ENH 121 Midterm #1 PDF

UNIT #1 The concepts of Law - Law is a system of rules that is used to regulate the actions of its members - It is used a form of social control - Law is mainly characterised - Equality, which ensures that law strives to apply equally to all individuals - Neutrality, w...

UNIT #1 The concepts of Law - Law is a system of rules that is used to regulate the actions of its members - It is used a form of social control - Law is mainly characterised - Equality, which ensures that law strives to apply equally to all individuals - Neutrality, which aims to be impartial and objective in its application - Force, which proves that the law has the power to enforce its rules through sanctions and penalties - Focusing on the idea of justice thru weighing evidence on equality, all cases must be treated equally - Flexibility, law must accommodate to the nature of life Content of law - The constitution and constitutional customary practices are the primary element of law as it is the foundational principles and conventions that shape the canadian legal system - Statues (acts) are laws enacted by legislatures, which represent codified rules and regulations governing various aspects of society - **acts are specific to a law passed by legislators, while statutes refer to laws that are formally enacted and include other legislative provisions (alot more general) - Regulations, which are made under the authority of statues, provide more detailed rules and procedures coming from more general statues, almost acting like a guideline - Municipal by laws, which are made under provincial statutes, are laws specific to particular muncipality and creates a framework of provincial legislation - Court decisions, establish legal precedent and interpretations of existing laws, shaping the application of legal principles over time - **precdents are legal decisions that were made in the past that courts use as a reference guide to handle present/future court cases that were in similar nature - Administrative board and tribunal decisions are quasi judicial bodies making rulings with their expertise in specific area - **quasi judicial refers to a legal process that is conducted by executive official like a court proceeding, they provide their opinions and rulings and courts may review their decision based on quasi judicial proceedings to come to a complete conclusion. Quasi is similar to the regulat judicial system, but leaves out some qualities, it often is applied to common or civil law - Legislature pass law Legal system - Made up of three parts Institutions ○ Representatives of the crown: the governor general at the federal level, and the lieutenant governors in each province act as the head of state ○ Legislatures: the parliament of Canada and provincial/territorial legislatures who make the laws and debate public policy  ○ The executive: prime minister and the cabinet represent the federal government, while premiers and and provincial cabinets represent the provincial government, whom implement and enforce laws ○ The courts: interpret and apply the law, ensuring fairness in legal proceedings ○ Administrative boards and tribunals: specialized bodies that resolve specific types of disputes and make decisions within their area of expertise ○ Separation of powers is crucial to the legal system, distinct bodies may introduce laws, others may pass the laws, and others will interpret the law Legal processes ○ Enacting legislation: creating and passing new laws ○ Passing regulations and by laws: executive bodies and municipalities establish rules and procedures based on existing statutes **by laws are rules/regulations created by local governments for specific matters within areas of authority ○ Prosection: processes which the state takes legal action against those violating criminal laws ○ Bringing lawsuits: process where individuals take legal action against others to seek for remedies/damages for harm or breach of contract ○ Issuing orders and directions: the power courts have to impose legal requirements on individuals ○ Deciding cases at trial and on appeal: courts hear evidence, apply law for legal disputes that could be appealed to the higher courts ○ Making administrative decisions: process by which admin boards and tribunals settle a dispute The members ○ People who influence the the legal system ○ Citizens ○ Executive branches – government officials enforcing laws ○ Lobby groups – organisations that advocate for specific interests and influence legislation ○ politicians/legislature – elected individuals for enacting laws ○ courts /judges – bodies and officials who interpret and apply the law ○ tribunals/boards – quasi judicial bodies ○ Lawyers Key ideas within the Canadian Legal System Rule of Law ○ All individuals and entities are subject to the law, even those in positions of power Constitutional monarchy ○ The monarch serves as the head of state, which is represented through the governor general at the federal level; lieutenant governors in the provinces Parliamentary supremacy ○ The legislative branch holds ultimate power to create laws, but has been relaxed through the charter of rights and freedoms Independent judiciary ○ The judiciary operates independently of the legislative and executive branches, giving impartial interpretation and application of the law Separation of powers  ○ Power is distributed among the legislative, executive and judicial branches to prevent any one branch from becoming too powerful Division of powers ○ Power is divided between the federal government and provincial governments, each level of government has jurisdiction over specific areas **the GO train is under provincial jurisdiction, VIA rail is under federal jurisdiction Bijuralism ○ Common law which is used in the rest of Canada, which is based on precedent and judicial decisions, and civil law which is used in quebec, based on codified legal principles Charter of rights and freedoms ○ The charter ensures fundamental rights and freedoms to individuals, which limits the power of the government and taking precedence over legislation, except when the ‘notwithstanding clause’ is invoked **the notwithstanding clause refers to section 33 of the charter which allows federal, provincial or territorial government to temporarily override certain rights and freedoms ○ The charter protects people from the government, the ontario human rights code protects people from other people Forms of Justice Corrective justice ○ Seeks to rectify an imbalance caused by one party harming another ○ Operates on the idea of taking from the wrongdoer and compensating the victim ○ Foundation for tort law (civil wrongs) and contract law (governs agreements between parties) ○ Correct harm from person to person Distributive justice ○ Focuses on ensuring the fairness to divide and distribute things between parties ○ Dictates any deviation from the established principle can result in unfair distribution **ex. Favourtism in the workplace, manager paying your co worker more than you despite you both working in the same position ○ Partial basis of human rights in terms of ensuring individuals having fair access to all opportunities and resources Retributive justice ○ Concerned with fairness in the administration of punishment for wrongdoing ○ Emphasizes fairness in sentencing, the severity of the punishment should match the gravity of the offence committed ○ Makes the punishment fit the crime Procedural justice ○ Fairness in decision making ○ Unbiased adjudicator who impartially assesses the evidence and applies the law without prejudice  ○ Relies on the rule of natural justice – ensuring fairness and impartiality in legal proceedings **rules of natural justice are principles of fairness that apply to legal and admin decision making processes ○ Principles underpin both criminal and civil legal procedures ○ Encompass to all public bodies to ensure fairness in all processes ○ The basis of law evidence Perspectives of Law Moral perspectives ○ The relationship between law and morality ○ Descriptive – the idea that laws exists focusing on its content, structure, and processes; explains the legal system without making value judgement ○ Prescriptive – the idea of what law SHOULD be, moral values and the evaluation of justness and fairness within the legal system; the understanding that law is not just a neutral set of rules but a reflection of societal values and ethical considerations; its not a science Natural law ○ the ancient theory that humans have an innate idea to recognize that something is good and the law should reflect that idea of goodness ○ suggests that some fundamental rights and principles are inherent to human nature and should be protected by the legal system ○ The basic goods, the idea that there is inherent good in human life Kantianism ○ Developed by philosopher immanuel kant ○ Emphasizes the importance of considering the actions themselves rather than the consequences in determining their moral worth ○ Focuses on universal imperatives – that moral commands that apply to all individuals regardless of context **ex, prohibitions against lying, taking an innocent life, and the principal of treating individuals as ends in themselves rather than merely as means to an end (all individuals have their on dignity to live by as a human, they should not be used a tool to achieve your own objectives without considering their own well being ○ Influenced the modern concept of human rights, focusing on the inherent respect and dignity all individuals have ○ Based on reason not moral sentiments, the action themselves are right or wrong, not the consequences Utilitarianism ○ The opposite idea of kantianism ○ Priortizes the consequences of actions in determining their moral value ○ Maximises overally happiness and well being by choosing actions that produce the greater good for all people ○ Focuses on individual pleasure (hedonism) to a border consideration of happiness and satisfaction ○ Shifting to act utilitarianism, judging the morality of each individual action, shifting to rule utilitarianism, focusing on establishing rules that lead to positive outcomes  ○ Used in policy consideration to ensure ‘the greatest good is being done for the greatest number of people’ **kantianism focuses on individuals while utilitarianism focuses on the greater good for society, one can argue through utilitarianism that lying is okay so long as it is saving someones life ○ Consider consequences for the greater good Cost benefit analysis ○ Found in policy making ○ Practical application of utilitarian principles ○ Identifying consequences of different policy options, assessing cost and benefit, quantifying the greatest net benefit ○ It can lead to conflict with other moral prespectives, like kantianism as certain actions are viewed as inherently wrong regardless of the potential benefit ○ Aiming for the greatest net gain The Economic Perspective ○ The views of law through efficiency and resource allocation, aligning with utilitarian principles ○ Classic liberalism – emphasizing the interconnectedness of individual freedom in the marketplace and freedom under the law ○ Aruges that people should have the liberty to pursue their economic interest with minimal government intervention ○ Contends that markets, individual preference, bargaining and trade are more efficient in planning resources and maximizing overall well being ○ Relies on the idea of the hidden hand, which suggest that self interested actions of individuals in a free market can unintentionally lead to outcomes that benefit society as a whole — the primary role is to ensure markets can function effectively ○ Some issues that arise are market imperfections, pre existing inequities (economic disparities and social injustices), conflicts with other moral perspectives ○ there is a knowledge problem, referencing that individuals will have their own self interest that they are using for motivation ○ there should be mobility, avoid monopoly, there should be a knowledge of what the people want Political Perspective ○ Focuses on how law is shaped by power dynamics, interest groups, and political proceses ○ Public choice theory: applies economic principles to the analysis of political decision making; it views legislation and policy as outcomes of bargaining and negotiation among competing interest groups the idea that ideas are bargained to get the best option people have preferences for law, people with like interest can push their agenda on law decisions ○ Suggest that individuals are primarily motivated by self interest regardless of their roles  ○ A collection of individual preferences and competing interests; argues that legislation often reflects compromises and deals between groups, often at the expense of others ○ Conflict between legislatures; tensions arises when elected legislature is struck down by a court for violating individual rights or exceeding the government's constitutional authority The scientific perspective ○ Science policy disputes, arising when scientific evidence is insufficient to definitively resolve a policy question Purely factuly Purely policy Trans scientific Data incompleteness Interpretation Inferential – disagreements about the inferences of conclusions UNIT #2 Legal System At the foundation of legal system is the constitution which contains the rules about how other legal rules are created Separated into three branches ○ Executive Prime minster → cabinet Implement law and introduce bills ○ Legislative Senate → house of commons Provincial, pass bills and becomes a law ○ Judicial Courts Interpret and apply the law In Canada, the executive and legislative branch work closely together, canadians do not vote separately for prime minster The separation of power ensures that one branch of the government do not exercise too much power and creates balance of power and accountability Sources of Law Common law: Legal rules established by judges in court cases ○ They involve precedent (using previous court decisions that serve as an example to make a decision about a similar case) ○ Stare decisis (the principle that precedent set by a higher court binds lower courts in the judicial hierarchy) he understanding of an hierarchy, the decision that the higher courts will fall down to lower courts, lower courts cannot make or change laws passed down from higher courts ○ Occurs in the courts, based on how judges have interpreted cases from the past and how they handle in the future ○ Makes sure laws are applied the same way  ○ Statutory law: laws created by legislaure or parliament Legal rules found in acts and regulations An exception is Quebec, who follow the civil code; Canada is a bijural Categories of Law Common Law Consists of the decision of judges in cases brought before them in court Written decision in case reporting series are referred to subsequent cases as precedent Flexible and changes gradually over time Falls under provincial jurisdiction Main categories are tort law, contract law → private law Concerned with lawsuits ○ **ex. PH examples ○ Plaintiff sues defendent from negligently giving plaintiff disease ○ Neighbour sues neighbour because the defendant is causing a nuisance ○ **, OHS lawsuit ○ Injured worked sues the employer from negligently allowing an accident to harm worker Judges helps interpret, the law is not black and white, judges will interpret the spirit of the law and apply their own judgement of the law to come to a conclusion Statutory law Created by legislatures, with regulations made by the cabinet under the authority delegated by an act Statues: law or act that expresses the will of a legislature or parliament Statutory: governed or introduced by statues law Statutory duty: a duty imposed, by statute Acts and regulations are in the form of statutory law Concerned with public law (criminal and regulatory law) but not always Can deal with private law as will by codifying common law Private Law Concerned with disputes between individuals or entities without public interest Law relating to people Common law = private law Law of contract = rules are agreed to by the parties to the contract Law of torts = where the rules about to harms to other are covered Standard of proof is the level of certainty required to convince a judge ○ In private law cases, it only required 51%, in criminal law it must be 99% ‘proof beyond reasonable doubt’ Public Law Relationship between individuals and the state, or between states and the structure of government Constitutional law, criminal law, administrative law, and international law Found in statutory law Dealing with relations between individuals and the state, or the state and the organization of government Criminal Law Defines acts as crime and prescribes punishments  Crime – act forbidden by law, punishable by penal sanctions, and directed against evil or undesirable effect on the public True crime typical involves an element of mens rea (the guilty mind, the intention of risk) Federal government has jurisdiction over this Provincial offences are not true crimes, so they do not require mens rea The purpose of penalty in criminal cases is punishment, we want to deter companies from doing bad things but we want to punish individuals who cause harm Purpose of punishment in criminal law is primarily retribution rather than deterrence ○ **deterence aims to discourage individuals from engaging in unlawful behaviour, retribution focuses on punishing individuals who commit wrongdoings ○ Examples in PH ○ Knowingly having sex while being HIV+, tampering with food products ○ Examples in OHS ○ Ordering a worker to work on an elevated area without fall protection Regulatory Law (Quasi Criminal Law ) Provincial and federal laws of a regulatory nature are not criminal law, but are quasi criminal Regulatory law often states ‘you shall_____’, quasi criminals are held to the criminal law standard but we do not need to prove mens rea We need to prove that they did something, but we dont need to prove their intention Mens rea is not required, but the judge must still be convinced beyond a reasonable doubt that the accused committed the prohibited act The crown prosecutes cases and imprisoned is possible penalty, but a convicted person does not receive a criminal record Focuses on deterrence rather than retribution ○ Its not about evil intent - its about deterrence, we are imposing enough penalty to stop them from committing that crime again Occupational Health and Safety Act, the Health Protection Administrative Law Deals with establishing administrative systems, often involving boards or tribunals that make decisions in certain areas These decision makers are considered quasi judicial Appealing decisions made by administrative decision makers to the courts is called seeking judicial review Sometimes those decisions cannot be reviewed, the boards decision is final and cannot be disputed in court Public Welfare Offences Offences under regulatory statues are considered public welfare offences rather than criminal offences Public welfare statues are interpreted broadly to support the Act’s purpose, while criminal statues are interpreted strictly in favour of the defendant Legal Concepts Deterrence is the idea of encouraging people to avoid in specific substandard conduct Super important in regulatory law  ○ It has deterrence as the primary purpose of the penalty, the penalty must be sufficient to make people take their duties seriously in the future Two types of deterrence ○ Specific deterrence – a fine/ticket, you change your ways ○ General deterrence – you someone get a ticker, you change your ways Command and control vs Enabling Command and control law making using prohibitory approach ○ **ex, don’t do X Enabling lawmaking uses law to establish entities, enhance communication and provide procedural rules, create rights, and clarify responsibilities and authority Procedural vs. Performance Procedural – detailed and technical rules that specify how to do something ○ More common in regulations than in acts ○ Easier to enforce as they are clear and specific ○ More loopholes Performance – sets broad standard that must be met, but leaves the method of achieving those standards up to the individual ○ Performance rules most common in Acts rather than regulations ○ Very flexible and covers things that are new ○ Requires more work to justify the opinion ○ Do something, doesnt matter how you meet it ○ General in nature Jurisdiction The authority of an entity to act within a specific thing Subject jurisdiction – division of authority between federal and provincial government based on the constitution (highway vs local road rules) ○ Matter of convenience Statutory Law Found in statutes, in acts and regulations Law is found in the cases – the caselaw ○ Caselaw can help interpretation of statutes and statutes, can also amend caselaw by changing precedent ○ A status can also completely replace an area of common law ○ **regulation is not a statute, it is within statutory law Statues amend precedence Can replace an area of common law Acts Passed by legislatures and introduced as bills Broad in scope, details are provided in regulations Can only be changed or repealed by another Act ○ Change takes a very long time Intended to remain in effect for a long Flexibility of an act is in the regulation that can be made under the act, not the act itself Can codify an area of the common law and constitute a new area of regulatory law Act can only be changed be another act Act can be removed, modified, create a regulatory regime, and codify area of common law Regulations Passed by the cabinet More detailed and technical than acts, focusing on the procedural aspects Need a parent act for authority and cannot exceed the acts scope Can be changed quickly compared to Acts If an act and regulation are in conflict, than the act takes priority Guidelines Detailed instructions that are not law on their own, but can be incorporated into acts or regulations Can be relevant in determining reasonable or due diligence Issued by an authoritative body Used on their own if it is reasonable to determine due diligence They can be adopted as long as they are used/referred to in the act or regulation Parts of an act Preamble – defines the purpose of the act Purpose clauses – the intent when they were passing the act Parts of a section # → section ○ (#) → subsection (a) → clause (i) → subclause Some sections do not have subsections Some sections may have no subsections but multiple clauses Statutory Interpretation Disagreements about the meaning of statues are inevitable Rules of statutory interpretation exist to resolve disputes, the main goal being to determine the intention of the legislature ○ The intention of legislature is found by ○ Considering the entire act, not just isolated sections ○ Using ordinary word meanings unless specific definitions are provided ○ Examining the preamble, purpose section and overall act This is not subjective, some interpretations are objectively better than others ○ There are rules of interpretation – the law should be written in a way where interpretation should be similar Presumptions in statutory interpretation Criminal statues are interpreted strictly in favour of the accused Public welfare statues are interpreted liberally to support the acts purpose Statues are presumed not to alter common law unless explicitly stated Criminal offences are presumed to include mens rea unlike regulatory acts Legislatures are presumed not create retroactive offences, making previously legal actions illegal Presumption against removing the courts jurisdiction (privative clause) At common law, the crown is immune from lawsuits in tort, and statues do not bind the crown unless explicitly stated Every word in statute is assumed to have meaning (presumption against surplusage) In case of conflict between statutes, the more specific act takes priority over the more general one  This also applies to conflicting acts of equal specificity, the more recent statute takes precedence Generalia specialibus non derogant – the statutet that is more specific will be applied Leges posteriores priores contrarias abrogant – Conflicting statues that are equal, the more recent statutes takes precedent Categories of statutes are Constitutional, criminal, regulatory and adminsitrative, and statues that amend the common law Law reform 1) identifying the problem ○ A problem arises, potentially due to changing social norms, new tech and new discoveries that current laws are inadequate to address ○ Debate and controversy ensue regarding the problems extent and severity, often involving media, interest groups and political parties 2) drafting and readings of the bill ○ Civil servants, direct by a minister, draft a bill ○ The bill is introduced in the legislature and undergoes three readings ○ Following the second reading, committee hearings and public discussion may occur which could lead to potential amendments 3) enactment and coming into force ○ If passed, the bill receives royal assent from the crowns representative ○ A new law is published ○ The act may not come into force immediately ○ Enactment – the complect of the process which a bill becomes an act ○ Commencement – when the act actually comes into force Commencement ○ An act comes into force on the date of the royal assent unless specified ○ Commence on a specific date stated in the act ○ Can also commence on a date to be proclaimed later, determine by a form an authoritative figure Courts and judges Court → a place where justice is administered, a component of judicial system or the court of a specific judge Judge → a person authorized to make a decisions in court, including anyone lawfully presiding over a court Judgement → a courts decision, sentence, or determination on the main issue in a case, including orders Judicial independence → judges have complete freedom to hear and decide cases without interference from any other party Adversarial vs inquisitorial system ○ The canadian system is adversarial, where the judge acts as an impartial observer while parties present their cases, allowing truth to emerge through the clash opposing arguments ○ The inquisitorial system involves the judge actively seeking evidence and investigating the case Courts vs Tribunals ○ Courts have inherent jurisdiction derived from the constitution and common law  ○ Tribunals are created by statutes and possess only the powers granted by those statutes ○ Courts can conduct judicial review of decisions made by quasi-judicial tribunals ○ Court has inherent jurisdiction – they have the authority to hear any matter under any specific court cases ○ Tribunals are more specialized Court system ○ The supreme court of canada is the highest court ○ Used to be appealed to privy council in the UK ○ Appeals come from provincial courts of appeal as well as the federal court of appeal ○ Federal trial court and provincial superior courts and lower courts such as provincial courts and small claims courts UNIT #3 Constitutional law & the canadian system The constitution of canada is the supreme law of canada Rule about rules The most superior type of law Sets out the structure of legal system Determines ‘pedigree’ of a law Establishes legislatures and courts Main features: ○ Federal state – power is divided between national and provincial governments, importantly, provinces have inherent jurisdiction, meaning they are not subordinate entities to the federal government ○ British style constitution – partly unwritten ○ Bijuralism – common law and civil code in quebec ○ Parliamentary supremacy – parliament holds the ultimate law making authority, except in matters concerning the charter of rights and freedoms and jurisdictional disputes ○ Independent judiciary – the courts operate free from undue influence, ensuring impartial interpretation and application of the law ○ Rules of law – everyone is subject to the law, ensuring fairness within the legal system Determine legitimacy of action – if a governing authority make a decision in ensuring a democratic society, are the following the system that we set up The Constitution act of 1982 stands as the supreme law of Canada States ‘the constitution of canada is the supreme law of canada and any law contradicting the constitution is invalid’ The constitute was brought home from canada to the UK Passed the canada act to t Charter of rights and freedoms added to constitution Canada is a federal state ○ There are two levels of government – national and provincial ○ Provincial is not a creature of the national government ○ Provinces have their own inherent jurisdiction  ○ Federal and provincial levels are equal in own spheres, the provinces are not ‘subordinate’ to the federal government ○ Municipal government are creatures of the provincial government Division of powers Constitution divides responsibilities between federal and provincial governments Subject matters are called ‘heads of power’ Federal = criminal law, national defense, currency and banking Provincial = healthcare, education, natural resources, property and civil rights Allocation of Subject matters New subject matters are allocated thru ○ Interpreted as part of sections 91 to 92 Implication in s. 91 or s. 92, determining jurisdiction is for the court to find a new subject within an old subject ○ They are implied (new subjects as implicitly falling within existing heads of power, ie, the internet is a modern concept, which is implicitly an extension of the telegraph that federal power has jurisdiction over ○ They are declared (the constitute allows the federal government to declare certain local works and undertaking as being for the benefit of multiple provinces, bringing matters under federal jurisdiction ○ Or the POGG Clause Federal power over new subject, grants the federal government residual power over matters not specifically assigned to the provinces If a subject is big enough in s. 92, the federal government can legislate on it Courts use tests like national dimension and national emergency tests to determine if a subject warrants federal action under the POGG clause The residual/gap branch refers to the areas of legislative power that are not specifically assigned to either the federal or provincial governments in a federal system Residual branch refers to the fact that new or unrecognized matters to the constitution do not default to federal authority, it must be determined whether the matter fits under an existing head of power Gap branch occurs when the constitution recognizes a matter but fails to deal completely with the topic To make law for the Peace, Order, and Good government of Canada in relation to all matters assigned exclusively to the legislature of the provinces Federal power of new subjects any matter which does not come within a provincial head of power must be within the power of the federal Parliament New topic in sec 92 is big enough, the federal legislator can make laws Airports, nuclear power, interprovincial piplies, transport of dangerous goods  If not big enough, than its provincial National dimension test*** If the subject matter of legislation goes beyond provincial concern or interest, it will fall within competence of parliament of the POGG clause ○ It must be: a) Mobile b) Cross provincial or international boundaries c) Matter of common concern across the country or requires treaties between countries - In terms of the national emergency test, there must be two qualifications for the parliament to use their emergency powers a) Rational basis for the legislation b) Legislation must be of a temporary nature Expressed law = black and white Implied law = inferred Conflicts of Jurisdiction Exclusive Jurisdiction ○ When only one level of government has authority over a particular matter ○ Provinces have exclusive jurisdiction over public hospitals Criminal law falls under exclusive federal jurisdiction Shared jurisdiction certain subjects are broad enough to fall under both federal and provincial authority The environment, agriculture, immigration, health care Paramountcy doctorine ○ The doctrine resolves conflicts that arise when federal and provincial laws clash on a matter of shared jurisdiction In these cases, federal law prevails ○ Some matters are big and are shared between both levels of government ○ If there is a conflict between the federal and provincial laws, the federal law takes priority Provincial municipal conflict ○ If provincial law and a municipal bylaw directly conflict, the provincial law takes precedence Municipalities are creations of provincial governments and derive their lawmaking power from the province The territories are not constitutional provinces ○ Law making delegates to them by the federal government, the territories are creatures of the federal government ○ If there is a conflict, federal law takes precedence Judicial review ○ Process involves appealing an issue to a court to determine if a law or government action is within the appropriate jurisdiction ○ Grounds for challenging a statute ○ Grounds for challenging actions of government agents  Ultra vires → beyond powers, something is done out of legal authority (not within jurisdiction) Intra vires → within powers, actions or decisions that are within the legal authority (within jurisdiction) Statues is not within its proper jurisdiction, you can challenge for a judicial review Statute is violating charter of rights and freedomes Federal heads of power ○ Applies to things such as postal service, census, statistics, navigation and shipping, banks, interests, bankruptcy, copyrights, marriage and divorce, criminal law ○ The federal government has misused power in the past Third Schedule ○ Public resources, used for the canadian advantages ○ Things such as canals, public harbours, rivers, railways The spending power ○ A way for federal government to influence areas that are typically under provincial jurisdiction ○ A form of constitutional cheating ○ The federal government may not have jurisdiction over certain things, but by attaching conditions to money transferred to the provinces it can exert control over these matters OHS is not a shared subject matter, workplace is either federal or provincial OHS compensation is always provincial jurisdiction, prevention can be either federal or provincial jurisdiction Provincial Powers Responsibility allocated to provincial governments within Canada’s federal system Outlined in section 92 Responsible for things such as hospitals, local works, municipal, property and civil rights In PH, implement programs related to diseases prevention In OHS, all depends on federal or provincial regulations, especially over contracts to set a standard Cooperation between federal and provincial powers Application of provincial laws to federal enclaves ○ Provincial environmental laws apply to activities within federal areas ○ Is limited if it interferes with core functions of the federal undertaking Application of provincial laws to workers on federal land ○ When a company typically regulated by provincial laws works on federal land ○ Remains under provincial jurisdiction for matters like occupational health and safety Role of the crown ○ The presence of the provincial crown trumps the usual division of powers ○ If the federal crown agency is doing work, that would normally be provincial, if the federal crown is involved, switches the workplace from provincial to federal jurisdiction Interlocking federal provincial regimes ○ Many regulatory areas involve both federal and provincial laws working in tandem Constitutional Law and Change Rules abt rules is the most superior form of law Pedigree of law is figuring out whichever law it gets its authority from Constitutional law is the root Acts get mended by other acts and is tedious Division of power – avoid getting alot of power to one branch or another House of common and senate approval and ⅔ of the population to confirm Case law it is still being interpreted Canada federal state Creature = their entity created from something Both levels are not always equal Provinces are not subordinates to our governments Municipal is a creature of the provincial level – powers are granted to them by the provincial level UNIT #4 Charter History Prior to 1982, it was referred to as the legislative supremacy, courts could only invalidate statutes if they were ultra vires (beyond jurisdiction of the government) Canadians had common law rights and some statutory human rights, but there was no tradtion of having charter or bills of rights In 1982, pierre trudeau patriated at the constitution and appended the charter of rights and freedoms to it After 1982, courts could also invalidate statue if it violates the principles of the charter Increased the power of unelected judges, giving them authority to invalidate laws that violate its principles, the supremacy of parliament was weaked The ‘notwithstanding clause’ in the charter allows parliament supremacy; it preserves parliamentary supremacy, however is politically difficult to invoke The parliament is related to utilitarian views, while the charter is related to kantian views as a single individual cannot be sacrificed solely for the benefit of others, The government is utilitarian, the charter is kantian Section 1 States that the rights and freedoms in the charter are guaranteed, but subject to reasonable limits that can be justified in a free and democratic society ○ Rights are not absolute and can be infringed upon by the government of the infringement meets the criteria outlined in the oakes test The Onus (burden) is on the government to prove that an infringement is reasonable The Oakes test is a legal test used to determine whether an infringement of a charter right is justified; the government must: ○ Have a serious and pressing legislative goal – they must show that the infringement addresses a problem significant enough to warrant limiting a right or freedom ○ Show proportionality – the infringement must genuinely aim to achieve the stated goal and not be used for ulterior motives; it must be the most least intrusive but effect way to solve the problem; the negative consequences of the infringement must not outweigh the benefits of the achieving the legislative goal ○ There has to be a problem that actually infringes the law  ○ There should be no excuse to just infringe, it simply infringes one thing with no other intentions behind it ○ Deleterious effects – the harmful effect on an individual should not be too severe Application of the charter The charter applies to government at all levels and constrains the lash of power of state Does not apply to private sectors, victims within a private matters must seek resources through a humans rights act In terms of enforcement, the charter can be used as a sword to seek redress for victims violation of their rights Can also be used a shield to defend against government actions Legal and Equality Rights ○ Legal rights pertain to ones life, and personal being ○ Things like protection against unreasonable search and seizure, arbitrary detention, creual and treatment, etc ○ Equality rights refer to equality to all without discrimination Application of charter ‘the notwithstanding clause’ Allows parliament to override specific charter rights There is a 5 year limitation, the government must publicly declare it is infringing a right or a freedom If they continue the infringement, they must restate publicly that it is infringing a right or freedom PART II Disability means any ○ Physical disability ○ Infirmity ○ Malformation or disgurement That is cause from ○ Bodily injury ○ Birth defected ○ Illness Those under the disability act have the right of a person is not infringed for the reason only that the person is incapable of performing or fulfilling that essential duties or requirements attending the exercise of the right because of disability Accommodation ○ Focusing on situations where a person is denied a right under the code solely because of disability ○ A tribunal or court cannot find a person incapable of exercising a right due to disability unless accommodation would cause undue hardship Undue hardship means burden imposed would be challenging (i.e making a disabled person complete a task that is extremely difficult causing undue hardship Equal means subject to all requirement qualifications and considerations that are not a prohibited ground Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to known to be unwelcome  Constructive discrimination highlights that equality goes beyond treating everyone the same and recognizing that systemic barriers and seemingly neutral practices can perpetuate disadvantage for certain groups Determining if undue hardship whether there would be undue hardship, courts or tribunals consider any standard prescribed by the regulations PART III The commission comprises members appointed by the lieutenant governor in council, they must have knowledge, experience or training with respect to human rights law and issues States the importance of reflecting ontarios population The commission helps: ○ Promote and advance human rights ○ Protecting human rights ○ Identifying and eliminating discriminatory practices ○ Advocating for dignity and equality PART IV The tribunal operates independently from the OHRC In terms of jurisdiction and powers, the tribunal holds the authority to exercise the powers granted to it under the code and determine all matters of fact and law that arise in applications Tribunals being ○ Initiating an application if an individual believes that their rights under legal rights have been violated ○ Orders and remedies if the tribunals determines that a party has indeed infringed upon the rights of another part under legal rights, remedies include Monetary compensation Restitution – aiming to address losses arising from the infringement, encompassing remedies for injury to dignity, feelings etc Compliance orders – tribunals can direct any part involved in the application to take specific actions that deem necessary to promote compliance PART V The acts of officers clarifies the responsibility of corporations, trade unions and other organizations for actions taken by their officers, officials, etc ○ Deemed action – any action by an officer or official during their employment is considered an action or omission by the organisation itself, this meaning the organization is held responsible for the conduct of its personnel ○ Practical implications – individuals who experience discrimination from an employee or agent of a company can see redress from the company itself; it places responsibility on the company to ensure their personnel are trained and aware of their obligations under the code to prevent discriminatory conduct The code binds the crown and all its agencies, government entities are subject to the same human rights obligations are private individuals and organzations, ensuring that human rights protections extend to interactions Primacy of the code shows that the OHRC asserts supremacy over other provincial legislation; if another act or regulation has some violations according go legal rights  of the code, the code will take precedence, however in the OHS Act, which is that act states and regulations prevail any other general or special act UNIT #5 Tort Law The nature of Tort Law Tort law is a significant area of common law concerned with civil wrongs, excluding breach of contract Tort law is very important in common law (private or civil law) Most legal rules and concepts within tort law stem from judicial decisions rather than legislation, but some statutes exist to modify or influence it Concerned primarily with disputes between persons rather than the welfare of society Based on the principle of commutative or corrective justice ○ Person A harms Person B, fairness is based on compensating B by taking from the A to restore the position of B if they harm had not had happened to them ○ Often comes in monetary damages For tort, plaintiff is being put back to where they were before harm For contract, plaintiff is place where they would have been if issue never occurred commutative justice = if there is harm, it must be fixed/compensated Tort vs Contract ○ Both tort and contract law focus on commutative justice ○ Contract focuses on agreements (if one party fails to fulfil their promise, compensation is sought to place the wronged party in the position they would have been had the promise been kept) ○ Both are forms of private law and common law ○ The key difference between tort and contract law is that tort law aims to restore the plaintiff to their pre-harm state, contract law seeks to place the plaintiff where they wouldve been if the contract was fulfilled Tort law involves lawsuits, not prosecutions Plaintiff usually sues the defendant for damages The biggest area of tort law deals with negligence Common fact situations involving tort law Lawsuits are the primary focus of tort law ○ The crown can prosecute under a statute – prosecution ○ Neighbour or stranger can bring a lawsuit The onus of proof is on the plaintiff to establish their case in a lawsuit The standard of proof required is the ‘balance of probabilities’, meaning a 51% certainty that the alleged events occurred ○ Differering from the idea of beyond reasonable doubt, which must be 99% Situations ○ Environmental harm – neighbours have the option to sue if they are being negatively impacted due to the environment ○ Workplace injuries – workers have the option to sue individuals outside the workplace, like a third part manufacturer ○ Public health incidents – food poisoning leading to a lawsuit, PHIs can be personally sued if acting in bad faith Issues of proof include  ○ Pollutants, catastrophic events, proximate harm vs far away harm, harm that is immediate vs harm that occurs long after it has happened ○ Plaintiff may have difficulty suing successfully when the harm could be the result of more than one environmental cause, its easier to sue for an injury then a disease Remedies in Tort In a lawsuit, plaintiffs seek a remedy, which is often through monetary compensation (damages) It aims to restore the plaintiff to the position they would have been in had they defendant not committed the wrong Based on corrective justice Other than damages, there are injunctions ○ Injunctions are common in nuisance lawsuits, the harm is on going and the plaintiff desires that the activity be stopped or modified A prohibitory injunction is a court order instructing the defendant to cease harm activity A mandatory injunction is a court order mandating the defendant to take steps to eliminate or mitigate the harm Plaintiffs can claim for ○ Material and immediate harm to assets ○ Harm to health ○ Use of property ○ Interruption of business processes ○ Harm to plaintiffs business or customers Life cycle of a lawsuit Cause of action ○ Before initiating a lawsuit, plaintiffs must identify as recognized ‘cause of action’ that aligns with their situation ○ More than one cause of action may apply to the given scenario Proceedings ○ Pre trial Platintiff is serving and filing a statement of claim Defendant responds by serving and filing a statement of defence Amended before trial Discovery takes places, involving document exchange and examination for information Pre trial discovery can lead to amendments or settlement attempts Causes of action have to be stated in the statement of claim ○ Trial proceedings The plaintiff presents their case first, calling their witnesses The defence cross examine the plaintiff’s witness Defendant presents their case and call up their witness Law of evidence governs the process The judge may decide in favour of either the plaintiff or the defendant Plaintiff may succeed on one more or causes of action but determining damages is a separate matter Judge awards costs to the winning party  Hearsay evidence – when a witness tries to introduce something that someone else said outside of the court as evidence Not allowed because we cannot examine that form of evidence as it was said out of court/context Judge will decide, can win on one or more causes of action It is separate to what damages are allowed and what % Even if plaintiff wins, what can they be rewarded with ○ Post trial proceedings Losing party can appeal the decision to a higher court Appeals mainly just focus on legal errors Appealing to a admin board or tribunal is different ○ They have a de novo hearing, which hears the evidence that was no before the inspector when they inspector made the order Complications in proceedings ○ Filing a third party claim, another entity contributed to the harm ○ Multiple plaintiffs and/or defendants are involved in lawsuits ○ Pre trial ‘motions’ address issues related to claims, defences and parties involved in the lawsuit Functions of Tort Law Compensation ○ Primary function of tort law is to provide compensation to individuals who have suffered harm due to wrongful actions of others ○ Rooted in the idea of corrective justice, aiming to restore the injured party to the position they would have been had harm not occurred ○ Successful claims allow the plaintiff to recover damages for economic losses Deterrence ○ Deterrent to wrongful conduct by imposing financial consequences on those who engage in harmful behaviour ○ Deterrence refers to the strategy of preventing criminal behaviour by instilling fear of punishment or consequences ○ The prospect of facing a lawsuit and paying damages encourage individuals and organisations to act with care and avoid actions that could result in harm to others ○ Personal deterrence Individuals modify their behaviour to avoid future liability ○ General deterrence Where the threat of tort liability serves as a warning to a society as a whole Education ○ Plays an educational role by promoting awareness of societal values and acceptable standard of conduct ○ Highlights the importance of individual responsibility and the duty to avoid causing unreasonable harm to others ○ Litigation, including the presentation of evidence and legal arguments, contributes to public understanding of these principles and fosters a culture of safety and accountability Psychological function  ○ Provides a legal avenues for individuals to seek redress for wrongs committed against them, offering closure ○ This outlet seeks for justice contributes to social harmony and prevents individual from taking the law into their own hands Market Deterrence ○ Exerts an influence on the behaviour of business and industries by creating economic incentives for safety and risk management ○ Companies face the potential for significant liability for defective products or unsafe practices ○ Market deterrence effect can lead to the development of safer products and services, ultimately benefiting consumers and society as a whole Elements of Common Law Tort Actions Onus (burden) of proof ○ The plaintiff bears the responsibility of initiating the action and providing sufficient evidence to support their claims – they must demonstrate that the defendants action were the cause of their harm Standard of Proof ○ Criminal cases that require proof ‘beyond a reasonable doubt’ (99%), tort law operates on the balance of probabilities (51%) ○ This lowers the threshold reflecting the differing objectives of civil and criminal law, with former primarily focused on compensation rather than punishment ○ Standard of proof – judge chooses who wins on the balance of probabilities Cause of action ○ The plaintiff must demonstrate a valid ‘cause of action’ meaning they must present their case using legally recognize claims ○ The claims must fit within established categories of tort law, such as negligence, nuisance, trespass, or strict liability ○ The cause of action must be prove for the plaintiff to be successful Bases of responsibility ○ Intentionally inflicted harm: the defendants acted with the deliberate intention of causing harm to the plaintiff ○ Negligently inflicted harm: the defendant's action fell below the accepted standard of care, resulting in unintended harm to the plaintiff ○ Strict liability: the defendant is held responsible for harm caused by their actions, regardless of intent or negligence, due to the inherently hazardous nature of the activity Remedies ○ Plaintiffs in tort cases seek for damages, which are monetary awards intent to compensate for the harm they have suffered Other forms of remedies are injunctions, or declarations, may also be sought for The court will spend alot of effort assessing the situation of the parties – a famous person can get millions while a regular person may only get a few thousands Measure of Damages ○ The amount of damages awarded is determined by what is deemed necessary to restore the plaintiff to the position they would have been in had the defendant not caused them harm  ○ The courts handle them case by case, the same injury could have vastly different financial consequences for different individuals Relevant causes of action in torts Trespass ○ Defined as any unauthorised entry onto another person’s property, regardless of the intent to cause harm or the actual damage Nuisance ○ Unreasonable interference with the use or enjoyment of property, encompassing a wide range of harms ○ Nuisance requires demonstrable damage can originate from sources beyond adjacent properties ○ Court considers factors such as the severity of harm, defendants activities utility and the locality’s character when determining ‘unreasonable interference’ ○ Pre existence of the nuisance before the plaintiff’s arrival is not a valid defence The defendant cannot liability for causing a nuisance simply cause the activity causing the nuisance predates the plaintiff’s occupancy Private nuisance Unreasonable interference with the use or enjoyment of property – property must be involved, the plaintiff is in possession of property The harm is usually caused indirectly, must show actual damage, responsible for private nuisance, and all dat other shit Public nuisance (replaced by environmental prosections) Criminal nuisance (crime) Negligence ○ Conduct the falls below an established standard of care, exposing others to unreasonable risks of harm ○ Represents the most prevalent area of tort law ○ Establishing negligence, the plaintiff must prove the existence of a duty of care, a breach of that duty, causations and actual damages suffered ○ Assessed against the hypothetical ‘reasonable person’ Strict liability ○ Holds individuals accountable for harm caused by their actions, irrespective of intent or negligence, when engaging in inherently hazardous activities ○ It doesnt matter how careful, if something is dangerous you getting caught up ○ Doesnt matter if negligent, only important if liable ○ The defence of act of good The defence that there was a rare natural event that intervene and caused the release and which was not foreseeable by the defendant ○ Defence of statutory authority Defence of legislative authority Courts of construed the defence narrowly ○ Act of god Rare and unpredictable natural event was the actual cause of the harm, absolving the defendant of liability, basing its on idea that the  vent was unforeseeable, so the defendant could not have reasonably prevented it Products liability ○ Claims arising from defective products ○ Upon both contract law and negligence principles ○ Contract and negligence routes are available for pursuing products liability claims ○ Contract claims rely on implied warranties of fitness for purpose and merchantable quality, while negligence claims require demonstrating the manufacturers breach of duty in producing a defective product Defamation ○ Addresses harm caused by false and damaging statements made publicly, potentially impacting an individuals reputation and causing tangible harm False imprisonment ○ Involves the unlawful restraint of an individuals freedom of movement without legal justification Civil assault ○ Pertains to the intentional infliction of apprehension of immediate harmful or offensive contact ○ Distinguishing from unintentional harm addressed under negligence UNIT #6 Types of offences The salute st. marie case occurred when the city was dumping pounds of garbage into the local water stream, the supreme court than established the categories of offences in canadian law, prior to this there was only criminal law and absolute law Criminal offence ○ Crime against society as a whole ○ Public law ○ For conviction, the prosecutor must prove both actus reus and mens rea beyond reasonable doubt Mens rea can be referred to as; The intention to do harm, rather than caused the harm through carelessness Knowing that what an individual is doing is wrong or creating risk Recklessness is being aware of risk but persisting anyway, wanton recklessness is a legal term that refers to a disregard for the safety of others that is so extreme that it shows a conscious indifference And willful blindness Strict liability ○ Involves regulatory matters and requires the prosecution to prove only the actus rea ○ However, the defendant can use the defence of due diligence (defence took all reasonable steps to prevent the offence from occurring – regulatory offences Absolute Liability  ○ Only needs to prove act occurs ○ No due diligence available for absolute liability offences – regulatory offences Criminal vs regulatory ○ Criminal offence is considered a wrong against all of society ○ Only federal government has the authority to enact laws ○ Offences are aimed to prohibit, long jail times, fines are high, criminal conviction stigma, criminal record Categories of criminal offences Summary offences ○ Less serious offences like minor theft ○ Information is laid before a justice of the peace, done by anyone ○ Trial is held before provincial court without a jury or preliminary hearing ○ Penalties are limited to a maximum fine or 5k or jail ○ Defendant does not need to be present for these proceedings Indictable offences ○ These serious offences with harsher penalties ○ Preliminary inquiry is held before the provincial court judge if there is enough evidence for a trial ○ No limitation period for laying the indictment ○ Defendant must be present during the proceedings ○ Trials for indictable offences could be held before provincial court judge, the superior court with or without a jury Hybrid Offences ○ Dual procedure offences ○ Crown decides whether to proceed as a summary or indictable offence Criminal Code ○ The criminal code is part of the federal statute, it applies to all provinces and territories ○ Use of force The CCC provides justification for individuals to use force in admin or enforcement of the law, it protects private citizens, peace officers, public officers, those assisting officers Justifications must be made in good faith but there is a limit to use of force that is intended or likely to cause death or bodily harm, this MUST be made on reasonable grounds Defence using force is applied when an individual believes on reasonable grounds that force is being use against them, this same idea applies to defence of property ○ Dangerous substances There is a duty of care involved regarding possessing and controlling explosive substances – there must be reasonable care Penalties could lead up to 14 years of imprisonment If those with legal duty breaches their duty, they are guilty of indictable offences Explosions causing death or bodily harm Explosions with intent can be an indictable offence as well as mishandling explosions ○ Firearms  Pointing a firearm unlawfully can lead to a indictable offence or a summary conviction if less serious offence Those who possess the ability to carry a firearm and choose to point it unlawfully are often prosecuted through a indictable offence or a summary offence ○ Offences relating to public or peace officer Those who possess the ability to carry a firearm and choose to point it unlawfully are often prosecuted through a indictable offence or a summary offence Obstructing or failing to assist a public or peace officer Execution of their duty or any person lawfully aiding such an officer – protects officers from interference while doing their lawful responsibilities Failing without reasonable excuse to assist a public or peace officer in the execution of their when duty when arresting a person The duty of a citizen Resisting any person lawfully executing a process against lands or goods, causing lawful distress Extends to all individuals involved in legal proceedings beyond just public or peace offiifcers ○ All of these offences can either lead to an indictable offence with up to 10 years of imprisonment or a summary conviction ○ Personating a peace officer Falsely represent oneself as a peace officer or a public officer Using a badge uniform, or equipment in a way thats leads people to believe that they are a peace or public officer Can lead to a indictable offence with 5 years in prison or a summary conviction ○ Misleading justice Dealing with perjury – witnesses who make false statements underoath with the intent to mislead are guilty of indictable offences and liable to imprisonment for a term not exceeding 14 years Witnesses giving contradictory evidence – obstruction of justice, indictable offence for only 14 years however, not one should be convicted of this unless court and provincial court judge have evidence that is beyond reasonable doubt that the accused had intention of misleading Fabricating evidence – guilty of perjury with an indictable offence up to 14 years ○ Offences relating to affidavits These can lead to an indictable offence of 2 years or a summary conviction Signing a document that entails a affidavit but is not sworn or declared Knowing that they lack authority to administer an oath or declaration – for those who impersonate officials using/presenting a document for an affidavit knowing it is not sworn or declared by the person making the statement ○ Obstructing justice  Those who obstruct, pervert or defeat the course of justice can be guilty of no more than 10 years of imprisonment or a summary conviction Dissuading or attempting to dissuade a person from giving evidence in a judicial proceeding through threats, bribes and other corrupt methods Accepting a bribe to avoid giving evidence to influence ones actions as a juror ○ Public mischief Those who commit public mischief by making false statements that accuses some other person of committing an offence Taking actions intended to raise suspicion against another person for an offence they did not commit/deflect suspicion away from oneself Reporting a crime has occured when it has not Reporting or spreading information that someone has died when they have not Those who commit public mischief are guilty of indictable offence and liable to imprisonment for a term not more than 5 years or summary conviction ○ Common Nuisance A common nuisance is committed when a person action endanger that lives, safety or health of the public or cause physical injury to another person Obstructing the public in exercising or enjoying any right common to all Can be guilty of an indictable offence for max 2 years of imprisonment or summary convictions Conviction of common nuisance cases can depend on various factors such as severity of harm caused, mens rea – r v thornton is a cases where defendant donated blood knowing they were HIV+, endangering the public ○ Dead body Neglecting to perform a legal duty related to the burial of a dead body or human remains – individuals who fail to fulfill their legal obligations in proper handling of human remains Indecently interfering with or offering any indignity to a dead body or human remains – disrespecting the dead Possible convictions include an indictable offence that carries max 5 years in imprisonment or summary conviction Specific conviction is dependent on the offences against the dead bodies such as the nature of the act, mens rea, and circumstances of the offence ○ Criminal Negligence Criminal negligence occurs when an individual is doing something or failing to do something that is their legal duty Pre existing legal duty – can come from common law, federal statutes, provincial statutes  Marked departure from the standard of care – individuals actions or lack thereof deviating from what a reasonable person would do in the same circumstances to prevent harm to others All of these must be ‘wanton or reckless’ meaning a high level of negligence Having a duty is not enough to constitute criminal negligence – it must be proven that the individual knew about the risk they were creating or were willfully blind to, the conduct must demonstrate a conscious disregard for potential consequences of their actions Mens rea in the case of criminal negligence is not intent but rather the knowledge of hugh risk Death from criminal negligence can lead to imprisonment of life Causing bodily harm by criminal negligence can carry to a max of 10 years imprisonment or a summary conviction Conviction relies on the severity of harm caused and the degree of negligence exhibited ○ Criminal negligence and Bill C-45 Bill C-45 was created as a direct response to the westray mining disaster in 1992, an explosion killed 26 miners, no conviction were fully secured despite charges of manslaughter and criminal negligence This lead to public inquiry about facilitating prosecutions relating to workplace safety This bill makes it easier to convict big organizations based on negligence The main effect from this bill is that it is no longer necessary from prosecutors to identity a single ‘controlling mind; within the corporation to establish liability, many individuals can contribute to wrongdoing Organizations can be held for criminal negligence weather it was one person is related to the offence or more than one person, the organization is still held liable Bill C-45 created a new duty, those with authority to direct how another person does work or perform a task is legally obligated to take reasonable steps to prevent bodily harm This bill has made it easier to prosecute criminal charges in the cases of workplace negligence, hold organizations criminally liable for negligence has incentivise companies to take workplace safety more seriously, as well has increasing due diligence Due diligence for OHS work environments is crucial in terms of criminal negligence as it can be used as a defence, the highest authoritative figure took all the actions in order to prevent risk and harm, however if risk still occurred, due diligence can allow them a defence for their case ○ Administering Noxious things Intent to endanger ones life or cause bodily harm can lead to indictable offence and liable for imprisonment for no more than 14 years  Intent to aggrieve or annoying can lead to an indictable offence with max imprisonment of 2 years or summary conviction There is no clear definition of what constitutes a destruction or noxious thing – case by case situation ○ Traps likely to cause bodily harm Setting or placing a trap that is likely to cause death or bodily harm to another person, prosecution must prove that there was intention of harm – conviction can be charged guilty of an indictable offence with up to no more than 5 years Permitting a trap to remain is an individual having an awareness that a trap is located on the property they are responsible for – this could lead to a conviction of 5 years of a summary conviction If a trap is set up and causes bodily harm then individual is guilty of an indictable offence and liable to 10 years in prison or a summary conviction Impeding attempt to save life occurs when someone sets a trip that could unintentionally impede someone from trying to save a life – conviction of an indictable offence for imprisonment up to 10 years or a summary conviction ○ Uttering threats Uttering a threat consists of knowingly uttering, conveying or causing any person to receive a threat Threat to cause death or bodily harm ○ Indictable offence – imprisonment term of 5 years or a summary conviction Threat to burn real or personal property Threat to kill, poison or injure any animal ○ Indictable offence – imprisonment term of 2 years or a summary conviction There must be a element of knowledge in uttering threats Severity of threat is determined by the nature of the threat ○ Assaults Assault is defined as application of force Threats or gestures Accosting or impeding with a weapon 10 years of prison or summary conviction Aggravated assault is the most serious form of assault charges which can lead to 14 years of imprisonment This applies to all forms of assault Consent is another crucial part of assault cases, charges can be added if no consent is obtained to Force of threat Fraud – non disclosure of HIV status invalidates consent in sexual assault cases Exercise of authority – abuse of authority When the judges are assessing consent, they encourage the jury to consider whether the accused had reasonable grounds for their belief in consent  In general for assault, charges for an indictable offence can lead up to 5 years of imprisonment or summary conviction ○ Criminal breach of trust Anyone who acts as a trustee for another person or for a public charitable purpose and then intentionally misuses that entrusted ‘thing’ with the intention of of defrauding the beneficiary is guilty of indictable offence of 14 years ○ Secret commissions and bribery corruptly gives, offers, or agrees to give a reward or advantage to an agent Being an agent, corruptly demands, accepts or agrees to accept a reward or advantage Bribery of officers includes, justices, police commissioners, peace and public officers These official who accept bribes would be Interfering with the administration of justice Facilitate the commission of an offence Protect someone from detection or punishment for a crime Secret commissions who accept bribes can be charged with 5 years of imprisonment or summary conviction Bribery of officers can lead to an indictable offence of 14 years