Topic 2 Flashcards
Magna Carta
Known as the great charter, feudal era charter, governing feudal rights, limited the authority of the monarchy. Charter curated in 1215 significant for bringing the English their first shift from monarchy to democracy, allowed for the legal concession, ceding the monarchy to a council of 25 barons the opportunity to change kings decisions (abolish absolute power of the royals)
Hammurabi
Constructed a code of case laws, dealt with economic issues, family, criminal and civil law in Babylon “codified law”
Confucius
Impact still prominent in Chinese democratic system
Muhammad
Developed Islamic faith and influenced as well as continues to influence the law in Islamic nations
Peace of Westphalia
1648 Direct response to the religious based 30 years war in Europe,establishing legal notion of sovereignty
Battle of the plains of Abraham led to
The Royal Proclamation
What year was the royal proclamation
1763
Royal proclamation
Transferred French territory to the British provided for a governor and council to administer Quebec until condition permitted an elected assembly
What year was the Quebec Act
1774
Quebec Act
1774, the right for Roman Catholics to participate in government and for the use of French civil law
What year was the Constitution Act (the first one..)
1791
Constitution Act
Divided Canada into upper and lower Canada , created legislative and executive branches of the government in each of the Canada’s modelled on British Parliamentary form
Executive Branch and Legislative Branch Canada and Britain
executive branch mirrors the cabinet compromised of a lieutenant governor and a council appointed by them
legislative branch mirrors the legislative branch in the British Parliment, In Canada ( Legislative council; Senate and Legislative Assembly; House of Commons)
What year was the act of union
1840
Act of Union
The Act of Union created the united province of Canada; Union was a federal rather than unitary system of government
What year was The British North American Act
1867
The British North American Act
- British North America Act 1867, Canadas original and defining source of law, setting out in sections 91 and 92 the respective powers of federal and provincial governments and a strategy for legal governance of the country, created the dominion of Canada
Is the BNA (1867) the legal basis of Canada
YES
When was the Criminal code made and what was it about
1892, it was the first unified set of criminal law
What is Statue of Westminster and when was it
1931!!!!!
Crown split, UK cannot pass any laws for Canada, break their influence from Canadian politics.
Canada becomes self governing dominion, create domestic laws but constitution still under Britain
The new Constitution act
1982, patriated the constitution, included the Charter of Rights and Freedoms, includes judicial review, includes amending formulas (section 38, 41 and 43)
Public Law
- Public Law- area of law is primarily concerning with collective interest
Examples of Public Law
-constitutional law
-criminal law
-administrative law
-taxation law
Private Law
area of law is primarily concerned with the definition and regulation of individual matters law of contract between individuals or corporations (remedy of wrongdoings between the two) and the law of tort
Examples of Private Law
-real estate
-property
-family law
-wills and trusts
What is the paradox of private and public law
Private agreements have public interest issues embedded within them and private law affects the public interest and public law affects private interests
The classification of public and private law is dependent on the issues of?
The classification of public and private law is dependent on the issues of public as opposed to private interest,
Substantive law
The area of law that governs society example of criminal law
Which type of law is, “content of the law that regulates our relationship with the government”
Substantive law
Procedural law
The area of law governing the rules of law and the procedures of the legal system example sentencing
(Operation of law)
Two forms of Principal sources of law
- Legislation/statute law (sources of statute law are the House of Commons and the legislative assemblies)
2.Case law/judicial decisions
Subsidiary sources
(cannot have the same direct accountability to a democratic system of representative government)
Subsidiary sources
Used to inform case law, contains customs and books of authority
Social problems and social conflict are origins of
Law
Customs
Customs; source of law derived from customary practices and patterns of behaviours which society had come to order itself, most forms of law originally derived from custom, not Canada (things based on long term practice)
Why are Books of Authority important
Books of Authority; courts seek guidance from the contributions of outstanding early scholars as well as from living academics and writers, although they only have subsidiary power as sources of law become an important part of the process of lawmaking, providing the canadian legal system with a more comprehensive knowledge of itself
Law and judicial decisions and books of authority are in conflict
changes in statutes over time and various issues litigated by the judiciary in response to these statutes
Domestic law
law of a single nation-state, further classified as either public or private and as substantive or procedural
International law
law common to all nation-state, mediated by the United Nations and involves the governance or accomadation of nations in relation to global treaties, conventions and customs
Law is constructed as a response
*to conflict
* specifically to a given social problem
* mechanisim that attempts to control certain kinds of activities or behaviours
In order to maintain law and legal order
- it is necessary to build a consensus with respect to the moral and social legitimacy of law
Branches of government and law
-legislature (create and change law)
-executive (executes law/policies)
-judiciary (implements law and dispenses justice)
Statute law
- law created by a legislature; dominant form of law in Canada, rooted in notion of parliamentary supremacy
Example of statute law
Charter of rights and freedoms
Canada involves
Parliament and the provincial and territorial legislature
Legislative is seen as..
- Legislation is seen as written law and case law, customs and books of authority is seen as unwritten law
judicial interventions
provide a sharper focus for the understanding of statute law and may serve to reconstruct the operation and meaning of the statute in question
Why do we have 2 chambers in Canadian Legislature
Allows us to have a sober second thought
The legislative process involves.. (not the steps)
- highly political process involving compromises and horse trading (some parties wont have full majority support, resulting in political tradeoffs
Committees play a large role
In creating legislation
Creation of statute (legislative)
- introduction of bill into the house of commons or legislative assembly (first reading)
- Passed to second reading (government often doesnt proceed further), if it passes minister responsible sets out the purpose of the legislation
- full debate and sent to a committee of the house or assembly composed of both government and opposition members
- Public Hearings then after comes back to house or assembly for a third reading
- Review by the senate
6.Crown approval - the bill is passed
Why are committees great
- great for getting consensus even before introducing new legislature
Legislative violence
-evident of political issues lack of trust within the system
-wider cultural issue
Law can be comprehended by
Law can be fully comprehended only by documenting and analyzing the social, political and economic contexts that gave it life and continue to influence its existence
Federal legislation
- process must be repeated in the senate before the bill is submitted to the governor general for approval
Provincial legislation
- after third reading submitted to the lietenant governor of the province or the governor general
Who are the British representatives in government
- The Governor General and the lieutenant governors are the monarchs represenatives in Canada
Case law
Law established by decisions in specific court cases
* Subsequent courts will turn to these decisions, aka judicial precedents
* when attempting to make judgements about similar issues
* The importance of judicial precedent depends on the hierarchical placemnet of the court issuing the decision exp if decision occured in supreme court, potentially affects all canadian courts but if just in provincial it will have no determinative influence
Case law results in..
A more dynamic legal system
2 problems with case law
- when trying to mesh current situations with pre-existing case law the courts and counsel may make illogical distinctions,
- The ability of a court, primarily the supreme court to reverse itself
Reporting Case Laws
- Not all judicial decisions are reported
- editors of these reporters make decisions about which cases to report
Head note
- Headnote- summary of the facts of the case, the issues in dispute and the reason for the courts decisions
Ratio Decidendi
- judges determination of law in relation to the particular set of facts
The abbreviation R in criminal cases
- Rex or Regina, the king or queen of england
- remnant from the british system of prosecution
- United States uses “the people”
Sentencing
- one of the most delicate stages of the criminal justice process in Canada
- involves the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing
*sentencing governed by section 718 of the criminal code
Inter alia
- advantage of having heard and seen the witnesses
Proportionality
- is the cardinal principle that must guide appellate courts, requires that a sentence not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence
Severity of a sentence depends on
the seriousness of the crimes consequences and also on the moral blameworthiness of the offender
Sentencing ranges
summaries of the minimum and maximum sentences imposed in the past
guides for the application of all the relevant principles and objectives
not averages but historical portraits for the use of sentencing judges who must still exercise their discreition in each case
Situations that call for sentences outside the range
- the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded
- the determination of a just and appropriate sentence is a highly individualized exercise
- depends on the gravity of the offence
- even if judge deviates from a sentencing range does not in itself justify apellate intervention
- Courts from various parts of the country have in fact held that the objectives of deterrence and denunciation must be emphasized in order to convey societys condemnation
Power to create categories of offences
-lies with Parliment not the courts
When can sentencing be interfered with
- Sentence can only be interfered with if its demonstrably unfit or if it results from an error in principle, the failure to consider a relevant factor or the overemphasis of a relevant factor
- Where a reviewable error is shown it is appropriate for an appellate court to be able to intervene and assess the fitness of the sentence
- When considered in the sentencing context the frequency of a crime in a given region does not help paint a portrait of the accused but instead reflects external factors
- Judge can sometimes consider the local situation when imposing a sentence
Although a court has a wide latitude as to the sources and types of evidence upon which to base the sentence what should it never lose sight of
it must never lose sight of the importance of procedural fairness and keep the importance of the facts in question and the impact on the offender
Examples of customs
Incorporation of British customary legal practices
Books of Authority
Authoritative texts on legal principles by scholars, specialized knowledges informing judicial decision,
When was an Act to prohibit the importation, manufacture and sale of opium for other than medial purposes
1908
When was the opium and drug act enforced
1911 ( this was influenced by a book of authority)
When was the narcotic control act
1961
When was the controlled drug and substances act enforced
1997
When was the safe streets and communities act enforced
2012
When was the cannabis act enforced?
2017
Cannabis Act
- set to eliminate the black market and elements of organized crime from cannabis trade and to restrict youth access to cannabis
Opium and Drug Act
Chinese immigrants, who came to Canada to work on the Canadian Pacific Railway for lower wages, were targeted by anti-Asian sentiment. Some operated opium businesses, which led to racially motivated violence. In response, William Lyon Mackenzie King pushed for the prohibition of opium, which was enacted without any empirical evidence of harm. The Opium and Drug Act imposed harsh penalties, including imprisonment, whipping, and deportation. Influenced by racial tensions and Emily Murphy’s book The Black Candle, this legislation had a lasting impact on Canadian drug laws.
Indigenous law in Canada
Subservient to state based, cannot conflict with Canadian law, small spaces where indigenous laws can be practiced and power usually delegated by the Canadian government
Canadian law is resistant to indigenous legal orders TRUE OR FALSE
True
Example of indigenous law in Canada
- Indian act of 1876
-First Nations land management act
Criminal law is characterized as…
Public law
What case shows the use of books of authority
R V Ipeelee, used the Gladue Reports
