Midterm 2 accumulative Flashcards
1
Q
natural law
A
from morals - posties the idea that there is a universe absolute law
2
Q
positivism
A
rooted in parliamentary supremacy- the law is human made
3
Q
legal realism
A
“grand style judging” understands law and legal outcomes as part of the political, economic, and social contexts
4
Q
marxism
A
historical materialism, views law as an institutions of capitalism and an instrument to protect the economic elite class
5
Q
critical legal theory
A
influenced by marxist ideas, critical of the rationales, purposes and assumptions of law and legal theories
6
Q
feminism
A
understands law from a gendered perspective
7
Q
Carter v. canda
A
physician assisted death
8
Q
cannabis act
A
legalization of cannabis
9
Q
1215 Magna Carta
A
the great charter - feudal era charter governing feudal rights - limited the power of the monarch
10
Q
the royal proclamation of 1763
A
transferred French territory to the British
11
Q
the constitution act of 1791
A
divided Canada into upper and lower Canada
12
Q
1931 statute of west minister
A
Canada becomes a self governing dominion
13
Q
the constitution of 1982
A
patriated the constitution - included the charter
14
Q
public law
A
public interest
criminal law, taxation, constitution
15
Q
private law
A
between individuals
torts, family law, contracts, property
16
Q
substantive law
A
governs society - criminal law
17
Q
procedural law
A
procedures of the legal system
18
Q
legislature
A
create and exchange law
19
Q
executive
A
executes laws and policies
20
Q
statute law
A
law created by the legislature
21
Q
case law
A
law establish by judicial decisions
22
Q
R v. Gunn and Ponak
A
right to trial within a specific time frame
23
Q
R v. Ipeelee
A
economic and social conditions of first nations must be taken into consideration
24
Q
1908 drug act
A
prohibition of opium
25
1911 opium and drug act
opium and cocaine
26
constitutions
the foundational charter and supreme laws thwart for the basis of the legal system and political society
27
horizontal diffusion of authority
the spreading go power or influence across different entities at the same level of government
28
vertical diffusions of power
the movement of power from lower to higher levels - federalism
29
federalism
multiple levels of government all with a degree of autonomy
30
unitarism
1 body of government - New Zealand
31
asymmetrical decentralization
policy that gives different responsibilities to subnational governments that are at the same level of administration
32
1867 British North America act
created the dominion of Canada and the federal state
33
1931 statute of Westminster
crown split
34
7/50 formula
7 provinces agreeing to a constitutional change - each province must reflect 50% of the population
35
section 91
federal jurisdiction
36
section 91 (27)
all new criminal activity goes straight to the federal courts
37
section 92
provincial jurisdiction
38
section 36 (2)
sets out equalization payments between provinces
39
Canada attorney general vs. PHS community services society
safety injection sites
40
the Canadian Bill of Rights 1960
a federal statue - not a constitution
41
r v. drybones
Indian act and pre-charter era
42
section 1
limitations clause (war measures act)
43
Saskatchewan v. whatcott
freedom of speech
44
section 2
fundamental freedoms
45
sections 3-6
basic rights
46
section 7-14
legal rights
47
section 15
equality rights
48
section 16-23
minority language rights
49
section 24
power of courts to exclude certain evidence
50
section 25-34
application of the charter
51
section 32
applies to both federal and provincial governments
52
section 33
not withstanding clause - limits to 5 years
53
meech lake accord
ability to amend constitutions
54
1992 Charlotte town accord
limits to 62 senators with 25% representation of Quebec in the House of Commons
55
administrative boards and tribunals
regulation and dispute resolution outside of the court process
56
military courts
deals with violations of the code of service discipline - has the same rights and powers as superior courts - judges appointed by the minister of defence
57
r v. genereux
the supreme courts the the Marshall must comply with the Supreme Court regarding judicial independence
58
provincial courts
primary entry into the court system
59
divisions of provincial courts
youth division
family division
civil claims division
criminal divison
60
superior courts
highest level of court
61
division of superior courts
trial division and appeal division
62
division of federal courts
trial - citizenship
appeal - administrative boards
63
mclean v. Canada
residential schools
64
merlo v. canada
RCMP maternity leave
65
how many justices on the Supreme Court
9 - including the chief of justice
3 from Quebec
3 from Ontario
2 from western provinces
1 from atlantic provinces
66
r v. morgentaler
abortion rights
67
vriend v. Alberta
sexual orientation
68
Dunmore v. Ontario
right to form a union
69
alternative dispute resolution
dispute resolution beyond the traditional adverbial court system - mediation
70
restorative justice
victims have a say in the defendants sentencing
71
r v. gladue
court systems must include sentencing circles
72
law schools
- no law schools before 1950
- 24 law schools in Canada
eligibility determined by GPA and LSAT
- receive their Juris Doctor
73
articling
legal apprenticeship period
74
lawyer
someone who has the legal recognition to practice law
75
roles/ functions of lawyers
provide legal representation
prosecute and defend suspected defenders
establish legal arguments
offer legal advice
act as trustees
legal research
legal drafting
advocacy
negotiate and draft contracts
76
number of lawyers
136,000
77
solicitor
lawyer who deals with contracts
78
litigator
lawyers in the courtroom
79
law society
a provincial association of lawyers that licenses lawyers to practice
80
roles and functions of law societies
share information about the practice
- offers networking opportunities
- represents the interests of candidas legal community
81
federation of law societies in Canada
the national association of Canadas provincial legal societies - regulates Canadas legal profession, shares information across law societies and facilitates national collaboration
82
code of professional conduct
Canadian bar association code of professional conduct - federation of law societies model code of professional conduct
83
disbarment
removal from bar membership of law society terminated - lawyers can also be reprimanded in other ways (i.e., fining, suspensions from practice)
84
judges roles and functions
administer the law
preside over the legal process
make important legal decisions
sentence offenders
interpret the law and establish case law
85
judges are appointed by
by the cabinet (minister of justice) with assistance of the judicial advisory comittee
86
number of judges
1,180 federally appointed judges
45% of those are women
87
candian judicial council
oversees Canadas federal judges
- consists of 41 members, chaired by the chief of justice in Canada
88
statutory interpretation
judges are expected to interpret ambiguous legislative statutes
89
stages of statutory intepretation
1. wording schemes
2. object of the act
3. intent of the act
90
approaches to statutory interpretation
British tradition and us/european version
91
rules to stat interpretation
1.plain meaning rule
2. golden rule
3. mischief rule
92
grammatical principles
1. exclusive terminology
2. combining similar kinds
3. defining in relation to similar concepts
93
judicial activism
term used to characterize more active judicial interpretation of legislation - Canadians moved closer to American model of judicial review
94
precedent
a judgement or decision of a court of law cited as an authority for similar cases
95
stare decisis
to stand by decided things
96
precedent results
a more dynamic but also a predictable one
97
problems with precedent
1. when. it take priority over the intention of the statute
2. when it self-binds a court
98
oj Simon case
found not guilty in criminal law
found liable in civil law
99
torts
a private wrong
100
tort law
law aiming to remedy private wrong through compensation
differs from contract law
101
criminal law
a public wrong offence
criminal law is meant to punish
like tort law, criminal law is developed through case law
102
what does tort and criminal law determine
criminal law determines guilt
tort law determine liability
103
liability
the responsibility of a legal obligation
104
do u need to prove intention in tort law?
no need to prove mens rea
105
types of torts
intentional tort
negligent tort
strict liability tort
property tort
dignitary tort
economic tort
toxic tort
106
intentional torts
torts that occur as a result of intentional physical or mental harm to someone
107
forseeability
how likely it was that a person could have anticipated the potential or actual results of their actions.
108
defences to intentional torts
- consent
-self defence
- necessity
-legal authority
109
negligence
the failure of an individual or organization to meet a standard of reasonable care
110
duty of care
a legal obligation in a specific context
111
reasonable person
someone who would not be expected to be negligent under specified circumstances
112
causation
links to defendants breach of obligation to plaintiffs
113
remoteness
reflects whether a specific damage suffered by someone was reasonably foreseeable
114
more v. Bauer nike hockey INC
bauer met the standard of care
115
Buchen V. ortho
duty of care regarding consumerism care and dangers
116
Mustapha v. culligan
issue of remoteness and causation
117
King V. Redlich
voluntary assumption of risk
118
punitive damages
damages awarded in tort law beyond what is necessary to compensate the injured
119
whiten v. pilot insurance co
regarding punitive damages in Canada
120
torts and accident compensation
tort law is primarily concerned with compensation
121
the Brentwood stabbing murders
worst muder case in Calgary
122
criminal law
concerned with public wrongs - what society defines as intolerable
123
functions of criminal law
-deter deviant behaviour
-express reprehensible behaviours
-maintain social order
- bring accountability
-rehabilitation
124
public law
an area of law concerned with public interest and that regulates collective interest
125
3 categories of crime
1. offences against a person
2. offences against property
3. offences deemed wrong in an of themselves
most widely debated type of law
126
debates on criminal law
1. what constitutes a crime
2. the approprateness of criminal law for behaviour
3. the effectiveness of criminal law
4. negative social outcomes of particular laws
127
simultaneous principle
crime requires the simultaneous coincidence of acts read and men reas
128
actus reas
an evil (wrongful) act
129
mens rea
an evil (wrongful) mind (intention)
130
2 methods for assessing mens real/ intent
1. objective intention
2. subjective intention
131
section 21 of the criminal code
mens rea concerning parties to an offence
132
strict liability offences
onus falls on the accused to prove they had no intent
133
absolute liability offences
where intent is irrelevant
134
culpable homicide
where someone either intentionally or unintentionally commits murder
135
criminal negligence
negligence showing disregard for the lives and safety of others
136
r v. Cooper
regards the issues of congruency of the acts rea and the mens read - what if ur intentions change during the act?
137
R v. Hundal
regarding objective vs. subjective standard
138
defences to and mitigation of criminal offences
capacity: mental fitness
139
section 34 of the criminal code
anyone who uses force is allowed when in immediate danger. - self defence
140
Daviault V. R
using intoxication to reduce legal liability
141
r v. lavalle
battered women syndrome
142
enticement by police
police intimidation to commit a crime - forced to commit a crime by threat of force
143
Pappa John V. R
mistake of fact
144
R v. Ewanchuk
implied consent
145
R v. Hutchinson
consent has to be taken into account on how the assault occured
146
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
147
criminal code of Canada
defines criminal offences
establishes the kind and degree of punishment for certain offences, outlines procedures of investigation and prosecution, outlines rules regarding helping/ encouraging crimes and sets out some defences
148
offences of criminal law include
1. offences against a person
2. offences against property
3. against the administration of law
4. sexual offences
5. terorism offences
6. hate propaganda offences
149
3 categories of criminal offences
1. summary offences
2. indictable offences
3. hybrid offences
150
purposes of sentencing
1. general deterrence
2. specific deterrence
3. societal denunciation
4. accountability
5. keeping society safe
6. rehabilitation
151
important factors to consider when sentencing
1. degree of pre meditation
2. surrounding circumstances
3. gravity of the crimes
4. attitude of the offender
5. criminal record of the offender
6. any mitigating circumstances
7. previously imposed sentences
8. mercy
152
strict liability
a strict liability offense is one where the prosecution doesn't need to prove the defendant acted with a culpable mental state (mens rea) to establish guilt, focusing solely on the commission of the act (actus reus).
153
absolute liability
Absolute liability means you are responsible for something, regardless of intent or fault, and the prosecution only needs to prove the act occurred, not that you had a guilty mind.
