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ENVS 201 > Week 1 - Law Intro > Flashcards

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?)
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2
Q

What are the 2 kinds of rules in our society?

A
  1. hard law - regulated through constitution

2. soft law - social norms

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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)
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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
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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
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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)
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7
Q

What legal institutions does the constitution split into?

A
  1. Provincial legislatures
  2. Federal Parliament (Senate and House of Commons)
  3. Judicial Institutions
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8
Q

What is the structure of provincial legislatures?

A

Exec branch > Formal head (Leiutenant Governor) > Political head > Premier > Cabinet > Ministries

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9
Q

What is the structure of federal parliament?

A

Exec branch > Formal head (Governor General) > Poltical head > PM > Cabinet > Ministries

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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

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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
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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

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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
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14
Q

In Canada, which govts can pass bills related to environment?

A
  • federal and provincial
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15
Q

Who are the primary law-making bodies in Canada?

A
  • legislatures (fed parliament, prov/territorial legislative assemblies)
  • the courts
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16
Q

What are statutes?

A

They are codified (organized) laws passed by legislatures.

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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

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18
Q

How do courts make laws?

A
  1. through decisions that interpret statutes and determine their constitutionality
  2. through decisions that establish/adjust principles of common law
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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
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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
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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
  1. Law must apply equally to all citizens, including public officials, and (equality)
  2. 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
Q

How is a judge appointed/qualified to be a judge?

A
  • 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
Q

What is the reasoning for using the common law system?

A
  • 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
Q

What are bylaws?

A

Legally enforceable rules created by municipalities according to the powers given to them by municipal statutes (provincial municipal acts)

28
Q

How are laws made (statutes)?

A
  • 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
Q

What is liability? And in terms of environment?

A

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
Q

What is ratio decidendi?

A

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
Q

What is obiter dictum?

A

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
Q

What is stare decisis?

A

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
Q

How do precedents work?

A
  • 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
Q

What is persuasive authority?

A

These authorities guide the reasoning of the court but do not compel the court to answer in accordance with the prior decision

35
Q

What is the civil law system?

A

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
Q

What must happen if the defendant is found guilty of the tort?

A

They must pay damages or related remedy as court ordered.

37
Q

What is damages?

A

The monetary award that a defendant may be ordered by a court to pay to a successful plaintiff

38
Q

What is the criminal law system?

A

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
Q

What are tribunals?

A

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
Q

What are the primary functions of courts?

A

Deal with disputes in society.

  • apply the law
  • provide check on the use of govt power
  • adjudicate on matters of rights and liabilities
41
Q

What are the differences between courts and tribunals (purpose, operation, participants, nature of outcome)?

A

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
Q

How do tribunals work?

A
  • 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
Q

What is judicial review?

A

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
Q

What is an alternative dispute resolution (ADR) mechanism?

A

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
Q

What is negotiation (ADR)?

A

Involves an agreement b/w parties to meet/attempt to resolve issues outside of court or tribunals. often include signed agreements

46
Q

What is facilitation (ADR)?

A

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
Q

What is mediation (ADR)?

A

Structured process that also includes a third party (mediator) to assist in negotiation.

48
Q

What is arbitration (ADR)?

A

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
Q

What is appellate jurisdiction?

A

The power of a higher court to review decisions and change outcomes of decisions of lower courts (as opposed to original jurisdictions)

50
Q

What is the difference b/w statutory law and common law?

A
  • courts interpret statutes, which is then binding

- legislatures may overrule the courts decision (based on common law) through legislative instruments

51
Q

What is a dissenting opinion?

A

An opinion of judge(s) that disagree with the majority opinion of the court.

ENVS 201 (4 decks)

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