Quiz 1 Flashcards
What are the characteristics of an effective justice
system?
an independent, impartial judiciary;
the presumption of innocence;
the right to a fair and public trial without undue delay;
a rational and proportionate approach to punishment;
a strong and independent legal profession;
strict protection of confidential communication
between lawyers and clients;
equality of all before the law
Law Definition
A rule that a particular country or society creates and
recognizes as regulating the actions of its members and
enforced by governments
Sources of Law
Legislation and Case Law
Laws created by 3 levels of government
Federal (Canada-wide usually called ‘Acts’)
Provincial (applying to that province, ‘Acts’ or ‘Codes’)
Municipal (applying to a particular city or town called ‘By-laws’).
Legislative Authority
- The Constitution Act, 1867 since 1982
- Federal Powers (Section 91, overflow provision states that if it is not listed elsewhere then it belongs to the feds)
- Federal Powers (Sections 92, 92A, 93, & 109)
Amending Formula
Requires federal government and 2/3’s of the provincial
governments for change to occur
Which equals the feds and 7 of 10 provinces and the 7
provinces must contain at least 50% of the country’s
population
Alternative Fuels Act, S.C. 1995, c. 20
‘Alternative Fuels Act’ is the title
‘S.C.’ stands for Statutes of Canada
‘1995’ is the year it was created and it will be found in the 1995 volume of laws
‘c. 20’ means you will locate it in Chapter 20 of that year
Common law
the body of law made by judges via case law decisions which become legal precedents for other decisions
Case Law
refers to the decisions that judges make after they hear about a dispute in court
can clarify what has been written in statutes ,&/or add to a common law area, or develop new law
Written judicial decisions often include:
A brief description of fact
A review of any relevant statute and other case law
The judge’s decision and reasons for the decision
Precedent:
a legal case establishing a principle or rule that a court or other
judicial body may, in some cases must, utilize when deciding
subsequent cases with similar issues or facts
used to ensure that common disputes are resolved in common
ways
a tool to ensure fairness in the legal system as well as flexibility.
stare decisis
the legal principle that requires lower courts to
stand by/follow the legal precedents (case law) of upper
courts; decisions of higher courts are binding on lower courts
Motion
a request for a decision on a procedural issue arising during trial
Appeal Courts
Do not hear evidence from witnesses
Judges listen to oral submissions of lawyers about what went
on at the trial level and why, in lawyer’s opinion, it was/was
not reasonable or correct
Often a panel of 3 judges who discuss the issues amongst
themselves before deciding
Judicial Independence
Judges are not easily removed from their
jobs – security of tenure, remuneration,
and administrative independence
Appeal Process
-A case is brought to trial at a trial court/lower court in a
province or territory
-The trial judge hears the evidence and the arguments of
both side, makes a decisions and states orally or puts it in writing
-The judge is thought to be wrong (if judge made a gross error in determination of facts or evidence, or made a mistake on the law known as an error in law)
-The documents for the appeal are put together by the
lawyers which will include the transcript and lawyers reasons why the judge made an error.
- The appeal courts decide whether they will hear the appeal
- If they decide to hear the appeal, the appeal courts do not hear evidence over again. They make their decision based on
the written record and the lawyers arguments.
The Police
Agents of society
Investigate crime
Use their discretion in deciding to lay charges against an accused
Can lay charges if they have ‘r&pg’ – ‘reasonable and probable grounds’ to believe that the accused did the crime
Document they use to lay charges – the “Information”
The Prosecutor
Lawyer represent the Queen and society
must give the accused full disclosure of the case against him
The Defence Counsel
Lawyer represents the Accused
accused is entitled to a lawyer
does not have to give disclosure to the Prosecutor
Onus
whose job it is to prove the case – the responsibility for
proving something;
criminal: onus is on the Crown
Civil: onus is on person bringing the case
Standard of proof
the degree to which something must be
proven
Criminal: ‘beyond a reasonable doubt’
Civil: ‘Balance of Probabilities’
Civil Action
People sue each other (or a corporation) because they feel they have been harmed by the behavior or lack of behavior of the other
Administrative
- Specialty boards, tribunals, agencies, administrators
-Administrative “bodies” must stick to powers given by
legislation or are ‘ultra vires’
-duty of fairness guaranteed by the ‘rules of natural
justice’=
1. Right to know the case against them
2. Right to respond
3. Right to have impartial decision-maker
Torts
Reasons why people might sue each other or legal justifications for suing someone
‘causes of actions’
Unintentional torts
a civil wrong from an unintentional act
Intentional torts
a civil wrong from an intentional act
Strict liability torts
a civil wrong where intention does not matter, activity is
inherently dangerous
Contract Law (torts)
legal agreements which include:
- An offer (often negotiation ensues);
- Acceptance of the offer; and,
- Consideration (payment of some sort)
Legislative Rights/Violations
rights given under specific pieces of legislation that, if breached, allow people to sue
Liable
legally and/or financially responsible
Vicarious Liability
where an employer or company is liable for the wrongful or negligent actions of its employees
Negligence
- ‘unintentional’ tort
- Usually arises when someone is injured because someone else has been careless
3 key elements in a tort of negligence:
1.The person being sued owed a duty of care to the person who was harmed
2.D’s harmful behaviour fell below the standard of care of a reasonably
careful/prudent person; and,
3.The harm was caused by the lack of care
thin skull rule
- you take your victim as you find them
- cannot say she already had an injury when I hit her
Family Law
marriage
divorce
spousal & child support (need and ability to pay)
division of ppty
child custody & access (best interest of the child)
Within both provincial and federal legislation
Child Welfare
‘a child in need of protection’
Gives rights to police and child protection workers to remove children if need be
Judges will decide what is in the ‘best interest of the child’
