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Intro to Law Final Review
Undergraduate 1

Additional Law Flashcards




Brooks: Adjudication
  • Judging as a "human process" affected by: temperment and personality, perceptions of case and participants
  • The adversarial process is the best process to lead to an adjudicative outcome
  • Juding also affected by the process within which adjudication takes place: "the judge is an arbiter in an adjudicative proceeding that is adversarial in nature neccessarily prescrobes [her] the parameteres of [her] involvement in the proceedings
Adjudication/ Adversary System
  • Adversary System: a procedural system in which the parties and not the judge have the primary responsibility for carrying the dispute forward through the system 
  • Adjudication: a means of resolving disputes in which some general rule of law or principle is applied to the facts that gave rise to the dispute and in which the parties involved are able to participate by presenting proofs(evidence) and reasoned argument
Party autonomy
  • parties retain the right to decide whether or not to go to court
  • Limits judges function
  • Parties are given sole responsibility for defining the dispute, and the judge can only adjudicate on issues presented by the parties
  • Judges cannot initiate proceedings but can stop frivolous actions
  • Judges can streamline or rationalize process
  • judges are assisted by lawyers and their obligations to the court
Party Prosecution
  • Parties shape their cases judge's have no role in this
  • Legitimacy of decision-making(adjudication) is enhanced when it transpires withib an adversarial setting
  • Accurate fact finding in resolution of disputes if partiesare motivated by self-interest and empowered to investigate facts and present evidence and arguments before a passive decision- maker
Fallibility of Adversarial Process
  • inherent weakness of "human systems"-> all of the stress and emotions mixes into a quagmire, in which we hope judges can extricate logical facts, relevant outcomes
  • the case of Dr. Charles Smith-> the impact that one inadequate individual in the system can have
  • the adversarial process in itself cannot protect us form some of those fundamental human inadequacies and human weaknesses that may lead to a very bad outcome
Eckhoff, "The Mediator and the Judge"
  • "mediation" is the process whereby the parties are influenced to come to an agreement by appealing to their own interests
  • the mediators job is to assist the parties to see their own interest, where these interests overlap, and assist them to locate an acceptance compromise of their interest
Tools of a Mediator
  • may focus parties on best shared outcome, rather than the best individual outcome
  • may offer fresh perspective on the conflict-> tend to get entrenched in your view of the conflict, mediator is not invested in the conflict, the mediator gains prestige if they get you to a good outcome
  • may use threats or promises to assist parties to see the value of cooperation and compromise-> say your only hurting yourself and your children, easier to come to an immediate decision than go to court
Key Differences beween Mediators and Judges
  • Mediators must be prospective in their focus; judges are retrospective
  • Mediatos must be skillfull negotiators; judges must possess authority to speak on the norms and facts to end conflicts
  • Mediators focus on interests; judges focus on norms
  • Mediators must convince parties of the appropriate outcome; judges can impose the appropriate outcome
Dispute Settlement and Social Change
  • by settling disputes via an authoritative allocation of legal rights and obligations, the law provides an alternative to other methods of dispute resolution
  • but may not be solve broad issues like job discrimination on a large scale, only fix one incident
  • brings planned social change by government, prominent feature in modern welfare states
Fiss: Against Settlement
  • we enter the legal process as soon as we start "thinking legalistically"
  • justice is done by the courts, not through parties
  • Settlement occurs when a case intended to be adjudicated is diverted out of court through an agreement reached by the parties
Fiss: 4 Arguments Against Settlement
  • Distributional Inequalities: parties may be unequal in wealth, power, and expertise, poorer party disadvantaged in mobilizing and may be forced to settle due to money
  • Judicial Enforcement: judges unaware of full reasons behind the settlement, can't do anything after the issue of settlement since settlement is made out of interests
  • Litigation: it's about legal and social justice, parties might settle while leaving justice undone, someone fails to do the right thing
  • Settlement precludes authoritative interpretation of the law, parties settle for reasons other than those rooted in justice
McThenia and Schaffer: For Reconciliation
  • ADR is about reconciliation and resolution, rather than winning via imposition of judgement
  • Does Fiss come too close to equating justice with law?
  • McThenia and Schaffer: most important justice is that which people give to each other
ADR and Mediation
  • Mediation plays a role in many fields of law: civil law; as a way of avoiding costly litigation, criminal law; as a restorative justice, family law; in divorce and custody cases
  • most important justice is that iven between people, rather than that handed from a judge
Sargent: Understanding Critiques of Mediation
  • Some cases are better for mediation, some are better for court
  • conflict needs to be present for mediation
  • in adjudication, an imposition of authority is involved
  • two broad critiques of mediation, inadequate promise and false promise
Inadequate Promise of Mediation
  • liberal critique, may be more concerned with outcomes than process
  • mediation is viewed as option to adjudication, rather than an alternative
  • not all problems can be solved effectiveley via mediation( offence)
False Promise of MEdiation
  • Conflict perspective based: conflict seen as personal rather than political
  • false promise of mediation resides in view of conflict as individualistic and thus managable via consensus
  • viewing conflict as something between individuals obscures larger social context to conflict, like capitalism
Femenist Critiques of Mediation
  • Concerned with fairness in mediation
  • combine aspects of liberal and conflict critiques
Glathercole:Legal Services and the Poor(Judicare Model)
  • basic philosophy that law should provide the poor with access to the same legal servuces as are available to the rest of society
  • client chooses lawyer via fee-for-service structure with specifiied limits
  • services concentrate on serious criminal and civil actions in superior courts
Strengths of Judicare Model
  • Client gets interview and hires own lawyer
  • client structures relationship with lawyeer and is the lawyer's employer
  • Client decides meeting dates and duration of meetings
Weaknesses of Judicare Model
  • is not cost effective 
  • criticized as more problem-solving than problem-preventing in its approach
  • too concerned with equality of legal services than social quality
  • the poor get their day in court, but not much more
Glathercole:Legal Services and the Poor( Legal Services Model)
  • goal of legal aid should be the total eradication of poverty
  • store front clinics, focus on legal problems of the poor(welfare, housing, etc...)
  • legal aid has political function, is found in many poverty filled areas
  • creation of independent commission/board administers program
  • some people don;t know the law, landlord rights, # work hours, sick days etc...
Strengths of Legal Services Model
  • accessibility as offices are located where the clientele reside
  • lawyers may not be specialists, but will be familiar with problems of the poor
Weaknesses of the Legal Services Model
  • lawyer-client relationship managed by a plan
  • eradicating poverty isn't realistic
  • lawyer may care about the plan rather than the problem itself
Challenges to Legal Aid
  • common to all legal aid plans the main one is expense,lack of political support
  • assue access to legal services will contribute to greater legal and social justice
  • in order to get it, you need income a lawyer approves of, and a legit legal aid problem
  • immigration/refugee matters, custody for kids, workplace safety and youth crime qualify
  • applicants need to show expenses/income, up to family of 5, $15 300 can be max income
Ramsay: Small Claims Court
  • Originally intended to provide an alternative to costly litigation for small businesses and consumers
  • general characteristics replicates traditional court structure 
  • less formal legal process, lawyers usually absent
Goals of Small Claims Court
  • goal is dispute settlement via litigation
  • social problem solving and effective debt enforcement
  • access to justice for those that can't afford it
  • small claims courts differ across Canada
Quebec Small Claims Court
  • no lawyers in mediation as well as adjudication
  • relaxed rules of procedure, no appeals, conciliation service available
  • jurisdiction limited to $ 7000
Ontario Small Claims Court
  • Modified version of higher level courts, lawyers/agents may appear 
  • no restrictions on business filingd or corporate claims
  • jurisdiction limited to $6000, fee for filing bit not for defence
  • includes contract and tort
  • mostly debt collection, most common part is business, SCC intended a court for everyone, not mostly business
  • the process of identifying/applying rules is done with lawyers, they are pepeat players
  • they have an intermediary position between disputant and courts, transform complaints to legal disputes, involved in specific non-trial activities like writing wills/routine transactionsn
  • some take cases with significance others solely represent a corporation
Main Duties of Criminal Lawyers
  • Advocating: ensuring a client wins at all costs, while protecting their rights
  • Intermediary: between client and law, making negotiations so the client benefits
  • Counsellor: to give client advice on what to expect and what is in their best interests
  • trial lawyers/hired guns only care about a specific case and to whatever they legally can  to win
Legal Education in Canada
  • # of lawyers has increased substantially, historically one would learn law as an apprentice
  • 1950's-60's, university base models ascend, apprenticeship component preserved
  • getting into law school requires good GPA and LSAT score, but LSAT's usefulness is doubted
Whiteness of Lawyers
  • legal profession fails to reflect the makeup of the Canadian population
  • lags behind other professional fields in this regard, even if law schools try to address this issue
  • several factors cause this absence of  racialized lawyers within law firms: large law firms work in ways that are alienating to these individuals, both individual and systemic discrimination
  • law school tuition increases every year, this may force people to abandon law as an option due to finances
  • number of coloured students is decreasing, noted intersection with income and race
Large Firm Lawyers
  • tend to be held in high social esteem, recruitement focuses on those high socio-economic statuses
  • common characteristics:protestant, in top college and had family business, ticketed for life
  • spend less time in court, likely to serve business clients, "self confirmin myth", high income
Small Firm Lawyers
  • immigrant's child, "work their way up", earn  precarious living at lower levels
  • low income clientele, have frequent contact with courts
  • deal with "undesirable cases", tied to local neighbourhoods, experience severe status dilemmas
Esau: Specialization
  • much demand for access to quality, fair priced, efficient services
  • complaints of delay and neglect are widespread, legal fraternity itself has called for change
  • most debated proposal to call for change is specialization
  • 1969, California survey, 2/3 lawyers say they are specialists
  • it's not "should it exist"because it already does, but should it be encouraged
De Facto Specialization
  • inevitable outcome of the need for competency in an era of rapidly escalating legal complexity
  • problem: no consenseus as to what de facto specialization means
  • no consensus as to what specialization itself means
Pro's of Specialization
  • increased quantity of legal services, informed access to legal services
  • efficient delivery and lower cost of legal services, controlled advertising
  • less "unauthorized practice", public trust and legal ethics improved
Cons of Specialization
  • overspecialization, humanistic values difficult to persue
  • pressure to see clients as people, not problem vs. pressure to make law accesible to lay-person
  • fear of traditionalists, if we get better at more restricted assignments we aren't valued in matters of general importance, the idea that specialists "only" know their specialty
  • Potential damage to general practitioners: will increase movement of business to large law firms, will lead to the inevitable next step of monopoly
  • a distinctive identity increases the feelin of commonality with others in the speciality and increases the psych, socio, and professional distance from other members of the bar
  • Should better understand your case/situation, hence give a better judgement than the judge
  • but stereotypes always are put into minds and affect a decision
  • more common in USA than Canada, usually due to possibility of death penalty
  • min 10, up to 12 in criminal trials, 6 in a civil case; only used in serious cases
Roots of Jury
  • 725 AD, Welsh King Morgan of Glamorgan started having pubic involved in cases 
  • went to England after Norman conquest
  • person who took an oath were first a source of info, later became adjudicators
Right to  a Jury
  • charter gives us a right to a jury trial, except by military court, if sentence=5+in jail, usually an indictable offence rarely in summary offences
  • s. 469 CC, higher trial needed for these levels of crime
  • highly technical case will suit a judge, if a fact situation with possibility of sympathy than a jury
  • Juries become partners with judge as triers of fact, judge is the trier of law
  • Jury has right to ignore law, if they think something is wrong/right, it is final no appeal
Jury Selection Process
  • Eligibility, selected from a compiled list each year
  • representation is an issue, being represented by "peers", an issue for Aboriginals 
  • must be aged 18-65, not convicted/pardoned from an indictable offence no mental issues
  • Exclusions: Cabinet people, politicians, lawyers, law students, law enforcers, doctors etc
  • Empanelling ss. 629-644 CCC, sec 631 actual mechanics of the process
  • numbers are drawn to select jurors
Challenging Jurors
  • on basis of errors in selection, fraudulent/incomplete list; willful misconduct must be proved
  • R v. Neepoose(1991): successufully challenged due to lack of women on the jury
  • R v. Born with a Tooth(1993): successfully challenged due to pool not having enough natives
Challenging Jury for Cause
  • R v. Williams(1998): one can challenge mistrial due to publicity multiple times, but must prove accusations(William allowed to ask 2 questions)
  • facts: prospective jurors were likely biased against defendant, native accused of robbery in a case of mistaken identity
  • 4 Classes of prejudice:interest(juror has direct interest in outcome of trial), specific(attitudes about case that remove impartiality), generic(arise from stereotypes about the defendant, bias against race)
  • conformity(juror impartiality undermined by perceptions of community sentiment)
  • Peremptory challenges vary by nature of offence(treason or murder= 20 peremptory challenges, against juror doesnt need a reason)
Brooks and Doobs: Primary Function of Jury
  • an institution designed to ensure the accuracy of fact finding in adjudication of disputes
  • an istitution which can ignore relevant rule of law, sec 638
  • what matters is the ability of the jury to understand the law relevant to a specific case, before applying the law, eliminates the uniformity in law
Influencing Juries
  • Physical attractiveness, whites are let off over blacks or other coloured folk
  • pretty people get off over ugly people
  • personality comes into play, social+friendly people are let off
  • juries in this way are a combo of legal and political institutions
  • appointed underthe authority of ss.96-101 Constitution Act 1986-87
  • federal courts established under sec 101 uwith federally appointed judges
  • provincial courts established under sec 92 with federally appointed judges
  • no elected judges in Canada, 11 processes of appointment
Federal Judge Qualification
  • professional competence and experience
  • personal characteristics
  • social awareness, all whilst showing good behaviour
Removal of Judge
  • 1. whether or not the judge was incapacitated/disabled from the execution of the office of judge
  • 2. Has the recommendation for removal warranted, 3 part question: affect of judges policy, effect of views expressed by the independent counselregarding removal, effects of taking into consideration the judges entire career abilities and character
  • legislative grounds for removal: 
  • 1. age or infirmity, found guilty of misconduct, having failed in execution of office
  • 2. by their own conduct, in a position incompatible with the due execution of office
Objectivity and Impartiality
  • Rv.S.(R.D), objectivity vs. neutrality/impartiality, is objectivity possible
  • is there a difference betwen women and men in how thet approach judging?
  • every judge knows the law and has a set of personal moral values
  • adversarial process appeals to men, women see moral problems arising from adversarial systems
  • women''s goal isn't winning or losing, it's achieving the optimum outcome for everyone
Goals of the Legal System
  • dispute resolution?Denunciation, condemnation, justice, or deterence
  • police:sticky issue of discretion
  • judges:objectivity and neutrality
  • juries: community standards and biases
  • starting point: theory of personhood, assumes that a rational, free choosing autonomous self is independent from the community and other selves
  • agrees that society should be governed by liberty, equality and neutrality
  • state and the law should provide max freedom to citizens, so they can pursue self-interests
Liberal Legalism
  • Essential features: commitment to general democratically promulgated rules, equal treatment of all citizens before the law, seperation of morality, politics, and personal interests from jusicial action
  • in our system, adherence to precedent: seperation of judicial and legislative functions of government, adherence of procedural formalities
Christie v. York
  • Black man refused glass of beer in sports arena
  • discrimination was done on the base of race, yet the decision to allow it still occured
  • legal language used as a vehicle of injustice
Delgamuukw v. B.C
  • Aboriginal title case, oral history= hear say
  • is oral history equal to written? if not then a culture loses its authenticity
  • SC: parity of oral and written historical documents and a new trial
Nixon v. Rape Relief
  • perpetuating the cycle of abuse:feminist misuse of public/private dichotomy
  • allegations of human rights code violations because Nixon was a trans-woman, but gender identity was not considered a basic human right on which to base a complaint
  • judicial review, ongoing ironies of activism or when is a woman not a woman?
  • BC Superior couurt judges that she didnt face any discrimination, beause rape relief only want to hire people who were discriminated against as a woman their whole lives; creates the idea that trans people can be discriminated against
Racial Jury Nullification
  • is it okay for black jurors to acquit other blacks for equality
  • race may be legally/morally-appropraite factor for jurors to consider in reaching a verdict of not guilty or against conviction
  • Liberal critique, society is racist and law is a mean of protecting white interests
  • jury nullification as a check on state power, legal and moral arguments favoring nullification, a rule of law is more mythical than real, moral obligatio to disobey unjust laws
Plural Policing: A Comparative Perspective
  • mounties are a national symbol
  • started as NW Mounted police in 1873, Royal NW mounted police in 1904, RCMP in 1920
  • responsible for policing the largest part of Canadian Landscape
  • RCMP responsibilities: coordinating with Interpol, maintaining centralized national police criminl database, national security and terrorism, coordinating efforts in drug trafficking, organize security for national events like G20
G20 Integrated Security Unit(ISU)
  • RCMP made the G8/G20 ISU as the central coordinating body for the summits security under chief superintendent Alphonse MacNeil, structure was a "whole government approach"
  • 20 974 personnel from 26 public police departments, include TPS, OPP, Peel ,CSIS, and CF
Levels of Policing
  • municipal, provincial, federal and first nations
  • 5 largest are the RCMP, OPP, Metropolitan Toronto Police, Surete du Quebec and Monteral Urban Community Police, these are 60% of our police force
  • First Nations policing is an assortment of direct policing agreements between Native communities and the RCMP, OPP, or Surete du Quebec
  • structure is a decentralized- coordinated multiple system of provincial force/RCMP is removed, another fills its place with limited jurisdictional overlap
State Expenditure on Public Policing
  • 2001. Total expenditure= $7.3 billion which is a 6.9% increase from 2000
  • in constant dollars, expenditures are up 4.2%, the 5th year in a row that costs have increased
  • between 1888-9 and 1994-5 fiscal year, cost for public police went from $163 to $198 per person 
Why is Policing so Expensive?
  • Regionalization development: move towards larger regional or provincially contracted detachments,OPP a main benefactor
  • War on Terror:Oct 2001, $280 million anti-terrorism plan announced 
  • ended up as $7.7 billion over 5 years+$1.6 billion for better policing
  • Enhancements in infor sharing capabilities, intelligence collection, better training
Privatizing Police
  • the growth of private security firms
  • U.S private security guards now outnumbe their public counterparts 3:1, in Canada 4:1
  • regulating the private security industry is in the hands of provincial registers
  • Except B.C there are no minimum training standards for guards across Canada
Police Discretion
  • discretionary power officials can exercise in a specific situation, always operative
  • based on an officers subjective sense of what's happening, whether it matters, what will happen if matter is ignored or acted upon
  • includes discriminatory practices based on race,gender,class, ethnicity
  • there are more important issues to be handled; not enough policing for everything
  • offender shows remorse or promise to never do it again
  • act is too common to warrant sanction
Charter of Rights and Social Change
  • charter has an effect: on the interaction between law and society, specifically law and individuals, the adjudication pocess, your relationship with the state, lays out your individial rights
  • Charter is an excellent way to see how law shapes popular understanding of social ordering and power relations, like the struggle for same-sex marriage
Knopf and Morton: "Ardour in the Court"
  • proposes that the charter is touted as be all end all, we's be in the dark ages without it 
  • long time belief that the Charter would fix all problems related to injustice and without one we have no justive
  • guilty have more rights, innocent suffer more, less freedom of religion, speech and overall quality 
  • Judges have enhanced policy influence over matterslegislatures use to settle(some treat it as a vehicle for political agenda
Charter as a Tool for the Elite: Knopf and Morton
  • "Court Party" loose constellation of interest tht promote judicial power since they can stand to benefit from it
  • LEAF, women's Legal Education and Actions Fund can flood the courts with special interest claims, no equality there, revolution can't occure without leaders and the support of interest classes
  • "Influencing the Influences", LEAF shapes the charter's political process based off public pressure rather than being constant to law
Rosalle Abella: "Case for a Strong Court"
  • democracy was never about the majority, it's about the minority trying to protect its right's against the majority
  • pre-charter, there wasnt a strong sense of judicial activism, mostly stayed concerned with basic constitutional matters
Abella, Strong Courts, Challenges
  • constitutionalized rights should be a mark of mature and secure democracy
  • backlash to the charter as some felt their ideology was threatened by the new charter 
  • trumpeted rightsof majority and ignored the the fact that minorities want rights too
  • charter was supposed to reverse discrimination, courts should interpret, no make laws
Wray, Screening Same-Sex Marriage Documentaries
  • legal judgement itself is neither the beginning nor the end of any rights struggle 
  • Pros: films contextualize complicated constitutional issues within the realm of everyday
  • Cons: takes years of complex litigation into a viewer friendly product, does not represent complexity of gay identity
  • normalizing gay marriage, gay marriage is placed in the realm of everyday for individuals watching, comparing to hetero marriage shows how the institution of marriage wont change
Arbour and Lafontaine: Beyong Self-Congratulation
  • note the pas success and try meeting future challenges
  • 1948 Universal Declaration of Human Rights, UN approved 30 articles(Art.3: right to life, liberty and security of the person)
  • Canada a part of this movement by making Bill of Rights(to bring Canada in compliance with international law
Charter and Judicial Intervention
  • globalilzation shows progressively porous boundaries between domestic and constitutional law
  • the charter is an internationally oriented document that found its own ways to responf the the country's specificities, charter prevents excessive judicial intervention
  • S. 33 Notwithstanding clause/override power clause: parliament has the right to override a law with reasonable justification, it must be a fundamental(religion/speech)/legal(unreasonable search and seizure)
  • S.1 Rights are inalienable, early decisions enable them to tackle sec15 issues that involve discretion most judges do not want to be involved in
Benefits of Judicial Review
  • allowed for movement from procedural to substantive human rights
  • interactioon between judges and legislature more important than ever, due to s.33
  • articulating the constraints under which the majority can impose it will and the limits to its potential override of protected interests
Difference between International Rights Acknowledgement
  • domestic(judicial) process: more specified, courts must decide specific issues relating generally to the situation of only one group/individual, despite broader impact of the judgement 
  • International:consensual/consulative, may contribute to the development of certain rights that have suffered from lack of judicial recognition in domestic courts
  • Canadian Human Rights Commission 1977, administers Canadian Human Rights Act, enforces Employment Equity Act
Current Human Rights Issues
  • Charter has too much of an individual focus
  • western nations, over emphasis on civil and political rights to detriment of 2nd tier(cultural rights); seen as priviliges in Canada these have failed to be shown as real rights
  • Need judicial review to evolve law to this point: judicial review provide avenue of remedies not otherwise available to rights holder 
  • Courts down to face s.15 equality rights(sex orientation) rather than poverty:poverty isn't always a result of legal rights , but rather actions
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