laws 203 midterm 1 Flashcards
1
Q
what are institutions
A
anything that constrains, guides, or shapes patterned human behaviour
2
Q
informal institutions
A
they do not need to be written down, or enforcement, it can just be an “unknown” rule but these institutions can still have sanctions if not followed
- informal institutions are different then rules, they are what we “ought” to be doing
3
Q
formal institutions
A
formal institutions have explicit rules, they are written down, usually a codification of rules, and have strict enforcement
4
Q
what is politics
A
the practices and processes of power relations
5
Q
what are the three types of power
A
instrumental, structural and ideological
6
Q
Robert dahl on power
A
the ability to get someone to do something they would not normally do
7
Q
what is instrumental power (hard power)
A
is when someone has a higher advantage they can use against their enemy—like having a black belt while fighting an average person, military power, resource power, financial power
8
Q
what is soft power
A
is when they are able to have influence over another human or thing
9
Q
what is structural power
A
is when your position (whether that be in society, work, or in the family) is able to persuade or change things
10
Q
what is “society”
A
An ordered web of ties – including institutions and patterned relationships –that connect a group of individuals
11
Q
what is a ‘system’
A
A system is an implicit agreement—a patterned behaviour that has been developed through practice, even if it is not cognitively spoken about
12
Q
what is the definition of law
A
- the concept of law is highly debated
the set of rules and regulations governing a society
13
Q
what do definitions of law tend to centre around
A
i) formal rules of conduct (binding and enforceable)
ii) the involvement of politics
iii) balancing individual and collective interests
iv) establishing social order
v) limiting the arbitrary use of power
14
Q
what is the relation between law and politics
A
-Law is shaped by politics and politics is shaped by law
- Laws can reify or challenge existing power relations in society
- Law can prevent the state’s abuse of power
- Law shapes a country’s political institutions
- Law can adjudicate political problems
- The ‘rule of law’ is a central component of modern states
15
Q
what is justice
A
i) legal fairness and ii) legal equality; iii) legal rights and iv) punishing legal wrongs
16
Q
what does the roman term ‘Justicia’ mean
A
‘to give each person their due’
17
Q
what is distributive justice
A
distribution of equatable resources, these rights shall be equally applied to everyone, despite economic conditions, everyone has that same right to resources
18
Q
what is restorative justice
A
when victims, and anyone effected in a particular case have a say on the defendants sentencing
19
Q
what is natural law
A
posits the idea that there is universal, absolute law
- this stemmed from christian thought, that law was derived from god
- law is an external source that overlaps with our moral compass
- originally determined from the “divine order”, the bible determines what is lawful and unlawful, we do not create it we discover it
20
Q
what does ‘Lex injusta non est lex’ mean
A
no unjust law is a law - essentially saying that morality is law
21
Q
what is an example of natural law
A
the canadian charter of rights and freedoms are based off of natural law - you posess human rights because you are a human
22
Q
what is legal positivism
A
- a theory of law that views law ‘as is’ rather than ‘as it should be’
- Law is ‘posited’, human-made - its a social construction
What is right is what is lawful
23
Q
where does legal positivism get its validity
A
it gets its validity because it gets passed by Parliament - the Canadian state is the highest form of legal power
-Rooted in the British practice of parliamentary supremacy
24
Q
what type of legal society do we live in
A
we live in a positivist law society - what we say is unlawful goes, does not matter ones own perception of morality
25
what is legal realism
understands law and legal outcomes as part of the political, economic and social contexts
-legal realism isn't saying anything about right or wrong- more understanding legal outcomes and the factors that produce them
26
what is a realist analysis of law
like ‘grand-style judging’ (Boyd, 2019)
27
how is legal realism like and unlike positivism
- Like positivism, focuses on law ‘as is’ rather than ‘as it ought to be’
- Unlike positivism, focuses on the human influences of law
28
legal marxism
informed by the idea of historical materialism
- economics plays a strong determining role in our law and political systems and out beliefs
- class relations affect our view on the legal system
- During the 2008 financial crisis, a lot of people turned fascist because of the economic hardships
29
how do marxists view law
ends to view law as an institution of capitalism and an instrument to protect the economic elite class
30
what is critical legal theory
critical of the rationales, purposes and assumptions of law and legal theories
- Views power as embedded within legal systems
- Considers the political, social and economic context of law
- Arose as a challenge to positivism
- Often influenced by Marxist ideas
- does not make any assumptions about the law, it is more of an account of the law
31
what is legal feminism
- understands law from a gendered perspective
- Identifies and problematizes the gendered nature of law and legal study
-one of the fastest growing areas of jurisprudence, not just how the law works, but what it represents
32
what are the 3 waves of feminist thought
- First-wave feminist thought - legal representation
- Second-wave feminist thought - structure of the law
- Third-wave feminist thought -intersectionality
33
what is Carter v. Canada
this pertains to medical assistance in dying (assisted suicide)
34
the cannabis act
the legalization of recreational use of cannabis in Canada
35
early history of law
The history reaches over 4,000 years (Ancient law) -I.e. Hammurabi (now Iraq), Confucius,Mohammad
36
what was the 1215 Magna Carta
- The ‘Great Charter’
-A feudal era charter governing feudal rights
-Limited the authority of the monarchy
- the first predecessor of modern law
37
1648 Peace of Westphalia
when the state became the soveriegn - the highest authority
38
The Royal Proclamation of 1763
Transferred French territory to the British
39
The Constitution Act of 1791
Divided Canada into Upper and Lower Canada
40
Act of Union, 1840
created the united Province of Canada
41
The British North American Act,1867
The legal basis of Canada
42
1931 Statute of Westminster
Canada becomes self-governing dominion
43
The Constitution Act, 1982
- Patriated the Constitution
- Included the Charter of Rights and Freedoms
44
what is public law
- the area of law concerned with the public interest
- I.e. Constitutional law, criminal law, taxation law, etc.
45
what is private law
- the area of law concerned with legal disputes between individuals
- I.e. Tort law, family law, contracts, property law, etc.
46
what is substantive law
- the area of law that governs society
- I.e. Criminal law
47
what is procedural law
- he area of law governing the rules of law and the procedures of the legal system
- I,e. Sentencing
48
what are principle sources of Canadian law
-legislation/statute law &
- case law/judicial decisions
49
what are subsidiary sources of Canadian law
- custom
- books of authority
50
what are the branches of government and law
legislature
executive
judiciary
51
what does legislature do regarding law
create and change law
52
what does the executive branch do regarding law
executes laws/policies
53
what does the judiciary branch do regarding law
implements law and dispenses justice
54
what is statute law
- law created by a legislature
- In Canada, this is the dominant form of law rooted in the notion of parliamentary supremacy
- In Canada, involves Parliament and the provincial and territorial legislatures
55
what is the legislative process
- A highly political process involving compromises
- In some cases, results in ‘legislative violence’
- Committees play a large role in creating legislation
- In Canada, federal bills are introduced for a ‘first reading’, a‘second reading’ followed by debate, committee review and then a ‘third reading’, including review by the Senate
56
what is horse trading
if you support my bill I will support yours
57
what is legislative violence
actual violence/ brawls within legislature over bills
58
what is case law
- law established by judicial decisions
- Involves judicial **precedents**
- Case law results in a more dynamic legal system
- Judicial decisions are published/reported in a variety of reports
59
R v. Gunn and Ponak
right to trial within a specific time period
60
what are the different sources of judicial precedents
- Canadian supreme court reports
- dominion law reports - supreme court, provincial, municipal
- Ontario reports
- western reports
- criminal reports
- family reports
61
what is custom
- a source of law derived from customary practice
- I.e. Incorporation of British customary legal practices
62
what are books of authority
authoritative texts on legal principles by scholars
63
R V. Ipeelee
this is when the surpreme court used previous studies to show that first nations have different social and economic effects
64
Drugs and law in Canada
1908 An Act to prohibit the importation, manufacture and sale of opium for other than medial purposes
65
1911 opium and drug act
- also cocaine
- Changes influenced by a book of authority
- its not illegal to use or be high, it is illegal to posess said drug - if they catch you using it that is also considered posession
66
what happened in 1923 concerning cannabis
in 1923 marijuana was added to the drug act
there was a 4000% increase between 1966-1975 of marijuana usage and incarcement
67
indigenous law in Canada
- Canadian law is resistant to Indigenous legal orders
- There is limited space in Canadian law for Indigenous law. Where there is space, Indigenous laws are transformed into Canadian legal form
- On-reserve jurisdiction emanates from federal delegation
- Indian Act of 1876
68
British North American Act
a law passed by the United Kingdom Parliament that united Canada, Nova Scotia, and New Brunswick into a single dominion
69
what are constitutions
the foundational (constitutional) charter and supreme laws that form the basis of a legal system and political society
70
what do constitutions tend to do
- Express founding principles & shared
values
- Establish the political system - our constitution establishes our bicameral legislature, our judicial system, our supreme court, fundamental laws
- Establish fundamental laws of society
- Confer power to particular actors and/or institutions
- Limit the exercise of government power
- Outline the basic rights and obligations of citizens
- Highlight a particular history
- Contain aspirations
71
what is constitutional design
the particular features of constitutions
72
what are characteristics of constitutions
- Some constitutions are short, others are long
- Some constitutions are written/codified, others are unwritten/uncodified - like the united kingdom, strong parliment dominant
- Most constitutions are designed to be difficult to change
- Most constitutions have particular amendment processes
- Many constitutions specify judicial review
-Many constitutions omit important political structures and legal processes
73
constitutions and the diffusion of powers
Most constitutions diffuse authority of the state
= The division of powers
= Systems of checks and balances
74
what is horizontal diffusion of power
the spreading of power or influence across different entities at the same level of government
75
what is vertical diffusion of power
the movement of power from lower to higher levels of government, or from higher to lower levels of government. i.e federalism
76
what does 'separation of powers' mean
the division of government powers in a system between branches of government
* Executive branch - it is easier to hold the executive accountable in Canada
* Legislative branch
* Judicial branch
-Judicial review
77
what is federalism
a political system with multiple levels of government, each with a degree of autonomy with specified jurisdiction
78
what is unitarism
a political system with no subnational governments possessing delegated authority/jurisdiction
79
what is asymmetrical decentralization
policy that gives different responsibilities to subnational governments that are at the same level of administration.
80
1764 royal proclamation
Transferred French territory to the UK
81
1867 British North America act
Created the ‘Dominion of Canada’
82
1931 statute of west minister
'Crown split’
83
the constitution act 1982
Patriated the Constitution
* Includes judicial review - the UK has no judicial oversight, in Canada we have judicial review, the legislature can hold the prime minister accountable if he is violating the constitution
* Includes amending formulas
84
what do sections (38, 41, 43) 41
the relationship to the monarch
85
what is the 7/50 formula
7 provinces agreeing to a constitutional change, and those 7 provinces have to represent 50% of the Canadian population
* Includes the Canadian Charter of Rights and Freedoms
86
Canadian federalism
The British North America Act, 1867 established Canada as a federal state
87
what does section 91 of the charter outline
outlines federal powers and jurisdiction
88
what is section 91 (27) of the charter
gives federal government exclusive power to legislate on criminal law - if there is a new type of criminal activity it goes straight to the federal government.
89
what is section 92 of the charter
outlines provincial powers/jurisdiction
90
what is provincial jurisdiction
- public lands
- provincial prisons
- provincial schools
- property and civil rights
- some attributes of family law
- equalization payments - to equal minimal standards in public services in every province - Highly Controversial
- referendums- public votes on public issues - does not happen often
91
what does section 36(2) of the charter
sets out equalization payments between provinces
92
Canada (Attorney General) v. PHS Community Services Society
this speaks to provincial and federal gripes especially when it comes to health jurisitiction
this regarded the provincial administering safety injection sites in Canada
93
what is the Canadian bill of rights
pre charter, a federal statute
before the constitution was just federal legislation as opposed to a constitution
only applied federal not provincially
94
R. v. Drybones (1970) SCR 282
the indian act and the Canadian bill of rights - important that it was before the Charter - pre charter era
95
what is section 1 of the charter
The ‘limitations’ clause: not all rights in the charter are absolute, but within reasonable limits are prescribed by law
96
what is the war measure act
- renamed as the emergency act - provinces cannot invoke, it is only federal
- where there is a justification for the charter to basically get thrown out of the window with sufficient importance
- was invoked in Quebec from Pierre Trudeau
- was invoked for the trucker convoy
- 2-part test
i) sufficient importance
ii)proportionality
97
Saskatchewan v. Whatcott (2013) 1 SCR467
regarding hate speech laws and free speech laws
98
what is section 2 of the charter
sets out fundamental freedoms of Canadians - freedom of consionce, freedom of peaceful assembly, freedom of association
99
what are section 3, 5 & 6 of the charter
set out basic rights of Canadians - social mobility
100
what are sections 7-14 of the charter
sets out legal rights of Canadians - legal rights of the accused person, rights against unreasonalbe search and seizure, the right to stand trial within a certain period of time, right to reason of arrest. right to liberty of a person
101
what is section 15 of the charter
sets out equality rights of Canadians - legal equality, everyone being equal under the law
102
what are sections 16-23 of the charter
concerns minority -language rights - makes english and french the offical language of Canada
103
what is section 24 of the charter
power of the courts to exclude certain evidence - power of the courts the exclude certain evidence in trial, especially evidence that was not aquired with due process.
104
what are sections 25-34 of the charter
relate to the application of the Charter
105
what is section 32 of the charter
applies to both federal and provincial governments - procedural law
106
what is section 33 of the charter
Notwithstanding clause
- this allows a legislature provincial or federal, to inact laws to override some rights within the charter.
- Alberta has never invoked it
- limitations to the not withstanding clause, has to be renewed every 5 years, only provinces can invoke it
107
R v. Morgentaler (1988) 1 SCR 30
Supreme Court of Canada case that ruled that the Criminal Code's abortion provisions were unconstitutional. The ruling made it legal to perform abortions in clinics.
108
Quebec’s Rejection of the Constitution Act , 1982
Quebec never approved the Constitution Act, 1982 - A vito to Quebec in an constitutional change
109
1987 merch lake accord
an agreement between the federal and provincial governments to amend (change) the Constitution.
110
1992 Charlottetown Accord
reducing the number of senators to 62 with equal representation around Alberta, they wanted 25% of representation in the house of commons for Quebec
111
what are Canadian courts central to
- Dispute resolution
- Dispensing justice
- Enforcing contracts
- Answering legal questions
- Enforcing the constitution
- Creating case law
- Setting directions in society toward social control
112
what are the administrative boards and tribunals
- Regulation & dispute resolution outside of the court process
- Created by provincial and federal legislation
- Regulated by statute - cannot step out of delegated authroity they were given
- Adjudication, rule-making and standard setting roles
- Deal with both public and private law
- I.e. Labour Relations Board, the Human Rights Tribunal, the National Parole Board, the Worker’s Compensation Review Board, etc.
113
what are military courts
Deal with violations of the Code of Service Discipline -Canadian military criminal code
114
what do the military courts consist of
- i) various types of military courts, and
- ii) Court Martial Appeal Court Have the same rights, powers and privileges as superior courts
- Military judges appointed by the Minister of National Defence
115
R. v. Genereux (1992) 1 SCR 259
the supreme court held that the marshall must comply with the surpreme court regarding judiciual independence
116
what is provincial court
- the primary entry into Canada’s court system
- With the exception of civil law in Quebec, Canadian provinces and territories practice common law
- **Judges are appointed by provincial governments**
117
what are the 4 divisions of provincial courts
- i) youth division
- ii) family division
- iii) civil claims division
- iv) criminal division
118
what are the superior courts of the provinces
- The superior courts of the provinces: the highest level of courts in the provinces and territories
- Judges appointed by the federal government
119
what are the 2 divisions of superior provincial courts
- i) Trial division: indictable offenses, larger claims, criminal appeals from lower courts
- ii) Appeal division: appeals from the trial division
120
what are the divisions of the federal court of Canada
1. Trial division: responds to civil disputes arising from federal government actions, federal-provincial disputes, intellectual property disputes, citizenship/immigration, refugee law, maritime law and class proceedings
2. Appeal division: hears appeals from the trial division and the federal administrative boards and tribunals
- The Tax Court of Canada: hears appeals from tax assessments by individuals and companies
121
Merlo v. Canada (2017) FC 51
the female RCMP, the RCMP failed to give women fair pay for maternal leave
122
what is the supreme court of Canada
The Supreme Court of Canada: Canada’s final court of appeal
- Appointments made on recommendation by the Prime Minister
- Hears appeals in relation to criminal cases from provincial court of appeals and the Federal Court of Appeal
- Address constitutional matters
- Judicial review
- Offer legal opinions to government
- Hear both common law and civil law cases
- Bound by legislation
- Can also interpret legislation in terms o fthe Constitution of Canada
123
how many justices are on the supreme court
- Consists of 8 justices and 1 chief justice
- 3 must be from Quebec, 3 come from Ontario, 2 from Western provinces and 1 from Atlantic provinces
124
R. v. Morgentaler (1998) 1 SCR 30
right to abortion
125
Vriend v. Alberta (1998) 1 SCR 493
sexual orientation
126
Dunmore v. Ontario (Attorney General)(2001) 3 SCR 1016
right to form a union
127
Characteristics of Canada’s Court System
- An adversarial system
- High level of formality - to give prestige to the court
- Open access
- Jury of peers
- Reasonable timeliness
128
Alternative Dispute Resolution In Canada
- There has been a more recent turn toward alternative dispute resolution
- Alternative dispute resolution: dispute resolution beyond the traditional, adversarial court system
- Employs negotiation, mediation and conciliation
- Typically conducted by non-judicial officer
129
Restorative Justice in Canada
- an approach to justice that seeks to repair harm by providing opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime” (Department of Justice, 2024)
- Principles include recognition, inclusion, accountability, dialogue, voluntariness, etc.
130
R. v. Gladue (1999) 1 SCR 668
supreme court decision, because of systematic discrimination, principles of restoiratvie justice and optional sentencing rituals to accomodate first nations peoples and their culture .
131
how does Canada separation of powers differentiate from the US
Canada does not have a full seperation of powers, unlike the us. we have more of a fusion of powers between the exectutive and the legislative
