decision of the agency
- Example: Immigration and Refugee Board of Canada (IRB) – Decides on immigration and refugee claims, appeals, and detention reviews.
Judicial review of administrative decisions occurs for a limited number of reasons, including: AAVV
Judicial review of administrative decisions occurs for a limited number of reasons, including:
- Administrative actions exceeding jurisdiction (e.g., Saumur v City of Quebec)
- Abuse of discretion (e.g., Re Sheehan and Criminal InjuriesCompensation Board)
- Violation of rules of procedural fairness (e.g.,Baker v Canada (Minister of Citizenship and Immigration)
- Violation of principles of natural justice
Explain:
→ Saumur v City of Quebec
Jehovah’s Witness member distributing leaflets in contravention of a city bylaw that prohibited the distribution of literature in the street without the proper authorization of the city’s Chief of Police
SCC held that the subject matter of the law was in relation to “speech” or “religion” which were both in the exclusive legislative jurisdiction of the federal government.
Tribunal must be operating with legal authority
explain
→ Re Sheehan & Criminal Injuries Compensation Board
Ontario Criminal Injuries Compensation Board could award money where people killed or injured due to a crime.
Sheehan was beaten severely during a riot. He was an inmate of Kingston Penitentiary
Board rejected his claim.
Ontario Court of Appeal allowed it
Ontario Court of Appeal re-instated the Board’s ruling - expressing strong deference to the Board’s discretion to consider all factors it felt to be relevant:
“Apart from the obligation not to act arbitrarily or capriciously and to observe the principles of natural justice, the jurisdiction of the Board to determine in each case what were the relevant circumstances and to decide having regard to these circumstances is untrammelled.”
→ Baker v Canada (Minister of Citizenship and Immigration)
Discussed in group case study
Decision to deport a woman to Jamaica
Investigators notes were disclosed
“Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.”
Differences between courts and tribunals
Courts
* judges are legally trained and are not supposed to apply personal expertise or opinions in their decisions. They must follow precedent
- courts are expected to exercise “curial deference” (the paying of respect on the basis of another’s competence.) to Tribunals EXCEPT!!
reasonableness and correctness
**Tribunals **
* members may or may not be legally trained
* often have specific expertise and not bound by precedent
What are the Chief rules of natural justice?
- to act in good faith
- to act impartially or without bias
What are the key priniciples of natural justice
- Audi alteram partem (“hear the other side”)
- Nemo sibi esse judex vel suis jus dicere debet (“no person should act as judge on his own behalf or speak the law fpr his own (ends)”)
Doctrine of fairness:
An extension of the principle of natural justice, which requires administrative tribunals to act with both substantive and procedural fairness to all parties
Correctness standard:
Court decides whether it agrees or disagrees with a decision
Reasonableness standard:
Court intervences only if a decision is unreasonable - that is, it has no reasonable bias in the law or facts
When can courts use a different standard of review? (correctness and reasonableness)
→ standard review of reasonableness: more deference given to administrative decision
→ standard review of correctness: less defences given to administrative decision
What are commissions of inquiry and an example
Each province and the federal government has the power to enact commissions of inquiry
Generally led by relevant experts or judges
Investigate issues of significant public interest
Offer non-binding recommendations
Can be investigative or policy-oriented in nature
Some examples: National Inquiry into Missing and Murdered Indigenous Women(federal) and Walkerton Inquiry (provincial)
Categories of Crime
→ Give examples of: pps
- Offences against persons: assault, murder, violence, kidnapping
- Offences against property: theft, burglary, robbery, forgery
- Offences against social norms (crimes considered to be deviant in themselves): white-collar crime, drug abuse, bullying
What is the standard of proof in criminal trials?
higher than in civil trials because criminal law allows for greatest deprivation of liberty for those convicted
** “beyond a reasonable doubt”**
Civil balance of probablitites
What are the 3 classifications of criminal offences?
1. indictable offences - most serious, sentences vary: 2,5,10,14 or maximun with no chance of prarole for 25 years
** 2. Summary conviction offences** - least serious, max sentance is a fine of 5k or prison for no more than 2 years less than a day or both
3. Hybrid or dual Procedure offences - croen attorney has the choice of indictment or summary conviction
What does “parties to offences” mean?
who can be held liable for a crime
Who are parties to offences?
The person who commits the crime
Anyone who aids (assists) them
Anyone who abets (encourages) them
Anyone who works together with them to commit the crime
If a person is present during a crime, does that make them a party?
Yes
Mens Rea
Evil mind; intent to commit the act guilty mind
Guilty mind (intention, knowledge or recklessness of the accused). A person must “mean to cause” a wrongful consequence.
Objective mens rea: “reasonable person” test
Subjective mens rea: used for more serious crimes instead of comparing accused’s behaviour to that of a “reasonable person,” determine what was happening in the accused’s mind at time of incident
Actus reus
Evil act ; has three components
1. conduct
2. circumstances
3. consequences
Where would you find the
actus reus for an offence?
The actus reus for each offence are found in the definition of the offence in the statute.
what are the three types of mens rea
- general intent
* hockey player strikes opponet in frustration and he dies (manslaugter) - specific intent
* has it in the mind to kill or steal etc - recklessness
* “a state of mind that pays no regard to the probable or possible injurious consequences of an act.”
Strict and absolute liability offences:
breach of regulatory or public welfare statutes
Do not typically lead to incarceration
Intent is not a necessary
If action occurred, offence was committed
Onus on defendant to prove they were not the cause of the offence
What are the Facts in issue?
Once all “Facts in Issue” are proven
The case becomes “prima facie”
(Which means literally on “first sight” or “viewing” the offence and guilt of Accused have been established!)
Unless the there is a charter argument or other technicality then the Accused would have to mount a successful defence to avoid conviction
3 defences to mens rea
Drunkenness (intoxication)
Some courts have allowed this in a few cases of extreme intoxication.
Involuntary Behaviour (automatism/seizure etc)
There would have to be substantial and compelling evidence to prove involuntary behaviour.
R. vs Kenneth Parks (Toronto murder)
Not Criminally Responsible (formerly “Insanity”)
There would have to be substantial evidence to prove that the Accused was not criminally liable.
R. vs Vince Li 09 (Portage La Prairie – bus murder)
The Crown Charge Approval Tests
- Charge approval: After initial assessment of evidence, Crown Counsel decides whether to approve, amend, or drop charges
- Depending on jurisdiction, Crown needs to feel confident that there is either a reasonable or substantial prospect of conviction, and that it is in the public’s interest to proceed
List types of defences for criminal
Self-defence (e.g., R v Lavallee)
Duress and necessity (e.g., Morgentaler v R)
**Extreme intoxication **(e.g., Daviault v R)
Mistake of fact (e.g., R v Ewanchuk)
List types of sentences
- Absolute discharge
- Conditional discharge
- Suspended sentence
- Probation
- Fine
- Imprisonment (jail)
- Intermittent sentence (“weekends”)
- Conditional sentence (”house arrest”)
Explain Purposes of sentencing
- General deterrence
- Specific deterrence
- Community denunciation
- Rehabilitation
Sentencing judges must take into account the unique circumstances of Indigenous peoples in sentencing (R v Gladue)
