Final Flashcards
(171 cards)
1
Q
natural law
A
- Natural law: posits the idea that there is universal, absolute law
- That law is derived from natural principles - we do not create the law, the law has already created itself
- this stemmed from christian thought, that law was derived from god
- law is an external source that overlaps with our moral compass
- originally determined from the “divine order”, the bible determines what is lawful and unlawful, we do not create it we discover it
- the secular basis of natural law is that we can use our own natural reason to determine what is lawful
- Either emanating from God or separate from the divine
- Lex injusta non est lex - no unjust law is a law - essentially saying that morality is law
- A part of the Canadian Charter of Rights and Freedoms and international human rights law
- the canadian charter of rights and freedoms are based off of natural law - you posess human rights because you are a human
2
Q
positivism
A
- Positivism: a theory of law that views law ‘as is’ rather than ‘as it should be’
- Law is ‘posited’, human-made - its a social construction
- What is right is what is lawful
- it gets its validity because it gets passed by Parliament - the Canadian state is the highest form of legal power
- we live in a positivist law society - what we say is unlawful goes, does not matter ones own perception of morality
- Law’s validity comes from the validity of the sovereign (the state)
- Rooted in the British practice of parliamentary supremacy
3
Q
legal realism
A
- Legal realism: understands law and legal outcomes as part of the political, economic and social contexts
- Realist analysis of law is like ‘grand-style judging’ (Boyd, 2019)
- legal realism isn’t saying anything about right or wrong- more understanding legal outcomes and the factors that produce them
- they could analyze how public participation can affect laws, (basically they look at outside variables that contribute to legal outcomes)
- could be personality characteristics of judges that could have driven them to sentence someone a particular way
- Like positivism, focuses on law ‘as is’ rather than ‘as it ought to be’
- Unlike positivism, focuses on the human influences of law
4
Q
marxism
A
- Marxism: informed by the idea of historical materialism
- economics plays a strong determining role in our law and political systems and out beliefs
- class relations affect our view on the legal system
- During the 2008 financial crisis, a lot of people turned fascist because of the economic hardships
- There are many different Marxist approaches to law
- Tends to view law as an institution of capitalism and an instrument to protect the economic elite class
5
Q
critical legal studies
A
- Critical legal theory: critical of the rationales, purposes and assumptions of law and legal theories
- Views power as embedded within legal systems
- Considers the political, social and economic context of law
- Arose as a challenge to positivism
- Often influenced by Marxist ideas
- does not make any assumptions about the law, it is more of an account of the law
6
Q
feminism
A
- Feminist theory of law: understands law from a gendered perspective
- Identifies and problematizes the gendered nature of law and legal study
- First-wave feminist thought - legal representation
- Second-wave feminist thought - structure of the law
- Third-wave feminist thought -intersectionality
- one of the fastest growing areas of jurisprudence, not just how the law works, but what it represents
7
Q
Carter v. Canada
A
pysichian assisted death
8
Q
cannabis act
A
legalization of weed
9
Q
1215 Magna Carta
A
- The ‘Great Charter’
- -A feudal era charter governing feudal rights
- -Limited the authority of the monarchy
- the first predecessor of modern law
10
Q
1648 Peace of Westphalia
A
when the state became the soveriegn - the highest authority
11
Q
The Royal Proclamation of 1763
A
Transferred French territory to the British
12
Q
The Constitution Act of 1791
A
Divided Canada into Upper and Lower Canada
13
Q
Act of Union, 1840
A
created the united Province ofCanada
14
Q
The British North American Act,1867
A
The legal basis of Canada
1892: The Criminal Code
15
Q
1931 Statute of Westminster
A
Canada becomes self-governing dominion
16
Q
The Constitution Act, 1982
A
- Patriated the Constitution
- Included the Charter of Rights and Freedoms
17
Q
Public law
A
- the area of law concerned with the public interest
- I.e. Constitutional law, criminal law, taxation law, etc.
18
Q
Private law
A
- the area of law concerned with legal disputes between individuals
- I.e. Tort law, family law, contracts, property law, etc.
19
Q
Substantive law
A
- the area of law that governs society
- I.e. Criminal law
20
Q
Procedural law
A
- the area of law governing the rules of law and the procedures of the legal system
- I,e. Sentencing
21
Q
Sources of Canadian Law
A
- Principal sources:
- i) legislation/statute law &
- ii) case law/judicial decisions
- iii) custom &iv) books of authority
22
Q
Legislature
A
create and change law
23
Q
executive
A
executes laws/policies
24
Q
judiciary
A
implements law and dispenses justice
25
Statute law
- law created by a legislature
- In Canada, this is the dominant form of law rooted in the notion of parliamentary supremacy
- In Canada, involves Parliament and the provincial and territorial legislatures
26
case law
- law established by judicial decisions
- Involves judicial **precedents**
- Case law results in a more dynamic legal system
- Judicial decisions are published/reported in a variety of reports
27
R v. Gunn and Ponak
right to trial within a specific time
28
constitutions
- Constitutions: the foundational (constitutional) charter and supreme laws that form the basis of a legal system and political society
- Constitutions constitute
- “Constitutions have come to symbolize the social contracts that societies make to ‘constitute’ themselves in which ‘the people’ confer authority to political actors in exchange for the establishment of order and the rule of law” (Dickovick et al, 2020)
29
constitutions tend to
- Express founding principles & shared
values*
- Establish the political system - our constitution establishes our bicameral legislature, our judicial system, our supreme court, fundamental laws
- Establish fundamental laws of society
- Confer power to particular actors and/or institutions
- Limit the exercise of government power
- Outline the basic rights and obligations of citizens
- Highlight a particular history
- Contain aspirations
30
constitutional design features
- the particular features of constitutions
- Some constitutions are short, others are long
- Some constitutions are written/codified, others are unwritten/uncodified - like the united kingdom, strong parliment dominant
- Most constitutions are designed to be difficult to change
- Most constitutions have particular amendment processes
- Many constitutions specify judicial review* Many constitutions omit important political structures and legal processes
31
horizontal diffusion of power
the spreading of power or influence across different entities at the same level of government
32
vertical diffusion of power
the movement of power from lower to higher levels of government, or from higher to lower levels of government. i.e federalism
33
separation of powers
the division of government powers in a system between branches of government
* Executive branch - it is easier to hold the executive accountable in Canada
* Legislative branch
* Judicial branch
-Judicial review
34
federalism
a political system with multiple levels of government, each with a degree of autonomy with specified jurisdiction
* vs **unitarism**: a political system with no subnational governments possessing delegated authority/jurisdiction
* Asymmetrical decentralization
35
sections 38, 41, 43 - 41
is the relationship to the monarch
36
’7/50’ formula
7 provinces agreeing to a constitutional change, and those 7 provinces have to represent 50% of the Canadian population
* Includes the Canadian Charter of Rights and Freedoms
37
Section 91
outlines federal powers and jurisdiction
38
Section 91(27)
gives federal government exclusive power to legislate on criminal law
if there is a new type of criminal activity it goes straight to the federal government.
39
Section 92
outlines provincial powers/jurisdiction
- Provincial Jurisdiction
- public lands
- provincial prisons
- provincial schools
- property and civil rights
- some attributes of family law
- equalization payments - to equal minimal standards in public services in every province - Highly Controversial
- referendums- public votes on public issues - does not happen often
40
Section 36(2)
sets out equalization payments between provinces
41
Canada (Attorney General) v. PHS Community Services Society
safety injection sites (federal/provincal jurisdiction)
42
The Canadian Bill of Rights, 1960
A federal statute
- before the constitution was just federal legislation as opposed to a constitution
43
R. v. Drybones (1970) SCR 282
the indian act and the Canadian bill of rights
44
Section 1
The ‘limitations’ clause: *not all rights in the charter are absolute, but within reasonable limits are prescribed by law*
- the war measures act, renamed as the emergency act - provinces cannot invoke, it is only federal
- where there is a justification for the charter to basically get thrown out of the window with sufficient importance
- was invoked in Quebec from Pierre Trudeau
- was invoked for the trucker convoy
- 2-part test
i) sufficient importance
ii)proportionality
45
I.e. Saskatchewan v. Whatcott (2013) 1 SCR467
hate speech
46
Section 2
sets out fundamental freedoms ofCanadians - freedom of consiounce, freedom of peaceful assembly, freedom of association
47
Sections 3, 5 & 6
set out basic rights ofCanadians - social mobility
48
Sections 7 – 14
sets out legal rights ofCanadians - legal rights of the accused person, rights against unreasonalbe search and seizure, the right to stand trial within a certain period of time, right to reason of arrest. right to liberty of a person
49
Section 15
sets out equality rights of Canadians - legal equality, everyone being equal under the law
50
Sections 16 – 23
concerns minority-language rights - makes english and french the offical language of Canada
51
Section 24
ower of the courts to exclude certain evidence - power of the courts the exclude certain evidence in trial, especially evidence that was not aquired with due process.
52
Sections 25–34
relate to the application of the Charter
53
section 32
applies to both federal and provincial governments - procedural law
54
Section 33
Notwithstanding clause
- this allows a legislature provincial or federal, to inact laws to override some rights within the charter.
- Alberta has never invoked it
- limitations to the not withstanding clause, has to be renewed every 5 years, only provinces can invoke it
- 2023 bill 137- requires parental consent for a child to use a different pronoun if under 16 years old, teachers and parents have a legal obligation to inform teachers or parents that the child want to go by a different pronoun
-Section 33(3) limits the clause to 5 years
55
R. v. Morgentaler (1988) 1 SCR 30
abortion laws
56
1992 Charlottetown Accord
reducing the number of senators to 62 with equal representation around Alberta, they wanted 25% of representation in the house of commons for Quebec
57
1987 Meech Lake Accord
the right to amend the constitution
58
Administrative Boards and Tribunals
- Regulation & dispute resolution outside of the court process
- Created by provincial and federal legislation
- Regulated by statute - cannot step out of delegated authroity they were given
- Adjudication, rule-making and standard setting roles
- Deal with both public and private law
- I.e. Labour Relations Board, the Human Rights Tribunal, the National Parole Board, the Worker’s Compensation Review Board, etc.
59
Military Courts
- Deal with violations of the Code of Service Discipline -Canadian military criminal code
- Consists of
- i) various types of military courts, and
- ii) Court Martial Appeal Court Have the same rights, powers and privileges as superior courts
- Military judges appointed by the Minister of National Defence
60
R. v. Genereux (1992) 1 SCR 259
the supreme court held that the marshall must comply with the surpreme court regarding judiciual independence
61
Provincial court:
- the primary entry into Canada’s court system
- With the exception of civil law in Quebec, Canadian provinces and territories practice common law
-Judges are appointed by provincial governments
- 4 divisions:
- i) youth division
- ii) family division
- iii) civil claims division
- iv) criminal division
62
Superior Courts of the Provinces
- The superior courts of the provinces: the highest level of courts in the provinces and territories
- Judges appointed by the federal government
- 2 divisions:
- i) Trial division: indictable offenses, larger claims, criminal appeals from lower courts
- ii) Appeal division: appeals from the trial division
63
The Federal Court of Canada
- 2 Divisions
1. Trial division: responds to civil disputes arising from federal government actions, federal-provincial disputes, intellectual property disputes, citizenship/immigration, refugee law, maritime law and class proceedings
1. Appeal division: hears appeals from the trial division and the federal administrative boards and tribunals
- The Tax Court of Canada: hears appeals from tax assessments by individuals and companies
64
McLean v. Canada (Attorney General) (2018) FC 642
residential schools
65
Merlo v. Canada (2017) FC 51
the female RCMP, the RCMP failed to give women fair pay for maternal leave
66
The Surpreme Court of Canada
- The Supreme Court of Canada: Canada’s final court of appeal
- Consists of 8 justices and 1 chief justice
- 3 must be from Quebec, 3 come from Ontario, 2 from Western provinces and 1 from Atlantic provinces
- Appointments made on recommendation by the Prime Minister
- Hears appeals in relation to criminal cases from provincial court of appeals and the Federal Court of Appeal
- Address constitutional matters
- Judicial review
- Offer legal opinions to government
- Hear both common law and civil law cases
- Bound by legislation
- Can also interpret legislation in terms o fthe Constitution of Canada
67
Vriend v. Alberta (1998) 1 SCR 493
sexual orientation
68
Dunmore v. Ontario (Attorney General)(2001) 3 SCR 1016
right to form a union
69
Characteristics of Canada’s Court System
- An adversarial system
- High level of formality - to give prestige to the court
- Open access
- Jury of peers
- Reasonable timeliness
70
Alternative Dispute Resolution In Canada
- There has been a more recent turn toward alternative dispute resolution
- Alternative dispute resolution: dispute resolution beyond the traditional, adversarial court system
- Employs negotiation, mediation and conciliation
- Typically conducted by non-judicial officer
71
Restorative Justice in Canada
- Restorative justice: “[...] an approach to justice that seeks to repair harm by providing opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime” (Department of Justice, 2024)
- Principles include recognition, inclusion, accountability, dialogue, voluntariness, etc.
72
R. v. Gladue (1999) 1 SCR 668
restorative justice
73
Articling
a law student’s period of
apprenticeship under supervision of a licensed lawyer(s)
74
law schools
- There was no formal university-level law school pre-1950s
- Now 24 law schools in Canada (2024)
- Eligibility determined by GPA and the Law
School Admissions Test (LSAT)
- The academic study of law was designed to
supplement legal apprenticeship (articling)
- Successful students receive their juris doctor (JD)
75
The Canadian Bar Association
shares nformation about the practice, offers networking and professional development opportunities and represents the interests of Canada’s legal community
76
Federation of Law Societies of Canada
the national association of Canada’s provincial legal societies-Regulates Canada’s legal profession, shares information across law societies and facilitates national collaboration (FLSC, 2024)
77
Code of Professional Conduct
- Canadian Bar Association’s Code of Professional Conduct
- Federation of law Societies **Model Code of Professional Conduct**
- **Includes standards on issues of competence, quality of service, confidentiality, conflicts of interest, preservation of clients’ property/disbursements, withdrawal from representation and marketing/advertising of legal services (FLS, 2022)**
- Disbarment: removal from the bar and membership of law society terminated Lawyers can also be reprimanded in other ways (i.e. fining, suspensions from practice)
78
Judges & the Law
- Roles/functions: administer the law, preside over the legal process, make important legal decisions, sentence offenders, interpret the law and establish
case law
- Federal judges are appointed by cabinet (Minister of Justice) with assistance of a Judicial Advisory Committee
- There are around 1,180 federally appointed judges in Canada (2024)
- Women make up around 45% of all federally appointed judges (2022)
- Canadian Judicial Council: oversees Canada’s federal judges- Consists of 41 members; chaired by the Chief Justice of Canada
79
Statuatory Interpretation
- Judges are expected to interpret ambiguous legislative statutes in terms of their i) wording schemes, ii) object of the act and iii) intent of the act (Driedger ,983)
- 2 general approaches: i) British tradition and ii) European/US version
- In many instances, statutes include definition sections to reduce statutory interpretation
- 3 rules and 3 grammatical principles for statutory interpretation
- Rules: i) plain meaning rule, ii) golden rule and iii) mischief rule
- Grammatical principles: i) exclusive terminology, ii) combining similar kinds and iii) defining in relation to similar concepts
80
Precedent
- Precedent: a judgement or decision of a court of law cited as an authority for similar cases
- Stare decisis: ‘to stand by decided things’
- Precedent results in a more dynamic legal system, but also a more predictable one
- Problems with precedent: i) when it takes priority over the intention of a statute and ii) when it self binds a court
81
The OJ Simson Case
- there was a criminal trial and a civil trial
- torteous liability of the deaths of the indiviuals and was ordered to payed charges to the victims families
- found not guilty in criminal law, and found liabile in civil law
82
Torts & Tort Law
- Torts: a private wrong
- A private matter against an individual, corporation or body of government
- Tort law: law aiming to remedy private wrongs through compensation
- Tort law differs from contract law
- **torteous liability**
- differs from contract law
- there are plaitnifss - the victims, and the defendant
83
Tort Law vs. Criminal Law
- The two areas of law have been distinguished since the 11th century - in the british legal system
- There is considerable overlap between the two areas of law
- Criminal law is a public wrong; an offence against the public interest
- Criminal law is meant to punish wrongdoings, defer further infringements, express social condemnation for wrongdoings and rehabilitate offenders
- Like tort law, criminal law is developed through case law
- While criminal law determines guilt, tort law determines liability
- everyone is criminally neglient when doing so or ommiting to anyone whose duty shows recklessness or disregard to the safety of others - criminal code 1
- civil juries can be applied when the sum is over $75,000 or more in Alberta
84
liability
- the responsibility for a legal obligation
- The standards of tort liability and criminal guilt are different
- Liability based on probability
- Guilt based on proof beyond a reasonable doubt
85
mens rea
- In tort law, there is no requirement to prove intention (mens rea)
- mens rea - intent/ guilty mind
86
vicarious liability
if someone who u have liabilty for goes and commited a crime without ur knowledge, you may still be liable
87
social host liability
if someone gets drunk at ur house, and you are supplying the alcohol, and they go and drive - you can be seen as liable
88
Intentional tort
i punch you in the face intentionally, levels of liabilty, determines whether it was an accident or on purpose
89
Negligent tort
when there is a standard of care and you are not meeting the standard of car, in court it determines if there was a legal obligation
90
Strict liability tort
where a defendant can be held liable for damages caused to another person, even if they were not negligent or at fault, meaning they can be held responsible simply because their actions resulted in harm, regardless of their intent or level of care taken
91
Property tort
Property torts are a specific type of intentional tort that involve unlawful interference with someone's property rights. These torts generally arise when a right related to property, rather than personal rights, is violated.
92
Dignitary tort
as a result of a personal indiginity (slander, defamation, invasion of privacy)
93
Economic tort
torts that occur with interfering with business activities, if i induce you to breach the contract - different from contract law, “if i tell you the contract is over, when its not and you end up breaching the contract”
94
Toxic tort
enviromental damages, often produced by industry, and industries not meeting their standard of care regarding enviromental outcomes
95
absolute liability
Absolute liability in law means a party can be held responsible for an action without needing to prove negligence or fault, regardless of whether the action was intentional or unintentional.
96
Intentional tort
- torts that occur as a result of intentional physical or mental harm to someone
- There are different standards between **intentional torts** and **negligence**
- Involves intentional wrongdoings with unintentional consequences
- **Forseeability**
- arguable
97
Defences in intentional tort law include
- Consent - this is where the defendant can claim the victim consented to a particular activity
- Self-defense (and defense of property)
- Necessity
- Legal authority - often times used by police,
98
Negligence:
the failure of an individual or organization to meet a standard of reasonable care, resulting in the injury of someone
99
Duty of care
a legal obligation in a specific context
100
Standard of care
the degree/level of care a reasonable person would apply in a specific context
101
‘Reasonable person’:
someone who would not be expected to be negligent under specified circumstances
102
Causation
links the defendants breach of obligation to the plaintiff’s injury
103
Remoteness
reflects whether a specific damage suffered by someone was reasonably foreseeable
104
More v. Bauer Nike Hockey Inc.(2011)
BAUER MET THE STANDARD OF CARE
105
Buchan v. Ortho Pharmaceutical
duty of care regarding consumerism care and dangers
106
Mustapha v. Culligan
issue of remoteness and causation.
107
King v. Redlich (1984)
voluntary assumption of risk
108
Defences to negligence include:
- Contributory negligence - if it can be shown that the plaintiff can be partly responsible for the harm suffered
- Accident - where the defendant can show that they had no control over the situation
- Voluntary assumption of risk -
- Participation in a criminal Act
109
Punitive damages
damages awarded in tort law beyond what is necessary to compensate the injured
110
Whiten v. Pilot Insurance Co - 1994
regarding punitive damages in canada
111
tort law in quebec
is codified in the civil code of quebec. all based around case law, doesnt establish broad liability
112
tort law in america
much more common, civil cases and jury cases are quite rare - in alberta we do not have a jury in civil cases, in america their compesation is much larger due to the shitty health care system, and their employment and will principle, they are allowed to fire employess without any notice, or any compensation
113
The Brentwood Stabbing Murders
- 2014
- Calgarys worst killing spree in calgary history
- assalint was 22 years old
- went in a killed 5 of the partys attendents
- was found not criminally responsible
- was experincing intense schizophrenia
- he thought he was killing vampires
- his parole from the mental institute has been denied
114
3 categories of crime:
1. Offences against persons - assault, threats
2. Offences against property
3. Offences deemed wrong in and of themselves- social order crimes, differ across different societies, deemed wrong out of public morality purposes
115
3 categories of assualt
1. general assualt, 2. assualt with a weapon/with a weapon/with a peaceofficer, 3. you cause severe life threatening consequences
116
‘simultaneous principle’:
crime requires the simultaneous coincidence of actus reus and mens rea
117
Actus reus
an evil (wrongful) act
118
Mens rea:
an evil (wrongful) mind(intention)
119
2 methods for assessing mens rea/intent:
1. Objective intention - considers what would be in the mind of a reasonable person given the context
2. Subjective intention- what they think would be in the mind of the defendant at the time
120
Section 21 of the Criminal Code
mensrea concerning parties to an offence - everyone is an party to an offecne who 1. commits the act, 2. encourages it, 3. anyone who plans and carries out the crime 4. anyone who knew the crime - Aiding and Abetting
121
Exceptions to Mens Rea
- Strict liability offences: onus falls on the accused to prove they had no intent
- Absolute liability offences: where intent is irrelevant
- Culpable homicide: when someone either intentionally or unintentionally commits murder
- Criminal negligence (manslaughter): negligence showing disregard for the lives and safety of others
122
R. v. Cooper (1993)
regards the issue of concurency of the actus rea and the mens rea - what if your intentions change during the act? concluded that intention does not need to persist during the crime
123
R. v. Hundal (1993
an important surpreme court decsion regarding objective vs. subjective standard
124
Defenses to, and Mitigations of, Criminal Offences
- Defenses include:
- **Capacity - mental fitness (mental health issues, children)**
- **Self-defense**
- Section 34 of the Criminal Code - everyone who is unlawfully assualted without having provoked the assault, are allowed to use force - not causing death, and if there was proportionality and nesscesitiy
- intoxication
- **Enticement by police**
- **Forced to commit a crime**
- **Mistake of fact - crime comitted by a resonable mistake and intention was accidental**
125
R. v. Lavallee (1990)
battered women syndrome
126
- Daviault v. R. (1994)
- - using intoxication to reduce legal liabilty
127
Pappajohn v. R
mistake of fact
128
R. v. Ewanchuk (1999)
implied consent
129
R. v. Hutchinson (2014)
holes poked in condom to baby trap her, consent has to be taken into account on how the assault occured
130
Acting under duress
in order to claim duress it has to be immediate, cannot be apart of a criminal conspiracy, and the threat must have been ready to take it out
131
The Criminal Code of Canada
- Made into law in 1892 as per the Constitution Act, 1867
- Has been updated regularly since
- The Criminal Code of Canada: defines criminal offences, establishes the kind and degree of punishment for certain offences, outlines procedures for investigation and prosecution, outlines rules regarding helping/encouraging crimes and sets out some defenses
- There are statutory law-based crimes outside of the Criminal Code
- I.e. Firearms Act, Controlled Drugs and Substances Act, etc.
- Offences include: offences against a person, offences against property, offences against the administration of law, sexual offences, terrorism offences and hate propaganda offences
132
3 categories of criminal offences:
- i) summary offences,
- ii) indictable offences
- iii) hybrid offences
- Attempts to accomplish a range of purposes:
- general deterrence
- specific deterrence
- societal denunciation
- accountability
- keeping society safe
- rehabilitation
- Important factors for consideration:
- i) degree of premeditation,
- ii) surrounding circumstances,
- iii) gravity of the crime,
- iv) attitude of the offender,
- v) criminal record of the offender,
- vi) age/personality of the offender,
- vii) any mitigating circumstances,
- viii) previously imposed sentences and x) mercy
133
administrative law
the law of government agencies and the authority that they have
- **Primary legal dynamics**
1. **jusrisdiction, key component**
- **ultra vires**
- **intra vires**
2. **statutory interpretation**
3. **legal principles**
- **legal fairness**
134
Legal Personality
things/ people, natural people in law (Human Beings) and there is unnatural personalities in law (businesses and corporations) different sets of responsibilities - things with legal rights and responsibilties
135
Delegation in Administrative Law
- Delegation: the transfer of federal or provincial duties/authorities/powers to non-elected administrative bodies
- Not all authority can be delegated to an administrative body
- Inter-delegation: when the federal government delegates authority to a provincial administrative body or when a provincial government delegates authority to a federal administrative body
- Functions of administrative law/delegation: i) assists with governance, ii) assists with specialization, iii) greater flexibility, iv) more discretion, v) faster, vi) more innovation
136
Administrative Tribunals, Boards & Commissions
- Administrative tribunals, agencies, boards and commissions: provincial or federal mandated (legislated) bodies meant to deal with issues/disputes outside of the court system
- Functions: adjudication, rule-making, policy development, research, recommendations to government, resource allocation, etc.
- Examples: labor relations boards, human rights commissions, workers’ compensation tribunals, welfare agencies, parole boards, landlord- tenant boards, etc.
- national parole board, copyright board, national film board, parks canada agenicy, social scieneces and humanity reasearch council, alberta insurance council, Alberta labour relations board, the college of chiropractors in Alberta, law societies in canada
137
Doctor Q. V. College of physicians and surgeons in British Columbia
regarding the standard of judicial review
138
Judicial review
when a court determines whether a decision made by an administrative body was made intra or ultra vires
139
Saumur v. City of Quebec
Outside of Jursidiction
140
Thomas v. Mount Saint Vincent University
legal fairness
141
Bill 137- Saskatewan,
has to get parental consent to go by a different name, also any sec education has to have parental consent - not withstanding clause
142
Changes to the Family
- Changes to the structure of the family
- Changes to household wage earnings
- Increase in common law partnerships
- Legalization of same-sex marriage
- 36 countries legally recognize same-sex marriage
- no countries recognized same-sex marriage before 2001
- Netherlands was the first country to recognize same-sex marriage
- New reproductive technologies
- Increase in the divorce rate
- significant increase in the rate of divorce
- **BIGGEST AREA OF CHANGE REGARDING LAW**
143
Family law
- law relating to the family and ‘domestic relations’
- Includes law related to legal unions(marriages, partnerships), cohabitation, shared property, parenting, adoption, separation and divorce, division of assets, child custody and support, etc.
- can file for common law after 2 years of cohabitation
- **Albertas family law act**
- In Canada, there is divided jurisdiction between the federal and provincial governments
- Family law cases account for a disproportionate amount of time in the judicial system
- Family law introduces a contractual element to the family
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M. v. H. (1999)
- began as a gay couples challenge to **Torontos family law act** - rules that the ommission of same sex couples violated **section 15 of the charter (equality rights) for common law couples**
- Civil Marriage Act (2005)
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Civil Marriage Act (2005
legalization of same sex marriage
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Case Study: Divorce in Canada
- 38% of marriages end in divorce
- Divorce: a petition under federal jurisdiction for a dissolution of a marriage
- 1960/70s rise in divorce rates due to a number of factors
- Divorce Act of 1968: the first federal statute-Grounds for petition primarily based on the notion of fault (sec. 3 and 4)-Separation of 3-5 years required (no-fault) (sec. 4)
- Important legal factors
- include spousal support (section 15 and 17) and child support (section 16)
- economic disadvantage of the other spouse
- financial burdens of child care
- economic hardship of the other spouse due to the divorce
- promotion of the idea of economic self sufficency within a given amount of time
- spousal support may become a life long obligation
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Knoll v. Knoll (1970)
- **grounds for divorce on aleged mental cruelty**
- mental cruelty does not a definition in criminal law - it is determined case by case basis
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Divorce Act of 1985
fault still required
Section 8: no-fault divorce (1 year separation)
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Annulment:
- the legal nullification of a marriage under certain circumstances
- mental capacity - if you were drunk
- child marriage
- being married to one or more persons at a time
- defective weeding ceremony
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International Relations
- **Anarchy** is the foundational organizing principle of the international system
- Governance not government
- Sovereign **states** are the ultimate authority in the system
- Also, important **non-state actors**
- There is a considerable degree of stability and order of the post
- World War II international system
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International‘ System ’ or ‘ Society’
- International system: regularized (mechanical) patterns of interactions (shared fundamental institutions) between states
- International society: regularized (mechanical and social) patterns of interactions between states with shared interests and manufactured institutions (i.e. international law)
- fundamental principle to international law - soverignty
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Components of International Society
- Intergovernmental organizations (IGOs): organizations formed between 3 or more states with international activities
- Examples: North Atlantic Treaty Organization(NATO), World Trade Organization (WTO),European Union (EU), etc.
- United Nations
- Diplomacy and shared ideas: regularized diplomatic relations between states-Includes shared norms and ideas (i.e. human rights, environmental protection)
- Economic interdependence: capitalism-driven globalization integrating domestic economies in a global economy-Including international trade and finance
- Contending state interests
- Balance of power: the tendency of states to (internally or externally) balance the power of other states
- Including nuclear weapons and mutually assured destruction
- Includes security alliances
- Power imbalances: major asymmetrical material(i.e. military, economic) capabilities and international influence
- Great power, middle power and small power states
- Includes Global North and Global South relations
- International civil society: the set of voluntary associations, independent of the state and the market, geared toward some form of political or economic change internationally
- Includes international non-governmental organizations (INGOs)
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The United Nations
- A central component of international society
- An intergovernmental organization (not supranational)
- Universal in membership
- Central to international peace and security with a wide scope of global governance mandates (i.e. development, sustainability, human rights, humanitarian assistance, etc.)
- A microcosm of international relations
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The Charter of the United Nations
- Signed in 1945 by 51 states
- A legally-binding treaty and a foundation of international law
- A basis of the post-World War II international order
- Created the United Nations
- Codified basic principles of international society
- i.e. legal sovereign equality amongst states, the prohibition on the use of force, self-defense, respect for human rights, etc.
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The United Nations: Important Bodies for International Law
- The General Assembly: the universal multilateral body of the UN
- Sets the international agenda and passes non-binding resolutions
- The Security Council: the peace and security body of the UN
- Composed of 15 members:5 permanent with veto power (P5) and 10 non-permanent members
- The International Court of Justice (ICJ): the judicial wing of the UN which settles inter-state disputes and offers legal opinions to the UN and member states
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Theories of International Society
- Realism: emphasis on self interested states in a self help condition of anarchy and the distribution of material capabilities amongst states
- Liberalism: emphasis on shared institutions and interdependence amongst states with shared interests
- Constructivism: emphasis on the role of ideas in shaping state behavior
- Marxist inspired theories: emphasis on the global political economy, global relations of production and trade and the inherent class based structure of the system
- The English School: emphasis on fundamental institutions as ‘international society’
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The Republic of Nicaragua v. The United States of America)(1986)
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua
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International Law:
- the system(s) of rules, norms and principles that govern relations between sovereign states and other international actors
- States, IGOs, INGOs and multinational corporations (MNCs) have degrees of international legal personality (rights and
responsibilities)
- States are the primary subject of international law
- There are various sources of international law (i.e. treaties, custom)
- Like ‘international society’, ‘international law’ is a highly debated concept
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Sovereignty & International Law
- Sovereignty. is the foundational legal principle of international law
- Sovereignty: absolute authority and self-determination of the state
- Hence, international law is consent-based
- International law is traditionally meant to be facilitative of orderly relations between states
- In certain areas, it is becoming increasingly regulative of internal state conduct (i.e. human rights law)
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International law vs. Domestic Law
- nternational law lacks a centralized government (anarchy)
- Lacks a centralized legislature, judiciary, executive and police force
- Enforcement is much more difficult and inconsistent in international law
- International law is consent-based
- There are different sources of international law
- Lacks traditional statutory law of legislatures
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Sources of International Law
- Treaties: Written, legally binding contracts between states that are governed by international law
- Customary law: binding law based on customary practice and state opinion
- Include **jus cogens norms**
- a norm of customary law that cannot be violated despite any justifcation - only 4 Jus Cogen norms, indiviuals can go to jail if violated
- Soft law: non-legally binding principles-Include UN General Assembly resolutions
- Judicial decisions: international case law-Decisions may or may not transfer between different international courts
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treaties
- Treaties require ratification for full state membership
- Some treaties (i.e. human rights treaties) include reservations and derogations
- Governed by the 1969 Vienna. Convention on the Laws ofTreaties (VCLT)
- Outlines principles of bindingness, consent, good faith, etc.
- Examples: United Nations Charter, North Atlantic Treaty,International Covenant on Civil and Political Rights, GenocideConvention
- the UN Charter is the only notion of heiracrhy in the international system
- **a reservation** allows a country to not commit to a certain aspect of a treaty under certain circumstances
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Customary International Law
- Binding on all states
- With the exception of the persistent objector doctrine
- Determined by 2 elements: i)state practice ii) state opinion (opinio juris)
- Examples: law of aggression, diplomacy, international criminal laws, non-refoulement for refugees
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'Hard’ Law & ‘Soft’ Law
- Treaty law and customary law are legally-binding ‘hard law’
- Soft law: non-legally binding principles and norms
- Includes UN-based declarations and resolutions, codes of conduct, guidelines, standards of conduct, recommendations, etc.
- Soft law is easier and faster to create and is much more flexible
- Examples: The Universal Declaration of HumanRights, The UN Declaration on the Rights ofIndigenous People (UNDRIP), International Opposition to Apartheid in South Africa
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The Law of State Jurisdiction
- Prescritive jurisdiction principles
- absolute jusristiction — any criminal who steps on international soil is not protected by their country except for diplomatic immunity
- Territoriality (includes land, air and territorial sea)
- Nationality - that we can prescribe laws over our nationalists - national businesses and entities
- Universality
- Passive personality (victims are nationals)
- Special state interests (i.e.production of counterfeit currency)
Enforcement jurisdiction principles
- Territoriality - the only enforcement principle when it come to jurisdiction
- Concurrent jurisdiction is common, when multiple countries can assume jurisdiction at the same time
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Enforcing Compliance with International Law
- Enforcing compliance can be done multilaterally or unilaterally
- Multilateral enforcement may include sanctions (comprehensive or targeted) and the use of force
- Unilateral enforcement includes unilateral sanctions and other forms of countermeasures (that are otherwise illegal measures)
- UN security council is the primary enforcement of international law
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International Tribunals
- International Court of Justice (ICJ) - only states - universal juristiction, only if the states agree to it
- International Criminal Court (ICC) - only indiviuals
- Permanent Court of Arbitration (PCA)
- Appellant Body of the World Trade Organization
- International Centre for the Settlement of Investment Disputes (Word Bank)
- World Intellectual Property Organization Arbitration Center
- International Tribunal for the Laws of the Sea (ITLOS)
- Regional international courts-I.e. European Court of Human Rights,Court of Justice of the European Union,Caribbean Court of Justice, Inter-American Court of Human Rights
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The International Court of Justice
- International Court of Justice: aka the ‘World Court’
- The judicial wing of the United Nations
- Functions to settle inter-state disputes and offer advisory opinions to the United Nations and member states
- Composed of 15 judges serving 9-year terms
- Jurisdiction established through consent or treaty specification
- South Africa v. Israel (2023)
- it was determined by the ICJ that Israel has been disregarding international law
- still ongoing
- southAfrica is making a claim that Israel is conducting genocide in GAZA
- ICJ has juristiction cause they are apart of the genocide convention treaty
- **TREATY OF GENOCIDE CONVENTION**
- Can make orders of provisional measures
- I.e. United States of America v. Iran (1980)
- before the iran contra affair
- you need to control the iran embassys in america
- iran counter claim was that they had no control over them
- I.e. Ukraine v. Russian Federation (2022)
- I.e. South Africa v. Israel (2023)
- said you need to seize military operations in africa
- they did not stop military operations
- they are in violation of provisional measures recommended by the ICJ
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The International Criminal Court
- International Criminal Court: the permanent standing court with jurisdiction over international crimes
- Established by the Rome Statute (1998)
- 124 state parties
- Composed of 18 judges + President
- Ad hoc international criminal courts:Nuremberg tribunals, Tokyo tribunals,International Criminal Tribunal for theFormer Yugoslavia (ICTY), InternationalCriminal Tribunal for Rwanda (ICTR),Special Court for Sierra Leone
- Indictees of the ICC have includedVladimir Putin (fugitive), Omar al-Bashir(fugitive), Muammar Gaddafi (deceased),Benjamin Netanyahu (fugitive)
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International Criminal Law
- International criminal law: international law regarding the criminal responsibility of individuals
- Based on customary international law
- 4 international crimes:
- Genocide -1948 Genocide Convention - different cause you need to prove intent
- War crimes -Rome Statute (1998)
- Crimes against humanity -Rome Statute
- Crime of aggression -Rome Statute
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International Human Rights Law
- Human rights law: rights of individuals by virtue of being human
- Based on natural law
- A regulative form of international law
International human rights law includes:
- Universal Declaration of Human Rights (1948)
- International Covenant on Civil and Political Rights (1966)
- International Covenant on Economic, Social and Cultural Rights (1966)
- Convention on the Elimination of All Forms of Racial Discrimination (1969)
- Convention on the Elimination of All Forms of Discrimination Against Women (1979)
- Convention Against Torture (1987)
