Law and the Media Flashcards
Civil law is based off of ______. It is practiced in Quebec and a European based system.
the Civil Code. Soundness of reasoning over precedence
The Constitution is also known as______. (1867)
The British North America Act. It was signed in PEI, and is the foundation of all laws in the country
Pertaining to the Constitution, the Federal Parliament was given the power to:
regulate trade and commerce, taxation, borrowing of money, military, banks, postal service, immigration and penitentiaries
Pertaining to the Constitution, the Provincial Parliament was given the power to:
tax, make provincial offices, run some prisons, hospitals and healthcare, municipal institutions, liquor, local works, incorporating companies, property ownership
What are the 3 branches of the government?
- Legislature: makes and passes the law
- Executive: PM office, cabinet, ministries, CRA
- Judicial: courts, judges, police- Enforce the law
Name 4 forms of laws
- Constitution
- statutes
- regulations
- common law
What was the significance of the Constitution Act, 1982 (34 years ago)?
Canada became a Federation, so it could pass its own laws without England’s involvement. It also introduced the Charter of Rights and Freedoms into the new constitution.
Name a few of our Fundamental Freedoms outlined in the Charter of Rights and Freedoms
- of conscience/religion
- of thought, belief, opinion and expression, including freedom of the pres and other media of communication
- of peaceful assembly
- freedom of association
- freedom of mobility (within/outside Canada, etc).
- freedom of life, liberty, security of person
- equality before and under the law
What country has the oldest constitution?
The U.S. (1776)
What are the two types of law that we discussed in class?
- criminal law
- civil law
What does criminal law pertain to?
This is when someone is charged with an offense for breaking the law
What does civil law pertain to?
this is when an individual is looking for compensation after having been civilly wronged
Who defines the law?
The courts (judiciary) interpret the laws.
Who makes the law?
the legislative (parliament)
True of False: Courts of specialization have the same amount of authority as trail court
True: they are a specific type of trial court that specializes in specific areas.
In civil court cases who has the burden of proof?
The plaintiff. It is based off of a balance of probabilities, after a preponderance of the evidence.
In civil court cases who are the two parties?
The plaintiff and the defendant, the defendant is being found liable or not.
In criminal court cases who has the burden of proof?
The Crown has the burden of proof. They must prove the accused is guilty “beyond a reasonable doubt”
In criminal court cases who are the two parties?
The Crown and the defendant
What are the 3 levels of the court system?
- Supreme Court (of Canada)
- Appeal Court
- Trial Court (including Courts of Specialization)
List people who are present in a courtroom
- Plaintiff
- Defendant
- Judge
- Lawyers
- Bailiff
- Jury (not always)
The legal system that relies heavily on case precedence is called___.
Common law
When can you go to a court of appeal?
You can go to a court of appeal when you were legally denied justice. This may be because:
- an improper law was applied to the matter
- the Judge or 4 jurors slept during the trial
- improper instructions were given to the jury at end of the trial
What is the purpose of a court of specialty?
They are used to streamline trial courts. They can include family court, juvenile court, or traffic court.
True or False: Over 90% of cases are settled before they ever go to trial
True: Plea bargains occur in criminal cases, and pretrial settlements occur in civil court. Here the settlement can be controlled by the two parties instead of a third party (judge/jury, etc)
What is the jury’s role in a case?
The jury is very important. The judge becomes the referee, and the jury is presented the facts.
When do cases go to the Supreme Court of Canada?
- matter is of significant national importance
- when two parties from different areas can’t do provincial courts (ex. Ontario vs. Alberta)
True or False:When a court makes a ruling it becomes the law
Technically the court is interpreting the law. When a court makes a decision it can set a precedence, which in turn is then common law
True or False: If an Ontario judge does not have a case of precedence to look to in Ontario they must base their decision on another Province’s case (ex. Alberta)
False: The judge can look to the other case as guidance, but does not have to use it
True or False: If an Ontario judge finds a case of precedence in an Ontario appeal court they have to use it.
True: They must site this case. Because it is the same province. It is called “binding precedent”
One major area where there is binding precedent for a trial judge’s decision is________.
when referring to a Supreme Court of Canada decision
Try to summarize the civil trial court process (stages)
1) Statement of claim is filed and then served
2) Evidence is gathered
3) Discovery: each side is entitled to review the other side’s evidence. Questions are answered under oath
4) Trial:opening statements (burden of proof on plaintiff), calling of witnesses, cross examinations, closing statements
5) Trial: rendering of decision- liable or not liable
6) Reward recommendation/judge’s final decision
Try to summarize the criminal trial court process (stages)
1) Crime/event takes place
2) Police arrest/search
3) Charges are laid within 48hrs
4) Accused is jailed or out on bail
5) Crown/Police get evidence together
6) Preliminary hearing: show evidence, accused could get let go
7) Trial: Jury selection, burden of proof goes to Crown
8) Trial: defense, examining and cross examining
9a) Trial: jury may be dismissed if evidence is questionable, while judge discusses with lawyers
9b) Trial: Closing arguments, jury deliberates
10) Trial: verdict (conviction/not
11) Sentencing
12) Possibility of appeal
True or False: the freedom of expression is absolute
False: You can not express yourself in a way that violates the rights of others. Ex. yelling “bomb” at an airport
What are some reasons the media attends court cases? (4)
- make public aware of decisions that affect them
- watchdogs: fairness
- educational to public
- providing trust in the institution of the courts and democracy (openness)
What is a standard definition for contempt?
Doing something which offends, goes against, disobeys, or puts the court in a bad light. Whether you are in contempt is sometimes up to the judge.
What are the two areas in which contempt can take place? (latin names)
In Facie Curiae: In the face of the court
Ex Facie Curiae: Away from the face of the court
What does ex facie curiae mean? Give an example
- Away from the face of the court.
- One example of this would be disobeying a court summons
- or a journalist questioning a judge’s motive for a ruling
True or false: Yelling at a judge and saying that they didn’t know how to do their job is an example of “in facie curiae” defamation
False: this is a type of contempt, not defamation
Why is the judge able to use contempt?
The power of contempt keeps the administration of justice intact. This action gives judge’s their power to interepet and enforce the law
What is civil contempt? Example?
Civil contempt is disobeying a civil court order/judgement. This order is not against the court, rather against the person is owing.
One example would be failure to pay child support. The contempt would be against the spouse to receive the support.
What is criminal contempt? Example
Criminal contempt is any behaviour that prejudices or unjustly insults the administration of justice in either civil or criminal proceedings.
Ex. A reporter calling an accused a “mob boss” before or during trial (goes against the right to a fair trial, innocent until proven guilty)
What are some consequences of being in contempt?
- fine
- jail time
- both
What are some danger zones to be held in contempt?
Once someone has been arrested for the crime there is the possibility of contempt.
- Leading up to a court case, the closer you are the more dangerous it is to say anything about the case
- reporting on a preliminary hearing
- interviewing lawyers/witnesses who are going to testify
True or false: Reporting about a preliminary hearing, ex. whether a defendant plans to plead guilty is a danger zone of being held in contempt
True: the reporting of this information could influence potential jury members, as this is new information to them, and the defendant may change their mind before the trial.
When journalists accuse the court of bias, perversion of justice or improper motives this is called:
scandalizing the court. There is an action of undermining the court’s authority; ridiculing a court or judge. Criticisms must be within fair comment or provable with facts; no malice
True or false: A person’s right to a fair trial is of greater importance than the freedom of the press.
False: The Dagenais case is one important example, leading to the Supreme Court of Canada saying that while a fair trial is very important, the freedom of the press is of equal and sometimes greater importance.
During the Dagenais case the courts ruled that a ban is only necessary: (2)
1) to prevent a real and substantial risk to the fairness of a trial
2) when the need for the ban outweighs “the deleterious effects to the freedom of expression of those affected by the ban.
What does it mean to sequester a jury?
The jurors are isolated from the public for some or all of a trial to prevent contact with outside influences. ex. news media
True or false: judges will allow “trial by newspaper” or “trial by press” to take place
False: no judge will allow this. They wish the person to have a fair trial, one where the jurors have not been swayed beforehand, whether it be because of popular public opinion or information given not pertinent to the case itself
What factors will a judge consider when looking at an accusation of contempt?
Effect on the hearing:
- reputation of court
- sensationalism
- prominence of story
- lead or headline
- if there is a jury
- timing of article release
When does the danger of contempt start? (civil vs. criminal)
Criminal: warrants issued, arrests made
Civil: service of the writ or notice
When does the danger of contempt end?
After the appeal or appeal period.
True or false: Journalists are shielded from being held in contempt by their employers, as the employers have the final say in publication.
False: reporters have been held equally responsible, though there are occasions where only the employer was found guilty of contempt of a publication ban (textbook pg. 220)
What is the significance of the Dagenais case?
This case involved a publication ban. The national ban was lifted in showing a TV movie, and the local area around the trial was banned from seeing it so that the jury (found from around the area) would not be affected, but the rest of the country would have the opportunity to see it. The case gave the media the right to report, attend, express about the trial, making the right to a fair trial on equal grounds with the freedom of the press.
