Week 1 - Law Intro Flashcards
1
Q
What is law?
A
Rules put in place by an authority with jurisdiction.
- form of social ordering that is purposive (seeks to achieve common goals), prescriptive (tells subjects how to behave), and carries the assumption of compliance (bindingness)
- relationship to morality (are all laws morally just? are all rules of morality also laws?)
2
Q
What are the 2 kinds of rules in our society?
A
- hard law - regulated through constitution
2. soft law - social norms
3
Q
What are the sources of law?
A
- statutes (duly enacted and promoted)
- regulations/by-laws (decisions of mandated authorities, permits, licenses)
- common law (rules agreed by courts with jurisdiction)
- constitutions (fed, prov, mun)
- treaties (intl law)
4
Q
What is the constitution?
A
- not one document but many that establishes basic framework under which all other laws are created
- highest level in our hierarchy of laws
- supreme law (the rules of law) - all other laws must conform too
- principle texts: Con Act 1867 & Con Act 1982
5
Q
What falls under the Constitution Act of 1867?
A
- creation of Dominion of Canada
- established bicameral fed and prov legislature
- divided legislative powers
- structured court system
- no system of amendment
- no rules for system of govt
6
Q
What falls under the Constitution Act of 1982?
A
- patriated constitution
- created Charter of Rights and Freedoms
- constitutionalized Aboriginal and Treaty Rights
- created amending procedures (rules)
7
Q
What legal institutions does the constitution split into?
A
- Provincial legislatures
- Federal Parliament (Senate and House of Commons)
- Judicial Institutions
8
Q
What is the structure of provincial legislatures?
A
Exec branch > Formal head (Leiutenant Governor) > Political head > Premier > Cabinet > Ministries
9
Q
What is the structure of federal parliament?
A
Exec branch > Formal head (Governor General) > Poltical head > PM > Cabinet > Ministries
10
Q
What is the structure of judicial institutions?
A
Supreme Court of Canada (SCC) > Fed Court of Appeal > Fed Court > Specialist Courts > Admin Tribunals
Prov Courts of Appeal > Prov Superior Courts > Admin Tribunals
11
Q
What is the separation of powers (branch of govt) and their functions?
A
- legislature: creates law
- executive (cabinet): implements and enforces law
- courts: interpret and apply law in dialogue with legislature/executive
12
Q
What is the difference b/w the US and CAN separation of powers?
A
US: suggests each role is distinct and should not encroach
CAN: responsible government that consults one another
- cabinet is made up of legislators
- answerable to legislature and must maintain confidence in legislature
- formal head of state overseas relationship b/w exec and legis branches
13
Q
How is legislation approved?
A
- subject matter determined by the Constitution
- must go through both fed houses (3 readings, committee stage, royal assent, and proclamation)
- statutes may provide fro delegated legislation
- hierarchy: constitutions > statutes > regulations
14
Q
In Canada, which govts can pass bills related to environment?
A
- federal and provincial
15
Q
Who are the primary law-making bodies in Canada?
A
- legislatures (fed parliament, prov/territorial legislative assemblies)
- the courts
16
Q
What are statutes?
A
They are codified (organized) laws passed by legislatures.
17
Q
What are regulations?
A
Legally enforceable rules created by the govt in council (fed) or LG in council (prov) providing practical details of how a statute is to be implemented
18
Q
How do courts make laws?
A
- through decisions that interpret statutes and determine their constitutionality
- through decisions that establish/adjust principles of common law
19
Q
What is common law?
A
Legal rules developed by judges through decisions of the courts that bind future decisions of courts (evolutionary).
- judge-made decisions about similar cases stretching back in time.
- system of law based on Eng legal tradition relying on precedent (example) rather than codified rules
- co-exists with legislative law
20
Q
What is the third category of law making bodies? How do they work?
A
Administrative tribunals, boards, and officials.
- they implement statutory law
- discretionary rule making powers often vested in these regulatory bodies due to complexity of environmental statutes
21
Q
What is law legitimacy? How does law gain legitimacy?
A
When we accept these law-making bodies as legitimate, thus we we accept their authority (under constitutional limits) to make binding laws.
- only legit when made by legit authorities that are making reasonable/fair laws
22
Q
What are the fundamental principles of good law?
A
- Law must apply equally to all citizens, including public officials, and (equality)
- Disputes b/w citizens and the govt must be decided by properly authorized and impartial judicial bodies according to the law. (consistency)
23
Q
What are examples of the division of powers b/w federal and provincial?
A
Federal:
- navigation & shipping
- sea coast & inland fisheries
- criminal
- federal undertakings
- SARA
- CEPA
- CEAA
Provincial:
- property/civil rights
- local/private matters
- natural resources
- education & health
- ON EPA
- ON Water Resources Act
- Enviro Bill of Rights
24
Q
What is the civil law legal system?
A
System in Quebec based on Parisian customs which applies to private disputes b/w citizens
25
How is a judge appointed/qualified to be a judge?
- appointed by GG on the advice of PM
- must be a lawyer for at least 10 years (usually much longer)
- appointed for life (~75 yrs)
subject to good behaviour
- cannot arbitrarily reduce income
- court controls the cases it hears
-cannot receive instructions from other branches of govt
- under duty of impartiality (fairness to all)
26
What is the reasoning for using the common law system?
- incremental development of the law
- done by judges through deciding particular cases
- each decision being shown to be consistent with earlier decisions by a higher or co-equal court
Equal parts moral intuition, hierarchical discipline, and principled consistency.
27
What are bylaws?
Legally enforceable rules created by municipalities according to the powers given to them by municipal statutes (provincial municipal acts)
28
How are laws made (statutes)?
- begins with govt's development of policy
- often outlines main options and consultation approaches (proposal)
- if cabinet committee approves proposal, becomes a draft bill (used for public consultation)
- final version of draft bill is reviewed by cabinet committee to be approved for intro into legislature
- takes many readings and revisions before bill can come into force as a legally enforceable law (statute)
- very similar for regulations
29
What is liability? And in terms of environment?
Legal obligations and responsibilities enforced through the decisions/orders of the courts and regulatory tribunals.
Enviro liability arises from obligations imposed by either the general law or specific enviro legislation
30
What is ratio decidendi?
The material facts and legal conclusions necessary to resolve issues before court; the legal basis of the outcome; binding on lower or co-equal courts in subsequent cases (required info to settle case)
31
What is obiter dictum?
Statement of law made by a court that is not necessary to determine the outcome of the matter before the court; not binding in subsequent cases regardless of the level of court (comments/info irrelevant to settling the case)
32
What is stare decisis?
Adherence to settled cases. The doctrine that once a court has laid down a principle of law in relation to a certain set of facts, it should apply that same principle where the material facts are similar.
- principle that requires judges to follow decisions of higher courts in similar cases
33
How do precedents work?
- a decision is binding on lower or co-equal courts (but courts do have the authority to overrule themselves)
- decisions from courts in other jurisdictions are no binding (ex. decision by AB CofA is not binding on the ON superior court)
- decisions that are not binding may still be persuasive authority
34
What is persuasive authority?
These authorities guide the reasoning of the court but do not compel the court to answer in accordance with the prior decision
35
What is the civil law system?
A system that deals with disputes b/w private parties, whereby the party pursuing the claim (plaintiff) must establish that the defendant committed the wrong (tort)
36
What must happen if the defendant is found guilty of the tort?
They must pay damages or related remedy as court ordered.
37
What is damages?
The monetary award that a defendant may be ordered by a court to pay to a successful plaintiff
38
What is the criminal law system?
A system that deals with violations of the laws designed to protect the interests of society in general.
- if one breaks a criminal law, then the govt can prosecute the lawbreaker
- since this is a wrong to society in general, if the accused is convicted, can be sentenced to prison or pay a fine
- prosecutor must establish that the accused is guilty beyond reasonable doubt
39
What are tribunals?
A specialized quasi-judicial board, commission, panel, or other decision-making body that makes decisions pursuant to particular statutes.
- deal with particular categories of concerns and conflicts
- key features can make tribunals better equipped than courts to oversee and administer complex enviro regimes
- ex. ON Environmental Review Tribunal examines nd rules on undertakings subject to EAs and hear appeals on decisions
40
What are the primary functions of courts?
Deal with disputes in society.
- apply the law
- provide check on the use of govt power
- adjudicate on matters of rights and liabilities
41
What are the differences between courts and tribunals (purpose, operation, participants, nature of outcome)?
Courts:
- purpose: adjudicating rights among the parties
- mode of operation: adversarial
- participants: judge adjudicates, plaintiff brings action, defendant defends action
- nature of outcome: judgement outlining winners and losers
Tribunals:
- purpose: overseeing a legislative framework
- mode of operation: inquisitorial
- participants: tribunal members render decision, proponent main player has onus to establish statutory tests for approval requested, govt officials may appear, members of public may intervene
- nature of outcome: decision geared to further public interest in administering regime
42
How do tribunals work?
- less formal than courts and more accessible to public
- do not have inherent powers/authority (only what is granted to them by statute)
- supervised by courts to ensure they act within the law and their jurisdiction (judicial review)
43
What is judicial review?
A court's review of an admin tribunal's decision to ensure it acted within the powers granted under the legislation and respected the common law rules of natural justice and procedural fairness.
- triggered when one party challenges whether the tribunal operated within its jurisdiction/followed procedural fairness
44
What is an alternative dispute resolution (ADR) mechanism?
A process other than the court system through which a conflict is settled.
- ex. negotiation, facilitation, mediation, and arbitration
- most matters are solved through this means
- more cost-effective and timely to solve matters this way
45
What is negotiation (ADR)?
Involves an agreement b/w parties to meet/attempt to resolve issues outside of court or tribunals. often include signed agreements
46
What is facilitation (ADR)?
Parties attempt to negotiate their dispute with the assistance of a third party (facilitator) who is responsible for communication process and helping parties improve mutual understanding
47
What is mediation (ADR)?
Structured process that also includes a third party (mediator) to assist in negotiation.
48
What is arbitration (ADR)?
Parties choose a third person (arbitrator) to help them resolve their dispute. Also has authority to make a final decision that is binding, with respect to the dispute
49
What is appellate jurisdiction?
The power of a higher court to review decisions and change outcomes of decisions of lower courts (as opposed to original jurisdictions)
50
What is the difference b/w statutory law and common law?
- courts interpret statutes, which is then binding
| - legislatures may overrule the courts decision (based on common law) through legislative instruments
51
What is a dissenting opinion?
An opinion of judge(s) that disagree with the majority opinion of the court.
