Vocabularies Flashcards
Positivism
Laws are social rules made valid because they are enacted from sovereign or existing decisions.
Realism
Looks beyond the law to extra-legal factors such as circumstances o the case and public opinion.
Critical Legal Theory
Law is intertwined with social issues and that the law has legal biases. The law supports those who created them.
Civil Law
Judges look to a central code for answers. Used by Quebec over private matters.
Common Law
Judges look at former cases (precedence). Used in public laws and majority of private laws in Canada.
Statute Law
& examples
Legislations passed by government.
Examples: Criminal Code, Constitution Act
3 branches of federal government
Executive, legislative, judicial
Domestic Law
Laws within Canada
Foreign Law
Laws of other countries
International Law
Laws between countries
5 areas of Public Law
Criminal, constitutional, administrative, Aboriginal, Tax
3 areas of private law
Contract, family, tort
Ordinary / plain meaning
If word or phrase has a specific meaning, the judge must use it in its intended meaning.
Golden rule
Ordinary standard or context of rule
A statue speaks on the intention of when it was written, and the intention is reflected in the statute
Mischief rule
Inquire into the true meaning of statute.
The limitations in legal control that the statute was intended to correct.
E.g., Gorris v. Scott lost sheep debacle
Noscitur a sciis
A general word followed by a specific word will be defined by the context of those specific words.
E.g., Need license to operate “vehicle, automobile, motorcycle, truck, or machinery of similar kind” -> this definition would place “truck” in vehicle but not “bike”
ejusdem generis
Ambiguous phrases or clauses will derive their meanings from the specific context in which they appear.
E.g., “Knives, rifles, pistols, clubs, and brass knuckles, or any other such implements” are prohibited -> machine gun would be included, but not garden spade.
Expressio unius est exclusio alterius
If something is specifically included it may exclude something else.
Ultra vires
When governments act outside of their jurisdiction.
Intra vires
When governments act within their jurisdiction
Rule of law
No one is above the law, everyone is equal under the law.
Meech Lake Accord, 1990
First attempt at amending the constitution. Declared Quebec as a distinct society, but did not give Indigenous people the same rights. Ultimately failed.
Charlottetown Accord, 1992
Second attempt at amending the constitution. Quebec and Indigenous people declared as distinct societies. Failed: passed 7/10 provinces but didn’t get 50% public approval.
Oakes Test
Test used to determine if limitation clause can be used.
