051 - EXAM REVIEW CLN4U PDF

Chapter 1 - Changes in Law What factors (socio-economic) lead to a need for change in law? Explain each and give examples. -Technological -Transportation: more people were traveling to other lands -Multi-national businesses -globilizations -Space exploration -Demographic -Between 1930’s and 200...

Chapter 1 - Changes in Law What factors (socio-economic) lead to a need for change in law? Explain each and give examples. -Technological -Transportation: more people were traveling to other lands -Multi-national businesses -globilizations -Space exploration -Demographic -Between 1930’s and 2000, population tripled -Created more emigration requiring new laws -Changes in values -Genocide in WWII created awareness of the need for laws to protect basic human rights -Punish crimes against humanity -National Emergencies -Laws necessary for when there is a state of national emergency -Masking laws for covid How can individuals change the law? Historical examples? Challenging Laws in Court -In Canada, a very successful method of change has been through the use of the courts -Since the Charter of Rights and freedoms (1982) many people have challenged the ‘old’ law, claiming that certain laws are no longer valid (violate charter) -Courts can declare a law unconstitutional and strike it down (remove the law) -Sue Rodriguez Examples -Prisoners right to vote -Abortion (Security of the person) Change as a Result of Individual Action -Very act of voting allows us to demand change. (but don’t always get it - GST) -People throughout history have also struggled in other ways to change law -Louis Riel - Fought for Metis -Nelson Mandela - Fought for Black rights in South Africa -These are all examples of people putting themselves in harm's way to gain support for a need for change. How can groups change the law? Historical examples? Lobby Groups -A number of people who try to influence legislations on behalf of a cause or interest -Could be national organisations -Canadian association for Chiefs of Police -Fought for national sex offender registry -Also raise public awareness - Tobacco -Sometimes Lobby groups are criticised for bribery Royal Commissions -A board of inquiry appointed by the government to investigate and report on a particular issue -Made up of private citizens and experts -Famous case - HIV/Hepatitis contamination by Red Cross -Led to the creation of Canadian Blood services which took over for Canadian Red Cross Legal Scholarship -The use of scholarly journals and books on particular issues to gain legitimacy for concern -Battered Wife Syndrome -Raised awareness about the effects of spousal abuse -Idea worked its way into court as a defence for murder Political Demonstrations -You have a right to demonstrate your displeasure under s. 2 of the Charter - Freedom of peaceful assembly -Carry signs, read speeches, marches -Also take the form of civil disobedience -Sit-ins, hand-cuffing themselves to trees, etc. -Refusing to obey a particular law as a matter of conscience How has the Canadian Charter of Rights and Freedoms led to many changes in our law? When can our rights be limited? (s. 1) 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. Examples of cases where this happened?  teacher charged with lying about holocaust in classroom - R v Keegstra Know the key terms from the chapter review. Know the people and group names involved in changing the law as indicated above. Chapter 2 - Sources of Law How has religion affected Canadian Law? What else has influenced our laws over the years (Primary sources of law)? Primary Sources of Canadian Law: Those parts of the legal system that have the longest historical development and represent the systems cumulative values, beliefs,and principles Be able to explain customs and conventions and how they contribute to law. Explain the secondary sources of law pyramid. (Why are the different aspects stacked as they are?) Definitions: Parliamentary Supremacy, Case Law, Customs, Conventions Religion -Judeo-Christian heritage -Old Testament -From the Canadian Charter of Rights and Freedoms - “Whereas Canada is formed upon the principles that recognize the supremacy of God and the Rule of God” -Both laws and religion reflect what society as a whole considers good or bad Historical Influences -Ancient Greek Civilization -Democracy, Jury -Roman Civilization -Coded laws (Code of Justinian), lawyers -Aboriginal Influences -Checks and Balances -British Influences -Case/Common Law, Innocent until proven guilty -French Influences -Scholarly Interpretations of Law by Judges Customs and Conventions -Like traditions, customs and conventions can be very powerful -Custom: Long established way of doing something -Convention: Usually political, unwritten rule that is hard to break without oppositions Social and Political Philosophy -Social movements and emerging political philosophies have had huge impacts on Canadian law -Usually created out of historical event -Holocaust: Led to human rights, civil rights legislation Parliamentary Supremacy: The principle that Parliament has the supreme power of making Canadian laws. Judicial Independence: The principle that judges function independently of the government. Chapter 3 - Theories of Law Natural Law What is the difference between natural law and positive law? What are the similarities? -In ancient times, theories of law were grouped into one of two headings:Natural Law or Positive Law -Natural Law: eternal principles that regulate the natural world -God created these unchangeable laws -We can figure them out through reason -Some feel the ultimate, natural goal is survival, some also say happiness -Parents protecting their offspring is an example -It is thought that the better human laws mirror natural law, the better society will function -Mexico/Germany - Attempting to escape prison not a crime -Positive Law: Law are created by the heads of states, and citizens are responsible to obey them for the good of the state -E.g. Traffic laws to keep traffic running smooth, efficiently, and safe. -For positive law theorists, Justice is achieved through obedience of the law How would both natural law theorists and positive law theorists feel about vaccination mandates? Modern Ideas (Feminist Legal Views, Marxism) Legal Realism Examines law in a realistic manner rather than a theoretical one. The belief that law is determined by what actually happens in the courts as judges apply and interpret the law. Feminist Legal Views Feminist Jurisprudence: the theory that law is an instrument of oppression by men against women. Marxism: An economic and political theory that states that law is an instrument of oppression and control that the ruling class uses against the working class. Know the different philosophers/philosophies relating to law. Natural Law Plato -Thought that humans were social by nature -We create society to develop the “good life” -Believed that justice is when the individual and society work in harmony -An individual is “Just” when all of their powers (physical, mental, and spiritual) are working in harmony for the good of the person -Person uses reason to determine this balance -State achieves justice when all the classes work together in harmony and do not interfere with the other classes -Human laws must be based on knowledge of the natural laws -Do good and avoid evil -Education was key – if people knew good, they would do good Aristotle -Felt law had a moral purpose Thought there were three types of people: -Born good -Good through education -Ruled by passion -Only law could make these people act morally St Thomas Aquinas -4 kinds of law: -Eternal law: laws by which god created the universe -Natural law: Can be known by humans through reason -Divine positive law: law that has been revealed to us in the scriptures -Human Positive Law: Made by humans for the smooth running of the state -People should live on earth in a way that would unite them with God -State is not the ultimate authority, but rather the church is since it is in charge of the Spiritual needs -State must be subordinate to the church -People are under no obligation to follow an unjust law -Laws are just if… -The law is a product of human reason (i.e. based on natural law) -It is made for the common good -It is made by the ruler, who must have the care of the community at heart -It is published so that everyone knows it Positive Law Thomas Hobbes 1588-1679 -Natural state of humans was perpetual war ( disproves natural law) -People constantly trying to strengthen their position -We agree to surrender rights to leaders (government) to rule and maintain order through positive laws -We give up rights for security John Locke 1632-1704 -Didn’t think people were Bad, but felt that we were selfish -People had natural rights -Life, Liberty, and property -(So, in a sense, Locke has some elements of natural law in his thoughts too) -Purpose of the state was to protect these rights -If they did not, people had a right to rebel -Led to American Declaration of independence Jeremy Bentham 1748-1832 -It is human nature to try and achieve the maximum amount of pleasure and happiness -Law was good if it made society as a whole happier -Utilitarianism: The greatest happiness for the greatest number John Austin 1790-1859 -Law had nothing to do with morals because religious or moral codes were subjective -Good legal system relied on good government making beneficial laws -Laws must be obeyed -Obedience encouraged by positive and negative reinforcements Natural Law / Positive Law natural state of humans? Need for law? Laws limitation/challenges What is the concept of Restraint of Power? How do we see this taken care of in Canada? a country will have the best laws, and justice will be achieved, only when there is an independent body or branch of government that can challenge, review, and limit the laws made by the ruling power. What does Judicial Independence mean? Judicial Independence: The principle that judges function independently of the government. What does Parliamentary Supremacy mean? Parliamentary Supremacy: The principle that Parliament has the supreme power of making Canadian laws. Chapter 6 - Human Rights in Canada (only 167 to 180) What laws (documents) are in place in Canada to make sure that human rights are followed? -Four mechanisms -The charter -The Canadian Human Rights Act -Provincial Human Rights legislation -Human Rights Commission -The Charter protects us from discrimination coming from our parliament and legislatures (laws for example) - Section 15 -The Canadian Human Rights Act protects us from discrimination coming from federal agencies (The Armed Forces, the CBC, for example) -Bill C-16 - adds gender identity and gender expression to the list of prohibited grounds from discrimination -Also adds to criminal code (hate crimes) -Provincial Human Rights legislation protect us from discrimination in the Private sectors (at work, at a place of business, a restaurant, plus any provincial government area) Has Canada violated human rights in the past? What are human rights commissions and tribunals? Human Rights Commission And Tribunals -Commissions hear complaints about human rights violations -Exist at federal and provincial levels (depending on the circumstances, which law is violated) -If parties cannot solve their differences, can be elevated to Human Rights Tribunals -Commissions are like police, Tribunals are like the courts -Unlike criminal courts, does not have to be proven beyond a reasonable doubt -Can be appealed all the way to the Supreme Court Know the different fact sheets we looked at that outlined the different forms of discrimination Chapter 7 - Majority and Minority Rights What is the background of the French-English Conflict? What was the Quiet Revolution? How did the creation of the Constitution Act of 1982 How did it “stab Quebec in the Back”? What is Bill 101? How was its creation and use justified? Bill 101 -The Charter of the French Language -Laws to ensure the survival of the French Language -All companies (over 50 people) had to conduct business in French -English could not be used on commercial or road signs -Passed with use of the Notwithstanding Clause (pg 142) and upheld in Ford v Quebec (pg 196) Explain what happened in the two referendums The Quebec Referendum, 1980 -Rene Levesque, and his provincial government wanted increased sovereignty -Wanted exclusive power to make laws, levy taxes, and establish relations abroad -Wanted to keep economic association with Canada (same currency, for example) -Date for referendum set for May 20, 1980 -Federal government pushed to have people vote no/non on the issue -See the question posted to Quebeckers on p199 -Over 80% of Quebeckers came out of the referendum -Almost 60% voted non -Stunning defeat of the separatists -Less than 2 years later, the federal government passed the Constitution Act of 1982 without Quebec’s consent Another Referendum -1995, new leader, Jacques Parizeau -Issue now about separation, not just sovereignty -Separatists now armed with the betrayal of the Constitution Act of 1982 -Federalists worked hard to point out the economic costs of separation - no common currency, no Canadians passports, among others -Natives in Quebec were concerned about the uncertainty of their status -October 30th 1995, over 90% of voters came out. Separatists lost 49.4% to 50.6% What was the Clarity Act? Clarity Act -Put forth by liberal federalists in 1999 -Clarified the procedure and rules should a province want to separate from Canada -Dealt with “clear majority”, “clear question” -Quebec NOT happy with the act as it took the decision out of their hands -Key points: -Giving the House of Commons the power to decide whether a proposed referendum question was considered clear prior to the public vote -Giving house of commons the power to determine whether or not a clear majority has expressed itself in any referendum -Stating that all provinces and the First Nations were to be part of the negotiations What treaties have governed Aboriginal-European relations in Canada over the years? Royal Proclamation of 1763 -After Britain defeated New France, King George III issued a Royal Proclamation -Entitled to lands in their possession until they gave or traded them away -No one could purchase or settle on aboriginal land except the crown -Referenced in the Charter (s25) -Part of our constitution Indian Act, 1876 -Aboriginals not included in the formulation of the act -Did not recognize Aboriginal self-government -Appointed non-Aboriginal agents to oversee the native lands -Gave federal government complete control over health care, social services, and education -Aboriginals not allowed to manufacture or possess alcohol (fought and repealed in 1970) The White Paper, 1969 -Aboriginal people were always expected to assimilate into euro-Canadian culture -The White Paper proposed to repeal the Indian Act -Amend the constitution to disallow distinction between Aboriginal people and other Canadians -”Treat Aboriginals as individuals, not communities” -Aboriginals would lose their status and land claims -Aboriginal leaders opposed this case -Did not want assimilation -White Paper was abandoned in 1971 under huge opposition What are the different types of land claims? Two Types of Land Claims -Specific land claims: deal with specific grievances that the Aboriginal people have regarding the fulfillment of treaties -Government didn't uphold their responsibilities -Comprehensive Land Claims: claims based on the fact that there is still (and always has been) Aboriginal title of land -Land was never given up by Aboriginals How have other rights (fishing, for example) been protected in Canadian Case law? Know the Cases: R. v. Marshall, R. v. Drybones, Calder et al. v. B.C. attorney general, Corbiere v. Canada, McIvor v. Canada, R. v. Sparrow. Why are these significant? 046d - Answers - Native Cases What happened at Oka? What is Affirmative Action and what are some problems with it? Affirmative Action Chapter 16 - Principles of International Law What is state sovereignty and how does it affect international law? Does it help or hurt? -State sovereignty is the right for a country to apply its own laws and govern itself -Is Canada a Sovereign state? -International law helps guarantee state sovereignty, but also acts as a threat to it. Why do countries agree to international laws? -Function is to govern relationships between nations -Smoothes and regulates agreements and disagreements between nations -Includes Substantive and Procedural laws -Original form was to create borders. Where did states land begin and end How does international law differ from domestic law? How is it the same? What are treaties? How are they formed (steps involved) Stage 1 of 4: Negotiations -Rules based on the United Nations standards for negotiations (developed in 1969 and 1986) -Negotiations must be fully compatible with the principles and norms of international law -Invalid if they are procured using the threat of force Stage 2: Signing, Ratifying and Reservations -Successful negotiations produce a mutually agreed text -Agreement signed by both parties -Treaties are Ratified once they are reviewed and accepted by the governments and the countries (Cabinet in Canada) -Countries governments can add reservations (modifications of the country’s obligations -Can be rejected by other parties/countries Stage 3: Implementation -Countries then take steps to make the treaty’s terms part of domestic law -Can involve new laws -Problems occur in Canada when the proposed treaties are subject to provincial jurisdiction (s. 92) -Kyoto Stage 4: Dispute Resolution -Disputes usually occur (interpretations of the treaty) -Most treaties include a dispute resolution provision to outline how these disputes will be settled -e.g. International Court of Justice Explain the major concepts and general principles of International Law? Examples: extradition, customary law, diplomatic immunity and general principles, treaties and customs. Customary International Law -As we learned, international law can come from treaties, or agreements -A second recognized source of International Law comes from the customary practice of states -Long tradition of behaviors make up customary international law. -Recognized by the United Nations to be legally binding Diplomatic Immunity -Diplomats are protected from physical harm, and not subject to arrest or detention -Embassies are protected from entry of agents of the hosting country Extradition - Returning a person to a place where they are charged with a crime for a trial in that place Identify some global issues that may be governed by international law? Examples (again, a few): human rights, jurisdictional disputes, refugees and asylum, collective security, trade agreements.? Chapter 17 - International Organizations What was the League of Nations? How is it similar/different from the United Nations? Why did it fail? League of Nations -Set up after WWI -To prevent war (discussion instead of war), and maintain world peace -States in the League would come to the aid of any other member that was attacked -Did not include the US -Gave us the International Court of Justice, and the International Labour Organization Why did it Fail? -Countries were not willing to give up state sovereignty -No armed forces -No U.S (world power -Some countries (Germany and Russia) not allowed to join -Obligations too much to bare for some members (Great Depression) Can you explain the role and jurisdiction of the agencies responsible for defining, regulating and enforcing international laws? Examples: UN, war crimes tribunals, ICJ - How do they work? ICJ Background -Main Judicial organ of the United Nations -Composed of 15 judges (9 year term) -Intent is to represent the legal systems of the world -Sits at the Peace Palace in The Hague, Netherlands -The UN Charter states that any party who fails to preform the obligations of the courts judgment will be subject to recourse of the Security Council Two Roles of the ICJ 1.​ Settles the legal disputes submitted to it by states that have agreed to its jurisdiction 2.​ Gives advisory opinions on legal questions referred to it by international organs and agencies What do they Hear? -Disputes between COUNTRIES (states) -Territorial sovereignty, treaty disputes, etc. -Advisory opinions on human rights, UN membership, nuclear weapons, for example -Both parties must give consent to the court -Most treaties contain a dispute resolution clause that gives authority to the ICJ Canada's Involvement -Over the years, Canada has used the ICJ to decide its disputes -Serbia and Montenegro v. Canada -Legality of Use of Force (1999) -Spain v. Canada -Fisheries Jurisdiction Case (1995 - 1998) -Created an international boundary off the coast of Canada and the USA (1981 - 1984) Problems / Criticisms -Requires consent by both parties -One reason why so few cases have been heard -Can not involve organizations, only states -Permanent members of the Security Council can veto any enforcement measures -U.S.A, Russia, China, France, U.K. What are problems that the U.N. Faces? What would a world government look like? How is this different from the UN? What would be its challenges? Could it work? Chapter 18 - International Law and Common Heritage What are some of the modern Territorial Issues in International Law? Can you explain the purpose of international jurisdictional and boundary treaties? Examples: UN Conventions on the Laws of the Sea, Outer Space Treaty. Chapter 19 - Military Conflict and Conflict Resolution What are the peaceful ways to avoid war? Military Conflict and Conflict Resolution - Note What is the International framework for conflict resolution? When is the use of force Justified? (Just War) Legitimate Use of Force Under Modern Law -While waging war is unacceptable under the UN charter, there are some exceptions -Security Council Authorization -Self-defense -Defending people or territory Authorization From the Security Council -UN security council can recommend the use of force -To put an end to unjust hostilities -eg. Korean war - North attacked South, war allowed to assist South -Problems arise because of Permanent 5 members (West vs. East) Self-Defence -Difficult to define -Attempts made to define in a number of UN declarations -Definition of Aggression (1974) -Also can be seen in International Court of Justice Decisions -Nicaragua v. USA -Supplying Rebels does not justify “collective self-defence” Acceptable Limits -Israel attacking Nuclear reactor inside Iraq in 1981 (Not acceptable) -Israel attacking Egypt in 1967 - Acceptable because the threat was imminent -When is Pre-emptive acceptable? -What is an “imminent threat” -U.S. Invading Iraq -Not imminent threat -Not Authorised -Reasons that Canada did not go How does deterrence theory work to avoid war? Is this a good strategy? Deterrence Theory Country X won't attack country Y because country it will retaliate with nuclear weapons -Worked during cold war -Dangerously risky mind game -Ethnocentrism - Calculations of loss -Miscommunication