Term
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Definition
| Europe, Central and South America |
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Term
| Common Law System Origin? |
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Definition
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Term
| Civil Law System is followed by? |
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Definition
| Canada (Quebec), Europe, etc. |
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Term
| Common Law System is followed by? |
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Definition
| Canada (except Quebec), United States of America, etc. |
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Term
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Definition
Written Codes
Legislation
Written Constitutions |
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Term
| Common Law System Sources |
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Definition
Judicial Decisions
Legislation
Written Constitutions |
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Term
| Civil Law System Legal Reasoning |
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Definition
| Deductively applying principles in code to the dispute before the court |
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Term
| Common Law System legal reasoning |
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Definition
| finding legal principles from previous examples (using precedents) |
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Term
| Civil Law System Characteristics |
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Definition
code containing rules to resolve disputes
judges apply legal principles in the codes to the specific fats of each case to reach a conclusion
dissenting and conccuring opinion NOT contained in judicial decisions |
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Term
| Common Law System characteristics |
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Definition
dissenting and concurring opinions are allowed and often appear in judgements
system is based on reasining from example, where legal principles of previous cases are applied and modified in later cases
(precendential system) |
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Term
| Differences found in Civil Law |
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Definition
lesser role for judges to look at past decisions for guidance in interpreting codes
judges are trained through school programs and examinations |
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Term
| Differences in Common Law System |
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Definition
legislation passed does not resembe concise and comparatively abstract codes found in civil systems
legislation created in often influenced by judicial decisions as executive and legislative odies decide which common law rules to "codify" in that manner or which rules need to be altered by legislation
judges are appointed and do not undergo formal judicial training |
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Term
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Definition
| a judge disagrees with his or her colleges |
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Term
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Definition
| a judge agress with his or her colleges but for different reasons |
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Term
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Definition
| similar to the facts and important aspects of a case |
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Term
| Function of a trial court |
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Definition
| fact finding and making determinations on the facts |
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Term
| Function of an Appeal Court |
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Definition
| accept a trial courts findings on the facts - cant appeal a on a decision on fact/legal interpretation - correct errors in law made at the trial court and can reinterpret the law based on philosophical disagreements or societal changes |
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Term
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Definition
a. a framework of rules and principles that describes the operation of a society
b. defines the relationships between different types of laws
c. establishes a priority amoungst laws, and a manner to deal with conflicts between them |
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Term
| Constitutionally Entrenched |
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Definition
a. a right or norm that has been set out in a fundamental constitutional document
b. that takes precedence over all other laws
c. that cannot be ammended through ordinary law-making processes |
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Term
| Two grounds on which to challenge government decisions |
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Definition
exceeding their authority under the state law
the law itself is invalid becuase it violates an entrenched provision |
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Term
| Canada's constitution is entrenched, set out under Section 52(1) of the Constitution Act, 1982 |
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Definition
a. identifies the constitution Act, 1867 and the Canadian Charter of Rights and Freedoms as core documents
b. states that provisions falling within this definition are the supreme law of Canada
c. any canadian law inconsistent with these entrenched provinsion will be ruled invalid by the courts |
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Term
| Main focus of Constitution Law |
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Definition
| whether particular laws and government actions/decisions based on those laws are valid or invalid (intra or ultra vires) based on the authority defined in section 52(1) of the Constitution Act, 1982 |
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Term
| Principles of the Constitution |
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Definition
judicail independence
federalism
democracy
protection of law and minority rights
constitutionalism |
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Term
| 5 Key Characteristics of the Canadian Consitution |
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Definition
a. canada is a federal state
b. consitutional monarchy
c. canadian constitution guaranteed individual and group rights
d. political power is concentrated rather than seperated
e. less flexible now than in 1982 |
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Term
| What are the three organs of state |
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Definition
legislative- defines how laws are made
executive- administers the laws
judiciary- enforces these laws through the courts |
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Term
| Canada's Devision of Powers |
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Definition
a. Parliament of Canada - set out under section 91 of the Constitutional act, 1967
b. Pronvinces- set out under section 92 and 93 of the constitution act, 1987 |
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Term
| Power of Parliament of Canada |
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Definition
a. 30 specific cases of subjects assigned by Parliament
b. residual peace, order and good government (POGG) general authority |
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Term
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Definition
a. section 92 lists several classes of subjects assigned to the provincail legislatures
b. section 93 grants provinces exclusive power to enact laws in relation to education |
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Term
| Doctrine of Federal Parimontcy |
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Definition
| the federal law will trump the provincail law where there is an overlap and the provisions that interplay are struck down |
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Term
| Pith and Substance Doctrine |
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Definition
a. determine the essential character of the law
b. determine how that character fits within a head of power (class of subject) set out in the constitution |
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Term
| How to determine the essential character of the law |
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Definition
a. must examine both the purpose and the effects of the legislation
b. these should align, but where the effects diverge from the purpose this tends to suggest that the law is "colourable" - that is it was enacted for a purpose other than stated int he law |
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Term
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Definition
section 92- purely provincail courts
section 101- purely federal courts
section 96- provincail courts with shared responsibility at both the provincail and federal levels |
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Term
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Definition
| created, organized, administered, appinted and paid for by their respective provincail governments |
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Term
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Definition
| created, organized, administered, appointed and paid for by Parliament |
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Term
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Definition
| province administers and organizes, but judges are appointed and paid for federally |
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Term
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Definition
a. method of dividing powers so that the general and regional governments are each within a sphere co-ordinate and independent
b. legislative powers distributed between central and regional governments
c. the powers of each government are not subject to change by the other level of government
d. individual citizens are subject to laws enacted by both levels of government |
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Term
| Three Common Models of Judicial Process |
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Definition
Adjudicative Model- role of the court is to resolve disputes
Problem Solving Model- addressing underlying issues that can lead to a legal dispute (ADR)
Policy Making Model- courts dictate and articulate public values through a policy and act more like the executive and legislative rather than their judicial level |
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Term
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Definition
- strict rules of standing, mootness, ripeness, and political questions that make access difficult
-bipolar parties (2); formal proceedural rules' passive judge
-adjudicative facts; parties present facts, strict rules of judicial notice
-applying well-establishes legal prinicples; incremental law-making; deference to legislatures |
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Term
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Definition
- liberalized rules of standing, mootness, ripeness, and political questions that make access easier
- multipolar (2+)
- socail facts; paties and interveners present facts, but rules of judicial notice are relaxed
- creating rules to balance interests and achieve justice; relatively greater law making; less deference to legislatures |
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Term
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Definition
- team based approach; less formal rules, epecially in pre-trial ADR process; judge more actively involved in promoting pre-trial settlements; more active at trial
- more contextual knowledge of the litigants; judge more active in fact finding
- focusing on solving problems of the litigant and building relationships |
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Term
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Definition
a. Standing
b. Mootness: the issue is no longer live or already addressed
c. Ripenesswhether an issue has had long enough to develope a legal and factual fondation |
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Term
| What mode of reasoning is used by judges to arrive at a conclusion? |
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Definition
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Term
| How are socail facts entered? |
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Definition
a. judicial notice- taking verbal notice of a piece of information
b. expert witness testimony
c. factum- document filed by the counsel on either side |
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Term
| Problem Solving (ADR) model contains two models |
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Definition
a. mediation (opposite of court process)
b. arbitration (more formal like trial) |
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Term
| How do you get infront of an applet court? |
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Definition
by right- court has to hear thee case
by leave- must recieve the courts approval to hear the case (SUPREME) |
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Term
| How do you get leave to the supreme court? |
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Definition
- file a factum for leave: provide summary and points of law that will be argued
-court registrars office reviews the factum, highligh legal issues and summarize, make a recommendation on whether the case should be hear to the judges
- summary is provided to 3 judges to determine leave, review the summary and recommendation and reach a decision without any oral arguments; doesnt have to be unanimous
- once given leave, you submit another factum which supports your case and includes the trial transcripts and records
- court sets a date to hear oral arguements |
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Term
| What constitutues public importance? |
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Definition
-constitutional challenge
- issues causing conflict amoungst applet courts
-new points of law
- where federal or provincail courts are being interpreted
- aboriginal rights
- potential wrongful accusation
- impact other provinces or have national importance and require commentary |
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Term
| Five things included in the Constitution of Canada (set out under section 52(1)) |
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Definition
A. Constitution act, 1867
b. canada act, 1982
c. constution act, 1982
d. statues or regulations of constitutional significance that were enacted between 1867 and 1982
e. all ammendments to the statues or regulations included in the section 52 definition of the constition of canda |
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Term
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Definition
| -previous court decisions are expected to be followed |
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Term
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Definition
| similar cases reasoning for their decision which is used on their current case |
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Term
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Definition
| judgements that do not form the legal reasoning of the case (descenting opinions) and do not need to be followed |
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Term
| Doctrine of Dstaredecisis |
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Definition
| decisions that already have concluded are allowed to stand as they are and be brought forward to current cases |
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Term
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Definition
| similar to previous scenario but there are a couple of differences which allow for them to decide in a different way |
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Term
| Distinguished on the law itself |
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Definition
| not using the law in the same way in different cases |
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Term
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Definition
| how judges interpret a previous decision (look for the intent that the framers had when they drafted the legislation or provision) |
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Term
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Definition
| construe a provision in a manner that best furthers their objectives |
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Term
| 5 factors that affect a judges decision making |
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Definition
a. policy preferences
b. role orientation
c. personal attributes
d. inside influences
e. outside influences |
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Term
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Definition
a. parties choose mediator
b. process is informal
c. mediators actively offer possible solutions to problems based on a variety of factors
d. mediator cannot impose a decision on the parties
e. a resolution is only reached if the parties consent to an agreement after discussions facilitated by the mediator |
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Term
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Definition
a. more formal like a trial process where the arbitrator listens passively to submissions of the parties
b. decision making is based more on legal rights and responsibilities than on a mediated process
c. arbitrator imposes a decision on parties except where parties agree to make the arbitration nonbinding |
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Term
| Parties end up in ADR processes in one of three ways |
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Definition
a. they agree to it
b. a contract stipulates that ADR must be used as a first resort to resolve problems
c. legislation or court rules force the parties into court-affiliated or judicially-run ADR |
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Term
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Definition
a. more efficent than litigation
b. more economical than litigation
c. gives the parties involved more control over the process
d. allows for greater privacy
e. allows more holistic approach to issues |
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Term
| Reasons against ADR Process |
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Definition
a. privatizes dispute resolution reducing public accountability
b. potential for pressure to settle on parties in unequal power situations
c. could lead to second-class justice for disadvantaged groups
d. skepticism of whether ADR is really more efficent and economical |
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Term
| How do section 92 court judges get appointed? |
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Definition
| by provincail legislators |
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Term
| How do section 101 and 96 court judges get appointed? |
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Definition
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Term
| How are Supreme Court Jugdes Appointed |
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Definition
The Prime Minister
a. 10 years at the bar
b. must reside in Ottawa |
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Term
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Definition
| a state of mind where the attitude of the tribunal in relation to the case is absent of bais |
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Term
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Definition
| not merely a state of mind or attidtude but a status or relationship to others |
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Term
| Canadian Charter of Rights and Freedoms |
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Definition
a. part of Canada's constitution act, 1982
b. consists of 34 sections |
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Term
| Section 32 of the Canadian Charter sets out what? |
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Definition
its application on the federal government, territorial and provincail governments
(no applicability to private entities) |
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Term
| Rights are grouped into 6 categories: |
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Definition
a. Fundamental Freedoms (sec 2)
b. Democratic Rights (sec 3-5)
c. Mobility Rights (sec 6)
d. Legal Rights (sec 7-14)
e. Equality Rights (sec 15)
f. Language Rights (16-22) |
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Term
| What does section 23 set out? |
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Definition
| Minority Language Education Rights |
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Term
| Limitations Clause (sec 1) |
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Definition
| All rights are subject to the limit set out under this section which allows governments to justify certain infringements of rights |
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Term
| Notwithstanding Clause (sec 33) |
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Definition
| Some rights are subject to this section which authorizes governments to temporarily override the rights and freedoms in section2 and 7-15 for a period up to 5 years, subject to renewal |
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Term
| 2 stage analysis of Charter Cases: |
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Definition
a. first a court ust determine whether the law or government action in question limits or violates a substantive right protected by the Chater
b. Then, if a limit or violation is found, the court must determine whether it can be justified under section 1 |
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Term
| Who has the burden of proof in the first stage of a Charter Case? |
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Definition
| The burden of proof at this stage lies with the party claiming a rights violation has occured |
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Term
| Who has the burden of proof at the second stage of a Charter Case? |
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Definition
| The burden of proof at this stage lies with the party charged with violating a right(s) |
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Term
| Which stage of a Charter Case requires the R. v. Oakes test? |
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Definition
| Stage 2, meeting the requirements of the test for interpreting section 1 |
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Term
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Definition
a. assess the legislative objective underlying a law
**proportionality test (b-d)**
b. the measures adopted must be carefully designed to ensure the law logically furthers the objectives of the legislators
c. the law must impair rights as little as possible
d. there must be proportionality between the effects of the measure and the objective identified as being of sufficent importance |
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Term
| What case law was used to develop a legal framework analysis for Equality Rights? |
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Definition
Law v. Canada
Andrews v. Law Society of BC |
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Term
| Section 15 analysis comprised of 3 parts: |
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Definition
a. the claimant must show a distinction of some sort has been made
b. the claimant must show this distinction is based on an enumerated ( or analogous ground under section 15(1)
c. The claimant must show the disctinction causes descrimination |
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Term
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Definition
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Term
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Definition
| so similar it corresponds to those listed |
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Term
| What term is used when interpreting Charter Cases? |
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Definition
"broad and purposive"
"living tree" |
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Term
| What is "Charter Dialogue"? |
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Definition
| charter review between courts and governments with the work of legislatures reviewed by the courts, and the work of the courts then reacted to by the legislatures |
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Term
| How legislators change the Charter: |
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Definition
a. strike down a specfic section for being unconstitutional
b. read a sentence or two into a specific section
c. read down part of a section in order to avoid descrimination |
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Term
| Section 35 (outside of the charter) contains what right? |
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Definition
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Term
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Definition
| Remedies the challenge and if your successful then you can get various outcomes |
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