midterm Flashcards
Tribunals:
Tribunals are a legal body established to settle certain types of disputes. They allow the high-level institutions to delegate tasks that would not be able to be performed. Tribunals are “independent”, and specialize in certain areas which allow them to provide expertise and efficiency. There are different levels of tribunals (Federal, Provincial) which may be reviewed by the courts and are often seen as quasi-judicial (Non-judicial body that can interpret the law)
There are many problems with Administrative Tribunals being unjust. They are seen as not independent, not impartial, and there are limited mechanisms in place for ensuring even the basic capability of their members.
Over the years, there have been judicial review of how a court should interpret tribunal. After many years the latest standard of review are Simple Reasonableness (Includes Reasonableness and Patent Unreasonableness) and Correctness. However, tribunals have a Privative Clause which allows the Tribunal to decide the case and courts can not touch it but the courts have ignored this.
Pseudolaw
is a collection of spurious legally incorrect ideas that superficially sound like law, and purport to be real law. In layman’s terms, pseudolaw is pure nonsense.
Standing;
a procedural threshold to determine if you can sue in a court, important because court decisions are legally binding and if cases are handed haphazardly by either party it creates issues
Next-friend standing;
representing someone’s behalf, can be used for minors and those with intellectual disabilities who do not have capacity to represent themselves, it was developed and is used most poularily for those who are physically incapacited and cannot sue or go to court, most common example is prisoners in solitary confinement who is incapable of challenging the grounds used for why he is in solitary confinement, therefore next friend standing is used
Formalism & realism;
Formalism; Weber: judge acts as “an automaton into which legal documents and fees are stuffed at the top in order that it may spill forth the verdict at the bottom along with the reasons, read mechanically from codified paragraphs”
Realism; Schmitt: every legal concept is “infinitely pliable” and all law is “situational law”, thus every judicial decision is a political act
Hart’s defeatism:
“nothing concise enough to be recognized as a definition could provide a satisfactory answer”, law is self complex and nested in a socio-political reality and interacts with individual behaviour and collective customs/traditions
Social Contract Theory (Locke, Two Treatise, 1689)-
move from the State of Nature, to a state of gov’t; law is a contract where we give up some of our freedoms in order to live in a safe and stable society
Made up, hypothetical contract
4 elements of positivism
1. Body of rules
2. Enacted and applied by public officials
3. Formulated by legitimate means (went through a legal process)
4. Backed by a state force
Positivism is about separating law from normative consideration; law is black and white
Problem of the “wicked legal system”- works if the sovereign is benign, and a good leader (e.g. philosopher king); however, if the leader is corrupt, this perspective leads to an oppressed society w/ an unjust legal system
*Black Act (1723) – “if you poach animals of a neighboring farm, the punishment is death”
the idea that there is a contract between us and the sovereign (queen) that we agree to by abiding by laws, state has governing authority over us and that authority comes from a legitimate source
Natural Law
“Higher Law” above man’s law; not a problem if there is a homogentisic community that follows only one faith; one God, one set of legal rules
In today’s society, not everyone is a Christian, there is a plurality of religion, and some individuals are not religious at all
Connotations w/ religion (Thomas Aquinas and Catholicism)
According to Aquinas, God gave us the ability to reason, and law must always conform to reason
E.g. the command of the sovereign itself has to be reasonable; Doctrine of Impossibility- a law must be possible for the subject to conform to it
More associated w/ fairness and due process; laws must be applied fairly and within due process
Two key procedural protections of natural law
Nemo iudex in causa sua- no one should be the judge in [their] own case (impartiality)
Audi alteram partem- listen to the other side (e.g. Singh 1985)
Codified in statutes and constitutions, but they may still exist independently
There has to be a moral standard by which we judge gov’t actions
People claim to be positivists today, but the natural law inclination lurks in the background
Should law reflect justice?
Positivists: not necessarily, law is independent of morality and consists of enactments of the sovereign (who may be morally just or not)
Natural law; yes, since an unjust law is no law at all (lex inuasta non est lex). Easier when there is a religious homogeinety, difficult in a pluralistic society
People claim to be positivists today, but the natural law inclination lurks in the background
Why are the years 1985 and 1990 significant for Canadian law?
1985 is the most recent federal consolidation; 1990 is the most recent Ontario consolidation
Tort of Assault
If you were sued for a private law action related to the assault in Quebec City (and both you and the other party were residents of Quebec)…
…the trial would involve provincial law and the civil law approach.
Grewal v. Litt case Friday
- After parents died will set out to give daughters 150K each while they gave their sons 4.2M each.
- End result –> The Daughters’ 60% share will be divided equally among the four of them, and the Sons’ 40% share will be divided equally among the two of them.
Common law rule- testator’s intention
Statutory rule- BC Wills Variation Act
S.60- must be “adequate, just and equitable”
Both are political choices; either you choose to allow the will to be changed, or choose not to change it
Rule depends on where you live; e.g. everywhere else in Canada, it will not apply, but if you do live in BC, the variation act will apply
Legal indeterminacy
Question- How do we decide how much we can impose on our neighbors?
Testator’s intention favors the individual, whereas the other is a collective idea
Gewal v. Litt - B.C. Wills Variation Act:
- Statute that says wills can be varied in order to make sure the will is ADEQUATE, JUST, and EQUITABLE.
- Only province that has such an act.
- Respecting the will of the testator is a political choice.
Caron v. Alberta Case Friday
- Traffic offences.
- Claimed that it was unconstitutional because the tickets were not enacted in French.
- Alberta is not constitutionally obligated to enact, print and publish its laws and regulations in French and English.
- Anything in the Constitution that says traffic tickets have to be bilingual will trump other lower laws, however there is no section in the constitution that says this.
- The case refers to the Order in 1870 which has a speech attached.
Case Friday (Caron v. Alberta)
Alberta’s Highway Traffic Act was in English only
Caron got a traffic ticket, and argued that the rules should have been in French as well
He was convicted of a crime he couldn’t understand, so he argued that he should not be held responsible
The court decided that Alberta did not have to make their laws bilingual
R v. Trinchi case Friday
- Sex with long-distance couples via webcam.
- He took screenshots of the videos without her knowing.
- All charges had to be dropped because it was uncertain whether Trinchi or his new girlfriend leaked the images.
- S. 162(1) Offence of Voyeurism - Convicted
R v. Trinchi !
Appellant was in a long-distance relationship w/ a woman; they would have sex via webcam; he took screenshots of the videos, photos, such
When they broke up, the images were leaked; distribution of images; minors- child pornography
Voyeurism- Trinchi took screenshots of the feed
Reasonable expectation of privacy- agreed to the livestream
Surreptitiousness- secretly; she knew she was exposing herself to him over webcam
S.162(1)(b) was met- she was nude, engaged in sexual activity
No clear expression that she was screenshotted; however, she also did not explicitly say no (could be inferred that he would do this)
It was brought up that over some Skype messages, he did say that he would be “taping” her; was skimmed over, did not have any real effect
All other charges had to be dropped b/c it was uncertain whether Trinchi or his new girlfriend leaked the images
R v. Jarvis
- London high school teacher, charged with voyeurism, using a pen to spy on and record female students.
- Precedent to R v. Trinchi
R v. Jarvis
Mr. Jarvis, a London high school teacher, was charged w/ voyeurism, using a spy pen to record female students
(a)- females were fully clothed; (b) females were fully clothed; (c) recording was done for a sexual purpose
However, there was no reasonable expectation of privacy for students (due to security cameras in hallways)
Ontario Court of Appeal found Jarvis not guilty; however, the SC reversed the Court of Appeal on the reasonable expectation of privacy, and found him guilty
(1) location the person was in when she was observed/recorded
(2) nature of impugned conduct (observation or recording)
(3) consent of the recording
(4) the manner in which the recording was done
(5) subject matter of the content
(6) any rules, regulations or policies that governed the observation (school did have a guideline against recording)
(7) relationship b/w person recorded and person recording
(8) the purpose for which the observation was done
(9) personal attributes of the person observed/recorded
Distinguished-
Distinguished; distinguishing this case from other case, comparing differences
Followed-
case follows precedentcase does not follow precedent
Followed; you take the precedent and resolution and follow it or apply it to resolve the case before you
Driedger’s Modern Rule:
“Today there is only one principle or approach, namely, the words of the Act are to be read in their entire context in their grammatical sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”
Politics vs law
Politics: States “brook no rivals” : “the monopoly of the legitimate use of physical force within a given territory” (Weber)
Law: Kant: “politics must bend the knee before right”
Loughlin: “politics and law can coexist effectively, although that is most likely to occur only when it is acknowledged that law forms an intrinsic part of the engagement which we call politics”
Loughlin: “polical power, the ability to achieve intended effects, is a highly complex phenomenon: it is a form of decision-making power which can only be exercised through institutions and processes, and therefore, in part at least, through the medium of law. Political power is relational… a product of the relationship between the state and its citizens.”
Legal positivism
Legal positivism: Austin; “law is the command of the sovereign”
- Social Contract Theory
- Positivism is about separating law from normative consideration; law is black and white
- Problem of the “wicked legal system”- works if the sovereign is benign, and a good leader (e.g. philosopher king); however, if the leader is corrupt, this perspective leads to an oppressed society w/ an unjust legal system
- Black Act (1723) – “if you poach animals of a neighboring farm, the punishment is death”
Natural Law
“Higher Law” above man’s law; not a problem if there is a homogentisic community that follows only one faith; one God, one set of legal rules
In today’s society, not everyone is a Christian, there is a plurality of religion, and some individuals are not religious at all
Connotations w/ religion (Thomas Aquinas and Catholicism)
According to Aquinas, God gave us the ability to reason, and law must always conform to reason
E.g. the command of the sovereign itself has to be reasonable; Doctrine of Impossibility- a law must be possible for the subject to conform to it
More associated w/ fairness and due process; laws must be applied fairly and within due process
Two key procedural protections
Nemo iudex in causa sua- no one should be the judge in [their] own case (impartiality)
Audi alteram partem- listen to the other side (e.g. Singh 1985)
Codified in statutes and constitutions, but they may still exist independently
There has to be a moral standard by which we judge gov’t actions
People claim to be positivists today, but the natural law inclination lurks in the background
Nemo iudex in causa sua-
no one should be the judge in [their] own case (impartiality)
-natural law
Audi alteram partem-
listen to the other side, they guarantee your side of the story will get a chance to be heard
(e.g. Singh 1985)
Testaters intent;
court follows intention of the person who died (their will)
Statutes;
Statutes come from legitimate law-making institutions
Formal products of the legislative process
Federal and provincial (municipalities pass by-laws, alway a delegated form of authority)
Examples of well known federal statutes: criminal code of canada, income tax act, emergencies act
Regulations;
Laws made under a delegation of authority (by statute) to another body or office (subordinate legislation)
Regulations are legally binding and thus distinct from other forms of soft law (guidelines, codes of conduct)
Danger of overregulation
Substantive overregulation
Citation;
Income tax act, R.S.C., 1985, c. 1 (5th Supp.).
RSC; Revised Statute of Canada; 1985- canadian level, most recent federal consolidation, 1990- ontario level, most recent ontario consolidation, older, if its newer it just says SC, 1985 and 1990 consolidation years
Examples of well known ontario (provincial) statutes: Highway traffic act, liquor control act/ liquor license act, residential tenant act
Citation; Highway to traffic act, RSO, 1990, c. H. 8
Schmitt’s standard;
challenge to liberal democracy, law is infinitely pliable, basic principle of legitimacy; “a judicial decision is correct today when it can be assumed that another judge would decide in the same way”
Dworkin’s “Herculean” judge;
“best fit” thinking, ideal judge, judge needs to identify case and in order to solve needs to situate that resolution in broader areas of law, familiar with all legal areas
Stare decisis;
literally “to stand by decided matters”
Stare decisis et non qureta movere (to stand by decisions and not disturb the undisturbed
Application requires identifying the ratio decendi (reason for the decision) and distinguishing it from the obiter dicta (things said in passing)
Stare decisis & analogies;
Schaur:
“in order to make the maxim anything other than a largely useless tautology”, you need to have “some substantive criterion of likeness”; “given that any two items in the world share some but not all of the properties of the respective items, any two items can be deemed alike in some respect and unlike in others, thus making the mere idea of likeness or unlikeness singularity unhelpful
Stare decisis and the judicial hierarchy;
Vertical stare decisis;
courts below in the judicial hierarchy must apply the precedents of the courts above; both the bedford and carter trial courts deviated from a clear surpreme court precedent
Stare decisis and the judicial hierarchy;
Horizontal stare decisis;
courts should maintain their own precedents; high courts, including the supreme court of canada, are not bound by their own precedents; but they want to maintain stability in law
Stare decisis and the judicial hierarchy;
Inexorable command;
brandeis then concisely articulated the general arguments for and against the application of stare decisis, he began; stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right…
Is stare decisis conservative?
Some argue stare decisis is inherently conservative
True; it means law adapts slowly, has created a judiciary that is occasionally out of step with society
False; it can adapt quickly when judges accept social change and it is always subject to judicial control
Pre- charter we would have perceived the judiciary as (small-c) conservative; now perceived as progressive
Notwithstanding vs subject to;
notwithstanding gives primacy to something, one section trumps the others
Includes vs means;
includes is open ended meaning we can have more than what is actually listed, means is what is stated on the page is everything there, exhaustive, can not add anything beyond what is listed
Rule of penal statutory interpretations;
“It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of parliament requires it in express terms, and not, at most, by implication” - Marcotte (1976), Dickson J
We always use driedgers rule, however if it is a criminal law case we have this other penal rule to consider
If it is not 100% clear you must rule in favour of the accused
Statutory Interpretation
Driedger’s Modern Rule- “Today, there is only one principle or approach, namely, the words of the Act are to be read in their entire context in their grammatical sense harmoniously w/ the scheme of the Act, the object of the Act and the intention of Parliament”
Tells us all the things we should consider when interpreting the text
Read the whole text- see how it works in its whole
“harmoniously” does a lot of the work
Terms to know
“notwithstanding” (ignore other parts, the section takes precedent) vs “subject to” (opposite of notwithstanding)
“includes” (not exhaustive; there could be other things included) vs “means” (exhaustive; if it means A, B, and C, it cannot mean D)
Mandatory language (“shall”, “must”) vs permissive language (“may”)
“and” (have to satisfy all requirements; must do A, B, and C) vs “or” (have to satisfy one of multiple conditions; must do A, B, or C)
Interpretation Act- very explicit about language
Consolidation vs statutory citations
Consolidation tells us everything legally binding and everything on the books
Consolidative period is very starting point, means everything on books in written down
All statutory citations refer back to consolidative period and cite change
Every couple years in canada we take consolidation, clean it up and pass it as new, every revised change we refer to consolidation
1990, ontarios year of statutory consolidation
1985, federal statutory consolodation
Distinguishing revised statutes and annual statutes citations;
Consolidation will have an R, ex RSC; Revised statute of canada
Federal consolidation; 1985
Provincial consolidation; 1990
Jurisdiction; C for canada, O for ontario
Origin; if at federal level it says 1986 or onwards then year in citation is year of encatment, if at provincial level it says 1991 or onwards then then year in citation is year of encatment
Atlantic lottery decision;
tort law case
Individuals suing organization, interpreting a statute; CCC
Suing for damages
VLT vs 3 card monte
Criminal law;
Mens rea (guilty mind) vs actus rea (guilty act) all offences in criminal code have some aspect of both Has lots of asymetrys One asymmetry is presumption of innocence, crown must prove beyond a reasonable doubt in order to convict Source of law: criminal code of canada (statute); knowingly, but can be trumped by constitution, murder requires subjective foresight of death Two types of offences: indictibale and summary conviction; interpretation act says summary conviction unless otherwise stated, indictable are more serious, summary penalty; jail up to 6 months and fine up to $5,000 CCC has offences that are malum in se (natural law)(evil in themselves), ex murder, and malum prohibitum (positivism) (wrong because prohibited), ex water skiing at night- positivism vs natural law Statutory offences vs common law defences Canada has no felonies or misdeamenors Criminal interest rate; 60% Every criminal offence has to be stauatorily codified by parliament Contempt of court; when judges make offences with their own court, exception to rule abput offences, used to maintain order within courtroom Offences; no commonlaw only statutory, defences; commonlaw and statutory
Annual statutes
issued per year that contain all of the successful changes in parliament, changes make reference to the laws that are written in stone,
Consolidation
When we take the time to write out all the laws in the books, this is called consolidations or revised statutes, we consolidate and condense and pass all statutes as a giant blob, this tells us explicit laws in entirety and writes them all down word for word
Consolidation usually happens every couple decades, it is a time consuming and expensive process, army of lawyers go in and sift through all laws in the books but important for ironing out any wrinkles that exist in statutory law
When you write all laws in stone it is called consolidation or revised statutes, alternatively when we publish annually they are called the annual statutes and contain the statutory amendments passed by parliament for that given year, they write up new change and refer back to consolidation
“The Morality of Law”
Fuller’s response to Hart, who is a positivist; law has its own internal morality
E.g. King Rex- if Hart was right, then Rex would be successful in passing his laws, and would not fail, as he did; 8 ways to fail to make law
A failure to make any laws at all- all decisions on an ad hoc basis
A failure to make laws public
A failure to make law prospective
Failure of congruence b/w the law as announced and the law as administered
Law ensures our security by limiting some things, but the law also ensures our freedoms, allowing us to do things we want to do
Law as Coercion
“Law makes us do things we do not want to do”- Frederick Schauer 2015
Hart- “law often empowers rather than coerces”- it establishes a technology for people to exercise their freedom
E.g. making wills, creating corporations and partnerships, forming gov’ts
Loughlin- “law establishes the precondition for the conduct of politics”- if there was no law, there would be no politics
Types of Law
Conventional distinction- “public” versus “private”
Public law-
constitutional law, criminal law, administrative law, taxation law
Commonality- state is a party to the action
Private Law-
contract law, tort law, property law, family law, estate law, corporate law
Commonality- actions are b/w private citizens
Corporations can stand in the place of citizens/individuals
Distinction is misleading; e.g. classifying labour law
Public Dimensions of Private Law
“Private” law has a public political dimensions
Family Law- is it in the best interests of the child to be raised w/ the mother or father or both? What religion should the child be raised in?
Corporate Law- should a business be able to acquire another business purely for the purpose of putting it out of business? Are shareholders responsible for a corporation’s misdeeds?
Estate Law- can you dispose of your property upon your death in any way you choose, even if the criteri was racist and sexist?
