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LWSO 203 > Topic 2 > Flashcards

Topic 2 Flashcards

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1
Q

Magna Carta

A

Known as the great charter, feudal era charter, governing feudal rights, limited the authority of the monarchy. Charter curated in 1215 significant for bringing the English their first shift from monarchy to democracy, allowed for the legal concession, ceding the monarchy to a council of 25 barons the opportunity to change kings decisions (abolish absolute power of the royals)

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2
Q

Hammurabi

A

Constructed a code of case laws, dealt with economic issues, family, criminal and civil law in Babylon “codified law”

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3
Q

Confucius

A

Impact still prominent in Chinese democratic system

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4
Q

Muhammad

A

Developed Islamic faith and influenced as well as continues to influence the law in Islamic nations

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5
Q

Peace of Westphalia

A

1648 Direct response to the religious based 30 years war in Europe,establishing legal notion of sovereignty

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6
Q

Battle of the plains of Abraham led to

A

The Royal Proclamation

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7
Q

What year was the royal proclamation

A

1763

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8
Q

Royal proclamation

A

Transferred French territory to the British provided for a governor and council to administer Quebec until condition permitted an elected assembly

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9
Q

What year was the Quebec Act

A

1774

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10
Q

Quebec Act

A

1774, the right for Roman Catholics to participate in government and for the use of French civil law

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11
Q

What year was the Constitution Act (the first one..)

A

1791

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12
Q

Constitution Act

A

Divided Canada into upper and lower Canada , created legislative and executive branches of the government in each of the Canada’s modelled on British Parliamentary form

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13
Q

Executive Branch and Legislative Branch Canada and Britain

A

executive branch mirrors the cabinet compromised of a lieutenant governor and a council appointed by them
legislative branch mirrors the legislative branch in the British Parliment, In Canada ( Legislative council; Senate and Legislative Assembly; House of Commons)

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14
Q

What year was the act of union

A

1840

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15
Q

Act of Union

A

The Act of Union created the united province of Canada; Union was a federal rather than unitary system of government

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16
Q

What year was The British North American Act

A

1867

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17
Q

The British North American Act

A
  • British North America Act 1867, Canadas original and defining source of law, setting out in sections 91 and 92 the respective powers of federal and provincial governments and a strategy for legal governance of the country, created the dominion of Canada
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18
Q

Is the BNA (1867) the legal basis of Canada

A

YES

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19
Q

When was the Criminal code made and what was it about

A

1892, it was the first unified set of criminal law

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20
Q

What is Statue of Westminster and when was it

A

1931!!!!!
Crown split, UK cannot pass any laws for Canada, break their influence from Canadian politics.
Canada becomes self governing dominion, create domestic laws but constitution still under Britain

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21
Q

The new Constitution act

A

1982, patriated the constitution, included the Charter of Rights and Freedoms, includes judicial review, includes amending formulas (section 38, 41 and 43)

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22
Q

Public Law

A
  • Public Law- area of law is primarily concerning with collective interest
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23
Q

Examples of Public Law

A

-constitutional law
-criminal law
-administrative law
-taxation law

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24
Q

Private Law

A

area of law is primarily concerned with the definition and regulation of individual matters law of contract between individuals or corporations (remedy of wrongdoings between the two) and the law of tort

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25
Examples of Private Law
-real estate -property -family law -wills and trusts
26
What is the paradox of private and public law
Private agreements have public interest issues embedded within them and private law affects the public interest and public law affects private interests
27
The classification of public and private law is dependent on the issues of?
The classification of public and private law is dependent on the issues of public as opposed to private interest,
28
Substantive law
The area of law that governs society example of criminal law
29
Which type of law is, “content of the law that regulates our relationship with the government”
Substantive law
30
Procedural law
The area of law governing the rules of law and the procedures of the legal system example sentencing (**Operation of law**)
31
Two forms of Principal sources of law
1. Legislation/**statute law** (sources of statute law are the House of Commons and the legislative assemblies) 2.**Case law**/judicial decisions
32
Subsidiary sources
(cannot have the same direct accountability to a democratic system of representative government)
33
Subsidiary sources
Used to inform case law, contains customs and books of authority
34
Social problems and social conflict are origins of
Law
35
Customs
Customs; source of law derived from **customary practices and patterns of behaviours which society had come to order itself**, most forms of law originally derived from custom, not Canada (things based on long term practice)
36
Why are Books of Authority important
Books of Authority; courts seek guidance from the contributions of outstanding early scholars as well as from living academics and writers, although they only have **subsidiary power as sources of law** become an important part of the process of lawmaking, **providing the canadian legal system with a more comprehensive knowledge of itself**
37
Law and judicial decisions and books of authority are in conflict
changes in statutes over time and various issues litigated by the judiciary in response to these statutes
38
Domestic law
law of a **single nation-state**, further classified as either **public or private** and as substantive or procedural
39
International law
law common to all nation-state, **mediated by the United Nations** and involves the **governance or accomadation of nations** in relation to **global treaties**, conventions and customs
40
Law is constructed as a response
*to conflict * specifically to a given social problem * mechanisim that attempts to control certain kinds of activities or behaviours
41
In order to maintain law and legal order
* it is necessary to build a **consensus with respect to the moral and social legitimacy of law**
42
Branches of government and law
-legislature (create and change law) -executive (executes law/policies) -judiciary (implements law and dispenses justice)
43
Statute law
- law created by a **legislature; dominant form of law in Canada**, rooted in notion of **parliamentary supremacy**
44
Example of statute law
Charter of rights and freedoms
45
Canada involves
Parliament and the provincial and territorial legislature
46
Legislative is seen as..
* Legislation is seen as written law and case law, customs and books of authority is seen as unwritten law
47
judicial interventions
provide a sharper focus for the understanding of **statute** law and may serve to **reconstruct the operation** and **meaning of the statute** in question
48
Why do we have 2 chambers in Canadian Legislature
Allows us to have a sober second thought
49
The legislative process involves.. (not the steps)
- highly political process involving **compromises and horse trading (some parties wont have full majority support, resulting in political tradeoffs**
50
Committees play a large role
In creating legislation
51
Creation of statute (legislative)
1. introduction of bill into the house of commons or legislative assembly (first reading) 2. Passed to second reading (government often doesnt proceed further), if it passes minister responsible sets out the purpose of the legislation 3. full debate and sent to a committee of the house or assembly composed of both government and opposition members 4. Public Hearings then after comes back to house or assembly for a third reading 5. Review by the senate 6.Crown approval 7. the bill is passed
52
Why are committees great
- great for **getting consensus** even before introducing new legislature
53
Legislative violence
-evident of political issues lack of trust within the system -wider cultural issue
54
Law can be comprehended by
Law can be fully comprehended only by documenting and analyzing the **social, political and economic contexts** that gave it life and continue to influence its existence
55
Federal legislation
* process must be repeated in the senate before the bill is submitted to the governor general for approval
56
Provincial legislation
* after third reading submitted to the lietenant governor of the province or the governor general
57
Who are the British representatives in government
* The Governor General and the lieutenant governors are the monarchs represenatives in Canada
58
Case law
**Law established by decisions in specific court cases** * Subsequent courts will turn to these decisions, aka **judicial precedents** * when attempting to make judgements about similar issues * The importance of judicial precedent depends on the **hierarchical placemnet of the court issuing the decision** exp if decision occured in supreme court, potentially affects all canadian courts but if just in provincial it will have no determinative influence
59
Case law results in..
A more dynamic legal system
60
2 problems with case law
1. when trying to mesh current situations with pre-existing case law the courts and counsel may make illogical distinctions, 2. The ability of a court, primarily the supreme court to reverse itself
61
Reporting Case Laws
* Not all judicial decisions are reported * editors of these reporters make decisions about which cases to report
62
Head note
* Headnote- summary of the facts of the case, the issues in dispute and the reason for the courts decisions
63
Ratio Decidendi
* judges determination of law in relation to the particular set of facts
64
The abbreviation R in criminal cases
* Rex or Regina, the king or queen of england * remnant from the british system of prosecution * United States uses "the people"
65
Sentencing
* one of the most **delicate stages** of the criminal justice process in Canada * involves the exercise of a broad discretion by the courts in **balancing all the relevant factors in order to meet the objectives being pursued in sentencing** *sentencing governed by section 718 of the criminal code
66
Inter alia
* advantage of having heard and seen the witnesses
67
Proportionality
* is the cardinal principle that must guide appellate courts, requires that a **sentence not exceed what is just and appropriate in light of the moral blameworthiness** of the offender and the **gravity of the offence**
68
Severity of a sentence depends on
the seriousness of the crimes consequences and also on the moral blameworthiness of the offender
69
Sentencing ranges
**summaries of the minimum and maximum sentences imposed in the past** **guides** for the application of all the relevant principles and objectives **not averages** but historical portraits for the use of sentencing judges who must still exercise their discreition in each case
70
Situations that call for sentences outside the range
* the fact that each crime is committed in **unique circumstances by an offender with a unique profile** cannot be disregarded * the determination of a just and appropriate sentence is a **highly individualized exercise** * depends on the **gravity of the offence** * even if judge deviates from a sentencing range does not in itself justify apellate intervention * Courts from various parts of the country have in fact held that the objectives of deterrence and denunciation must be emphasized in order to convey societys condemnation
71
Power to create categories of offences
-lies with Parliment not the courts
72
When can sentencing be interfered with
* Sentence can only be interfered with if its **demonstrably unfit** or if it results from an **error in principle**, the **failure to consider a relevant factor** or the **overemphasis of a relevant factor** * Where a reviewable error is shown it is appropriate for an **appellate court to be able to intervene** and assess the fitness of the sentence * When considered in the sentencing context the frequency of a crime in a given region does not help paint a portrait of the accused but instead reflects external factors * Judge can sometimes consider the local situation when imposing a sentence
73
Although a court has a wide latitude as to the sources and types of evidence upon which to base the sentence what should it never lose sight of
it must never lose sight of the importance of **procedural fairness** and keep the **importance of the facts in question** and the **impact on the offender**
74
Examples of customs
Incorporation of British customary legal practices
75
Books of Authority
Authoritative texts on legal principles by scholars, specialized knowledges informing judicial decision,
76
When was an Act to prohibit the importation, manufacture and sale of opium for other than medial purposes
1908
77
When was the opium and drug act enforced
1911 ( this was influenced by a book of authority)
78
When was the narcotic control act
1961
79
When was the controlled drug and substances act enforced
1997
80
When was the safe streets and communities act enforced
2012
81
When was the cannabis act enforced?
2017
82
Cannabis Act
* set to eliminate the black market and elements of organized crime from cannabis trade and to restrict youth access to cannabis
83
Opium and Drug Act
Chinese immigrants, who came to Canada to work on the Canadian Pacific Railway for lower wages, were targeted by anti-Asian sentiment. Some operated opium businesses, which led to racially motivated violence. In response, William Lyon Mackenzie King pushed for the prohibition of opium, which was enacted without any empirical evidence of harm. The Opium and Drug Act imposed harsh penalties, including imprisonment, whipping, and deportation. Influenced by racial tensions and Emily Murphy’s book The Black Candle, this legislation had a lasting impact on Canadian drug laws.
84
Indigenous law in Canada
Subservient to state based, cannot conflict with Canadian law, small spaces where indigenous laws can be practiced and power usually delegated by the Canadian government
85
Canadian law is resistant to indigenous legal orders TRUE OR FALSE
True
86
Example of indigenous law in Canada
- Indian act of 1876 -First Nations land management act
87
Criminal law is characterized as…
Public law
88
What case shows the use of books of authority
R V Ipeelee, used the Gladue Reports

LWSO 203 (11 decks)

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