Unit 1 Test Review 2024 Flashcards
What are the 4 Legal Thinking Concepts?
Legal significance, legal perspective, interrelationships, change and continuity.
What is Legal Significance?
- Analyze how laws, court decisions, and social or political forces influence development and daily life.
- Assess the significance of key legal principles, cases and events influence in shaping the law.
- Ex. Why is the law and legal issue important?
What is Legal Perspective?
- Analyze how judges make decisions and how police officers view the law.
- Consider legal principles like fairness, justice, equality, presumption of innocence, and rule of law when evaluating legal issues and cases.
- Understand the law’s role in balancing competing rights and freedoms.
- Ex. How might members of the justice community view this event or legal controversy.
What is Interrelationships?
- Consider how laws affect society and how society affects laws.
- Analyze the roles of Canada’s government branches in law development and their impact on diverse groups.
- Consider the interactions between various sides in trials and other legal disputes.
-Ex. What roles do individuals, groups and government’s play in the justice system?
What is Change and Continuity?
- Understand the way laws change, or stay the same, over time.
- Analyze forces that support continuity in legal systems and factors impacting the administration of justice in both the short and long term.
- Ex. How have laws changed over time and why?
What is Ratio Decidendi?
- This is where the judge provides their reasoning for their judgment.
- Usually begins by naming the judge who read the decision.
What is a Plaintiff?
The person or party who brings a lawsuit or legal action against another in court of law.
What is a Defendant?
The person or party being accused or sued in a court of law.
What is a Respondent?
The party who responds to an appeal, usually defending the original decision made by a lower court.
What is an Appellant?
The party who appeals a court’s decision, seeking a review and possible reversal of that decision.
What does Acquitted mean?
A legal term indicating that a person has been found not guilty of a criminal charge.
What are the 2 Elements of a Crime? Describe what they are.
1) actus reus: “the guilty action”
- the prohibited, voluntary, conscious act; the failure to act; a “state of being”
2) mens rea: “the guilty mind”
- knowledge, intent (general or specific), recklessness, willful blindness and negligence
Identify the parts of a case citation – style of cause, the date.
- Style of Cause: Identifies the parties involved (Criminal: R. v. Marshall, [1999]… ; Civil: Marshall v. Harold, [1999]…”
- The Date: Square [] brackets = date is the year the case was published; Round
(), the year in which the case was decided.
Difference between a Criminal and Civil Case Citation.
- Civil: Plaintiff vs. Defendant (e.g., Smith v. Jones).
- Criminal: The State (or Crown) vs. Defendant (e.g., The State v. Johnson).
*NOTE: (The “R” stands for Regina if the Monarch of Power is a Queen and Rex if a King.)
Who has the Onus of Proof? What is the Burden of Proof? What is the Objective of Each?
- Criminal: The ONUS is on the Crown (prosecution) to establish the BURDEN OF PROOF – this means that it is up to the
Crown to prove that the accused committed the crime. - Civil: The ONUS and BURDEN OF PROOF typically rests on the plaintiff - meaning they need to show that their claims are more likely true than not.
How are Crimes Classified?
Quasi Criminal (Regulatory) Offences, Summary Conviction Offences, Hybrid/Dual
Procedure, Indictable Offences. (This order is from LESS SEVERE to MOST SEVERE)
What are Quasi Criminal (Regulatory) Offences?
- Provinces can make laws on things like traffic rules and alcohol regulations. They can also let local gov’ts handle these matters.
- These laws aren’t criminal laws; they’re called quasi-criminal or regulatory laws because they control behavior.
- Examples include: careless driving, not stopping at a stop sign, dumping toxic waste, etc.
- Usually, the punishment is a fine.
- These offences don’t result in a criminal record.
What are Summary Conviction Offences?
- Minor crimes that can lead to immediate arrest or court summons, without a preliminary hearing or jury.
- Penalties can include small fines or up to 2 years less a day in prison.
- The maximum penalty is a $5000 fine and/or up to 2 years in prison.
- Charges must be filed within 6 months of the crime.
- Examples: Causing a public disturbance, loitering, or having open alcohol in public.
What are Hybrid Offences?
- Can be tried as either summary conviction or indictable offences.
- Crown decides the trial method based on case circumstances and offender factors.
- Most Criminal Code offences are hybrid; treated as indictable until Crown chooses how to proceed.
- Accused is fingerprinted upon arrest, even if facing potential summary conviction.
Examples: Impaired driving, assault, theft under $5000, etc.
What are Indictable Offences?
- These are the most serious offences.
- The maximum penalty for indictable offences is life imprisonment.
- Examples of indictable offences include: murder, robbery, and kidnapping.
What is Ultra Vires?
Beyond the Power.
What is Intra Vires?
Within the Power.
What is Rule of Precedent (STARE DECISIS)?
- This means is that judges look at decisions that have been made in similar cases with similar facts before they make their decision.
- This ensures that like cases are decided alike – it guarantees some sort of predictability with the law and protects those accused of committing crimes from being treated unfairly.
Jurisprudence?
The philosophy or theory of law and legal systems.
Judicial Independence?
The principle that judges should make decisions free from outside influence or pressure.
Parliamentary Supremacy?
The idea that the legislature (parliament) has the ultimate authority in law-making and can override other laws or decisions.
Uniformity?
The quality of being consistent and the same across different cases or jurisdictions.
Impartiality?
The principle of being unbiased and treating all parties fairly without favoritism.
Restorative Justice?
An approach to justice that focuses on repairing harm and restoring relationships rather than just punishing offenders.
Adversarial Trial System?
A legal system where two opposing parties present their cases to an impartial judge or jury.
Inquisitorial Trial System?
A legal system where the court takes an active role in investigating the case and questioning witnesses.
Res Judicata?
A legal principle that prevents the same case from being tried again once a final judgment has been made.
What are Primary and Secondary Sources?
- Primary: Sources that have influenced our ideas and values about law over
time; they are the original sources
of law, including: Religion;
Customs and conventions,
Social and political influences - Secondary: Sources that enshrine a society’s values in written rules and
regulations, which have been
formulated by legislators and
judges (written down and legally
binding). These are part of our
legal HISTORY, including: The Constitution; Statute Law; and, Case/Common Law
What is Constitutional Law?
Sets out how the country is to be governed; laws that determine the structure and powers of the fed. and provincial gov. (includes charter).
What’s Statute Law?
- Laws passed by Parliament
- Helps fill in the gaps where common law cannot provide an answer
Case Law?
Definition: Case law is law that comes from court decisions rather than statutes (laws passed by legislatures). It helps interpret and apply the law based on previous cases.
Example: If a court decides that a person can’t be fired for being part of a union, this decision becomes case law that other courts can refer to in similar cases.
Customs & Conventions?
Definition: Customs are traditional practices that people follow, while conventions are unwritten rules that guide behavior in politics and society.
Example: In Canada, it’s a custom to stand for the national anthem. A convention is that the Prime Minister is expected to be a member of the elected House of Commons.
Religion?
Definition: Religion refers to systems of beliefs that often include faith in a higher power and guide moral values.
Example: In Canada, many people practice Christianity, Islam, or Indigenous spiritual traditions, influencing community values and holidays.
Social & Political Influences
Definition: Social influences are the effects of society on people’s behavior and beliefs, while political influences involve how government policies and political views shape society.
Example: The growing awareness of climate change has led to social movements advocating for environmental protection, which influences political decisions like carbon pricing.
Why is precedent so important in our justice system?
Ensures that individuals in similar situations are treated alike instead of based on a particular judge’s personal views.
Ancient roots of Canadian law – what did each give our legal system?
Code of Hammurabi
Origin: Ancient Babylon, around 1754 BCE.
Contribution: One of the earliest written legal codes, emphasizing the rule of law and the principle of retributive justice (“an eye for an eye”). It laid the groundwork for formalized law and the idea that laws apply to all individuals.
- Mosaic Law
Origin: Ancient Israel, as recorded in the Torah.
Contribution: Laws Moses gave to Hebrew people; built in retribution, restitution, and punishment of the guilty party - Justinian Code (Roman Law)
Origin: Roman Empire, compiled in the 6th century CE.
Contribution: Collection of past Roman laws, opinions from legal experts and new laws; Built in the Rule of Law and the idea of being innocent until proven guilty. - Feudal System
Origin: Medieval Europe.
Contribution: King of England owned all of the land and divided it among his lords and nobles; Built in Common Law, Precedent, and Appeal. - Canada’s Legal System
Development: A hybrid system influenced by British common law and French civil law.
Contribution: Combines elements of both common law (in most provinces) and civil law (in Quebec), reflecting Canada’s bilingual and multicultural society. - Common Law
Origin: Developed in England post-Norman Conquest.
Contribution: Relies on case law and judicial precedents, allowing the law to evolve over time. This flexibility has been crucial in adapting laws to modern Canadian society. - Magna Carta
Origin: England, 1215.
Contribution: The Great Charter
talked about the Rule of Law and how all rulers must obey the law; Built in the rule of Law and Habeas Corpus (entitled to appear before court in time). - Statute Law
Origin: Created by legislatures.
Contribution: Represents laws enacted by Parliament or provincial legislatures. It provides a clear, codified framework for governance, allowing for statutory reform and updates. - Napoleonic Code
Origin: France, 1804.
Contribution: Forbid the idea of privilege based on birth and allowed freedom of religion; Built in the idea of equality and freedom of religion.
What is Domestic Law?
- Refers to laws that govern activity within a nation’s borders
(if a Canadian citizen breaks the law in another country, there is very little that the Canadian government can do to help)
What’s Substantive Law?
- All laws that set out the rights and obligations of each person in society
- Outlines the activities and actions that are considered criminal
What’s Procedural Law?
- Outlines the steps and PROCEDURES involved in protecting our roots and apply the law
- Example: There are formal procedures that must be followed to carry out arrests, search warrants, etc.
What’s Criminal Law?
A body of law that prohibits certain kinds of conduct and imposes sanctions for unlawful behaviour.
What’s Public Law?
Set the rules for the relationship between a person and society and for the roles of different levels of government.
What’s Private Law?
Private law sets the rules between individuals, it is also called civil law, private law settles disputes among groups of people and compensates victims.
What’s Civil Law? What are the 5 Types of Civil Law?
Regulates disputes between individuals;
Tort Law: Governs wrong; holds a person or organization responsible for the damage they cause to another person
Contract Law: Outlines the requirements for legally binding agreements
Family Law: Deals with the relationship between people who are living together
Property Law: Regulates the relationship between individuals regarding property-related issues
Labour Law: Affects relationships between employers & employees (deals with issues like minimum wage, pay equity, etc.)
What’s International Law?
refers to rules and agreements between countries that govern their relations and obligations.
International Law – Sources of, who it protects, who enforces it?
- Individual states/countries, the United Nations is responsible for enforcing international law.
- Established by the United Nations Charter in 1945.
- The main function of the United Nations is to preserve international peace and security by means such as negotiation,
mediation, arbitration, and judicial decisions.
What’s the ICC?
- Established: 2002 with the adoption of the Rome Statute by 120 UN member states; ratified by 60.
- Purpose: Prosecutes individuals (not states) for serious international crimes, including:
Genocide
Crimes against humanity
War crimes
Aggression - Location: The Hague, Netherlands.
Independence: Not part of the UN; operates as an independent court. - Membership: Currently has 123 member states, including Canada. Notable non-members include the US, China, Iran, Russia, and Saudi Arabia.
What are the issues with the ICC?
- Limited Membership: Key countries like the US, Iran, Saudi Arabia, Israel, China, and Russia are not members.
- Sovereignty Concerns: Non-member states feel the ICC limits their ability to prosecute criminals at home.
- Withdrawal Threats: Countries like South Africa and Burundi have threatened or begun to withdraw, saying the ICC unfairly targets Africa.
- Effectiveness: The ICC’s power is weak without broader support from member states.
- Notable Withdrawals: Burundi was the first to officially withdraw in 2017, followed by the Philippines in 2018 after an ICC investigation into alleged crimes.
What are the issues with the UN?
- Veto Power Abuse: Permanent Security Council members can misuse their veto rights.
- Lack of Enforcement: There is no global police force to enforce laws.
- Limited Peacekeeping Power: UN peacekeepers have restricted abilities.
- Weak Consequences: Penalties for breaking treaties are often minor.
- Outdated Structure: The Security Council does not reflect today’s world.
- Coordination Issues: Many UN agencies operate without good coordination.
- Troop Contributions: Reliance on countries to provide troops for peacekeeping is problematic.
- Unreliable Funding: Financial support for UN operations is often inconsistent.
What are you overall thoughts about the issues with ICC and the UN?
Both the ICC and UN face challenges that limit their effectiveness. The ICC struggles with membership and authority, while the UN deals with structural problems and lack of enforcement power. Improving these areas is essential for better international justice and cooperation.
What’s Morality and Humanity?
- Definition: Principles of right and wrong; respect for human dignity.
- Example: Human rights movements advocating for equality.
What’s Sovereignty and Jurisdiction?
- Definition: Sovereignty refers to supreme authority; jurisdiction is the legal power to make decisions.
- Example: A country having control over its laws; a court’s authority over a specific area.
What’s Rights and Duties?
- Definition: Rights are entitlements; duties are responsibilities.
- Example: Right to free speech vs. duty to respect others’ rights.
What’s Legitimacy and Ownership?
- Definition: Legitimacy is recognized authority; ownership is possessing something.
- Example: A government recognized by other nations vs. personal property rights.
What’s Power and Authority?
- Definition: Power is the ability to influence; authority is the right to exercise that power.
- Example: A police officer (authority) enforcing laws (power).
What’s Equality and Equity?
- Definition: Equality means treating everyone the same; equity means fairness based on individual needs.
- Example: Equal pay for equal work (equality) vs. providing resources based on student needs (equity).
What’s Democracy?
- Definition: A system of government by the whole population through elected representatives.
- Example: Voting in national elections to choose leaders.
