midterm 2 Flashcards
1
Q
law schools
A
- There was no formal university-level law school pre-1950s
- Now 24 law schools in Canada (2024)
- Eligibility determined by GPA and the Law
School Admissions Test (LSAT) - Successful students receive their juris doctor (JD)
2
Q
what is articling
A
- The academic study of law was designed to
supplement legal apprenticeship (articling) - Articling: a law student’s period of
apprenticeship under supervision of a licensed lawyer(s)
3
Q
what is a lawyer
A
someone who has the legal recognition to practice law
4
Q
what are the roles/ functions of lawyers
A
provide legal representation, prosecute and defend suspected offenders, establish legal arguments, offer legal advice, act as trustees, legal research, legal drafting, advocacy, negotiate and draft contracts
5
Q
how many lawyers are there in Canada
A
- There are around 136,000 practicing lawyers in Canada
(CFLS, 2024) -Debate persists regarding the increasing number of
lawyers - There has been a significant increase of women lawyers
- Includes solicitation (contracts etc) and litigation (people in the courtroom)
6
Q
what are law societies
A
a provincial association that licenses lawyers to practice
7
Q
what are the roles/functions of law societies
A
establish standards, collect annual fees from membership, provide legal aid, provide insurance to members, discipline lawyers and approve law schools
8
Q
what is the Canadian bar association
A
shares nformation about the practice, offers networking and professional development opportunities and represents the interests of Canada’s legal community
9
Q
federation of law societies in Canada
A
the national association of Canada’s provincial legal societies-Regulates Canada’s legal profession, shares information across law societies and facilitates national collaboration (FLSC, 2024)
10
Q
Canadian Bar Association’s Code of Professional Conduct
Federation of law Societies Model Code of Professional Conduct
A
Includes standards on issues of competence, quality of service, confidentiality, conflicts of interest, preservation of clients’ property/disbursements, withdrawal from representation and marketing/advertising of legal services (FLS, 2022)
11
Q
disbarment
A
removal from the bar and membership of law society terminated Lawyers can also be reprimanded in other ways (i.e. fining, suspensions from practice)
12
Q
roles/functions of judges
A
administer the law, preside over the legal process, make important legal decisions, sentence offenders, interpret the law and establish
case law
13
Q
who points federal judges
A
Federal judges are appointed by cabinet (Minister of Justice) with assistance of a Judicial Advisory Committee
14
Q
how many judges in Canada
A
- There are around 1,180 federally appointed judges in Canada (2024)
- Women make up around 45% of all federally appointed judges (2022)
15
Q
Canadian judicial council
A
oversees Canada’s federal judges- Consists of 41 members; chaired by the Chief Justice of Canada
16
Q
what is statutory interpretation
A
Judges are expected to interpret ambiguous legislative statutes in terms of their i) wording schemes, ii) object of the act and iii) intent of the act (Driedger ,983)
17
Q
2 general approaches to stat interpretation
A
i) British tradition and ii) European/US version
18
Q
3 rules for statutory interpretation
A
- Rules: i) plain meaning rule, ii) golden rule and iii) mischief rule
19
Q
3 rules for grammatical statutory interpretation
A
Grammatical principles: i) exclusive terminology, ii) combining similar kinds and iii) defining in relation to similar concepts
20
Q
judicial activism
A
term used to characterize more active judicial interpretation of legislation- Canada has moved closer to the American model of judicial
review
21
Q
legislative intent
A
- Legislative history and case law is used to determine legislative
intent - 1980s move away from a narrower approach to statutory interpretation
22
Q
judicial precedent
A
judgement or decision of a court of law cited as an authority for similar cases
Precedent results in a more dynamic legal system, but also a more predictable one
23
Q
Stare decisis
A
‘to stand by decided things’
24
Q
problems with judicial precedent
A
i) when it takes priority over the intention of a statute and ii) when it self binds a court
25
oj Simpson case
found not guilty in criminal law, and found liabile in civil law
26
torts
- a private wrong
- A private matter against an individual, corporation or body of government
27
tort law
- law aiming to remedy private wrongs through compensation
- Tort law differs from contract law
28
torteous liability
Tortious liability refers to the legal responsibility that arises when someone's wrongful actions or omissions cause harm or loss to another, leading to a civil claim for compensation.
29
people in tort law
there are plaitnifss - the victims, and the defendant
30
tort law vs. criminal law
- The two areas of law have been distinguished since the 11th century - in the british legal system
- There is considerable overlap between the two areas of law
31
criminal law
is a public wrong; an offence against the public interest
- is meant to punish wrongdoings, defer further infringements, express social condemnation for wrongdoings and rehabilitate offenders
- Like tort law, criminal law is developed through case law
- While criminal law determines guilt, tort law determines liability
32
liability
- the responsibility for a legal obligation
- The standards of tort liability and criminal guilt are different
- Liability based on probability
- Guilt based on proof beyond a reasonable doubt
- In tort law, there is no requirement to prove intention (mens rea)
33
vicarious liability
if someone who u have liabilty for goes and commited a crime without ur knowledge, you may still be liable
34
social host liability
if someone gets drunk at ur house, and you are supplying the alcohol, and they go and drive - you can be seen as liable
35
criminally negligent
everyone is criminally neglient when doing so or ommiting to anyone whose duty shows recklessness or disregard to the safety of others - criminal code 1
36
when can u have a civil jury
civil juries can be applied when the sum is over $75,000 or more in Alberta
37
incidental tort
i punch you in the face intentionally, levels of liabilty, determines whether it was an accident or on purpose
38
negligent tort
when there is a standard of care and you are not meeting the standard of care, in court it determines if there was a legal obligation
39
strict liability
where a defendant can be held liable for damages caused to another person, even if they were not negligent or at fault, meaning they can be held responsible simply because their actions resulted in harm, regardless of their intent or level of care taken
40
property tort
Property torts are a category of torts that involve unlawful interference with someone's enjoyment of their property, encompassing actions like trespass, interference with chattels, and conversion.
41
Dignitary tort
as a result of a personal indiginity (slander, defamation, invasion of privacy)
42
Economic tort
torts that occur with interfering with business activities, if i induce you to breach the contract - different from contract law, “if i tell you the contract is over, when its not and you end up breaching the contract”
43
toxic tort
enviromental damages, often produced by industry, and industries not meeting their standard of care regarding enviromental outcomes
44
absolute liability
Absolute liability is a legal standard that holds someone fully responsible for an action, even if they didn't intend to cause harm. It's used in both criminal and tort law.
45
Intentional tort
- torts that occur as a result of intentional physical or mental harm to someone
- There are different standards between
**intentional torts** and **negligence**
- Involves intentional wrongdoings with unintentional consequences
46
Forseeability
is a legal term that refers to how likely it was that someone could have
47
Defences in intentional tort law
- Consent - this is where the defendant can claim the victim consented to a particular activity
- Self-defense (and defense of property)
- Necessity
- Legal authority - often times used by police,
48
negligence
the failure of an individual or organization to meet a standard of reasonable care, resulting in the injury of someone
49
duty of care
a legal obligation in a specific context
50
standard of care
the degree/level of care a reasonable person would apply in a specific context
51
‘Reasonable person’
someone who would not be expected to be negligent under specified circumstances
52
Causation
links the defendants breach of obligation to the plaintiff’s injury
53
Remoteness
reflects whether a specific damage suffered by someone was reasonably foreseeable
54
More v. Bauer Nike Hockey Inc.(2011)
civil case regarding hockey helmet manufactuer due to do a player getting a seirious brain injury,
BAUER MET THE STANDARD OF CARE
55
Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986)
duty of care regarding consumerism care and dangers
56
Mustapha v. Culligan of Canada Ltd (2008)
issue of remoteness and causation.
57
Contributory negligence
if it can be shown that the plaintiff can be partly responsible for the harm suffered
58
accident
where the defendant can show that they had no control over the situation
59
Voluntary assumption of risk
Voluntary assumption of risk is a legal defense that protects a defendant from being sued for injuries that the plaintiff knowingly accepted. It's also known as volenti non fit injuria, which is Latin for "to a willing person, it is not a wrong".
60
Participation in a criminal Act
Under section 21(2), where a person forms an intention in common with another person to carry out an unlawful purpose (an act that is a criminal offence) and to assist the other person in carrying it out, he or she is liable (as a party) for offences committed by the other person that he or she knew or ought to have .
61
King v. Redlich (1984)
voluntary assumption of risk, the victim was hit in the face with a hockey puck and suffered permanent brain damage. The appelant was not wearing any helmet or any protective gear and the suit was dropped
62
punitive damages
- damages awarded in tort law beyond what is necessary to compensate the injured
- Criticized for potentially duplicating sanctions with criminal law
63
Whiten v. Pilot Insurance Co 1994
the appelants house caught on fire, caused deathed to 3 of their cats, and destroyed all their belongings, the families fire policy only payed $5,000 dollars even tho they had $360,000 worth of insurance. they were ordered to pay $1,000,000 dollars of punitive damages -
regarding punitive damages in canada
64
tort law and accident compensation
- Tort law is primarily concerned with compensation for the injured
- Many argue that tort law is inefficient for providing compensation
- Vehicle accidents and work- related accidents are covered by insurance companies and compensation boards, respectively
65
tort law in Quebec
is codified in the civil code of quebec. all based around case law, doesnt establish broad liability
66
tort law in America
much more common, civil cases and jury cases are quite rare - in alberta we do not have a jury in civil cases, in america their compesation is much larger due to the shitty health care system, and their employment and will principle, they are allowed to fire employess without any notice, or any compensation
67
criminal law relies on
Without a resonable doubt
68
criminal law relies on
Probability
69
Brent wood stabbing murders
- 2014
- Calgarys worst killing spree in calgary history
- assalint was 22 years old
- went in a killed 5 of the partys attendents
- was found not criminally responsible
- was experincing intense schizophrenia
- he thought he was killing vampires
- his parole from the mental institute has been denied
70
criminal law
- concerned with public wrongs
- Defines what society regards as intolerable deviance
71
Functions of criminal law
- deter deviant behavior, express reprehensible behaviors, maintain the social order, bring accountability, rehabilitation
- A society’s criminal law says a lot about the society itself
- tort law seeks compensation, criminal law seeks punishment
72
public law
an area of law concerned with the public interest and that regulates collective interests
73
3 categories of crime
1. Offences against persons - assault, threats
2. Offences against property
3. Offences deemed wrong in and of themselves- social order crimes, differ across different societies, deemed wrong out of public morality purposes
74
3 categories of assualt
1. general assualt,
2. assualt with a weapon/with a weapon/with a peaceofficer,
3. you cause severe life threatening consequences
75
debates on criminal law
- Criminal law is amongst the most widely debated type of law
debates =
- What constitutes a crime
- The appropriateness of (punitive) criminal law for behavior
- The effectiveness of criminal law
- Negative social outcomes of particular laws
- Debates on the operations of law (too lenient vs. too harsh; too intrusive vs. not intrusive enough, etc.)
76
simultaneous principle
crime requires the simultaneous coincidence of actus reus and mens rea
77
actus reas
an evil (wrongful) act
78
mens rea
an evil (wrongful) mind(intention)
79
2 methods for assessing mens rea/intent
1. Objective intention - considers what would be in the mind of a reasonable person given the context
2. Subjective intention- what they think would be in the mind of the defendant at the time
80
Section 21 of the Criminal Code
mensrea concerning parties to an offence - everyone is an party to an offecne who
1. commits the act,
2. encourages it,
3. anyone who plans and carries out the crime 4. anyone who knew the crime - Aiding and Abetting
81
Strict liability offences:
falls on the accused to prove they had no intent
82
Absolute liability offences:
where intent is irrelevant
83
Culpable homicide
when someone either intentionally or unintentionally commits murder
84
Criminal negligence (manslaughter)
negligence showing disregard for the lives and safety of others
85
R. v. Cooper (1993)
regards the issue of concurency of the actus rea and the mens rea - what if your intentions change during the act? concluded that intention does not need to persist during the crime
86
R. v. Hundal (1993)
an important surpreme court decsion regarding objective vs. subjective standard
87
capacity
mental fitness (mental health issues, children)
88
self defense
Section 34 of the Criminal Code - everyone who is unlawfully assualted without having provoked the assault, are allowed to use force - not causing death, and if there was proportionality and nesscesitiy
89
R. v. Lavallee (1990)
battered women syndrome
90
Daviault v. R. (1994)
- using intoxication to reduce legal liabilty
- - mild intoxication - advanced intoxication - extreme intoxication -
- position was taken on the grounds that ***rape was a crime of general intent*** and that in such a crime, the mental element could not be negated by drunkenness.
- self induced intoxication is not a defense anymore - especailly pertaining to sexual violence
91
Enticement by police
occurs when law enforcement induces or encourages someone to commit a crime they wouldn't have otherwise done
92
Forced to commit a crime
In situations where someone is forced to commit a crime, the Canadian legal system recognizes the defense of duress, which can be used if the person was threatened with death or bodily harm and had no other realistic option.
93
Mistake of fact
crime comitted by a resonable mistake and intention was accidental
94
Pappajohn v. R.
- mistake of fact, supreme court case
- the federal government enacted the defintion of consent - voluntarily agreement of the complainment
95
R. v. Ewanchuk (1999)
implied consent
96
R. v. Hutchinson (2014)
holes poked in condom to baby trap her, consent has to be taken into account on how the assault occured
97
acting under duress
in order to claim duress it has to be immediate, cannot be apart of a criminal conspiracy, and the threat must have been ready to take it out
98
when was The Criminal Code of Canada made
- Made into law in 1892 as per the Constitution Act, 1867
- Has been updated regularly since
99
The Criminal Code of Canada:
- defines criminal offences, establishes the kind and degree of punishment for certain offences, outlines procedures for investigation and prosecution, outlines rules regarding helping/encouraging crimes and sets out some defenses
- There are statutory law-based crimes outside of the Criminal Code
- I.e. Firearms Act, Controlled Drugs and Substances Act, etc.
100
Offences of the criminal code include
offences against a person, offences against property, offences against the administration of law, sexual offences, terrorism offences and hate propaganda offences
101
3 categories of criminal offences
- i) summary offences,
- ii) indictable offences
- iii) hybrid offences
102
sentencing attempts to accomplish what purposes
- general deterrence
- specific deterrence
- societal denunciation
- accountability
- keeping society safe
- rehabilitation
103
import factors when considering sentencing
- i) degree of premeditation,
- ii) surrounding circumstances,
- iii) gravity of the crime,
- iv) attitude of the offender,
- v) criminal record of the offender,
- vi) age/personality of the offender,
- vii) any mitigating circumstances,
- viii) previously imposed sentences and x) mercy
