Law 2101 - December Review.pdf - Law 2101 – Exam Review...

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Unformatted text preview: Law 2101 – Exam Review Introduction to Law Sources of Law -­‐ -­‐ -­‐ Statutes o Broad o By Legislature § Regulation • Subordinate Legislature • Makes Statue more specific Common Law o Rules By Court o Particular disputes o Stare Decisis § Like cases should be decided alike Constitution o Supreme law of the country o All other laws must conform o Broad Lawmakers -­‐ -­‐ -­‐ -­‐ Federal o Across the country o Constitution act 1867 Provincial o Province –wide o Constitution act of 1867 Municipal o Assigned by provincial powers Aboriginal Gov’t Divisions -­‐ Substantive vs. Procedural o Substantive § What rights people have o Procedural § How laws can be enforced -­‐ -­‐ -­‐ Public vs. Private o Public Rules § Individual and state § State and state o Private Rules § Individual and individual Civil vs. Criminal o Civil § Between individuals o Criminal § Individual vs. Society Civil vs. Common o Civil § Private law in Quebec § “Civil Code” of Quebec o Common § Private Law Outside Quebec § Public Law everywhere across the country Court System -­‐ -­‐ -­‐ Hierarchical Adversarial Impartial Judge o Case Phillips v. Ford Cases -­‐ -­‐ Something v. Something o Second person is always the one that’s accused (defendant) Appellant v. Respondent o If case is appealed this is the format the first time o But it could be reversed if appealed again. Respondent v. Appellant Interpreting the Law -­‐ -­‐ Rules as to how rules are interpreted Statutory Interpretation o Modern interpretation: Ordinary meaning/context/purpose o Historically § three major rules of construction • mischief rule o statues were construed according to their object o relatively little importance attached to the actual words used • • -­‐ literal rule/ strict rule o statutes were construed by a literal reading of the text without regard to purpose of legislation golden rule o allowed deviations from literal construction where such construction led to an absurdity Stare Decisis o Follow the decision of the higher courts Binding of Courts -­‐ -­‐ Ratio Decidendi o Binding o Legal principles of case decided Orbita Dicta o Things said “by the way” o Not binding Constitutionalism and Rule of Law What is Law? -­‐ -­‐ Command Theory o Command backed by sanction o John Austin o Too broad and too narrow § We can’t just do any command and have a sanction (authority?) § Too narrow because there are some laws that don’t have sanctions (enabling) Theoretical Concept of Law o Aquinas § Ordinance of reason § Common good of community § Made by authority figure Constitutionalism -­‐ -­‐ Power of government ought to be limited by law o Should be governed by stable rules Sets out boundaries for gov’ts o Division of powers (federal, provincial, etc) Rule of Law -­‐ Political ideal -­‐ -­‐ o How we evaluate if our legal system is fair Aquinas o Leave as little as possible to the discretion of human judges Laws must be o Proactive (not retroactive) o Not impossible to comply with o People must have access to the rules o Rules must be clear o Rules must be coherent with each other o Stable o Criteria to guide discretion o Authority must be accountable and administer law consistently Sources of Constitution -­‐ -­‐ -­‐ -­‐ -­‐ Written Text/ Case Law/ Convention / Unwritten Principles Written Text o Stable o Constitution act 1867 (BNA act) § Section 91 and 92 divide powers of gov’t § UK involvement in Canada (55, 56, 57) o Constitution act 1982 (including charter) § Ended UK involvement § Amending formula & Charter of Rights and Freedoms § S.52 provides definition of constitution of Canada Case Law o Constitution not self interpreting o Interpretation of the courts Convention o Written/partially written o Prescribes how courts can exercise power o Political sanction o Obligatory to the official it applies § Ex. Responsible gov’t o Cannot be used by courts to strike laws down Unwritten Principles o S. 52 is open ended o Interpretations too vague to be of determine strict guidance o Cannot be used by courts to strike laws down. Federalism -­‐ What is it? Government Structure § The way in which it is structured § Centralised power and different branches § Federal and provinces What kind? o Can be very centralised or decentralized o Varying degrees What Degree in Canada? o Constitution of 1867 points to more centralized § Ex. POGG • Everything that is not in provincial power • BUT provincial power nowadays is interpreted broadly so POGG doesn’t really apply o Most important fact is how the courts interpret the Constitution act of 1867 § Look to sections 91 & 92 • Section 91 o POGG o Trade and Commerce o Criminal Law § What’s illegal in one province should be illegal in another o Economic Items o Military • Section 92 o Hospital o Local works o Property and civil rights o Administration of justice o Items that are local or private nature o Conclusion § Not very centralised • Powers initially giving federal powers upper hand now in disuse § BUT fiscal imbalance • So federal gov’t can spread money out with strings attached and therefore have influenced not formally given to them. o -­‐ -­‐ Judicial Review and Techniques of Judicial Review -­‐ -­‐ -­‐ What happens when Federal and Provincial disagree S. 52 o Any law that is inconsistent with the constitution is invalid Structure of s.91 and 92 91 = Federal gov’t has powers not assigned to provincial (POGG) and stated responsibilities (usually to do with functioning as a national whole) o 92 = Provincial gov’t has control over local matters Because courts have to decide sometimes what powers federal and provincial powers have it is very POLITICAL o But they are not in any better position to determine this o So courts give benefit of the doubt to legistlation o Presumption of constitutionality Techniques of Judicial Review o Two Step § Step One • Characterization of law • “Pith and substance” o What is the law actually about? • Focus is on legislation § Step Two • Determining power-­‐distribution o Assign statute to a provincial or federal head • focus is on the constitution o Most of the work is at step #1 § Characterise a statute • What the statute is really about determines where it will end up • Sometimes confusing § Can look to Purpose/Effect • Purpose (Morgentaler Case) o -­‐ -­‐ Double Aspect Doctrine -­‐ -­‐ Legislation can validly have two “matters” o May fall in provincial AND federal o Ex. Motor vehicles and tobacco advertising What happens when both are valid? o Paramouncy § When inconsistent or conflicting, federal law is paramount § Judicial creation not constitution The Canadian Charter of Rights and Freedoms What is the Charter? -­‐ -­‐ Part of the Constitution Act 1982 Enjoys precedence over every other law in Canada (s.52) o S.52 § The constitution of Canada is the Supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of no force or effect What Rights does the charter protect? -­‐ -­‐ -­‐ -­‐ Civil and political rights Largely negative in orientation Economic and social rights not specifically protected Specifically o Fundamental freedoms o Democratic Rights o Mobility rights o Legal rights o Equality rights o Official Language Rights o Minority Education Rights Who must comply with the Charter? -­‐ -­‐ -­‐ -­‐ Applies to Parliament and government of Canada, and legislatures and governments of the provinces (s.32) Emanations of the state Municipal governments Control Test determines state actors o Non state actors carrying out state purposes may be bound by the Charter for those purposes Who is not bound? -­‐ -­‐ Private individuals Corporations Who may Exercise Charters? -­‐ -­‐ -­‐ -­‐ Private individuals Citizens o Right to vote etc. Group o Language rights etc. Corporations o Some but not all rights Supremacy of Constitution -­‐ Section 52 o States constitution is supreme, any law in violation is of no force or effect to the degree of the inconsistency The Role of the Courts -­‐ -­‐ Must determine whether or not legislation is consistent with Charter o Moral decision Problems o Vagueness and generality of language o Abscence of precedents o Courts must make value judgements How do Courts interpret Rights -­‐ -­‐ -­‐ Progressive Interpretation o The constitution is a “living tree” capable of growth and expansion within its natural limits o Adapt to situations o Original understanding of those drafting not determinative Generous Interpretation o Limit on state power o Broad interpretations limit legislative power Purposive Interpretation o Tying to purpose of the right o Court imbues the right with the purpose it considers appropriate o Easier to interpret reasonable limits on rights Reasonable Limits on Rights -­‐ -­‐ Section 1 o The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Demonstrable Justification o Onus on party seeking to limit rights, almost always the state o Civil standard of proof The Oakes Test -­‐ -­‐ -­‐ Case: R. V. Oakes Legislation must have an important purpose in order to be able to limit a right Purpose must be “pressing and substantial” -­‐ o Not usually difficult to establish The Oakes Test o To see if Legislation violates the Charter o Rational connection/minimal impairment/overall proportionality o Rationality § Legislation must be rationally connected to its objective o Minimal Impairment § Lynchpin of the test § Legislation must impair rights as little as possible § Need only to impair rights as little as REASONABLY possible; leaves choice to legislature o Overall Proportionality § Does the “deterious effects” outweigh the public benefit that may be gained? Notwithstanding Clause -­‐ -­‐ -­‐ -­‐ -­‐ -­‐ Section 33 Allows parliament or provincial legislatures to override certain portions of the Charter o S.2, 7-­‐15 o Only lasts for five years § Must be renewed Parliamentary Sovereignty Key in decision to pass the charter Relevance o Never used at the federal level o Never used in Ontario o Used a few times in Quebec Impact o May influence the way which courts interpret charter Enforcing the Charter: Rights and Remedies -­‐ Who uses the charter? o Political interest groups § Leaf § Civil liberties groups § Gay rights groups o Social reform through charter challenges and interventions Charter Challenges -­‐ -­‐ -­‐ Relaxation of standing requirements (rules that must be followed to launch a lawsuit) Allows control of agenda Expensive though -­‐ Time consuming Charter interventions -­‐ -­‐ -­‐ -­‐ Written, about 20 pages or so Less expensive Does not control the case though Participation may be limited by court Invalidation of Legislation -­‐ -­‐ -­‐ -­‐ -­‐ Sometimes courts don’t immediately strike down o In accordance with s.52(1) They suspend the declaration for 6-­‐18 mon. To allow legislature to address the problem If whole statue is not inconsistent, sever the offending provision or provisions Can eliminate words that give rise to inconsistency Case : Schachter v. Canada Interpretive remedies -­‐ -­‐ -­‐ Fix problem by “interpretation” If legislation is overbroad o “read down” o Provide an interpretation that is not as expansive as could be given If legislation is underinclusive o Does not apply to all that it should o “Reading in” o Expand its application § Can be euphemism for “changing the law” and is dangerous power for courts Section 24 Remedies -­‐ -­‐ Declaration/Damages/Injuctions Section 24 (1) o “Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such a remedy as the court considers appropriate and just in the circumstances” o Remedies § Can award whatever is “appropriate and just” o Declarations § Statement of what the law requires § Gives guidance for authorities as to future permissible conduct o Damages § Monetary Award -­‐ § Difficult to place value on rights § Breach of charter may be intangible though § Compensate loss, vindicate right, deter future breaches o Injunctions § Order that a party do or not do something § Not favoured because it is not final order • May require supervision Section 24(2) o Exclusion of evidence o Exclude evidence where the person’s right has been violated § Ex. Uncalled for strip search or something Freedom of Expression -­‐ Everyone has the following fundamental freedoms o Section 2(b) § Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication o Case: Irwin toy v. Quebec § Advertisement to youth o R v Keegstra § hate speech o RJR MacDonald v Canada § Tobacco ads Equality -­‐ -­‐ -­‐ -­‐ Section 15 (1) o Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex age, or mental or physical disability Case: Andrews v. Law Society of British Columbia o BC citizenship to become a lawyer Case: Law v. Canada o 30 year widow apply for widow pension Case: R. V. Kapp o Aboriginal fishing licence Power of Attorney and Wills Powers of attorney -­‐ -­‐ POA o Legal document allowing one person to appoint another to act for them o Valid only during grantor’s life Two kinds o Continuing power of Attorney § Attorney can make financial decisions for grantor o Power of Attorney for Personal Care § Attorney can make medical decisions Continuing Power of Attorney -­‐ -­‐ -­‐ -­‐ -­‐ -­‐ -­‐ Allows management of assets Substitute Decisions Act 1992 Effects o Anything to do with property Limitations o Grantor can put restrictions in the CPOA o Cannot make will Requirements o 18+ o Capacity § Set out in Section 8(1) o Two witnesses to execution o No form required but must state it is CPOA Can come into effect on date of signing or on a specified date Termination happens on grantors death OR: o Attorney’s death o Resignation o Court appointing a guardian for the grantor o Etc. See slide Power of Attorney for Personal Care -­‐ -­‐ -­‐ -­‐ Substitute Decisions Act 1992 Allows attorney to make medical treatment and personal care decisions o Includes pulling the plug Limitations o Grantor can say “no blood transfusions” etc. Requirements o Two witnesses o o o ONLY 16+ Capacity § Grantor capacity § Set out in section47(1) § Grantor may give out POAPC even if he doesn’t have capacity for care at the moment Valid § Not valid if attorney receives compensation for the care given Wills and Estates -­‐ -­‐ -­‐ -­‐ -­‐ Wills are effective upon death, whereas POA is during lifetime Succession Law Reform Act Formal Requirements o In writing o Signed by testator at end of will o Two witnesses Holograph Wills o Handwritten by testator o Witness or witnesses’ spouse cannot be beneficiary § Unless court determines no undue influence o Executor may witness will Revoked by o Marriage unless specifically stated o A new will o Document in writing with same formal requirements o Destruction of will with INTENT to revoke it Administration of Estates -­‐ -­‐ -­‐ -­‐ -­‐ -­‐ Estates Administration Act Trustee steps into shoes of testator and distributes estate pursuant to will Certificate Probate tax paid based on value of estate Steps o Secure assets o Take inventory o Apply for certificate where necessary (only when in large $ amounts) o Liquidate assets where necessary o Pay debts and taxes o Transfer assets pursuant to will Upon death surviving spouse can o Take entitlement under will -­‐ o OR take entitlement to net family property as if separation Election can be changed by contract o six months to make election o no distribution during that period Criminal Law What is A Crime -­‐ -­‐ -­‐ -­‐ act or omission considered to be a wrong against society prosecuted by state in criminal proceedings involves moral wrong reserved for the most serious harms Terminology -­‐ -­‐ -­‐ -­‐ -­‐ Civil cases o Smith v Jones Criminal cases brought in the name of the STATE o The Queen Against Jones (R. V. Jones) Prosecution o Not an action o Not the same as sue-­‐ing Civil o Plaintiff and defendant o What is most PROBABLY the case Criminal o Plaintiff – Crown/Prosecution o Defendant = Accused/defendant o Crown must prove BEYOND A REASONABLE DOUBT (B.a.r.d) Sources -­‐ -­‐ Constitution Act 1867 o Federal vs. Provincial (ss.91, 91) o Common law crimes abolished All crimes statutory o Controlled Drugs and Substances Act o Criminal Code Scope -­‐ -­‐ Territorial Age o Under 12 – not offence -­‐ o o Time o o 12-­‐17 – Youth Criminal Justice Act 18+ -­‐ Criminal Code No limitation period for indictable 6 months for summary Analyzing a Crime -­‐ A.R.M.E.D. o Actus Reus o MEns Rea o Defenses Actus Reus o o Physical Elements of Offence § Conduct § Circumstances § Consequences Ex. Baking cake § Get recipe -­‐> check pantry -­‐ > produce cake § Check the actual requirements for offence à see what evidence there is à conviction Actus Reus Con’t -­‐ -­‐ -­‐ Voluntariness o If there is lack of voluntariness there is NO actus rea. o Notion has been done on the part of the accused § Ex. Has a epileptic fit and fires a gun, killing someone Commission o Case: R. V. Bird § Extortion (see below) Causation o death that might have been prevented o death from treatment of injury o acceleration of death Extortion -­‐ -­‐ Assault 346 (1) Anyone who tries to obtain ANYTHING through threats accusations, menaces or violence or attempts to get any person to do ANYTHING or cause ANYTHING to be done -­‐ -­‐ -­‐ S. 265 (1) Person commits assault Without assent applies force intentionally to that other person, directly or indirectly Causation -­‐ -­‐ -­‐ -­‐ Factual cause “but for test” Legal Cause o Need not be the sole cause o Significant contributing cause o Thin skull rule § Take your victim as you find him o Novus Actus Interveniens (NAI) § Intervention in chain of events Case: R. V. Winning Case: R. V. Smithers Mens Rea -­‐ -­‐ -­‐ -­‐ Mental Element o Intention = Subjective o Recklessness = Subjective/objective o Criminal Negligence = Objective Intention o Use of free will to achieve some effect o subjective o Subjectivity does NOT include § Remoteness § Knowledge of illegality § Enthusiasm § Motive • That which occurs before the action. § Case: R. V. Duggan Recklessness o Knowing something might bring about something criminally illegal but does it anyways o Subjective § Foresight of risk o Objective § Unreasonable running of risk o Case: R. V. Sansregret Wilful Blindness o Knowing that something is suspicious but going along with it anyways o Case : R. V. Currie -­‐ Criminal Negligence o Objective o Measured on what the Reasonable man would do o Wanton disregard for human life o Case: R. V. Hundal Attempts -­‐ -­‐ -­‐ -­‐ -­‐ 24(1) o Anyone who does, or omits to do anything for the purpose of carrying out a guilty intention is guilty of an attempt o Doesn’t matter whether it was possible to actually carry out 24(2) o Question of law: How far in the progress is this? o Is it mere preparation? Idea (M/R) -­‐> preparing -­‐> doing (attempt) -­‐ > success (completed offence) Case : R. V. Cline Case: R. V. Deutsch Accessories -­‐ -­‐ -­‐ -­‐ -­‐ -­‐ -­‐ -­‐ THERE IS NO OFFENSE OF ACCESORY o Charged with the actual offense Parties to an offence 21 (1) o Actually commit it o Aiding § Does or omits to do anything for the purpose of aiding any person to commit it; § Doesn’t matter if aid was helpful or not o Abets any person in committing it § encouragement 21(2) common intention 22 (1) counselling offense o you are a party if you provide counselling. o Even if the crime is committed in a different way than counselled 22 (2) o Party to offence in the acts that the counselling person knew were going to happen or knew might happen 464 o If offense is not com...
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