Specific Legal Rules

Question 1

Reception

Answer 1

the process by which English laws were introduced in British colonial territories

Question 2

Security of tenure

Answer 2

Judges are appointed and very difficult to fire in Canada- as opposed to in the US, and where judges are elected (and must be re-elected)

Question 3

Financial security

Answer 3

Salary of judges cannot be directly influenced by government- avoids abuse of financial power

Question 4

Control of Administration

Answer 4

Government cannot choose which judges hear certain cases. Also, court determines its own administration

Question 5

Reasonable Apprehension of Bias

Answer 5

Based on evidence, a reasonable person would have to believe the judge is acting on bias (race, gender, ethnicity, etc.)

Question 6

Stare Decisis

Answer 6

Doctrine of precedent- means you stand by the decided case/precedent. Either binding (must be followed) or persuasive (courts don’t have to follow, but usually do). Ensures predictability and certainty in law

Question 7

Representative Democracy

Answer 7

Unwritten constitutional principle. Elected government represents the will of people (who this group is varies over time- ex, not everyone had the right to vote historically- women, black men, indigenous people). In most cases, majority government is elected despite not having majority votes. EX, C.A. 1982 s. 2, 3-5, and C.A. 1867 s. 37 vs. 24

Question 8

Responsible Government

Answer 8

Government must maintain the confidence of the legislature (majority votes in passing of key acts)- if they lose it, another election will be called. Also, ministers of cabinet (responsible for actions of government departments) must answer questions before parliament.

Question 9

Parliamentary Supremacy

Answer 9

Preamble to C.A. 1867 from the UK- parliament (both federal and provincial) can pass any legislation they want, as long as it’s done according to proper procedure. Delegates state authority w/ slight limitations: ex, the charter, division of powers

Question 10

Constitutional Supremacy

Answer 10

C.A. 1867 section 52. Constitution is the supreme law of Canada- anything that violates it can be struck down as invalid

Question 11

Peace, order, and good government

Answer 11

An element of conservatism- involves the division of powers between federal and provincial governments. More specifically, the federal government is automatically given any power not specifically delegated to the provincial government under s. 92 of the C.A. 1867

Question 12

Federalism

Answer 12

Unwritten constitutional principle. reconciling unity with diversity- combination of general government (federal) with regional governments (provincial, municipal) in a single territory or political system. Helps to recognize several cultures/perspectives of dealing with an issue across Canada

Question 13

Minority Rights Protection

Answer 13

Unwritten constitutional principle. Minority rights (including natural, cultural, ethnic, linguistic, or religious) identity of individuals shall be protected and encouraged by the state. Ex, SCC Quebec re secession reference

Question 14

Rule of Law

Answer 14

Unwritten constitutional principle. States that all exercises of state authority must find its source in a legal rule. There must be a positive order of laws established (laws exist), and the law binds EVERYONE- both public officials and private individuals

Question 15

How is parliamentary supremacy limited?

Answer 15

division of powers, constitution cannot be unilaterally changed by parliament, laws subject to charter

Question 16

Defence of necessity

Answer 16

Can be used as a valid defence in court, but only under THREE conditions. (1) Imminent risk of peril, (2) compliance with the law is demonstrably impossible, (3) harm caused cannot be disproportionate to harm avoided

Question 17

Tolerance test

Answer 17

would the average Canadian tolerate other Canadians being potentially exposed to materials? Doesn’t have to be actual harm– a likely risk of harm will do. Ex, r.v labaye, r v. butler

Question 18

What are the three common law rules of interpretation?

Answer 18

Literal rule, golden rule, mischief rule

Question 19

Literal rule

Answer 19

when interpreting the law, do not ascribe new meaning to words- read them in their plain and ordinary sense

Question 20

Golden rule

Answer 20

if the law is uncertain, read it in a way that avoids absurdity

Question 21

Mischief rule

Answer 21

prescribe the law in a way that avoids the mischief that the legislation was intended for in the first place. (Why was the legislation enacted?)

Question 22

Who said the law should be applied in a way that is broad and purposive?

Answer 22

Lord Sankey- Edwards v. Canada (the Persons case)

Question 23

Ratio decidendi

Answer 23

primary reason/legal principle used to decide the main issue of the case. BINDING

Question 24

Obiter dicta

Answer 24

other reasons outside the ratio that weren’t necessary to decide primary legal issue of the case. NOT BINDING

Question 25

Where is the ratio decidendi found in the case?

Answer 25

Always the majority, never the dissent

Question 26

Where is the obiter dicta found in the case

Answer 26

Also the majority decision

Question 27

TRUE OR FALSE: Lawyers either try to expand/collapse the ratio to fit their case, either inside or outside of the precedent:

Answer 27

True

Question 28

What are the limits of non-constitutional rights protection?

Answer 28

judicial reluctance, strict interpretation, legislative supremacy

Question 29

What is the purpose of the charter?

Answer 29

so everyone in civil society can enjoy fundamental rights, freedom, and equality, each w/ absolute dignity – no matter their race, religion, history, etc.

Question 30

Types of rights outlined in the charter

Answer 30

civil rights (fundamental freedoms, mobility), democratic and political rights (s. 3-5). legal rights (s. 7-14), equality rights (s. 15, 27, 28) and group rights (s. 16-22 and 23)

Question 31

How would a judge under section 1 of the charter have to demonstrate justification of infringement of a right?

Answer 31

pressing & substantial objective, proportionality, rational connection, and minimal impairment (ex, R v. Butler)

Question 32

What sections of the charter demonstrate dialogue between legislation and the courts?

Answer 32

Section 1 & 33

Question 33

What do Arbour and Lafontaine argue about protection of legal rights?

Answer 33

legal rights are better protected in pluralist environments rather than small ones

Question 34

What do Brickey and Comack argue about our perception of law?

Answer 34

Must move away from a marxist perspective of law as a dominant form of capitalism and rethink of law as an important agent of social transformation