Sources of Law and Common Law Principles

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Questions and Answers

What is a primary concern regarding the overuse of Section 33?

It allows unlimited government authority.

It ensures all rights are fully protected.

It might undermine the entrenchment of the Charter. (correct)

It guarantees rights to the majority only.

What does the reasonable limits clause in Section 1 imply about rights and freedoms?

Limits can be imposed without justification.

Rights can never be limited.

All rights are absolute and unalterable.

Limits must be justified in a free and democratic society. (correct)

In the context of the living tree argument, what is suggested about the Charter of Rights?

The Charter is only a historical document.

The Charter is irrelevant to modern society.

The Charter should remain static and unchangeable.

The Charter should reflect current social attitudes. (correct)

According to the orthodox position, when should Section 33 be utilized?

In exceptional cases only. Signup and view all the answers

What is the principle behind statutory law as inherited from British parliamentary tradition?

Parliamentary supremacy is the foundation. Signup and view all the answers

What does the Consensus Model primarily rely on to foster respect for the law?

Common values among society members Signup and view all the answers

Which aspect reflects the idea that laws are merely written statements of the collective will of the people?

Reflective nature of law Signup and view all the answers

According to the Consensus Model, which of the following scenarios represents proper socialization?

Self-defense in a murder case Signup and view all the answers

What does the Consensus Model suggest is the primary cause of crime?

Improper socialization of individuals Signup and view all the answers

In the context of the Consensus Model, which issue is likely to reflect a disagreement among societal values?

Debates surrounding abortion Signup and view all the answers

What is the primary role of internalization in the Consensus Model?

To create a societal commitment to shared values Signup and view all the answers

Which of the following best describes the model that recognizes multiple social groups with competing interests?

Pluralistic Model Signup and view all the answers

How does the Consensus Model view the application of law?

Equally applied to all members of society Signup and view all the answers

What was a key characteristic of the common law system that developed circa the 1100s?

Decisions were based primarily on local customs and fairness Signup and view all the answers

What does the concept of stare decisis primarily relate to in the context of common law?

The process of recording and referencing court decisions Signup and view all the answers

Which factor contributed to the lack of uniformity in early common law?

The varying local customs and moral beliefs Signup and view all the answers

How did the role of judges change with the emergence of a rational legal system?

Judges were required to engage in legal rationale rather than simply enforce customs Signup and view all the answers

In what way did local customs influence the early common law system?

They legitimized decisions made by courts over time Signup and view all the answers

What implication did the lack of binding decisions have on the early common law system?

It allowed for greater flexibility and adaptation in legal interpretations Signup and view all the answers

What were the primary sources of law identified in the content?

The constitution and statutes/acts Signup and view all the answers

What impact did the establishment of appeal courts have in the common law system?

They increased the consistency of legal decisions across cases Signup and view all the answers

Which of the following best describes general damages?

Damages awarded when it is difficult to precisely determine a fixed amount for loss or injury. Signup and view all the answers

What is a primary characteristic of special damages?

They are calculated precisely based on specific expenses. Signup and view all the answers

Which action exemplifies voluntary assumption of risk?

A spectator attends a boxing match and sustains an injury. Signup and view all the answers

Which scenario illustrates the concept of lack of causal connection?

A worker falls on ice and breaks their arm a week later. Signup and view all the answers

What is the purpose of punitive damages?

To punish the defendant for particularly harmful behavior. Signup and view all the answers

What is an injunction as a judicial remedy intended to accomplish?

To halt or prevent specific wrongful behaviors by the defendant. Signup and view all the answers

What does the concept of 'necessity' imply in legal terms?

It justifies trespassing to prevent personal or public harm. Signup and view all the answers

In the context of injury claims, which condition is often used by insurance companies to mitigate claims?

Voluntary assumption of risk. Signup and view all the answers

What does the term 'tort' primarily refer to?

A legal breach without an existing contract Signup and view all the answers

Which element is NOT required to prove negligence?

Intent to harm Signup and view all the answers

How does civil negligence differ from criminal negligence?

Criminal negligence has a higher burden of proof Signup and view all the answers

In a negligence suit, what is the significance of 'contributory negligence'?

It illustrates that the plaintiff took some part in causing their own harm. Signup and view all the answers

Which statement best describes intentional torts?

They involve actions intended to cause harm. Signup and view all the answers

What must be demonstrated by the plaintiff regarding loss or damage in a negligence claim?

The plaintiff must show any type of loss, including emotional distress. Signup and view all the answers

In the context of torts, what does 'duty of care' refer to?

The responsibility to act with caution towards others. Signup and view all the answers

What role does 'causation' play in a negligence suit?

It establishes a direct link between the defendant's actions and the plaintiff's injury. Signup and view all the answers

What is a valid defense against tort claims?

The plaintiff had prior knowledge of the risk. Signup and view all the answers

Which of the following statements regarding negligence is correct?

Negligence primarily arises from inadvertent actions. Signup and view all the answers

What is the primary focus of the crime control model (CCM)?

Ensuring social order and repressing crime Signup and view all the answers

Which of the following is a characteristic of the due process model (DPM)?

Focus on the legal guilt rather than factual guilt Signup and view all the answers

According to the content, what is a significant consequence of the crime control model's practices?

The potential for wrongful accusations and convictions Signup and view all the answers

Which statement best represents the critique of the due process model (DPM)?

It can be obstructive and costly to the public system. Signup and view all the answers

What does the phrase 'throw the book at them' typically connote in the context of criminal justice?

A conservative and punitive approach to crime Signup and view all the answers

What aspect of policing does the due process model (DPM) emphasize most strongly?

Monitoring and accountability of police actions Signup and view all the answers

What does the conflict model suggest about societal order?

It is the result of power dynamics and coercion. Signup and view all the answers

How does the due process model view the role of errors in the justice system?

As critical indicators that reform and vigilance are needed. Signup and view all the answers

Why is the concept of 'liberty vs protection' significant in the context of the crime control model?

It highlights citizens' willingness to sacrifice freedom for safety. Signup and view all the answers

What does the due process model suggest about the collection of evidence?

Evidence obtained through illegal means is inadmissible. Signup and view all the answers

What is a fundamental principle of the crime control model?

The justice system must function on a high volume efficiently. Signup and view all the answers

In the context of societal change, what role do powerful groups play according to the conflict model?

They exploit the underclass through economic oppression. Signup and view all the answers

What do proponents of the due process model argue about its impact on marginalized groups?

It enhances their protection and accountability. Signup and view all the answers

How do political theorists typically regard crime control and due process models?

As overlapping concepts with shared principles. Signup and view all the answers

Study Notes

Main Sources of Law

Connections between sources of law and outcomes, socio-cultural, political, and economic implications
A history of the present legal system, rooted in common law
Circa 1100s, appointed judges managed conflicts. Decisions were based on local customs, traditions, and religious values
Lack of written laws, decisions became precedents.
Custom became the legitimacy to create law, as case quantities grew.
Customary law, based on local experience made up a system of civil and criminal law.

Judicial Interpretations of Common Law (CL)

No court hierarchy, decisions are not binding precedents.
Cases are grouped by similarities in custom and experience to derive binding principles.
Common use, not a formal structure. Determining if cases are sources of law or illustrations of local rules.

Traditional Sources of Law

Includes customary law
Local experience
Shared understanding of experience within the socio-cultural context.
Lack of uniformity due to morality reliance on the people.

Rise of Stare Decisis

Canada's receptivity to the new paradigm shift of a rational legal system
Increased recognition of human rationality and substantive law
Judges' role is to apply existing law, not create it, based on the established norms.
Distinguishing a case to fit the current situation and circumstances.
Divorce of legal systems from customary practices.

The Constitution of Canada

A major document that influenced criminal law.
Outlines the rules of governance
Division of power
Scope and mechanisms of power. Describes rights of citizens, protects them from unjust actions.

The Charter of Rights and Freedoms

Prediction about equality, freedom, and democracy enshrined in the constitution
Outlines the rights of citizenship against unjust laws.
Outlines fundamental freedoms.
Basic principles ensure equality and protection from hate crimes and violence.
Governments can and should be limited for the good of all.
Authority is limited by laws.
There is a need for a better constitutional system.

Judicial Review

Power of the supreme court to review laws.
Declaring laws unfair, unreasonable or unlawful laws
Checking on the actions and laws of the administrative branch of government.
Laws are based on the considerations of jurisdiction, fact, and procedural fairness.

Judicial Review and Judicial Discretion

Ratio - legal doctrine where the current ruling case's information cannot be used due to the previous ruling cases not aligning with the current.
Courts exercise discretion when hearing cases to prevent abuse or violation of the public's interest.
Limitations on Charter rights, including Section 1 and 33.
Section 1 - reasonable limits clause and freedom of expression.
Section 33 - notwithstanding clause in particular situations allowing disregard for Charter protections.
Issues with Section 33's overuse.

Parliamentary Sovereignty

Laws passed by elected politicians must be followed by the courts.
Judges interpret legislation based on the intent of the makers.
Legal interpretation rules such as:
- Arbitrary
- Vague
- overstretched
- disproportionate
- Meaning and character of words
- Intended purpose of laws
- Context of the law
- Consequential outcomes of interpretation.

Parliamentary Sovereignty and Judicial Review

Textualism and Intentionalism are critiqued and incomplete interpretations.
Textualism: emphasizes literal meaning of words.
Intentionalism: seeks legislator's original intent.
Judicial review of laws to address inconsistencies, imbalances.

Emerging Sources of Law

Includes Indigenous law/aboriginal law
Non-domestic laws such as international law
Legal pluralism
Prior to Europeans, indigenous groups had complex and specific laws.
Indigenous laws were influenced by specific tribes, languages, and traditions, which had legal structures similar to complex laws.

Guiding questions, how societies are organized or maintained due to rules and standards.
Common values supporting the government, promoting respect for laws, social order and unity.
Solidarity: agreement amongst people about fundamentals like not killing or harming someone.
Consensus Model: social order from consensus among people.
Pluralistic Model: conflict resolution between different groups in society, using the laws for fair and peaceful dispute resolution.

Two Models of Criminal Justice Process

Crime control model: swift punishment of crime, emphasizes efficiency and social order over individuals' rights.
Due process model: protection of individuals' rights, emphasizing fairness and minimizing errors.

Tort Law

Civil actions for harm or injury to people (e.g., negligence, intentional torts).
Intentional torts: actions that are deliberate and conscious.
Negligence: inadvertent actions where a reasonable person would take better care.
Elements to prove negligence: duty of care, breach of duty, causation and harm.
Contributory negligence: both the person harmed and harm-doer are at fault.
Damages: monetary compensation, including special damages (quantifiable) and general damages (not quantifiable).

Civil Litigation and Trial Process

Steps in civil cases, aiming to settle issues without a trial if possible.
Steps: early stage and pre-trial procedures (statements of claim, motions, discovery) are critical components.
Alternative dispute resolutions (mediation, negotiation) are also considered.
Trial and potential judgment.
Involves the judge or jury hearing evidence to produce a verdict and award damages, if applicable.

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Description

Explore the main sources of law, including customary and common law, and their implications on society. Analyze the historical context of the legal system and how local customs shaped judicial interpretations. This quiz will deepen your understanding of the evolution of law and its socio-cultural influences.