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LAW 1 Flashcards

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1
Q

What is the difference between a rule and a law?

A

Rules apply to only one group, like a family or school. Laws apply to everyone all the time. Some laws are criminal and lead to criminal records and jail time, but most are regulatory laws like J walking.

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2
Q

Two Divisions of Canadian Law and the Functions of each division?

A

1)Substantive: the rights and obligations of people in society.
Ex: Property Rights and Contracts.

2)Procedural: functioning and how government operates. Procedures that outline the protecting and enforcing rights.
Ex: Arrest, jury selection

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3
Q

Descriptions of the two divisions of Substantive Law?

A

1) Public Law: regulates the relationship between public and governments. Can be divided into criminal, administrative, constitutional.

2) Private: regulates the relationship between citizens and citizens/businesses.

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4
Q

What is Criminal Law?

A

-Is found under public law
-series of rules passed by the federal government
-outlined in the criminal code of Canada
-punish offenders to protect society
-society represented by the crown attorney who proves charges against defendants

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5
Q

What is constitution? What is constitutional law?

A

Constitution: anything in government. Gov rules and operations and elections and charter of rights and freedoms.

Constitutional Law: Sets out structure of federal government, division of powers. After 1982 contained charter of rights and freedoms. Protects citizens rights in dealing with the government. Break it, causes a constitutional crisis.

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6
Q

What is administrative law?

A

-falls under public law and is anything that regulates
-deals with citizens and the government
-Ex: Taxes, employment Insurance, transport commissions, etc.

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7
Q

What is private law?

A

-Governs the relationships between 2 or more persons or businesses
-regulates conduct between disputing parties and doles out compensation
-Each party is represented by a lawyer
-can be further divided into additional categories

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8
Q

Plantiff vs Defendent?
(Under private Law)

A

Plaintiff: Person launching action (none in criminal law because they have the crown)

Defendant: Person who has action against them

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9
Q

Balance of probabilities: Private law and criminal?

A

Private Law:
Burden of guilt is not reasonable doubt, simply more likely than not. Guilty if above 50% likely

Criminal Law:
Charged if there’s beyond a reasonable doubt

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10
Q

Divisions of private law?

A

1) Family Law
2) Contract Law
3)Tort Law
4) Property Law
5) Labour Law

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11
Q

Family Law?

A

Deals with relationships between people living as spouses, parents, and children.

Ex: Child support, division of property, custody rights.

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12
Q

What is a contract? Contract Law?

A

Contract: any agreement between 2 people

-deals with requirements for legally binding agreements, breaches and conditions, payment and requirements

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13
Q

Tort Law?

A

Any wrong other than breach of contract between two people.

Ex: injuries from car accident and medical malpractice, negligence and carelessness.

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14
Q

Property Law?

A

Deals with buying and renting of land

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15
Q

Labour Law?

A

Body of law that regulates interactions between employers and employees.

Ex: minimum wage, pay equity, working conditions, and dismissal procedures.

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16
Q

What are acts?

A

Include many laws that are related

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17
Q

Quasi criminal law offence vs criminal code of Canada offence?

A

Quasi criminal offence:
-not criminal, no jail, maybe a fine or suspension because it’s regulatory

Criminal code of Canada offence

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18
Q

Constitution Act years and purpose?

A

1867 and 1982
Divide Law making powers between federal and provincial levels

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19
Q

Why are laws necessary?

A

They provide peace and order and are necessary for people to live together peacefully in society because they provide the framework for behaviour.

Let us do what we want as long as it’s reasonable and reflects the societies values.

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20
Q

Why are laws changed?

A

1) People change (Morals, values, and priorities)

2) technology (We didn’t always have air travel so they had no laws)

3) Response to real and perceived threats ( Had many laws after 911 for air travel)

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21
Q

What Can Canadians do if they don’t agree with the law?

A

Can organize into groups to raise public awareness.

Can lobby the government for change

Can litigate

Can peacefully protest

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22
Q

Why do we need more laws as societies get bigger?

A

The more people, the more barrier the interests and requirements for the group.

Need a way to reasonably restrict freedoms.

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23
Q

What are the 4 main functions of Law?

A

1) provide the basis for settling disputes or disagreements, can solve them through discussion, negotiation and through courts.

2) Establishing rules of conduct, to minimize possible conflicts and reduce the risk of injury and accident.

3) Protecting Rights and Freedoms, criminal law restricts rights and constitutional law makes sure those limitations don’t go too far and the charter of rights and freedoms limits law makers and law enforcers.

4) Providing protection for society, by protecting vulnerable people from those who may take advantage of them and provide challenged people with basic necessities to life.

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24
Q

Who is Hammurabi and what did he do? Why is the code important?

A

Was a famous king is Babylon who took 300 laws and presented them in a recorded form understandable to all citizens.

Carved the laws into stone columns displayed in the Louvre Museum.

Some headings in the code are family, criminal, labour

So the Babylonian judges could match an offence and punishment by looking at the written law.

The code made no distinction between criminal and civil law.

Followed the principle that the strong should not injure the weak and believed in retribution.

Was important because it was one of our earliest records of written laws that gave us the concept of retribution.

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25
Q

Mosaic Law background information? Ten Commandments?

A

Was made 800 years after Hammurabi died when Moses gave his laws to the Hebrew people.

The mosaic Law is set out in the first 5 books of the Old Testament.
———————————————————
In the bible, Moses climbed mount Sinai to retrieve the 10 commandments on two stone tablets from god.

The Ten Commandments forbids killing, adultery, bearing false witness.

Has an important position in the teachings of Jewish and Christian faiths.

———————————————————

Execution method for the Mosaic Law is stoning.

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26
Q

Mosaic Law vs Babylonian Law?

A

In Mosaic Law, assaulting one’s father is a very serious offence and the severity of the punishment increased from cutting off the offender’s hand to death.

Mother’s are recognized under the law, and cursing parents could lead to the death penalty.

Harsh punishments show the high regard given to parents.

Used restitution instead of retribution.

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27
Q

Types of punishments and descriptions?

A

Retribution: punishment should fit the crime “eye for an eye, a tooth for a tooth”

Restitution: Righting a wrong, for example paying a victim for the goods stolen.

Segregation: Separate offender from group.

Rehabilitation: prevents future crime by altering a defendant’s behavior. Examples of rehabilitation include

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28
Q

Roman law introduction?

A

Originated in early Rome

Became the basis of law for most of Western Europe, except England.

As the empire grew, laws became more complex.

Romans saw the need for lawyers to study legal matters.

29
Q

What is the Justinian code? And what are its origins?

A

By 100 Ad, the Roman Empire spread over most of Europe, so Roman laws influenced a lot of European countries.

Roman emperor Justinian codified 1000 years of Roman Laws, producing the Justinian Code.

The code was a collection of past laws, opinions from leading Roman legal experts, and new laws enacted by Justinian.

30
Q

French Civil Code history?

A

In 1804 after the french revolution, emperor napoleon Bonaparte revise French law (originally based on roman law and the Justinian code). As Bonaparte conquered much of Europe, this code served as a model for most of European Law. As french immigrants settled in parts of the new world, the French civil code became the basis of law in Quebec and Louisianna.

31
Q

Why does Canada have two legal systems? What are they?

A

Canadian Law is based upon the laws of France and Europe, the countries that colonized them. The two legal systems differ considerably. We have civil law in Quebec based on the French Civil Code. English Law wasn’t codified until later and much of it still isn’t. It just exists. This is called common law.

32
Q

English Law History?

A

Before 1066 Ad, invasions by Romans, Anglo Saxons, and Danes led to countries with different customs. No laws were common to England. The Norman Invasion under William, Normandy, marked the beginning of a distinctive system of English Law.

33
Q

Feudalism?

A

As the king of England, William established Feudalism, which already existed in Western Europe. This system was based on a series of rights, duties, and obligations.

The king was at the top of Feudal structure and owned all land. Gave Manors to lords and Barons, who became the kings vassals. The lords vassals were freeman who served in the lords army and serfs.

They worked on land and gave what they earned to the lord and church.

The feudal system was the basis of modern property law.

34
Q

Why were the kings courts, local assizes, preferred to manor courts/ How was English common law created?

A

The lord of each manor was the judge of any trials involving his vassals. This led to inequity.

For example, one lord may find a vassal guilty of theft of another vassals property and could sentence him to death, while another lords vassal, guilty of the same offence, might only have to make restitution.

As a result, the king appointed a number of judges who travelled the country and held assizes. This was more equitable because independent judges made rulings. This led to more consistency because judges often met in London which allowed common agreement to arise.

The consistency of decisions became the basis of English Common Law, applying to all people around England.

35
Q

How was the common Law system introduced to Canada?

A

Was introduced by colonists who first settled here. Nowadays, judges from the highest courts still hold regional assizes.

36
Q

What is the rule of precedent?

A

Common law follows the principle known as state decises, or the rule of precedent.

In England, all judges with similar facts before the court would give similar decisions. By treating similar cases alike, judges established a standard and common system of judging offences.

At first, these case decisions were known as “unwritten law”

37
Q

Kings role in precedent?

A

He was the fountainhead of justice to whom people can turn to or appeal. He could overrule judges decisions.

38
Q

Disadvantages and Advantages of following the rule of precedent?

A

Disadvantage: Law can fail justice and produce unfair results if it’s not recent. For example, if todays judges used precedents dealing with horse drawn carriages in cases about impaired driving.

Advantages:

1)Introduces a degree of certainty to the law. Lawyers can examine similar previous cases and can expect a similar result.

2) Causes the courts to act impartially, rather than favour any parties. This persuaded judges to reach similar decisions.

39
Q

Case Law

A

As the number of judges and cases increase, recording decisions is more essential. Common law is the same as case law. Law cases are published in volumes of reports.

40
Q

Citation?

A

Each recorded case is given a title or citation: lists who is involved in the case, if the case is public or private law, the year the decision was reached, which court heard the case, and specific information on the law report.

It allows people to easily access cases, reference, and label.

41
Q

Common Law and importance to Canada?

A

It is the new law based on judges trial decisions, precedent, and reported case law. It serves as a major part of Canadian Law as it is distinct from statute Law made by governments.

42
Q

History Of Rule of law and Magna Carta?

A

King John from 1199-1216 abused his power and thought he was above the law. The nobility, clergy, and free men forced him to sign the Magna Carta, the great charter at Runnymede in 1215.
This document recognized the principle of the rule of law.

The king became subject to the law, and equality finally became important in the law.

No ruler could arbitrarily impose restrictions on people.

The king was now responsible for maintaining the legal rights of people.

The Magna Carta also accomplished the Writ of Habeas Corpus, which meant that any person held imprisoned without explanation was entitled to appear before the courts within a reasonable time. He could either be released, or tried by his peers or equals.

43
Q

Why does Canada use the rule of law?

A

Society believes that might is not right. Resolving disputes by peaceful means is better for society. The rule of law brings order into our lives by preventing violence or arbitrary conduct.

44
Q

Characteristics of the rule of law?

A

1) No one is above the law and laws apply equally to everyone

2)Everyone is accountable to the same set of laws.

3) Judges should be unbiased and independent

4) Trials should be held in public to have faith so we can see that the justice system works

5) Access to competent legal representation

45
Q

How was the first Parliament formed:

A

Around 1265, a group of barons revolted again the king to force him to reform the English legal process. Representatives were called together from all parts of England, forming the first Parliament.

46
Q

Role of Parliament?

A

1) correct the injustices resulting from the application of strict rules of precedent established by the common law courts.

2) Later, it worked to reduce the power of the barons and the clergy.

3) Most important role is passing statute laws, or acts of Parliament.

47
Q

What is a constitution? What makes a good constitution?

A

A constitution is:
1) A list of rules that govern the actions of any organization.

2) Gives rules about getting rid of corrupt leaders.

3) Outlines the operating system of Canada.

What makes a good constitution:
1) It is easily understood by to whom it applies.

2)It is not ignored by those elected to power.

3)It can be changed easily, but not too easily.
—

A good constitution is necessary for a good country. It needs balance to prevent government corruption.

48
Q

Canada’s constitutional history?

A

There are several early Canadian constitutional documents.

The Royal Proclamation of 1763

The Quebec Act 1774 (how Quebec will be integrated into North America)

The Constitutional Act 1791

The Act of Union 1840 (Britain Joins Quebec and Ontario and forms one colony)

49
Q

BNA Act 1867

A

One of the most early Canadian constitutional documents is the British North American Act 1867. By this act, colonies of Canada (Ontario and Quebec) were united with the colonies of Nova Scotia and New Brunswick.

50
Q

Federal Unions?

A

In Canada, we have federal Union

Has 1 central power with some political units under it.

This type of union provides a sharing of power between a central government and the separate governments of individual provinces or states.

A strong federal union places more power in the hands of the central government than it grants to the provinces or state.

51
Q

British North American Act and Federal Unions?

A

Two sections of this act listed the powers of the central government and provinces.

1) Section 91 listed the powers of the central government: fisheries, currency, national defence.

2) Sections 92 listed the powers of the provinces: courts, hospitals, public lands, justice, municipal institutions.

Cities can make bylaws.

52
Q

Residual Powers?

A

The strength of the federal union was indicated in section 91 which gave all left over power not granted the provinces to the central government.

This covered all matters concerning “the peace, order, and good government of Canada”

53
Q

Amending the British North American Act of 1867

A

A British law enacted by the British government.

This mean it could only be changed by the British Parliament

This was a complex process that resulted in few significant ammendements.

Canada became free of Britain in 1982.

54
Q

Unwritten Canadian Constitution

A

Much of Canada’s constitution was unwritten and constitutional British Parliamentary traditions and practices.

These were called conventions.

55
Q

The statute of Westminster 18931

A

-Passed in Great Britain in 1931

-Was of major constitutional importance
since it allowed Canada to pass its own laws

-Britain can’t overturn Canadian law and Canada could make agreements with other countries without Britain’s involvement or interference

-Canada was no longer subject to the laws of Great Britain

-Canada could control its own foreign policy like passports and could control its own military

56
Q

The winds of change/ beginning of Patriation?

A

Partriation started in 1982 by Pierre Trudeau. It was usual for a sovereign and an independent nation of Canada to have a sovereign constitution.

The growth of nationalism in Quebec was a catalyst to change this situation.

The liberal government of Pierre Trudeau finally undertook this difficult task and achieved Patriation in 1982.

57
Q

What is Patriation? Why did our constitution take so long to Patriate?

A

Patriate: to bring home from parliament in Great Britain to Canada.

The process require that the British gov revoke the BNA act of 1867 and further required that Canada enact its own written constitution.

Britain was willing to give the constitution to Canada but the federal and provincial governments couldn’t agree on procedures to amend or change it or determine a new division of law making powers between the government levels.

Until these procedures were formalized, Britain retained custody of the BNA 1867 act.

The Trudeau government faced many problems.

58
Q

Problems faced by Trudeau’s government in Patriating the constitution?

A

1) Federal- provincial disagreement in Canada. In order to sign, every province wanted something. Provinces didn’t like it because they were worried it would give the federal government too much power over them.

2) A formula to amend constitution.

3) The Canadian Charter Of Rights And Freedoms

59
Q

How did Pierre Trudeau fix the problems?

A

Frustrated by the provinces, Trudeau asked the Supreme Court of Canada if he could Patriate the constitution without their agreement.

The ruling indicated it was legal, but not conventional.

Quebec didn’t sign the constitution but the other provinces did.

60
Q

The charter of rights and freedom Mr Trudeau?

A

Mr Trudeau wanted an entrenched Charter.

Entrenched meaning it was an integral part of the constitution.

But provincial governments wanted to decide for themselves, not by the federal government.

The provinces objected this as they feared laws or power as a result of judicial interpretation of an entrenched charter.

61
Q

Patriation process?

A

For amending the constitution, the amending formula required the consent of the Canadian Parliament and 7 provinces comprising of 50% of the population.

On April 17, 1982, the constitution was transferred to Canada.

The BNA Act 1867 was renamed Constitution Act 1867.

62
Q

The amending formula?

A

They fought about the rules to change the constitution. It was necessary to have an effective way by which the constitution could be changed.

The Canada Act 1982 has two documents (Constitutional act 1867 and Constitutional act 1982)

The constitutional Act 1982 had new stuff:

1) Aboriginal rights here by recognized
2)The charter of rights and freedoms
3)Equalization Payments
4) Ammending Formula
-General Ammending
7/10 provinces agree. Must account for 50% of the population (Need Quebec or Ontario)
Each province has its own definition of agreement

  -Special formula To change monarchy, Supreme Court of Canada, or language law, 10/10 provinces have to agree and so does the House of Commons and the Senate.
63
Q

Distinguish between constitution act 1867 and constitution act 1892.

A

1867-Main prt of our constitution
1982-Key elements include the Ammending formula, the charter of rights and freedoms.

The constitution act 1867 lists which level of government has jurisdiction, authority or control, over which powers.

The federal governments 29 areas of jurisdiction are outlined in section 91.

The 16 areas of provincial jurisdiction are outlined in section 92.

Section 93 gave provinces control over education because of the differing linguistic/ethnic backgrounds of their people.

64
Q

Power of provinces?

A

The constitutional Act of 1867 established levels of government, but provinces delegated some power to the third level, local municipality (cities, towns, villages)

They can operate and pass bylaws to regulate their activities (closing hours, building regulations)

65
Q

Disputes of jurisdiction?

A

Which level of government has jurisdiction over a matter?

Communications nowadays is advanced to modern media. It is placed under federal jurisdiction by the constitutional act of 1867. Provinces think they deserve to control to meet local needs.

Despite’s are referred to courts that often side with the federal government because section 91 states it has the residual power to make laws.

66
Q

Powers of the different government levels?

A

Federal Government Levels (section 91)
1)Peace, order, and good government
2) Criminal Law
3)Unemployment insurance
4)Banking, currency, and coinage.
5) Federal penitentiaries.
6)Marriage and divorce
7)Postal Services
8) Indians and their lands

Provincial Powers (Section 92)
1) Property and civil rights
2)Marriage ceremonies
3)Police forces and provincial courts
4)Highways and roads
5)Provincial Jails
6)Hospitals

67
Q

What are the purposes of making laws? why does society make them? What shapes these laws? How do laws show our worldview?

A

Laws provide peace and order and are necessary for people to live together peacefully because they provide the framework for behaviour.

We make them because we need more laws as society grows. Makes laws more complex.

What shapes laws?
-people change
-technology
-response to real and perceived threats.

Show worldview by reflecting societies values.

68
Q

Three committees?

A

Standing Committee: a permanent committee of House of Commons or Senate that is established to make recommendations on specific areas of government policy. consist of (MPs) or Senators from different political parties, and are responsible for reviewing bills, conducting hearings, and making reports to the House or Senate.

Special Committee: A special committee is a committee that is established for a specific purpose or to deal with a specific issue that is not covered by a standing committee. may be composed of MPs or Senators, or both.

Committee of the Whole: A committee of the whole is a committee that is formed by the House of Commons or Senate to consider a bill or other matter in detail. In a committee of the whole, all MPs or Senators are considered to be members of the committee, and the proceedings are conducted in a more informal manner than in the House or Senate. The purpose of a committee of the whole is to allow for more detailed examination and debate of a bill or other matter. They increase the speed of passing the bill and contain all members of a legislative body.

Law 30 (9 decks)

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