LAW 101 Midterm PDF

Module 1 Public law -​ Relationship between individuals and society -​ Ex. criminal law, constitutional law, administrative law, taxation law Private law -​ Relationship between individual and individual (including corporations) -​ Ex. contract law, tort law, property law, family law...

Module 1 Public law -​ Relationship between individuals and society -​ Ex. criminal law, constitutional law, administrative law, taxation law Private law -​ Relationship between individual and individual (including corporations) -​ Ex. contract law, tort law, property law, family law Why do we need laws? Same conduct (input) —-> same result (output) -​ Ex. To have binding agreements for business -​ Ex. To have regulated outcomes for like sentences Legislation -​ Law made by gov’t (fed or prov) Legislative process -​ Three branches of gov’t 1.​ Executive 2.​ Legislative -​ This branch is responsible for passing legislation 3.​ Judicial Life cycle of legislation -​ Starts as an idea or proposal- Bill -​ Bill is put forward by an elective representative and an initial draft is voted on by members of the legislative body (can be voted on, changed, or withdrawn)- first reading -​ Continues on, addressed in greater detail- committee stage -​ Final reading -​ Once legislation passes, it must receive royal assent- kings authorization Interpreting legislation -​ Sometimes legislation is unclear -​ To resolve these issues, we use driedgers modern principle of statutory interpretation 1.​ Plain meaning approach -​ Read the words and decide what they mean in everyday language (usually straightforward) 2.​ Contextual approach -​ Requires you to consider whether there are any other sections of the act/other acts to determine if the interpretation would produce a inconsistency/absurd result 3.​ Purposive approach -​ Requires you to look at the object of the act; what is the problem or issue the legislature is trying to solve? -​ Called the “mischief rule”, because you examine the mischief sought to be prevented Common law vs Civil law -​ Canada used a combination of common law and civil law 1.​ Common law: -​ originated in england  -​ law that is not written down as legislation, but evolved into a system based on precedent; meaning it can only be found in past decisions. -​ it adapts to changing circumstances and is flexible -​ Can be referred to as “judge-made” law (aka precedent or jurisprudence) 2.​ Civil law: -​ originated in france -​ contains comprehensive rules and general principles to deal with disputes -​ courts in civil law look to a civil code, and then refer to previous decisions to see if they’re consistent -​ (Quebec is the only province with a civil code) Rule of law -​ Rules are not arbitrary -​ Nobody is above the law, regardless of power or influential status -​ It is a British constitutional doctrine imported into the Canadian constitution through the preamble of the Constitution Act of 1867 -​ Describes an ordered society, but also describes judicial independence of the executive branch of the government Module 2 Constitution -​ Legal claim in which the state functions and operates, which outlines the distribution of powers -​ All laws and gov’t actions must conform w/ the constitution to be lawful -​ S. 91 of constitution lists exclusive powers of the federal parliament -​ S. 94 allows parliament to make laws for uniformity in certain areas Constitutional supremacy -​ The constitution is the supreme law, and any laws inconsistent with the constitution are invalid -​ Canada's constitution and constitutional law act as “a mirror reflecting the national soul” How does the constitution change? -​ The constitution is seen as a “living tree capable of growth and expansion within its natural limits” -​ Change is slow, and the trunk and roots are stable Federalism -​ Important for diversity of provinces -​ Division of legislature powers; fed and prov -​ Was driven by the desire for a strong central govt and parliament, but also by autonomy and self-gov’t for each division Federal paramountcy -​ Federal law prevails over prov law  Module 3 Trial courts -​ Single judge -​ Receive evidence -​ Witness testimony -​ Written affidavits Appeal courts -​ Review trial decisions -​ Multiple judges -​ Hears appeals of previous decisions, rarely receive new evidence Provincial superior courts -​ Both trial and appellate functions Standards of review -​ High standard of review: large error is required (trial judge made large error) -​ Ex. palpable and overriding → trial judge made large error -​ Low standard of review: small error justifies intervention -​ Ex. correctness → trial judge decision must've been correct -​ If standard of review is one of correctness, appeal court will intervene regardless of whether the error was small or large Deference -​ Another term to describe how readily the appellate court will be to intervene -​ High deference = reluctant to overturn -​ Low (or no) deference = easier to overtun (more willing to intervene) Court case example: R v Hussein, 2022 -​ Accused convicted because of fingerprint on garbage bag -​ Trial judge took “judicial notice” (assumed) that someone would have to take off a glove to remove the garbage bag -​ On appeal, the question was… -​ Was the trial judge correct in this assumption? (of whether someone would need to remove their glove) -​ Standard of review of correctness: -​ No deference- even a little error is a problem R v Morin-Poitras, 2022 -​ Accused convicted because of testimony of complainant -​ Appeal was on the basis that the trial judge misunderstood the evidence -​ Trial judge given “high degree of deference” What is NOT an appeal -​ “Well, i’d have made a different decision” -​ It isn't enough for court of appeal to say “we would have drawn a diff conclusion” -​ On condition of high degree of deference, court of appeal must come to a conclusion that there was no way that the trial judge could have interpreted the evidence in the way that they did Precedent and binding decisions -​ Lower courts have abiding precedent to upper courts -​ Stare decisis: stand by things decided (courts will abide by decisions made by higher courts) -​ Every court is bound by supreme court, only lower courts in Alberta are bound by Alberta Court of Appeal Why does everything not go to court? -​ Access to justice- refers to individual rights to receive a fair resolution to their dispute in a timely manner (everyone needs this in the justice system) -​ Finite court resources- there's only so many reporters, judges, lawyers to go around -​ Too many disputes to bring everything to court- if everything went to trial, there would be huge waiting times (to promote efficiency) Administrative tribunals -​ Tribunals play a vital role in applying/interpreting the law -​ It is law applied by decision makers outside a courtroom (cannot exercise any jurisdiction that isn't in their ‘enabling act’) -​ Process: 1.​ Receive evidence 2.​ Apply law 3.​ In many ways, similar to judges presiding over a courtroom -​ Ex. Residential Tenancy Dispute Resolution Service (RTDRS) -​ Deals with disputes between landlords and tenants in a way that prevents having to go to court Civil litigation 1.​ Pleadings- parties put out written documents about their version of events a.​ Plaintiff: the person who brings a lawsuit -​ Will want to set out facts that they believe entitles them to a legal remedy, and identifies remedy they want -​ Ex. court order that the other party owes them money, return property… b.​ Defendant: the person who is being sued -​ Will set out their statement claiming why they don't owe legal obligation 2.​ Discovery- civil procedure model designed to try and get ppl to resolve disputes without going to trial -​ Includes both document discovery and questioning -​ Parties told to share their versions of statements w/ each other to attempt a mutual understanding 3.​ Trial- parties appear in front of judge, and argue their versions of events 4.​ Decision- court decides what litigant wins, and gives reasons -​ Court's decision set out in a court order 5.​ Appeal- if either party is unhappy, they can appeal to a higher court Resolution without trial 1.​ Settlement -​ Ex. defendant agrees to pay part of dispute 2.​ Alternative dispute resolution  -​ Occurs outside of a courtroom, as an attempt to compromise solutions -​ Different techniques to proceed through a solution without going through full litigation -​ types: Mediation, Negotiation, Arbitration 3.​ Summary procedure 4.​ discontinuance/abandonment/delay Judgement enforcement Judgement debtor (has to pay) $ —> $ Judgment creditor (gets paid) -​ A judgement is a court order requiring one person to pay money to someone else -​ A court may grant a judgement: 1.​ As a remedy, because a party's legal rights have been breached 2.​ To the winning party, to cover a portion of their costs Common options for enforcing a judgement -​ A civil enforcement agency is a private business that oversees judgement enforcement proceedings in Alberta 1.​ Seize and sell personal property 2.​ Sell real property 3.​ Garnish a payment Garnishment -​ In a garnishment, a creditor intercepts this payment -​ Ex. wages, bank account Law societies -​ Regulates lawyers in your province or territory -​ Set standards, investigate complaints, and discipline members who violate the rules of conduct Code of conduct 1.​ Competence -​ A lawyer must perform all legal services undertaken on a clients behalf to the standard of a competent lawyer 2.​ Confidentiality -​ A lawyer at all times must hold strict confidence and not divulge any information 3.​ Conflicts -​ Risks of a lawyers loyalty to one client due to their own interest, duties, or relation to another client 4.​ Integrity -​ Duty to practise law and discharge all responsibilities to clients, tribunals, the public, and other members of the profession Module 4 The charter -​ Set of bill of rights that protect individuals from gov’t interference What does the charter apply to? -​ Applies to the fed and prov gov’t, and the laws that those gov’t make -​ Applies to when institutions provide certain things- health care, education… -​ Does not apply to private things individuals or private businesses do Freedom of expression -​ Is what makes parliamentary democracy possible -​ Idea of expression = “breathing” (vital to human life) -​ Expression has both a content and form, activity is expressive if it attempts to convey meaning (you just need to attempt to convey meaning, you don't have to be successful in conveying meaning) -​ Any acts of violence, as a form of expression, falls out of the protective sphere Case study example -​ R v Keegstra -​ High school teacher who taught students that the holocaust was fake -​ Was charged under s. 319(2) with unlawfully promoting hatred against an identifiable group by communicating anti-semitic statements What does section 1 of charter tell us? -​ There are reasonable limits prescribed by law -​ s. 1: that the charter guarantees the rights and freedoms set out in it are subjected to only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society -​ Limiting rights are necessary to protecting other rights The Oakes test -​ Test used to determine is a law or policy that limits a right under the Charter is justified (does a law limit a right) 1.​ Pressing and substantial objective -​ Is the law's objective of sufficient importance to warrant the infringement of rights and freedoms? 2.​ Rational connection -​ Are the laws measures designed to achieve the objective in question? 3.​ Minimal impairment -​ Does the law infringe rights as little as reasonably possible? 4.​ Proportionate effects -​ Do the benefits of the laws objectives, outweigh the harms of its infringement of rights and freedoms? Reasonable restrictions on rights and freedoms -​ Ex. noise bylaws, fire codes, defamation laws What can someone do if their charter rights have been infringed on? -​ may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances The missing charter right- property -​ Property recognized as human rights in many places, but not in Canada -​ Argued to be a double edged sword -​ Case study example: Didow v. Alberta Power Ltd., 1988  -​ Overhanging cross arms of a power pole went past Mr. Didows fence line -​ S. 3 states that notwithstanding anything, any structure that is part of a transmission line, may project into the airspace over the property… and no person is entitled to any remedy or damages Module 5 Criminal law -​ Wrongs against society 1.​ Substantive -​ Definition and interpretation of criminal offence -​ Ex. murder, theft… 2.​ Procedural -​ Law that regulates the investigation of crime by police, rules around collection and use of evidence, and rules associated w/ conduct of trial Sources of criminal law 1.​ Parliament- exclusive and centralised power of criminal law; can create criminal law 2.​ Provincial legislature- can create non-criminal offences in order to enforce legislation that they are otherwise constitutionally entitled to enact; punishments related to provincial law 3.​ CL- contempt, procedural law, etc Regulatory offences -​ regulatory offences do not constitute conduct that in itself is prohibited, but rather this conduct is prohibited because it is beneficial for public interest -​ Prosecution just has to prove the defendant committed the prohibited act -​ No mental element -​ Instead of burden of proof being on crown, it is on the defendant to prove that they acted w/ due diligence and tried to prevent what happened Summary vs Indictable offences 1.​ Summary -​ Mostly minor -​ Ex. disturbance, trespassing -​ Max penalty for this offence is normally: $5,000 fine, 6 months in prison, or both 2.​ Indictable -​ Most serious -​ Ex. theft, murder -​ accused has three choices: -​ Have a judge alone hear the case in provincial court. -​ Have a judge and jury hear the case in a superior court. -​ Have a judge alone hear the case in superior court. Court levels 1.​ Provincial trial court (Alberta Court of Justice) -​ Created by prov, judges appointed by prov govt 2.​ Provincial superior trial court (Court of Kings Bench) -​ Created by prov, judges appointed by fed govt 3.​ Provincial courts of appeal -​ Created by prov, judges appoint by fed govt 4.​ Supreme court -​ Created under statute, judges appointed by fed govt Elements of an offence: What prosecutors must prove 1.​ Actus reus: the act itself -​ criminal act/omission -​ Prosecution has to show that the accused had conscious awareness of what they did 2.​ Mens rea: the minds intent -​ mental element/criminal mind -​ Subjective: prosecution must prove that the accused was aware that the consequences could occur Ex. punching victim → accused knew death was likely to occur -​ Objective: prosecution must prove whether or not a reasonable person would have been aware of the consequences Ex. would the reasonable person know that this punch could cause reasonable harm Three types of defences 1.​ Raising a reasonable doubt -​ Idea that prosecution didn’t fulfil their burden beyond a reasonable doubt 2.​ True defences -​ If successful, acquittal will happen, even if actus rea and mens rea are proven a.​ Self-defence b.​ Duress c.​ Provocation (only applies to murder → reduces conviction of murder to manslaughter) 3.​ Mental disorder -​ Must establish, that at time of offence, suspect was suffering from mental disorder that prevents understanding of wrongfulness -​ If successful, no acquittal, special verdict instead: not criminally responsible 4.​ Mistake of fact -​ Claim that prosecution cant prove mens rea of an offence -​ Ex. charged for having drugs, but thinking it was sugar 5.​ Intoxication -​ Crown can not prove that accused was aware of what they did during intoxication Sentencing purposes 1.​ Denunciation- the culpability of an offence 2.​ Deterrence- from accused of convicting more crimes 3.​ Incapacitation- the separation of accused from society 4.​ Rehabilitation- of accused into society  5.​ Reparation & responsibility Other principles 1.​ Principle of restraint- want to avoid incarceration 2.​ Indigenous offenders- avoid incarceration if possible, to consider marginalisation 3.​ Aggravating & mitigating factors- serious sentences or rehabilitative sentence Detentions -​ Charter s. 9: rights against arbitrary detention Three types of detention: 1.​ Physical -​ Any physical control over a subject = they are detained 2.​ Legal compulsion -​ Any sense that they are under legal obligation to cooperate w/ authorities = detained 3.​ Psychological -​ Ppl have the right to refuse encounters w/ police, but the reasonable person would feel compelled to cooperate = detained Grant factors of detention 1.​ Circumstances of encounter (police purpose) -​ Police showing up to a scene oblivious vs. police showing up to a scene interrogating someone 2.​ Nature of police conduct (what police did) -​ Were police open ended or demanding? 3.​ Circumstances of accused -​ Were personal characteristics of subject discriminated against? When is detention arbitrary? 1.​ Law does not authorise it 2.​ The law authorising it is arbitrary 3.​ The manner in which it was done was not reasonable Case study: R v Mann -​ Police need reasonable suspicion that someone committed a crime Upon detention, police must: (under s. 10 charter rights everyone has to the right on arrest or detention….) 1.​ To be Informed of the reason for arrest or detention 2.​ To be Informed that they can retain counsel without delay Rules of sentencing -​ Principle of proportionality 1.​ Gravity of offence 2.​ Offenders degree of responsibility Case study: R v Wong, 1990 -​ Police had suspicion that ppl were using hotel room for illegal gambling but didn’t have enough grounds to get a warrant -​ Since there were no provisions in law to use video surveillance to monitor ppls activity (as long as you didn’t capture audio) you could put a small camera in room  -​ Lower court said this did not break individuals reasonable expectation of privacy -​ Courts questioned whether what ppl did behind a locked door had a reasonable expectation of privacy (decision of courts can’t be influenced by the fact that police did find illegal activity) Case study: R v Tessling, 2004 -​ Expectation of privacy is a normative rather than a descriptive standard -​ Garbage can expose many things of life, deeming within itself an expectation of privacy. However, as soon as you put it out for garbage collection, it is no longer protected Rights against unreasonable search or seizure -​ Police must adhere by these standards before conducting a search or seizure 1.​ Warrant (the “prior authorization”) 2.​ Probable grounds (to believe that an offence was committed and that evidence would be found through the search) S. 24 Remedies 1.​ Stay of proceedings -​ Hard to obtain -​ If a stay is awarded by a judge, this permanently ends the prosecution against the accused, subject to the right of appeal that would also apply to an acquittal 2.​ Damages -​ Can be awarded for violations of charter rights 3.​ Costs -​ Often for improper or late disclosure on the part of crown prosecutor to compensate accused for the last time 4.​ Trial process remedies -​ Order to disclose relevant evidence to defence Pre-trial procedures 1.​ Intake -​ Arrest and police custody -​ Appearance notice/summons -​ Laying charges (the “info”) 2.​ Bail -​ First appearance: police have to give up custody within 24 hrs and pass authority to court -​ Presumption of release: in most offences, crown has to justify restriction on liberty (serious concerns, threats, public confidence grounds) -​ Release conditions: burden is on the crown to justify any conditions. Condition ex. Surrender passports, stay in one location, no contact w/ someone…. -​ Can deny bail on serious concerns: reasonable belief someone won't show up for court, will continue crimes, or for the public's safety 3.​ Disclosure -​ Prosecution has to provide all info/evidence 4.​ Plea or plea bargains -​ Negotiations between both sides to try and resolve issues before trial, so no trial needs to occur -​ Ex. plea guilty for joint sentencing agreement 5.​ Elections -​ Accused elects mode of trial  -​ Ex. in superior court w/ judge + jury, in prov court with judge + no jury… 6.​ Preliminary inquiry -​ Rare, restricted eligibility -​ Charged w/ offence w/ max punishment of 14yrs or more. Request can be made, w/ inquiry to determine whether there is sufficient evidence to justify you going to trial 7.​ Jury selection (only in superior trial court) The trial 1.​ Information & indictments -​ Police lay out charges -​ The basis of prosecution 2.​ Jury & jury selection -​ Only exist at superior court level 3.​ Prosecution & defence evidence -​ Calling of evidence by crown prosecutor 4.​ Verdict -​ Delivered by judge or jury Module 6 + 7 Difference between… Indigenous law -​ The body of legal traditions of Indigenous groups -​ Law made by Indigenous ppl about Indigenous ppls legal traditions that regulate how they make their laws Aboriginal law -​ Settler law that concerns issues related to Indigenous ppl -​ Law created by the crown that applies to Indigenous ppl Difference between… Aboriginal title -​ The right that applies specifically to historical land that belongs to an aboriginal group (to give nations exclusivity, control, and beneficial interest in resources of land) -​ Indigenous nations must prove 3 things to receive title: 1.​ That the group occupied the land prior to European sovereignty 2.​ That there was continuous occupation of land from pre-sovereign to modern times 3.​ That the group exclusively occupied that land -​ Difficult to get title recognized by the court… 1.​ Needed permission to sue the crown prior to the 70s 2.​ Land claims outlawed under indian act from 1927-1951 3.​ Finding historical records is expensive and hard Aboriginal right -​ The right to exercise traditional cultures, customs, and beliefs -​ Originate from nation-to-nation relationships Treaty right -​ Rights that arise out of a treaty, liberally and generously -​ Ex. medicine chest in treaty 6  -​ The crown CAN infringe on aboriginal rights, if it meets the sparrow framework… -​ The crown must have compelling and substantial objective -​ The crown must show that its objective is within its “fiduciary duty” Sui generis -​ Aboriginal title, aboriginal right, and treaty rights that are special rights derived by a sacred agreement between the crown and Indigenous ppl R v Sparrow, 1990 -​ Band member charged w/ using a net too big to catch fish -​ Argued he had a constitutionally protected Aboriginal right to fish -​ Was successful in his claim, conviction overturned (s. 35 given generously and liberally) S. 35 -​ Existing aboriginal and treaty rights of aboriginal ppl of Canada recognized and affirmed R v Van der Peet, 1996 -​ Test to be applied when aboriginal rights come into discussion 1.​ Groups must prove that right being claimed was integral to their culture prior to european contact 2.​ Reasonable continuity between pre-contact practices and contemporary claims Indigenous-crown relations 1600s: early colonizations 1763: The Royal Proclamation -​ Agreement between 2 sovereign nations (crown + Indigenous ppl) to share the land that is Canada, which only applied to crown subjects (everything that fell under the dominion of english crown) 1764: The Treaty of Niagara -​ Conference of the crown that agreed that Canada would be shared between the crown and indigenous ppl -​ 2 reasons why it's important: -​ One of the first agreements between the Crown and First Nations -​ Is a framework for peaceful coexistence between the 2 groups 1867: Constitution Act -​ S. 91 essentially laid out that Indian reserves fall under the fed govt 1876: Indian Act -​ Oppressive document that served to take away rights 1951: amendments to the Indian Act -​ Period of decolonization 1982: Constitution Act including the Charter -​ S. 35, reaffirmation of Indigenous titles, recognizing existing aboriginal and treaty rights 2007: UN declared on the Rights of Indigenous Ppl 2008: Truth and Reconciliation Commission R v Gladue -​ Historical over-incarceration of Indigenous ppl -​ Gladue recognized this systemic discrimination against indigenous ppl and that we should strive towards substantive equality  -​ Principles: 5 categories of law 1.​ Sacred law -​ Flows from spiritual principles, from the creator, creation stories, or ancient teachings -​ Ex. numbered treaties thought of as sacred agreements, as it led to the creation of Canada 2.​ Natural law -​ Legal reasoning derived from close observation of the physical world, “written on the earth” -​ Ex. one could derive legal principle from observing how grizzly bears create landslides 3.​ Deliberative law -​ Law as a conversational process that occurs over generations, based on the body of knowledge available -​ Ex. social capital → results that form a foundation of mutual obligation to meet needs of members of a community 4.​ Positivistic law -​ Legal rules ppl follow based on the authority of person proclaiming them -​ Ex. what an elder says should be the rule 5.​ Customary law -​ Legal practices developed through patterns of social interaction -​ Ex. tobacco to elders