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Intro the Law Study Materials > Legal Foundations - Unit 1 > Flashcards

Legal Foundations - Unit 1 Flashcards

1
Q

Compare and contrast rules v. laws.

A

A Rule(s)
- Are a part of our everyday lives in Canada.
- They are usually made by institutions, organisations, schools, or parents.

A Law(s)
- Are legal rules
- Apply to all members of a community
- Are made and enforced by the government
- Are mandatory
- Involve a detailed system of consequences.

All laws are rules, but not all rules are laws

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2
Q

How are laws enforced? How are rules enforced?

A

Laws are enforced by the justice system (police and courts), whereas rules (in sports, homes, and schools) are not.

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3
Q

Can you opt out of laws? Can you opt out of rules? How so?

A

Everyone must obey the law but anyone can opt out of rules by simply choosing not to participate.

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4
Q

What are the five functions of law?

A
  • Establish rules and conduct
  • Provide a system of enforcement
  • Protect rights and freedoms
  • Protect society
  • Resolve disputes
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5
Q

Describe the function of law “establish rules and conduct”. Use examples.

A
  • Laws outline guidelines for individuals to reduce conflict.
  • Laws create a clear & predictable understanding of socially acceptable and & unacceptable behaviour.

> Example: The Ontario Highway Traffic Act sets out the rules of the road & driver’s license requirements.
Example: The Canadian Criminal Code spells out unacceptable behaviours & attacks a penalty for each such transgression.

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6
Q

Describe the function of law “provide a system of enforcement”. Use examples.

A
  • Laws must be enforced to have meaning.
  • The police & the court system oversee this operation.

> Example: The police may charge a person for speeding.

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7
Q

Describe the function of law “protect rights and freedoms”. Use examples.

A
  • Rights & freedoms are protected by the law.

> Example: The Canadian Charter of Rights & Freedom of expression.

  • Rights and Freedoms are only limited by the law for good reason.

> Example: Promoting hatred against an identifiable group is a criminal offense.

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8
Q

Describe the function of law “protect society”. Use examples.

A
  • Laws protect people from harm.
  • Create order & stability
    Without laws, chaos & vigilantism would likely ensue.

> Example: The Criminal Code of Canada sets out laws that protect people from criminal activity, actions that society deems to be wrong & punishable.

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9
Q

Describe the function of law “resolve disputes”. Use examples.

A
  • Law is Required to settle conflicts either through mediation or the court system.
  • Laws protect individuals from personal; injury or property damage & compel police officers & prosecutors to investigate & bring harm to justice.
  • Laws also allow private citizens to see redress in court of harm to them done by others

> Example: A person may be sued for trespassing or negligence.

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10
Q

Describe international law.

A

Customs - a general practice accepted as law. Judicial decisions that regulate relations between nations & governments. (Treaties - Laws between nations.)

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11
Q

Describe domestic law.

A
  • Judicial decisions that regulate relations amongst citizens organizations, & governments, all within a single nation - legal precedents & case law. (Statutes - Passed by Parliament)

Domestic Law can be divided into 2 categories:
- Substantive: Law defines one’s rights, duties & obligations in society.
> Ex. one cannot assault another etc (Criminal Code).
- Procedural: Law outlines the steps or procedures that are involved in enforcing one’s rights, duties, or obligations.
> Ex. When arrested you may be asked to partake in actions such as breath samples or a video recording.

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12
Q

Substantive law can be divided into statute and common law. Describe them.

A
  • Statute Law: Refers to statutes (Legislations, acts, & codes) passed by federal or provincial legislature.
  • Municipalities are known as by-laws, technically not considered statute laws.
  • Common Law: Refers to the judge’s published written decisions & reasons for judgment of civil or criminal; trials.
    > Usually, based on interpretations of relevant statutes.
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13
Q

Substantive law can also be divided into public and private law. Describe them.

A
  • Public Law: Relationship between government & individuals or organisations.
  • Sections under public law;
    > criminal,
    > constitutional
    > administrative law
  • Private Law: Relationship between individuals or organisations & other individuals or organisations
  • Sections under private law;
    > tort
    > family
    > contract
    > property
    > labour & employment law
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14
Q

Name and describe the three sections under public law.

A

Criminal Law
- Outlines offenses against society
- Prescribes punishments.
- Outlined in the Criminal Code of Canada
> criminal acts
> punishments

Constitutional Law
- Outlines in the Constitution
> powers of the federal and provincial governments
- The constitution is the supreme law in Canada.

Administrative Law
- Outlines the relationship between citizens and government boards/agencies
- It is a set of rules for procedural fairness when taking a complaint to a government board/agency
- It makes sure that legal hearings and reviews are fair for all parties

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15
Q

Name and describe the five sections under private law.

A

Tort Law
- Holds a person or organisation responsible for the damage they cause to another person.
- Torts are wrongs that one person commits against another.

Family Law
- Regulates aspects of family life.
- It deals with the relationship between persons living together as spouses or partners, and among parents, grandparents, and children.

Contract Law
- Outlines the requirements for legally binding agreements.

Property Law
- Outlines the relationship between individuals and property.

Labour & Employment Laws
- Governs the relationship between employers and employees.

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16
Q

What are the historical roots of laws?

A
  • Laws have always existed
  • Early Laws affected hunting, family relationships, & property.
  • Laws were passed down by word.
  • Laws grew with communities and became more complex
    > This is when they decided to put “word to paper”
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17
Q

Describe the Code of Hammurabi.

A
  • 300 written laws, carved into stones.
  • 1750 BCE (before common era) by Hammurabi, the King of Babylon (modern day Iraq)
  • Laws were granted by God.
  • Patriarchal society
  • Slavery was legitimised
  • Social & political hierarchy
  • Punishments were harsh & predicated upon the notion of retribution or revenge
    > Servants or female relatives would be punished
  • Intent did not matter for punishment.
  • Restitution & compensation.
    Rich expected to care for the poor.
  • Perjury (lying under oath) was recognised as a criminal offense under the code for the first time.
  • “If a man puts out the eye of another man, his eye shall be put out.”
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18
Q

Describe Mosaic law.

A
  • Biblical Law (Hebrew, or Mosaic Law)
  • Book of Exodus, ⅕ books of the Old Testament.
  • 10 commandments - 1350 BCE
  • Similar to the Code of Hammurabi in prohibiting;
    > Murder
    > Theft
    > Adultery
    > Worship of false Gods.
  • Concerned with punishing deliberate acts only
  • High status is more likely to be punished
  • Care for the poor & respect for one’s parents
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19
Q

Describe the Magna Carta.

A
  • 1215 CE, England
  • A charter of rights agreed to by King John of England
  • It is considered a foundational document for modern constitutional law and the protection of individual rights
  • “No free man shall be arrested, imprisoned, or deprived of his possessions, except by the lawful judgment of his peers or by the law of the land.”
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20
Q

Describe the order and evolution of law.

A
  • Greek Law
    > Representative democracy (Citizens, vote, jury duty)
  • Roman Law
    > Twelve tablets, lawyers, public prosecution for crimes & compensation for victims.
  • Justinian Code
    > Codify the 1600 books of Roman Law into one concept of equity.
  • First Nations Law
    > Iroquois Confederacy (1720)
  • Napoleonic Code
    > Written code for civil matters, property, wills, contracts & family disputes.
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21
Q

Compare equity and equality.

A

Equity - Giving/getting what you need.
Equality - Everyone gets the same.

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22
Q

Describe the Historical British Customs (trial system).

A

Trials by Ordeal
> tortured, then if lasted, not guilty.

Trials by Oath
> someone very dear to the people swears on the person’s innocence.

Trials by Combat
> they fight to their death against a representative of the community, If they survive they are innocent and drop their charges.

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23
Q

Describe the feudal system and common law.

A
  • Canadian law is based on France & England.
  • Before 1066, there was no law common to all of England.
  • In 1066, William, Duke of Normandy (now France), invaded England & introduced a system of government called Feudalism.
  • Under this system, the king owned all the land & divided (parceled) the land (manors) among his lords and nobles.
  • In return, the lords became the king’s vassals & promised him loyalty & military service.
  • The lords had vassals of their own, who farmed the lands or served the military on their property
    > They would give their service or part of their produce to the Lord & the church.
  • Lords and nobles acted as the sole judge in any dispute that occurred in their manor.
  • Since each lord punished as he saw fit, inequity often resulted due to the inconsistency of rulings.
  • In response, the king appointed traveling judges to hold legal assizes (trials.)
  • Judges would meet regularly in London to discuss cases & share experiences.
  • Overtime, the laws became similar throughout England, hence the common law of England.
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24
Q

Describe human rights.

A

Human; a member of the homo sapien species; a man, woman, or child; a person.

Rights; thing to which you are entitled or allowed; freedom that are guaranteed.

Human rights; the rights you have simply because you are human. How you expect and deserve to be treated as a person.

  • Human rights apply to everyone and is the only law that applies universally
  • The Universal Declaration of Human Rights includes 30 different rights
25
Have people always had human rights?
No, it was "survival of the fittest"
26
Who was Cyrus the Great?
After he conquered Babylon he announced that slaves were free and people could choose whatever religion they wanted.
27
What is natural law?
People naturally follow certain laws even when they weren’t told to, but it continued to get trampled on by people of higher power.
28
What did the Magna Carta accomplish?
Stopped the exceeding amount of power people had over those with less power. It stated “No man shall be above the law, not even a king.”
29
What was the issue with the original application of human rights?
Napoleon disagreed and overthrew the new french democracy and almost ruled the world. After that, an international agreement of human rights was declared. But it only applied to Europe, other countries continued to get invaded.
30
What was the solution to the original issues with human rights?
Mahatma Ghandi changed that, insisting all people deserve rights. The United Nations in 1945 was created and their basic purpose was.. “...To reaffirm faith in fundamental human rights, in the dignity & worth of the human person.”
31
Where did we get the human rights we have today?
The Universal Declaration of Human Rights was established. (Natural Law became Human Rights.) The Universal Declaration of Human Rights was not universal law when it was created, it was optional, hence why many people do not have the rights they deserve.
32
What is the Constitution?
A Constitution is a document containing the fundamental laws governing a political entity, such as a nation or state. This document states the rules and principles by which a society shall be governed.
33
What is the BNA act? Describe it.
British North American Act, 1867. - The Dominion of Canada includes provinces of Ontario, Quebec, New Brunswick, and Nova Scotia. (Original provinces that started in Canada) - Sets out the divisions of power in section 91 (Federal Power) & Section 92 & 93 (Provincial Powers). - Canada could not amend its constitution, Britain still controlled foreign affairs & approved Canadian laws, & the judicial committee of the privy council (JCPC) remained Canada’s highest court.
34
When was the Statute of Westminster established? What did it accomplish?
- 1931 - Gave Canada the power to Pass its own laws and enter into extraterritorial agreements
35
When was the Supreme Court Amendment Act established? What did it accomplish?
- 1949 - Affirms the Supreme Court of Canada as the highest court of appeal in Canada, ending appeals to the JCPC
36
When was the Constitution Act established? What did it accomplish?
- 1982 - Patriated (to bring home) Canada’s constitution, meaning Canada could now amend (change) their constitution without approval of Britain using an amending formula. - Renamed the BNA act to Constitution Act, 1867. - Includes an entrenched Canadian Charter of Rights and Freedoms. > the process to change the charter would be agreement from all 10 provinces and federal government
37
Where is the amending formula found? What are the five types of amendments?
- Part five of the Constitution Act, 1982 1. If the change only affects one province, then that province can make the change. 2. If the change only affects the federal government, then the federal government can make the change. 3. If the change affects some but not all provinces, then those provinces and the federal government must agree to make the change. 4. For some changes of National importance, all 10 provinces and the federal government must agree (the unanimity rule). - TL;DR Whoever it affects must agree to it 5. For all other changes, seven of the ten provinces (must make up at least 50% of the population) and the federal government must agree (general amending formula).
38
What five elements does Canada's Constitution consist of?
- The Constitution Act, 1867 (formerly the BNA act, 1867) - All statutes passed between 1867 and 1982 that affect Canada’s constitution - The Constitution Act, 1982 - Customs & conventions (unwritten) - Judicial decisions
39
Where are federal powers found? What do the affect?
- Section 91 - Peace, order, and good government - Criminal law - Unemployment insurance - Banking, currency, and coinage - Federal penitentiaries - Marriage and divorce - Postal services - Aboriginal peoples and their lands
40
Where are provincial powers found? What do the affect?
- Section 92 - Property and civil rights - Marriage ceremonies - Police forces and provincial courts - Highways and roads - Provincial jails - Hospitals
41
What is local municipality?
- Includes cities, towns, townships, villages, and counties. - The laws that govern the activities of a local community are called bylaws. > they are passed by municipal governments > relate to local issues > emergency services, building permits, the use of pesticides on your lawn, and so on
42
Describe common law.
- Laws that are made by judges rather than by governments. - Commonly found in the reasoning of a judge’s decision after hearing a case. - Laws are originally based on British culture. - Common law is founded upon the Rule of Precedent. - When the common law is written down it is referred to as case law. - Every case is assigned a case citation. - Today the common law is primarily concerned with the interpretation of statute law and constitutional law.
43
Describe statute law.
- Laws that are made by governments. - Statute law is passed by a legislative body, referred to as parliament in Canada. - Statutes are also referred to as acts. - Laws are mostly codified and written down from common law principles, as well as creating new laws to deal with new situations. - All statutes can be found in the revised statutes of Canada, published yearly by the Canadian government. - Although the common law can interpret statute law, if there is a discrepancy, statute law takes precedence over the common law.
44
Describe constitutional law.
- Laws that establish the form of our government and assign powers and duties to each level of government. - The constitution includes an entrenched charter of Rights and freedoms, guaranteeing individuals rights and freedoms. - Can be found in the Constitution Act, 1982, which includes the Constitution Act, 1867. - All common law and statute law must abide by the rules and principles as outlined in the constitution.
45
Define lobby/lobbying.
Attempt to influence the government to benefit a particular group or organisation.
46
Define codify/codification.
The process of assembling a system of laws into a body of statutes.
47
Define retribution.
A deserved punishment for a wrong.
48
Define restitution.
The act of making good, restoring, or compensating a person for a wrong that was done to them.
49
Define the feudal system.
A political, social, & economic system prevalent in Europe between the ninth & fifteenth centuries.
50
Define precedent.
A legal decision that serves as an example & authority in subsequent similar cases.
51
Define Habeas Corpus
A document that requires a person to be brought to court to determine if they are being legally detained.
52
What are the three levels of government?
Federal Government; deals with national laws. Provincial Government; deals with provincial laws. Municipal Government; deals with town and city law.
53
What are the three parts of federal government?
Legislative: decides what is legal. Creates law. Executive: enforces law & makes sure they are obeyed. Judicial: judges what the meanings of the laws are.
54
Describe the legislative/parliament branch of federal government.
- House of Commons (Lower House): forms the bills that become law. > Made of common people from communities. > Most important part of Legislative because it has the people on its side. > People vote for them to ensure the people within the H of C are representing citizen’s of the community. MP (Member of Parliament) - Senate: Senators are not chosen by common people, they don’t have to leave till they are 70 years old. Can Veto (Reject) bills. - Queen or King: Approves bills, the governor General helps pass laws and has a say in the law (Royal Consent). > But they must abide by the Canadian Constitution, if not Canada will retaliate.
55
Describe the executive branch of federal government.
- Prime Minister: The chosen leader of his party. > His party holds the most seats in the H of C. > He suggests the senators to the Governor General, then they are selected. - Queen or King: Governor General serves as a representative of the royal court and Selects senators. > But the GG is selected by the PM. - Cabinet: PM chooses who’s in his cabinet. > These people are in charge of various departments of the country that concern the government. > Mostly MP’s there is a minister who is in charge of these different departments.
56
Describe the judicial branch of federal government.
- Interprets the meaning of laws and decides if they follow the constitution. - Supreme Court: Highest court. Made up of 9 justices. > Lead justice is called the Chief of Justice. > Came from across the country and chosen by the governor General/PM. > Justices have their job till 75 years old. - Provincial Courts and Military courts: Lower courts of Judicial Federal Branches.
57
What is the Morin Framework? Describe the four factors to it.
If a case is considered unreasonably delayed under section s 11(b) required courts consider four factors in determining whether there was a breach. - The total length of the delay: time between the charge and trial. - Defence waived delay: whether any amount of the length of delay was due to actions taken on the defence side of the case. - The reasons for the delay: may include inherent time restrictions presented by the case, how much of the delay was due to egregious conduct by either the accused of the Crown, and if resource limitations were a factor. - Prejudice of the Accused: during the time of delay, what were the consequences for the defendant and the ability to have a fair trial.
58
What is the New Framework? Describe the two categories within it.
Any delay is presumed to be unreasonable if it is longer than 18 months for cases tried in the provincial courts or 30 months in the superior courts. If delay exceeds such limits, the Crown must show that the delay was due to “exceptional circumstances” out of their control. However, in general, they will fall into one of two categories; 1. Discrete events: The time attributable to it will be deducted from the total time. Time spent in delay is deducted from the sentenced time of the crime. 2. Particularly complex cases: The delay is reasonable and no further analysis is required.

Intro the Law Study Materials (4 decks)

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