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?
Reconciling Law and Politics
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”
States “brook no rivals”- “the monopoly of the legitimate use of physical force within a given territory” (Weber)
Kant- “politics must bend the knee before right”
Loughlin believes that law and politics can coexist effectively; politics is informed and structured by law
You also can’t understand law w/o understanding the politics behind it (e.g. statutes, common law)
Conceptualizing Political Power
Loughlin- “political power … a form of decision-making power which can only be exercised … in part at least, through the medium of law … [it] is relational …. A product of the relationship b/w the State and its citizens”
Limitations
Is it applicable to all states? (e.g. North Korea)
“At least in part”- is this a challenge to the rule of law?
Even in a country w/ a rule of law, not everything is done according to the law (e.g. political executives, national defense)
Legal “World-Making”
According to Loughlin, things that may seem fictional or wrong can still be useful
“The Sun always moves; the sun never moves”
Scientifically, the sun does not move
However, in reality, we see the sun moving and use it as a way to determine when to sleep, or wake up, etc.
Evaluating world-making- credibility, coherence, and utility
Law as a “world-view” scores high on these criteria
Bagehot- “It is often said that men are ruled by their imaginations … it would be truer to say they are governed by the weaknesses of their imaginations”
Law is a narrative by which we understand our society and our own behaviour
“A Legal Fiction”
Human
Physical (material)- exists in the physical world
Legal (ideational)- exists in the legal world
Corporation
Physical- does not exist in the physical world
Legal- exists in the legal world
Corporations exist only in law, and can only be destroyed by law
Legal fiction has consequences
If corporations are caught up in scandals, they will suffer corporate penalties
Legal standpoint- seeks to determine whether QC has the authorization to secede, and if so, the process of secession
The Primacy of the Legal Instrument
In Canada, legal instruments are always primary
They trump moral considerations, political calculations, personal preferences, popular opinions, etc.
Law can be very discretionary; legal power can be delegated, and non-legal factors can permeate the law
E.g. Queen is legally very powerful
Bureaucratic actors have enormous power over individuals
Criminal law actors (police, prosecutors)
Hierarchy of Authority
The Constitution
Statutes
Common law judgements- laws made by judges in cases; application of precedent
Also includes regulations (authority regulated by statute) and executive actions (things the legislative or executive branch might do); ambiguous
If statutes don’t conform w/ the Constitution, they are of no force or effect
Common law judgements always yield to statutes and must conform to the Constitution
Constitution of Canada
S.52 (CA 1982)- “supremacy clause”- Constitution is the Supreme law of Canada, and any statute that does not conform to the Constitution is of no force/effect
Two major written components- (1) Constitution Act, 1867 (2) Constitution Act, 1982
CA 1867- preamble states that we have a Constitution similar in principle to that of the UK; not similar in detail (e.g. conventions)
S.91- powers of the federal gov’t; S.92- powers of the provinces
CA 1982- Charter of Rights and Freedoms; most important non-charter component is the amending formula
Charter of Rights and Freedoms
Charter contains a number of rights; s.2 (fundamental freedoms)- 2(b) freedom of expression, 2(d) freedom of association
S.3- right to vote; S.7- right to life, liberty, and security of person
S.15- equality; s.8-14- legal rights
S.1- reasonable limits clause; no absolute rights (R v. Oakes- Oakes Test)
Oakes test- helps the court determine whether there is a reasonable limit; individual must prove that their right was infringed; (1) objective- what was the gov’t trying to do; (2) is the limit proportional to that objective?
Is there a rational connection b/w the means used and the objective?
Minimal impairment- court must fix the impairment as minimally as possible
General proportionality
S.33- notwithstanding clause; no matter what was said elsewhere, notwithstanding all the rights given, gov’ts are allowed to limit and infringe rights as long as they state that rights are being infringed based on the notwithstanding clause
Limit- only in effect for 5 years; then, you must revisit it
Statutes
Come from legitimate law-making institutions
Formal products of the legislative process
Federal and provincial; municipalities pass “by-laws” (authority is delegated from the province)
Federal \tes- Criminal Code of Canada, Income Tax Act, Emergencies Act
Income Tax Act, R.S.C., 1985, c. 1 (5th supp.).
R.S.C 1985- most recent Federal Consolidation in 1985
Provincial statutes- Highway Traffic Act, Liquor Control Act/Liquor License Act, Residential Tenancies Act
Highway Traffic Act, R.S.O. 1990, c. H.8
R.S.O 1990- most recent Ontario consolidation in 1990
Regulations
Laws made under a delegation of authority (by statute) to another body or office
“subordinate legislation”
E.g. Cabinet
If the statute changes, it automatically overrules any regulations that have been made
Are legally-binding; distinct from other forms of soft-law (e.g. guidelines, Codes of Conduct)
Allows for danger of overregulation; gov’ts want to do more and more through regulation than through the parliamentary process
Substantive overregulation
Too much discretionary authority outside of legislature; allows executives/bureaucrats to be unchecked (other than statutory repeal/amendment)
E.g. Canadian Radio-television and Communications Act- establishes CRTC Commissions; Broadcasting Act allows CRTC to make regulations “respecting the proportion of time that shall be devoted to the broadcasting of Canadian programs; and prescribing what constitutes a Canadian program”
S.10 (1) (a) and (b)
Courts
Core of the judicial process is dispute regulation
Courts are one method of resolving disputes (coercive)
Adjudicate disputes by applying the law to the facts of the dispute
Accepted by both parties b/c Court is impartial
mediation vs arbitration
Mediation- party C mediates dispute b/w party A and party B; party C makes decision, and all parties go back and forth until both parties agree
Arbitration- similar to mediation, however, party C’s decision is binding
Non-binding Arbitration- basically mediation
Structure of the Canadian Judiciary
Jurisdiction- the power to hear a case
Original jurisdiction- you can hear it for the first time; first hearing of the case (usually provincial courts)
Appellant jurisdiction- you can hear it on appeal; majority of Supreme Court’s power is appellant jurisdiction
Supreme Court has original jurisdiction over reference cases; e.g. same-sex marriage case
Jurisdiction can be territorial, based on subject matter, hierarchical jurisdiction (SCC over provincial courts)
Inherent jurisdiction- they can hear anything except that which has been carved away; if it hasn’t been given to anyone else, it’s heard here (superior courts have inherent jurisdiction)
Supreme Court of Canada
Prior to 1949, our appeals would go to the Judicial Committee of the Privy Council in Britain; JCPC would overrule the decision of the SCC
Had appellant jurisdiction over all legal matters in Canada
Hears almost all cases by leave; chose to hear the case
Hears matters of national controversy (Canada-wide) or matters w/ competing judgement (court of B.C. says one thing, and court of ON says another thing)
Decisions are binding throughout the nation
Statutory body; formed by the Supreme Court Act (1875)
Prior to 1982, federal parliament could have abolished the SCC
Since 1982, the existence of the SCC has been constitutionalized
Composition of the SCC is constitutionalized (9 judges)
3 judges from QC; 3 judges from ON; 2 judges from the west (MB, SK, BC, AB); 1 judge from Atlantic Canada (NF, NB, NS, PEI)
Unified court structure- Supreme Court has authority over all legal matters
U.S. does not have a unified court structure, as there are federal and state courts
U.S. Supreme Court does not hear cases unless it focuses on constitutional law
Case Law
Generally, less authoritative than statutes, but if the Court is interpreting the Constitution, it can invalidate statutes; all statutes need to be interpreted in order to be applied
Our system is the common law system, which means law develops over time through individual decisions
Potential anarchy in this system is mitigated by stare decisis and the judicial hierarchy
Judicial Hierarchy- appeals to higher court
Stare decisis- let the decision stand; respect for precedent
Systems of Law
Civil Law- continental Europe, Asia, QC and Scotland partly
Common Law- UK, Canada, US, other former British colonies
Shariah Law- mainly Islamic countries; theocratical system
Canada is a bijuridical state: two systems of law in the state (quebec…)
The Civil Code is used for private law in Quebec only for matters of provincial jurisdiction; common law is used for public law in all provinces including Quebec
Common Law
Sources of Law- organic and experiential; case law (judge made, common law), legislation, written and unwritten constitution
Legal Reasoning- stare decisis; ‘deciding like cases alike’ (precedent)
From the ground up reasoning
Civil Law
Sources of Law- comprehensive codification; written codes, written constitutions
Legal Reasoning- deductively applying principles in code to dispute before the court
From the top down reasoning (deductive)
Constitutional Law- division of powers (federal and provincial) and Charter of Rights and Freedoms
Public Law-
common law: legislation and/or judicial decisions
Federal- criminal law, administrative law, tax law
Immigration, environment, telecommunications, etc.
Provincial- quasi-criminal laws (traffic laws), administrative law, [tax law]
Education, labour, environment, etc.
Private Law-
common law: legislation and/or judicial decisions; civil law: code (Quebec)
Federal- family law, copyright law, commercial law, [private claims against the Crown]
Marriage and divorce, custody, support
Provincial- family law, tort law, contract law, commercial law
Custody access, support, property decision
If there’s a matter of provincial law, you have to ask, “Where am I?”
Quebec- only province with a civil code
Anywhere else- common law
Rule of Law-
“the overarching normative relationship among legal subjects and the state”
Al-Aulaqi v. Obama
On August 30, 2010, plaintiff Nasser Al-Aulaqi (“plaintiff”) filed this action, claiming
that the President, the Secretary of Defense, and the Director of the CIA (collectively,
“defendants”) have unlawfully authorized the targeted killing of plaintiff’s son, Anwar Al-Aulaqi, a dual U.S.-Yemeni citizen currently hiding in Yemen who has alleged ties to al Qaeda in the Arabian Peninsula (“AQAP”)
what best characterizes estate law in Canada?
the state will only rarely interfere with the intentions of the testator about who will inherit his/her wealth; only when the testators wishes are contrary to “public policy” will they be altered/ignored
what is standing in law?
a procedural threshold that establishes whether a litigant may sue in court
in chap 1, Boyd subjects the case of Carter v. Canada (the assisted suicide case) and the federal government’s cannabis act to competing legal perspectives. In Boyd’s account someone committed to natural law perspective…
could either approve or disapprove of both the decision in Carter v Canada and the cannabis act; natural law provides no definitive position on either matter
The following is an accurate and complete statutory citation; Highway Traffic Act, R.S.O. 1990, c. H. 8. From that citation we can tell….
it is an Ontario statute
Catholic theologian Thomas Aquina’s view on law still has some resonance in secular, pluralistic Canada because…
it emphasized the role of reason in law
a patent or copyright dispute in Quebec would be settled under…
common law rules and principles, except as altered by Federal statutes
if the federal court of appeal makes a ruling, it is legally binding on…
all other federal courts in Canada, except the supreme court of Canada
arbitration differs from mediation in that…
unlike mediation, arbitration decisions are binding on the parties to the case
in response to the ongoing covid-19 crisis, the government of New Brunswick contemplated enacting a “Henry VIII” clause. Such a clause would…
… allow ministers to suspend the operation of many laws or amend them without the ordinary legislative process
the “supremacy clause” (s.52) of the constitution act 1982…
is an inclusive definition, meaning it provides some elements but it isn’t exhaustive
in the common law system, if a judge declines to use an existing precedent to decide a case, we say that the judge…
“distinguished the case from the precedent”
if a common law rule conflicts with a statute…
the statute trumps the common law rule
in essence, if a judicial opinion says “I disagree with the majority on both the outcome of the case, and the reasoning behind it” then it is a…
“dissenting opinion”
based on top hat student submissions, most students were convinced by CJ Cokes artificial reasoning claim T or F
True
since stare decisis “treating like cases alike”, plays such a key role in the common law system, common law legal reasoning often relies heavily on…
Analogies
Driedger’s modern rule of statutory interpretation… includes 4 things
requires us to interpret the words of the Act in their entire context, which includes (1) the grammatical sense of the words (2) the Act as a whole (3) the aim or object of the act and (4) the intentions of parliament. This is the standard routinely used by the supreme court of Canada
in the case of Atlantic lotteries v. Babstock where the court had to decide whether video lottery terminals were similar to criminal games of three-card monte, the court had to interpret s.206 of the criminal code of Canada. As apart of their statutory interpretation, the court…
used a dictionary definition and referred to the intentions of parliamentarians
legal theorist fredrick schauer thinks that analogies are a problematic basis for legal reasoning because…
most things are alike and dissimilar in several ways; it is the substantive criterion of similarity that is important
what best describes the existence of “common law” criminal law in Canada after 1955?
common law offences have been eliminated (with the exception of contempt of court) but it is still possible to assert a common law defence in criminal law
if a statute says “a resident does not have to pay tax if they are over 18 years of age and they have never been convicted of a crime” then…
a nineteen year old resident who has never been convicted of a crime does not have to pay the tax
if a statute says a tribunal “may allow third parties to speak at the hearing” then…
the tribunal can choose whether or not to allow third parties to speak at the hearing
the offence of “water skiing at night” can most accurately be characterized as…
malum prohibitum
Should police investigating a crime have a duty to care for suspects for the crime? Tophat
majority said yes
Statement of principles for diversity, tophat
92% agreed with them
What do you wish you knew about law school before you went?
Law school is there to make you a lawyer, getting you into mindset of lawyer, less practice at understanding what legal knowledge means, law is much more bureaucratic and administrative, majority is writing letters
Best thing you can do is talk to lawyers, internship or summer job
LSAT;
Culturally biased with white middle class framing
Relies on implicit knowledge
No correlation with performance at law school
More of a weeding tool
Applications;
LSAT score and GPA are most important
Law-related jobs beyond being a lawyer; paralegals, law clerks, victim services in courtroom
Be open to a changing career path
Third and fourth year grades are most important
most difficult bar exam?
New york
Roncarelli v. Duplessis
Duplessis
Associated with Catholic Church
Premier of Quebec prior to Quiet Revolution
Ran Quebec like a private business
Roncarelli
Tavern owner
Jehovah’s Witness → paid bail for Jehovah’s Witnesses who were arrested
Laws were put in place to stop Jehovah’s Witnesses from spreading their religion
Duplessis wants to strip Roncarelli’s liquor license → license was stripped prior to expiry and the tavern was shut down
Roncarelli wins the SCC → business is still shut down after the case
Arbitrary use of power from Duplessis
Intention of statute did not speak of any external variables
“Civility” Movement
rambo vs Atticus finch lawyer
Rambo Lawyers and Rambo Litigation:
“A lawyer, esp. A litigator, who uses aggressive, unethical, or illegal tactics in representing a client who lacks courtesy and professionalism in dealing with other lawyers.”
Atticus Finch Model: gentlemanly law; ideal type of lawyers, Respectful, polite, ethical
“Civility” Movement
- an increasing concern w/ the conduct of lawyers; reached its peak at the beginning of 2000s
How lawyers relate to each other; lawyers are generally expected to respect conduct (judicial functioning, how they present themselves in court, etc.)
Defence- lawyers should be advocating for their client, and doing whatever it takes to relieve them of their charges
“Civility” Movement
Salyzyn Model/critique
- idealizes a highly exclusionary model (white men); suggests that different types of lawyers would change the way law works
E.g. having more women in law could bring more mediation, and restorative justice models
Weiler, “Cattle Trespass”
Floyd Atkinson was driving a jeep on country road in Ontario, met a herd of cows belonging to farmer Leo Fleming
Used brakes and tried to steer away but Atkinson’s jeep struck 3 cows and killed 2 of them, injured his own knee
Driver sued farmer for his personal injuries, responded with dead animal claim
Trial judge ruled farmer’s negligence to let cows pass on highway, relative responsibility 60% to farmer and 40% to Atkinson
Legal rule that absolved farmer “of any duty to prevent his cattle from straying on the highway and endangering its users”
When highways were first created in medieval England land was dedicated by adjoining landowners
Previously no risk from domestic animals because traffic was so slow
House of Lords in 1947 decision of Searle v Wallbank declined to revise legal duties of farmer, common law precedent set in 1952 decision Noble v Calder
“Present unsatisfactory state of the law in this province as to civil liability for injuries…”
Courts can’t change law, legislature can
Justice Judson didn’t consider himself bound by old English doctrine
Failure to be flexible has been seen in this branch of law
Rule of Law
rule of law - “the overarching normative relationship among legal subjects and the state.”
Constitutional principle
“rule of law, not the rule of men”
much of Fuller’s morality of law embedded
certain, knowable rules available in advance
“arbitrariness” - “indifference about the procedures chosen to reach an outcome”… “can also suggest that a decision-maker possesses unconstrained discretionary powers”
administrative law: reviewing decisions made by state officials
for the most part, accept the statute as legitimate, which means decisions are subject to statutory modification
holding the executive branch to account. is the law being executed properly?
Negligence- Hot coffee
The ‘hot coffee’ case:
A woman got coffee from McDonalds, the lid came off, and the hot coffee poured all over her; she sued McDonalds for millions because their coffee was too hot and burned her severely
Misunderstood case
700 complaints before her were filed against McDonalds for the same thing
She just wanted them to pay her medical bills, but when they only agreed to pay $800 for a $10,000 operation, she sued
Came in the midst of when everyone was suing everyone in the US; this was never much of an issue in Canada because:
Our rewards are much more limited
In the US, you pay for your own legal representation in a vast majority of cases; in Canada, the losing party has to pay their legal fees and the other side’s legal fees, making it risky to sue
Contract law remedies (as opposed to tort law remedies) could include:
Cost of the coffee
Medical costs, but nothing beyond that
You are not responsible in tort law for every action that you cause
If the coffee spilled on the driver and caused a chain of crashes, McDonalds could not be held liable for the last driver hit
The chain of causation/liability has to end somewhere
Legal causation differs from factual causation
If the coffee was at a reasonable temperature, and she drank it and died, McDonalds could not be held liable
If McDonalds unknowingly brewed their coffee with poisonous beans and someone drank it and died, it would probably be better to sue the manufacturer than McDonalds
There are generally four elements of negligence:
Duty of care is established (I have a responsibility for being careful with you)
Breach of the standard of care
Defendant cause the breach/injury
There is a remedy under law
Conohue v. Stevenson,
a Scottish case
Snail was in a bottle of Stevenson ginger beer that Donohue purchased at a cafe
She was sick for several days, so she sued
Stevenson argued that since he doesn’t even know Donohue, he owes her no duty of care
The court disagreed, deciding that manufacturers are responsible for events which they can reasonably foresee, and of course it is a reasonable foresight that consumers will use their product
This case changed everything in the ‘negligence’ area of law
Causation - generally speaking, the test used to determine causation is the “but for” test (e.g., the injury would not have happened but for the defendant’s actions)
The causation also must be deemed ‘close enough’ that it deserves legal recognition
Palsgraf v. Long Island Railroad:
Two men trying to catch a train right as its leaving
One gets on, one continues to try to get on
A guard shoves him onto the train
The passenger who was shoved on drops his package onto the rails; it was full of fireworks which set off when they hit the ground
The explosion caused scales on the other end of the track to fall and injure Ms. Palsgraf
Palsgraf sued the railroad - is the causation close enough or is it too remote?
The Palsgraf case decided that causation must be proximate
Palsgraf; not reaonabally foreseeable so therefore worker was not liable
Defences to negligence -
contributory negligence and voluntary assumption of risk
Contributory negligence:
An apportionment of the blame which then relates to an apportionment of the damages
The plaintiff’s blameworthiness for the result
E.g., in the hot coffee case, the lady was responsible for 20% of the damages
If there are multiple tortfeasors, the blame can be divided up among all of them
This defence is different than joint liability:
With joint liability, if you are at least 1% responsible for the injuries, you are responsible for 100% of the damages (1% rule)
If there are multiple tortfeasors, they work out the damages owed by each person among themselves
This becomes a problem when municipalities get caught in the following situation:
Someone drunk drives and crashes into somebody
Drunk driver gets sued for millions, which they likely do not have
The lawyers in this situation would try to pin 1% of the responsibility on the municipality so they pay instead
The municipality may then sue to get some of that money back, but it would likely be unsuccessful
This shows that tort law has public consequences and bears implications for public policy
Voluntary assumption of risk:
Can be a complete defence. Must be clear what risks you are assuming
If you undertake a risky activity, you cannot then sue for it
A complete defence in some cases
If you go to a hockey game and get hit by a puck, you can’t sue; you assumed that risk when you entered the arena
A puck accidentally getting hit over the boards is a reasonable assumption
Getting beat by one of the hockey players, though, is not a reasonable assumption and you could sue for this
Torts;
a legal wrong or a breach of a legal duty
Can be intentional but doesn’t need to be (negligence is a common tort action)
Well known actions include…
Intentional torts: assault, battery, false imprisonment
Nuisance- interference with enjoyment of property
Negligence
But these are common law and always subject to further development and refinement
No “tort of discrimination” because…
Because we have statutes that occupy the same space
Top hat question: Does Mrs. Palgraf have a successful tort claim?
90% said yes
Rankin’s Garage & Sales v. J.J., 2018 SCC 19
Two teenage boys, under the influence of alcohol and marijuana, trespassed on the property of a commercial garage and stole an unlocked car in which the keys had been left in the ashtray. The boy driving the car crashed it, leaving the other boy with a catastrophic brain injury. Through his litigation guardian and parents, the injured boy sued the owner of the garage, the driver, and the driver’s mother (for having supplied some of the alcohol and for having failed to supervise the boys) for negligence, claiming that they all owed the injured boy a duty of care.
The trial judge found that the garage owner owed the injured boy a duty of care, and instructed the jury accordingly. The jury returned a verdict finding all parties negligent, and the injured boy himself contributorily negligent. It apportioned liability as follows: garage owner 37%; driver’s mother 30%; driver 23%; and injured boy 10%. The Court of Appeal dismissed the garage owner’s appeal, finding that the trial judge did not err in finding a duty of care and did not err in her instructions to the jury; nor was the jury’s verdict unreasonable.
Responsibility:
Garage = 37%
Breached their standard of care
Keys were left in a lot of cars
Nothing was locked properly
The friend = 20%
The one driving the car and crashed it
JJ = 10%
A minor, not in the right state of mind
Suffered major injuries - in a coma
Contributed his actions to the injury (contributory negligence)
Max he can collect is $90,000 because he loses 10% of the total
JJ would go to each party to sue (BC)
BC makes it difficult because an injured person could sue the municipal government (pot hot, blocked stop sign etc) . They need to make sure regulations are 100% perfect so they cannot be sued for liability ??
Friends mother = 30%
Provide alcohol and marijuana to the two boys
Was it reasonably foreseeable that personal injury would result from security (or lack thereof) at the garage (49 yes, 50 no)
No bc Can’t anticipate there was minor that were likely to break in
Yes bc they left keys in the car, no security, everything was unlocked,however the specific injury / incident was unforeseeable
Court looked to 3 precedents
Decided that rankin was not reasonably foreseeable and the type of injury cut the line of foreseeable, not found to be liable
Rankin did not have a duty to care because it was not reasonably foreseeable
Criminality does not remove the liability - based on common law
Habeus corpus;
produce the body, producing evidence and challenging evidence before you to prove your innocence
admin law, habues corpus cases
may v ferndale and mission institution v khela
Both relate to criminal justice, happening within a prison
may v ferndale; prison had algorithm to assess whether new prisoners should go in minimum or maximum security, violated habeus corpus because prisoners were not informed on the algorithm and did not know what variables they were being tested on
mission institution v khela; knife fight in prison, warden heard khela was involved and put him in maximum security, problematic because khela had no power to challenge this accusation/decison, warden said because it was an emergency situation he did not need to inform khela, unacceptable based on habeus corpus, supreme court said khela should have been informed
Two principles of natural law
Two key procedural protections;
Nemo iudex in causa sua; no one should be a judge in their own case, the judge can’t know either side personally
Audi alteram partem; listen to the other side, they guarantee your side of the story will get a chance to be heard
Baker v canada (minister of citizenship and immigration)
Very important case for admin law, establishes the duty to provide (written) reasons
Court says immigration officers statement creates standard of apprehension of bias
Source of law; natural law principles, spectrum of fairness
Baker v. Canada (Minister of Citizenship and Immigration) (1999)- content of fairness will depend on
(1) the nature of the decision being made, and the process followed in making it
(2) the nature of the statutory scheme
(3) the importance of the decision to the individual
(4) the legitimate expectations of the person challenging the decision
(5) the choices of procedure made by the agency itself
S.7 requires decision-makers to produce a written explanation for the decision
Central to the quest; a duty to give reasons, when the decision’s impact is high
David Stratas- “an explosion of litigation” – now “the most frequent area where tribunals get reversed”
Lower court denied humanitarian grounds; letter contained no reasons
Challenging the officer, who gave Baker no reasons
SC said that the letter given to her by the junior officer could be construed as reason
Conclusion- junior officer did not display impartiality when making the decision; his own “frustration w/ the system” caused him to make his decision w/ reasonable apprehension of bias; therefore, the decision was sent back to be reviewed
CRIME vs TORT; litigants, burden of proof, purpose of remedy
Litigants; crime= state v accused, tort= private actor v private actor
Burden of proof; crime = BARD, tort= balance of probabilities
Purpose of remedy; crime= deterrence, incapacitatin, rehabilitation, justice, tort= to put the parties back in the position they would have been if the harm did not occur
2 ways in which it is important the law be settled
judicial impartialty and consistency
Commensurability;
assumes any injury can be paid off financially
2 important functions of administrative tribunals;
Expertise and efficency
Build up expertise; resolve decisions pertaining to nuclear power, discretion needed
Hogg on administrative tribunals
“administrative tribunals undoubtedly decide more cases and probably dispose of more dollars than do the ordinary courts”
Administrative law;
reviewing decisions made by state officials
For the most part, accept the statute as legitimate, which means decisions are subject to statutory modification
Holding the executive branch to account, is the law being executed properly?
Source of law; typically operate through regulations- creatures of statutues/ delegated authority
ratio decendi
(reason for the decision)
obiter dicta
(things said in passing)
several examples of arbitrary power:
“the existence of unlimited discretionary powers in an agency; a decision-maker acting in bad faith; inappropriate responsiveness to an individual situation where important interests are at stake: consideration of irrelevant factors in the decision; disregard of the purpose of a statute; and dictation of the decision by an external and unauthorized person”
all seen as violations of the rule of law
