Specific Legal Rules Flashcards
Reception
the process by which English laws were introduced in British colonial territories
Security of tenure
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)
Financial security
Salary of judges cannot be directly influenced by government- avoids abuse of financial power
Control of Administration
Government cannot choose which judges hear certain cases. Also, court determines its own administration
Reasonable Apprehension of Bias
Based on evidence, a reasonable person would have to believe the judge is acting on bias (race, gender, ethnicity, etc.)
Stare Decisis
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
Representative Democracy
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
Responsible Government
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.
Parliamentary Supremacy
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
Constitutional Supremacy
C.A. 1867 section 52. Constitution is the supreme law of Canada- anything that violates it can be struck down as invalid
Peace, order, and good government
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
Federalism
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
Minority Rights Protection
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
Rule of Law
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
How is parliamentary supremacy limited?
division of powers, constitution cannot be unilaterally changed by parliament, laws subject to charter
Defence of necessity
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
Tolerance test
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
What are the three common law rules of interpretation?
Literal rule, golden rule, mischief rule
Literal rule
when interpreting the law, do not ascribe new meaning to words- read them in their plain and ordinary sense
Golden rule
if the law is uncertain, read it in a way that avoids absurdity
Mischief rule
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?)
Who said the law should be applied in a way that is broad and purposive?
Lord Sankey- Edwards v. Canada (the Persons case)
Ratio decidendi
primary reason/legal principle used to decide the main issue of the case. BINDING
Obiter dicta
other reasons outside the ratio that weren’t necessary to decide primary legal issue of the case. NOT BINDING
Where is the ratio decidendi found in the case?
Always the majority, never the dissent
Where is the obiter dicta found in the case
Also the majority decision
TRUE OR FALSE: Lawyers either try to expand/collapse the ratio to fit their case, either inside or outside of the precedent:
True
What are the limits of non-constitutional rights protection?
judicial reluctance, strict interpretation, legislative supremacy
What is the purpose of the charter?
so everyone in civil society can enjoy fundamental rights, freedom, and equality, each w/ absolute dignity – no matter their race, religion, history, etc.
Types of rights outlined in the charter
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)
How would a judge under section 1 of the charter have to demonstrate justification of infringement of a right?
pressing & substantial objective, proportionality, rational connection, and minimal impairment (ex, R v. Butler)
What sections of the charter demonstrate dialogue between legislation and the courts?
Section 1 & 33
What do Arbour and Lafontaine argue about protection of legal rights?
legal rights are better protected in pluralist environments rather than small ones
What do Brickey and Comack argue about our perception of law?
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
