Law Flashcards
What three influences shaped the Canadian legal system?
British Common Law, French Civil Law, Indigenous Legal Traditions
British Common Law
Common Law has 3 main understandings
(i) Law that applies to everyone (common for all)
(ii) Law that is based on past judicial decisions (precedents)**
(iii) Law that came from Britain
French Civil Law
Influenced Canadian law by incorporating a Civil Law system in Quebec
Civil law refers to a type of law in which all non-criminal law matters are codified in statues in Quebec
Quebec adopted the Inquestorial Trail System from France:
A Judge takes a more active part in the case, however it pollutes the neutrality position that th Judge is supposed to be in. It causes concern for the decision-making process of the Judge if he or she is actively being more engaged and pulling evidence rather than listening and asking questions to clarify.
Indigenous Legal Traditions
Canada’s legal system is starting to now borrow principles from First Nations’ justice (mostly with offences involving youth)
Incorporated community involvement in legal disputes
When a crime is commited the debt is owed to the victim, not the state
Used the ideas of restorative justice - requires the offender to recognize, accept, and take real responsibtility for their actions
What’s the difference between rules and laws
Laws are mandatory, whereas rules may be considered optional (depending on the circumstances)
Laws entail a formal system of procedures for enforcement, whereas rules offer more discretion
Law imposes a system of punishment/remedies, whereas rules may/may not
Explain the Code of Hammurabi
282 laws carved on the columns of stone, created approx. 3800 years ago.
Organized under various headings (i.e. - family, criminal, business, etc)
Retribution was key - ‘An eye for an eye”
What is Mosaic Law?
Forbid such acts such as killing, adultery, and bearing false witness
Hold a central position in some faiths
Punishments of Mosaic Law were sevre - ie - execution by stoning
Who was Justinian and why is he well known in Law?
Roman law
The Justinian code
Emperor Justinian codified 1000 years of past roman laws, opinions and new laws.
Emphaszized equality: the idea that law should be fair and just
People within classes were equal under the law, regardless of power or wealth (but not all classes were considered equal) Ex: You’re equal to whomever in your class; a master and a slave are not equal but a slave to a slave are equal
Explain the Napoleonic Code and how has it impacted Canada?
Modeled after the Napoleonic Code, Quebec’s Civil Code follows the civil law tradition.
Codified laws make the legal system more accessible and easier to understand.
Supports Canada’s unique bicultural legal framework, integrating both French and English legal traditions.
What are the three main understandings of common law?
(i) Law that applies to everyone (common for all)
(ii) Law that is based on past judicial decisions (precedents)
(iii) Law that came from Britain
**
Compare and contrast the adversarial trial system against the inquisitorial trial system
Adversarial Trial System:
Used in common law countries (e.g., Canada, USA, UK)
Two opposing parties present their case to an impartial judge or jury
Lawyers for each side gather and present evidence, cross-examine witnesses
The judge or jury determines the outcome based on the evidence and arguments presented
Inquisitorial Trial System:
Used in civil law countries (e.g., France, Germany)
The judge plays an active role in investigating the case
The judge gathers evidence, questions witnesses, and seeks the truth
The trial is less about opposing parties and more about discovering facts
Role of Judge: In adversarial, the judge is a neutral arbiter; in inquisitorial, the judge is an active investigator.
Evidence Presentation: In adversarial, lawyers present evidence; in inquisitorial, the judge gathers evidence.
Trial Focus: Adversarial focuses on party competition; inquisitorial focuses on fact-finding.
Provincial courts
-Some minor Criminal offences (summerary convictions)
-Some Family law matters (except divorce)
-Young persons (12-17 years old)
Provincial Superior Courts
- Have “inherent Jurisdiction”
- They can hear cases in any area of law except those that are specifically limited to another level of court
More specifically, they deal with;
- The most serious Criminal cases
Civil cases (large amounts of $)
- Family Law - divorce/property claims (note: some jurisdictions have specialied family courts)
Court of Appeal
Each province/territory has its own Court of Appeal (Ontario - Osgoode Hall in Toronto)
3 Judges sit on a panel
Only hear appeals from lower courts based on:
Error of Law
Error of fact
Supreme Court of Canada
Highest court in Canada
Only hear issues dealing with significant issues impacting the whole country (some specific Criminal law matters have right to appeal)
Approximately 65-80 cases per year go to the SCC
9 judges sit on a panel and decide appeals from the various Courts of Appeal
Explain ALL the steps that a Bill goes through to become a Law
Introduction and First Reading:
Bill is introduced in the House of Commons or Senate.
Second Reading:
Members debate the bill’s principle.
Committee Stage:
Bill is reviewed in detail by a committee.
Report Stage:
The committee reports the bill back to the House.
Third Reading:
Vote determines if the bill passes the House.
Senate:
Debate, committee review, and votes.
Royal Assent:
Bill receives formal approval from the Governor General.
Bill becomes law and is enforced.
How does someone start a lawsuit?
- ensure there is a cause of action
- file their Statement of Claim and filing fee with their court clerk
- The plaintiff must ensure that their claim is filed within a certain period of time following the event in question (Limitation period)
- Defendant must be served with the Statement of Claim
What must be included in a Statement of Claim?
Parties: Identify the plaintiff and defendant.
Jurisdiction: Specify the court where the claim is filed.
Facts: Clearly state the events giving rise to the claim.
Legal Basis: Identify the legal grounds for the claim (e.g., breach of contract).
Relief Sought: State what the plaintiff wants as a result of the lawsuit.
What is a default judgment?
A default judgment is a legal ruling entered by a court against a party (defendant) who has failed to take action in response to a lawsuit.
Counterclaim
The defendant may make a counterclaim (in which they sue the Plaintiff) if they believe the plaintiff was at fault.
Under this scenario, the Defendant defends against the Plaintiff’s claim and makes their own claim against the Plaintiff.
The judge will examine the Counterclaim and the Plaintiff’s claim simultaneously if the case goes to trial.
Who is the “reasonable person” in a Social Host Liability case?
In a Social Host Liability case, the “reasonable person” is an objective standard used by the court to judge whether a social host acted responsibly in serving alcohol to guests. This standard assesses whether a hypothetical, prudent person would have foreseen the risks associated with serving alcohol to intoxicated individuals or minors at a social gathering.
The Tort of Negligence
Duty of Care:
Plaintiff must show the defendant owed them a duty to act reasonably.
Breach of Duty:
Plaintiff must prove the defendant failed to meet this duty (e.g., by acting carelessly or recklessly).
Foreseeability:
Plaintiff must demonstrate the defendant’s actions directly caused their injuries or damages.
Actual harm or loss:
Defendant may argue against liability, citing factors like no breach of duty or plaintiff’s own negligence.
Causation:
Court decides if defendant is liable for damages based on evidence presented.
What is the burden of proof?
The burden of proof is the responsibility to prove a claim or assertion in a legal case. In civil cases, it’s usually on the plaintiff, who must show their case is more likely true than not.
Who has the burden of proof?
The party with the burden of proof is responsible for presenting sufficient evidence to persuade the court or jury of the truth of their claim or assertion.
What are the 5 elements of a valid contract between adults
Offer: One party proposes terms.
Acceptance: The other party agrees to those terms.
Consideration: Something of value is exchanged.
Legal Capacity: Both parties are legally capable.
Legal Purpose: Contract is lawful and not against public policy.
General Damages
General damages are monetary compensation awarded in a lawsuit for non-economic losses like pain and suffering, emotional distress, and loss of enjoyment of life.
Special Damages
Special damages are specific financial losses or expenses incurred by the plaintiff due to the defendant’s actions, such as medical bills, lost earnings, and property damage.
