Exam Flashcards
natural law
divine in origin, entitling it to supremacy.
ideal, unchanging, and universal
positive law
law rests in the hands of humans. ex statute law
written by humans
justice means conformity to law
socrates
“Socrates method” - challenging people on what they think they know.
condemned to death by corrupting the young.
plato
laws should reflect universal, absolute, and eternal, truths or virtues. (natural)
justice is important than man-made law.
laws should be followed unless they’re immoral.
aristotle
‘rationalism’ - humans are born with the power to think and reason
should have ability to understand right v wrong
hobbes
in the state of nature, humans led lives that were innately immoral.
gov’t must create laws to curve natural greed.
locke
‘natural rights’ were the right to life, liberty, and security of the person
humans are innately good, they should hand over the state to authority to preserve these laws.
bentham
‘utalitarianism’ humans live to achieve pleasure and avoid pain, therefore, the law must be the greatest happiness for the greatest number of people.
austin
to achieve happiness humans must obey the law, this maintains social order.
left vs right
society / tradition
law + order more relaxed / strict
taxation increases / tax breaks
state involvement / individual focus
substantive law
can help define the nature or substance of various crimes or laws
ex. differences between different types of murder and sentences for each, the specific offences drivers can be charged for, fines and demerit points.
procedural law
helps explain procedures associated w/ arrests, bail hearings etc.
meant to protect an accused person’s legal rights by ensuring that the same precedures are followed in every case
international law
made when two or more countries sign a treaty
ex. halibut treaty - canadian / american treaty on fishing rights in pacific. UN is another example.
criminal law
crimes against society
state v individual
r v defendant
administrative law
government agency v individual
immigration, liquor licence
constitutional law
federal government v provincial government
ex ultra vires
constitutional matters - beyond power of authority to do an action
tort law
civil wrong, suing, individual v individual
contract law
legally binding agreement
ex - sale of goods and services
family
family members
ex - divorce, custody
property law
ownership of property
ex - real estate
corporate law
establishment, operation, and dissoluation, of corporation
canada’s written constitution
july 1 1867, BNA act
canada becomes a new dominion
structure of the government is established
federal and provincial government powers were divided
canada’s unwritten constitution
prime minister
conventions adopted by the UK (cabinet, parliament, and party systems)
why laws change
- technological ( new tech - new laws passed, eg. new laws regarding phones and cameras)
- demographic (birth and death rates, canada’s population grows because of multicultural students, morning prayer is not allowed
- changes in values (non smokers rights valued, same sex marriage)
- change through democratic process (leaders won;t get re-elected due to bad choices (ww2 conscription)
- national emergency (9/11 laws)
- court decisions on individual struggles (abortion as a criminal offence)
- legal scholarship (scholarly articles, studies done. ex. battered spouse syndrome)
- change as a result of collective action (lobby groups, MADD, civil rights movement)
universal declaration of human rights
- right to life, liberty, and security of the person
- no one shall be held in slavery
- no one shall be subjected to cruel, inhuman, or degrading punishment
- no one shall be subjected to arbitrary arrest
- all humans are born free and equal in dignity and rights
charter of rights and freedoms
- right to life, liberty, and security of the person (r v Morgentaler) (r v sharpe) (r v keegstra)
- right to not be arbitrarily detained
- not to be subjected to cruel or unusual punishment
- right against unreasonable search and seizure (r v feeney)
- when charged with an offense, be tried within a reasonable time. (jordan)
forms of discrimination
- unofficial discrimination (against a certain group even though there are laws protecting them)
- systematic discrimination (supported by government laws (ex. separate washrooms for black people, head taxes for Chinese people in canada)
- segregation (members from a group are forced to live, work, go to school separately from the rest of society)
- expulsion (members of a group are expelled from society (Japanese Canadians during war)
- genocide (widespread killing of members of a certain group. ex. holocaust, Rwanda genocide)
International examples of lack of human rights
Women’s rights - in places such as saudi
LGBT rights - such as syria and saudi
death penalty - in US and other places
5 goals of UN
- maintain international peace and security
- promote sustainable development
- protect human rights
- deliver humanitarian aid
- uphold international law
Rule of Law
- law is necessary for order
- law applies equally to everyone
- legal rights will not be taken away except in accordance with the law
Criminal law and purpose
- protect and keep citizens safe. ex. laws against murder
- protect our possessions
- preserve standards of decency
- preserve public order
DNA Databank
pros - makes it easier to catch criminals, prevents a wrongful conviction, people maintain control of their own dna
cons - information can be hacked, invasion of privacy, dna could be used against an individual for wrongful conviction
principles of canada’s justice system
- fairness
- efficiency
- clarity
- restraint
- accountability
- participation
- protection
Fairness
people + procedures must be fair and applied equally to all
- racial profiling
- inmates given right to vote
Efficiency
procedures should be efficient as to avoid undue costs, delays, and errors
-jordan decision
Clarity
procedures must be clear. this leads to predictability and regularity
-reading rights during arrest and asking if they understand. making sure they speak english.
Restraint
procedures should not interfere with an individual’s rights and freedoms so long as freedoms of others are protected
-using rights and freedoms to get away with immoral things - ensures our safety
Accountability
people involved must be held accountable for conducting procedures
-sometimes authority are not held accountable for their actions
Participation
the public should participate and court should be open to public
- educates and deters people
- jury is more unbiased
Protection
Society should feel protected by the criminal justice system
-fed pen vs house arest just because it’s cheaper
Diplomatic immunity
form of legal immunity that ensures diplomats are not susceptible to prosecution under a host country’s law.
diplomat can be expelled and held accountable under thei home country’s law.
extradition
one country requests that another country send their criminal back to face charges
when wanted criminals flee
bilateral extradition
between canada / another country
multilateral extradition
between canada / british common wealth
reasons to refuse extradition
- death penalty
- no human rights
- political prisoner
deportation
legal process of forcing a person to leave our country canada has authority to deport and non-canadians who has entered country illegally / commit crimes
must file arc to return to canada
goals of sentencing
- deterrence
- denunciation
- separation
- rehabilitation
role of international court of justice
to settle legal disputes submitted to by the states (canada vs another country) to give opinions on legal questions referred to it by authorized UN organs and specialized agencies only states (nations) may be parties in this court, no individuals or companies can file cases here
types of cases
the court’s decisions are binding on the parties and havebeen concerned with the issues
- land and maritime boundries, territorial soveirgnety, diplomatic relations, the right to asylum, nationality, and economic rights
who sits on court
- 15 judges elected by the general assembly of the UN for 9 year terms
- 1/3 gets elected every 3 years
- big 5 are always represented on security council and international court
war crimes
after international conflicts, trials may be held on un’s international court
- grave breaches of gevena convention, crimes against humanity, and genocide
trials
international military tribunal can also be set up “for this” as was the case after ww2 in germany and japan for their top military and government leader
- current ones include yugoslav + rwandan genocides, nuremberg trials
charter of rights and freedoms
fundamental freedoms (2), democratic rights, (3-5), mobility rights (6), legal rights (7-14),
