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LWSO 203 > Midterm > Flashcards

Midterm Flashcards

1
Q

The law represents a social contract between the individual and the state best represents the

A

Positivist approach

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2
Q

___ argue that law can only be understood by understanding political, economic and social contexts

A

Legal Realists

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3
Q

The US Constitution & Canadian Charter are statements of ___ ideas

A

Natural Law

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4
Q

Perspective suspicious of all state action

A

Anarchism

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5
Q

Why do legal positivists seek to sever valid law from morality as contemplated by the natural law theorists?

A

The difficulty in finding agreement on what should count as moral

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6
Q

Thinking behind the classic natural theory includes these 2 arguments:

A

1) There must be a connection between law & morals 2) An unjust law is no law at all

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7
Q

During the classical period Ancient Greek philosophers discovered law & understood justice through __.

A

Reason

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8
Q

The main shift by Christian revisions of natural law were toward

A

Creating a hierarchy of sources of natural law with the inclusion of the idea of Gods eternal law knowable through human reason

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9
Q

___ was a forerunner to what we now call ‘human rights’

A

Natural law

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10
Q

Fuller’s natural law is also referred to as

A

Procedural natural law

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11
Q

Legal positivists are concerned with describing

A

1) What the law is
2) Valid law

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12
Q

Social jurisprudence and legal realism share the view that

A

Law is a tool for human betterment & social progress

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13
Q

Natural law theorists view the the Buck v. Bell (1927) case authorizing involuntary sterilization as a coercive tool to advance society and promote social progress

T/F

A

False

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14
Q

Which schools of thought v would view forced vaccination, involuntary sterilization & prohibition on mixed marriages as valid law?

A

Legal positivism & social jurisprudence/legal realism

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15
Q

Which of the following theoretical paradigms are anti-liberal?
- critical race theory
- radical feminism
- cultural Marxism

A

All of the above

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16
Q

Concept used to describe how material conditions of production create laws that tend to perpetuate, rather than resist and reveal the true nature of the existing modes of production

A

Ideology

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17
Q

Critical theories believe modes of reproduction and or systems of domination produce ____ who share values & political aims on the basis of their shared exploitation

A

Identity groups

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18
Q

Finnis’s natural law jurisprudence may fail to overcome the problem of the law becoming tyrannical where law is justified in the name of the common good of the community yet seeks to use coercion to restrict gay marriage because same sex unions are judged by a community not to promote the common good or human flourishing. T/F

A

True

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19
Q

The ___ provided for the introduction of English laws & courts in Canada and guaranteed Aboriginal self-government

A

Royal Proclamation of 1763

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20
Q

Case law is not a source of Canadian law because courts are not allowed to make law; they are only allowed to interpret existing statutes. T/F

A

False

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21
Q

All judicial decisions in Canada are reported T/F

A

False

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22
Q

The importance of judicial precedent depends upon the hierarchical placement of the court issuing the decision. T/F

A

True

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23
Q

Canadian law has not been influenced by any non-British legal system. T/F

A

False

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24
Q

Archival materials, minister’s notes, newspaper reports, and commission documents can be useful documents to review when trying to understand why a law was passed. T/F

A

True

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25
Q

After the Action of Union 1840, what did the Province of Canada become>

A

A self-governing nation state

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26
Q

The idea that some enactments contain a codification of steps to be taken in a legal proceeding demonstrates the limitations for separately classifying __ & ___ law.

A

Procedural and substantive

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27
Q

Area of law primarily concerned with collective interests

A

Public law

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28
Q

Laws of which national jurisdictions that have been imported into Canadian law?

A

France, Britain and the US

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29
Q

Why are Case Law and Custom written down but classified as unwritten law?

A

They are written down but not the product of any legislature

30
Q

The process of court interpretation of ordinary legislation modifies the designs of lawmakers to conform to the ___ presented in court

A

Real situations

31
Q

Custom, as a source of Canadian law is most closely associated with this area of law

A

Constitutional Law

32
Q

What prompted Canada’s 1st illegal drugs law passed in 1908

A

A racially motivated labour confrontation

33
Q

Name given to the recordings of the written transcriptions of the House of Commons

A

The Hansard

34
Q

3 things Emily Murphy advocated for in the Black Candle

A

1) Increased penalties for use of drugs
2) Increased penalties for distribution of drugs
3) Expanded powers of search and seizure for police

35
Q

What led to the Supreme Court’s decision in R.v. Oakes?

A

The court decided that the reverse onus provision in the Narcotic Control Act contravened a person’s right to be presumed innocent until the crown proved otherwise

36
Q

Elmer Driedger believed these 3 things should be considered while interpreting an Act:

A

1) Scheme of the Act
2) Object of the Act
3) Intention of Parliament

37
Q

Definition sections have been written into specific legislation to

A

Lessen the need for legal debate about the meaning of key words

38
Q

The “plain-meaning rule” means the court has to interpret the words of a statute according to

A

The literal sense of the words

39
Q

The ____ of statutory interpretation requires courts to interpret statutes to ensure that in the case of absurdity, repugnance, or inconsistency, they are remedied by examining the context of the statute

A

Golden Rule

40
Q

The mischief rule of interpretation is also known as

A

The rule in Hayden’s Case

41
Q

In the Person’s case, the SCC found

A

Women were not persons in Canada

42
Q

Since 1982 the Canadian judiciary modified its approach to

A

Consider the nation’s listed allies to determine the validity of enactments

43
Q

Stare decisis means

A

To stand by decided things

44
Q

The ___ required the unanimous consent of all provinces & fed govt to make most amendments to the Constitution

A

1964 Fulton-Favreau Amending Formula

45
Q

The seven fifty formula requires a total of 57 senators to vote in favour of a constitutional amendment T/F

A

False

46
Q

All inequality is inherently evil & contrary to the provisions of section 15 of the Charter of Rights and Freedoms
T/F

A

False

47
Q

The list of rights in section 15 of the Charter of Rights and Freedoms is a closed list and therefore if the infringed right is not in the list, the Charter can not apply. T/F

A

False

48
Q

Subsection ___ of the Charter allows for the inequality of some when a government initiative is designed to promote the equality of other previously disadvantaged.

A

15 (2)

49
Q

In this case, the SCC established a two-part test for the application of section 1 of the Charter

A

R.V. Oakes

50
Q

The most significant difference between constitutional law and any other form of statute law

A

Constitutional law cannot be changed unless the amending formula is applied

51
Q

3 expressions of constitutional law that define the powers of govt and rights of citizens

A

1) BNA 1867
2) Constitution Act 1982
3) Charter of Rights and Freedoms

52
Q

The patriation of Canada’s Constitution made ___

A

Canada responsible for amending the Constitution

53
Q

What was the outcome for the patriation of Canada’s new Constitution?

A

It made Canada responsible for amending the Constitution

54
Q

The two key amendments to Canadian constitutional law embodied in the Constitution Act, 1982 were:

A

1) an amending formula for future constitutional amendments
2) elevation of a rights document to constitutional status

55
Q

Sections 91 and 92 establish the distribution of legislative power by identifying

A

Which laws must be enacted by federal parliament and which are reserved to the provincial legislatures

56
Q

When a province passes legislation that is wholly within the powers set out in Section 91 of the Constitution Act, 1982, the courts can declare

A

The law is ultra vires the powers of the provincial legislature

57
Q

The outcome of the “peace, order, and good government” provision set out in section 91 of the British North America Act gives the federal govt

A

Residual power over areas of jurisdiction not specified in sections 91 or 92

58
Q

Cooperative federalism describes the process where

A

A matter of federal jurisdiction has been delegated to provincial entities usually in the area of fiscal mechanisms

59
Q

Which groups negotiated the Charlottetown Accord?

A

All of the first ministers, all the leaders of the then 3 major political parties, aboriginal and territorial leaders

60
Q

The __ __ included a provision for the recognition of the governments of aboriginal peoples as constituting 1/3 orders of government in Canadas.

A

Charlottetown Accord

61
Q

The first major decision of the Supreme Court of Canada that rendered sections of a federal statute, the Indian Act, inoperable under the Bill of Rights?

A

R. V. Drybones

62
Q

The fact that the court can declare validly enacted laws inoperative, if they contravene the rights guaranteed in the Charter of Rights and Freedoms best explains

A

how the tradition of parliamentary supremacy has been affected by the Charter of Rights and Freedoms

63
Q

How has the tradition of parliamentary supremacy has been affected by the Charter of Rights and Freedoms?

A

The court can declare validly enacted laws inoperative, if they contravene the rights guaranteed in the Charter

64
Q

The applicants’ challenge in Halpern v. R., 2003 was legislation prohibiting

A

Same-sex marriage was unconstitutional

65
Q

The outcome of the proclamation of section 24 of the Charter of Rights and Freedoms was

A

Illegally obtained evidence is excluded if its admission would bring the administration of the law into disrepute

66
Q

The Charter of Rights and Freedoms applies when

A

It always applies to the laws of parliament or provincial legislatures unless the law specifically states it will not apply

67
Q

The ____ is a lawyer’s court, where lawyers appear without their clients to argue points of law

A

Supreme Court of Canada

68
Q

What is the only form of media delivery with an absolute right to complete access to the courts?

A

Print

69
Q

The main argument for formality in court is that formality lends itself to decorum and dignity which will ensure the

A

Respect of the citizenry for the courts themselves

70
Q

In civil cases, the outcome depends on a balance of probabilities which is explained by

A

The plaintiff must establish their claim is more likely than 50% to be legitimate

71
Q

In _____ the SCC held that principles of restorative justice must be applied because there is a need to recognize the impact of systemic discrimination & the different circumstances of Aboriginal offenders

A

R.v. Gladue

LWSO 203 (4 decks)

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