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Law 30 > Unit 1- part 1 > Flashcards

Unit 1- part 1 Flashcards

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1
Q

What are the three cultural influences on Canadian Law?

A

French, English, and Aboriginal

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2
Q

What is the French influence on Canadian laws?

A

Codified laws (written laws)

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3
Q

What is the English influence on Canadian law?

A

Common law (three foundational aspects to our laws) has now been written as case law (judge decision)

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4
Q

What is the Aboriginal influence on Canadian law?

A

Oral traditions (not written laws) made from elected leaders, governed by consensus (majority vote) with the concept of equality

  1. Elected leaders
  2. Majority vote
  3. Concepts of equality
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5
Q

What are the two types of penalties?

A

Retribution and restitution

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6
Q

What is retribution?

A

The concept of punishment for a crime is hard, but deserved, penalties (long pen/jail time)
Ex. China, India
You never exactly have to face your crime or the victim

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7
Q

What is restitution?

A

The concept of repayment to the victim by the charged person
Ex. Aboriginal type of influence
1. Sentencing circles- peers, community, members of tribe, victim involved in determing a consequence.

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8
Q

What type of penalty does Canada use?

A

Both retribution and restitution

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9
Q

What does America have for retribution that Canada does not have?

A

The death penalty

  • in USA, several states have the death penalty and others don’t
  • the crime rates are the same, wo why have the death penalty?
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10
Q

What did we have before common law?

A

The Feudal system

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11
Q

What was the feudal system the basis of?

A

Both the British and the French laws

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12
Q

What is the feudal system?

A
  • The King owned everything
  • Lords were the decision makers for offences on their land
  • Each would make decisions on penalties with no consistency or considering similarities of crimes
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13
Q

Why did the King eventually appoint judges?

A

So it became fairir. Similar crimes received similar penalties which were recorded and became known as Case Law. This set the idea of precedent.

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14
Q

Who were appeals made to with the feudal system?

A

The King

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15
Q

Who refers to precedent?

A

Lawyers and judges

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16
Q

Both sides, ____and___, can examine similar cases and arguments and expect a similar result.

A

Prosecution and defence

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17
Q

Why do trial lawyers spend a great deal of time studying and submitting precedents?

A

To persuade judges to reach certain decisions.

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18
Q

Does Quebec follow federal spending laws like the criminal code or is it totally distinct?

A

No, they follow federal laws.

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19
Q

How are the language laws in Quebec different?

A

In the rest of Canada, any product must display both English and French, products in QUebec must advertise first in French.

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20
Q

How is religion and politics different in Quebec?

A

In other areas of Canada, religion is separated from political decisions, but In QUebec’s history the Catholic Church was very involved in dictating people’s associations with political groups.

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21
Q

When was Quebec’s first referendum? What were the results?

A

In 1980

  • 60% said no (the federalists)
  • 40% said yes (the separatists)
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22
Q

When was the second referendum? What were the results?

A

1995

  • 49.42% said yes
  • 50.58% said yes
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23
Q

When happened when the Quebec Party lost its hold on Quebec?

A

The Liveral Party wind and they focused on creating a strong Quebec within Canada, so the separatist ideals have fallen away.

24
Q

Who resided in North America first? Who followed (in order)?

A

Aboriginals first

Then the French came looking for furst, the British followed.

25
Q

Who lost to whom in the land war that followed France and Britain coming to North America? In which act was the land claimed by the British?

A

The French lost to the British
The land was claimed in the Royal Proclamation Act of 1763. With this act they assumed decision-making control of a large part of North America.

26
Q

What were the two kinds of British?

A

Loyalists: those British citizens who remained loyal to Britain and the Queen.
Separatists: those British cirizens who were resentful of Britain’s control and taxation. They wanted to be independent of the QUeen’s control in this new land.

27
Q

What did the Separatists need to win their revolvt against Britian and gain independence?

A

Help from the French and the Aboriginals.

28
Q

Why did Britian reach out to the French and offer them benefits?

A

If they choose not to join the revolvt.

29
Q

What did the Quebec Act of 1774 grant to the French?

A

1) Created the territory still known as Quebec for the French
2) Allowed them to have their own religion
3) Allowed them to have their own land method (land strip farming - property issues)
4) Allowed them their own law system (with French roots - codified - civil laws)

30
Q

Who won the war of Independence?

A

The Separatists who became the United States of America

31
Q

Who are the foundations of the American government?

A

Life, liberty, and happiness

32
Q

What are the three three places that the British Loyalists moved to?

A

1) England
2) The Maritimes
3) Moved west of the province of Quebec - ultimately populating the area known as Ontario.

33
Q

What did the British North America Act of 1867 create?

A

The Dominion of Canada

34
Q

What are the three foundations of the Canadian government?

A

Peace, order, and good government

35
Q

What are the steps to Canada becoming the Domion? Why is Quebec distinct?

A
  1. The French and British populating BNA
  2. The War and the Royal Proclamation of 1763
  3. The Separatists fighting for, and winning, control
  4. The creation of the Quebec Act
  5. The British Loyalists populating Ontario
  6. The British North America Act of 1867
36
Q

What did the government need to deal with in order to expand from “sea to sea”?

A

“The Indian Problem”

37
Q

What was the process of treaty negotiations?

A

1) Treaty negotiator would go to the territories
2) Aboriginal leaders would list their demands
3) The negotiators would write it out and agree to it
4) Aboriginal leaders could not read or write, nor could they speak English very well. They had to sign their agreement to the terms of the treaty by signing an “X”important (at times, all the leader would do it “touch the quill pen” as the negatory made the X himself)
5) Negotiators were often never seen or heard of again and the goods were never delivered.

38
Q

Where did the treaties start?

A

Closest to the province of Ontario and worked their way West.

39
Q

Was each treaty negotiated separately?

A

Yes

40
Q

What happened as the negation a moved West? (What did the Aboriginals learn)?

A

As they moved West, the Aboriginals learned to ask for better things or negotiate better terms.

41
Q

What happened by the time treaty negotiations reached British Columbia?

A

Very few of the Aboriginal groups were willing to negotiate, which is why today there are few reserves there and the wealth and quality of living for First Nations in that province are very different from Manitoba or Saskatchewan.

42
Q

What were treaties made official through?

A

The Indian Act of 1876 - one of Canada’s Constitutional documents.

43
Q

What did the Indian Act of 1876 declare? What has been disputed since then?

A

Aboriginal inclusion into the Domionion of Canada, though it has been disputed that Aboriginals were not giving up their sovereignty or decision-making.

44
Q

What were the Aboriginals given through the Indian Act?

A

Certain protections

45
Q

What was the Federal government made responsible of through the Indian Act?

A

The sole responsibility for anything related to Aboriginal identity.

46
Q

What is fiduciary duty?

A

This is a “parent-like” relationship where the Federal gov’t now is obliged to act as a parent to protect Aboriginal concerns (protect from manipulation).

47
Q

What is best interest in regards to the FN and the federal gov’t?

A

It is also the gov’ts responsibility to consider all issues in a manner that “best looks after the interests of the FN”. Any gov’t documents in question are the be interepreted to benefits of Aboriginals, not Canada, or the government. (This has not always been upheld).

48
Q

While health care and education are provincial responsibilites for the majority of Canada, who is responsible for those things in regards to the FN? What is different about natural resources?

A

Health care and education are the responsibility of the Federal gov’t for FN. With natural resources, they were under the federal government until there was a conflict of interest in 1970 when it fell under the jurisdiction of the provincial government without consultation of the Aboriginals.

49
Q

Why is Quebec distinct in Canada? Why are the Aboriginals distinct in Canada?

A

Quebec Citizens: Quebec Act of 1774 (in exchange for not fighting with the Separatists)
Aboriginal People: The Indian Act of 1876 which established certain rights (so that Canada could expand west)

50
Q

When and why did the UN create the Declaration of Human RIghts?

A

When and why: in 1945 after Hitler’s attempted mass extermination of the Jews. They recognized a need to protect civilians from countries and leaders.

51
Q

In Canada, John Diefenbaker wanted to include these rights for Canadians. What was the only way to add these rights into law? Did this actually happen?

A

Would be as a government-created Statute Law. It was a weak law because it was only Statute.
He was overruled.

52
Q

When did John Diefenbaker become the Prime Minister? What did he establish? Why could it easily be removed?

A

In 1960, he became the Prime Minister and established the Canadian Bill of HUman Rights, added as Statute Law. Because it was created in Parliament, it could easily be removed by the next majority vote or government.

53
Q

Is Constitution Law hard or easy to change?

A

Hard

54
Q

What was added to the Constitution Act of 1982?

A

The Charter of RIghts and Freedoms which was entrenched. The Charter could not be removed, even by the majority vote of Parliamentary leaders.

55
Q

What was Pierre Trudeau trying to create by adding the Charter?

A

A just society where all people were protected.

56
Q

What is the Amending formula?

A

Federal government + 2/3 of provinces + 50% of Canada’s population.

57
Q

What section of the Constitution is the Charter?

A

Section 24

Law 30 (12 decks)

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