LWSO 203 Midterm #1 Review PDF

Topic 1 Institution - Anything that constrains, guides, or shapes human behavior in patterns. - Institutions are structures, not agents, that influence societal actions. - Agent refers to individuals or entities that have the capacity to act and make decisions. They are active participants wh...

Topic 1 Institution - Anything that constrains, guides, or shapes human behavior in patterns. - Institutions are structures, not agents, that influence societal actions. - Agent refers to individuals or entities that have the capacity to act and make decisions. They are active participants who influence or shape outcomes within a system. (Citizens, politicians, judges, social movements, political parties, corporations, etc.) Politics - The practices and processes involved in power relations. - Types of Power - Instrumental Power: Direct use of power to influence outcomes. - Structural Power: Power embedded within institutions and frameworks. - Ideological Power: Power through control over ideas and beliefs. Society - A web of ordered, patterned relationships that connect individuals. - Includes institutions and their relationships. - Society and law are closely connected and influence each other. Law - The concept of law is heavily debated and varies across perspectives. - Definition of Law 1. Formal Rules: Binding and enforceable rules that govern conduct. 2. Political Involvement: Law intersects with political processes. 3. Balancing Interests: Law aims to balance individual and collective rights. 4. Social Order: Law establishes order within society. 5. Limiting Power: Prevents the arbitrary use of power by authorities. Law & Politics - Mutual Influence: Law and politics shape and influence each other. - Power Relations: Laws can either support or challenge societal power structures. - State Power: Law can limit the potential abuse of power by the state. - Political Institutions: Law influences and shapes the structure and function of political institutions. - Resolving Political Problems: Law can be used to adjudicate and resolve political disputes. - Rule of Law: A key principle in modern states, ensuring fairness, accountability, and limitation of power. Justice - Conceptions of Justice: Multiple views on what justice means. - Legal Justice: - i) Legal fairness - ii) Legal equality - iii) Legal rights - iv) Punishment for legal wrongs - Originates from the Roman term *justicia* (meaning "to give each person their due"). Types of Justice - Distributive Justice: Concerned with the fair distribution of resources. - Restorative Justice: Focuses on repairing harm caused by criminal behavior through reconciliation. Theoretical Perspectives on Law - Law Theories: Empirical (based on facts) and normative (based on values). - Focus: Dominant perspectives that shape law. Traditional Theories of Law 1. Natural Law - Belief in universal, absolute law (from God or an external source). - Key principle: *Lex injusta non est lex* (an unjust law is not a law). - Reflected in documents like the Canadian Charter of Rights and international human rights laws. - Rosseau, Locke, Blackstone, Aquinas 2. Positivism - Law is what it ‘is,’ not what it ‘should be’. - Human-made laws; sovereignty of the state gives law its validity. - Originates from British parliamentary supremacy. - H.L.A Hart 3. Legal Realism: - Law is shaped by political, economic, and social factors. - Like positivism, it focuses on law as it exists but highlights human influences on legal systems. Positivism vs. Realism - Legal Positivism asserts that law is a set of rules created by human authorities, focusing on what the law is rather than what it ought to be. It emphasizes the separation of law from morality and asserts that the validity of law comes from its source, typically the state or sovereign. - Legal Realism, on the other hand, argues that law cannot be understood solely through its formal rules; it emphasizes the influence of social, political, and economic contexts on legal outcomes. Legal realists believe that human behavior and decision-making, as well as societal factors, significantly shape how law is applied in practice. Marxism - Law is seen as a tool of capitalism. - Protects the economic elite class, reflecting Marxist views on power and economy. - Society is divided into classes, primarily the bourgeoisie (owners of production) and the proletariat (working class) - The ruling class promotes ideologies (e.g., individualism, meritocracy) to maintain control and justify the status quo. - Critique of Liberal Law: Law is not neutral; it is influenced by class interests. Contemporary Theories of Law Critical Legal Theory - It argues that law is not neutral or objective but is influenced by power dynamics and social inequalities, its goal is to reveal these inequalities and promote a more fair and inclusive approach to law. - Challenges traditional rationales of law. - Highlights how power structures are embedded in the legal system. - A critique of positivism, often influenced by Marxist thought. Feminist Legal Theory - Analyzes law from a gendered perspective. - Highlights the gender biases in legal systems. - Evolves across three waves of feminist thought: - First-wave: Legal rights and suffrage. Advocacy for women's voting rights. Legal rights, including property rights and marriage laws. Social reform movements, addressing issues like education and work conditions.  - Second-wave: Social and cultural inequalities. Reproductive rights, including access to contraception and abortion. Workplace equality, addressing discrimination and sexual harassment. Challenging traditional gender roles and promoting women's rights in various aspects of life. - Third-wave: Intersectionality and diverse perspectives. Emphasis on intersectionality, understanding how different forms of oppression overlap (e.g., race, class, gender). Advocacy for LGBTQ+ rights and inclusivity in feminist discourse. Critique of mainstream feminism for not adequately representing all women's voices. Application of Theories - Carter v. Canada (Attorney General) (Right to assisted dying) Natural Law: Emphasizes moral rights and autonomy in decisions about assisted dying. Legal Positivism: Focuses on the validity of existing laws and the authority of the state to regulate such issues. Legal Realism: Highlights the influence of societal values and contexts in shaping legal decisions. Feminist Theory: Examines how laws affect women differently and advocates for the recognition of diverse experiences in legal frameworks. Topic 2 An Early History of Law Ancient Law - The history of law stretches back over 4,000 years. - Influential figures: - Hammurabi: Famous for his Code of Hammurabi, one of the earliest written legal codes (The code is known for its principle of "an eye for an eye", meaning punishments should match the crime) - Confucius: Chinese philosopher who emphasized moral and social order (His philosophy, known as Confucianism, focuses on ethics, morality, and the importance of social harmony.) - Mohammad: His teachings form the basis of Islamic law or Sharia. Feudal Law - The legal system in the medieval period, where laws were linked to the feudal structure of lords and vassals; lords granted land to vassals in exchange for loyalty and military service. 1215 Magna Carta - Known as the ‘Great Charter’ - Signed by King John of England, it was a feudal-era agreement limiting the power of the monarchy. - It established certain legal rights for barons and is seen as an early step toward constitutional law. - sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself. 1648 Peace of Westphalia - Marked the end of the Thirty Years' War in Europe. - Established the concept of national sovereignty, where states have authority within their own territories, shaping the modern international legal system. - It recognized the concept of state sovereignty, which means that each state has full control over its territory and domestic affairs, free from external influence A Legal History of Canada I 1. The Royal Proclamation of 1763: - Issued by King George III after the British victory over France. - Transferred French territory to British control. - Recognized Indigenous rights to land and set the framework for treaties between the British and Indigenous peoples. - Forbade settlers from claiming land from the Aboriginal occupants, unless it has been first bought by the Crown and then sold to the settlers. - The Royal Proclamation further sets out that only the Crown can buy land from First Nations. 2. 1774 Quebec Act: - Allowed French law to be used in civil matters in Quebec. - Protected the rights of French Canadians, including their religious freedoms (Roman Catholicism) and language rights. - Established the procedures of governance for the Province of Quebec 3. The Constitution Act of 1791: - Divided the Province of Quebec into Upper Canada (English-speaking, now Ontario) and Lower Canada (French-speaking, now Quebec). - Each section had its own legislature and legal system. 4. Act of Union, 1840: - Merged Upper Canada and Lower Canada into a single entity known as the Province of Canada. - Created a single legislative assembly to govern both parts. A Legal History of Canada II - British North America Act (1867): - Created the legal foundation of Canada as a federation. - Created the Dominion of Canada - Criminal Code (1892): - Canada's first comprehensive criminal code. - Includes definitions of most of the criminal offenses that the Parliament of Canada has enacted - Statute of Westminster (1931): - Canada gained full control over its domestic and foreign affairs, becoming a self-governing dominion. - Constitution Act (1982): - Patriated the Constitution (brought it under full Canadian control). - Added the Charter of Rights and Freedoms, which guarantees individual rights and freedoms. Types of Canadian Law 1. Public Law: Laws dealing with issues that affect society as a whole. - Examples: Constitutional law, Criminal law, Taxation law. 2. Private Law: Deals with disputes between individuals or organizations. - Examples: Tort law, Family law, Contract law, Property law. 3. Substantive Law: Governs how people behave in society. - Example: Criminal law. 4. Procedural Law: Outlines how laws are enforced and legal processes work. - Example: Sentencing rules Sources of Canadian Law 1. Principal Sources: - Legislation/Statute Law: Created by Parliament or legislatures. - Case Law/Judicial Decisions: Developed by courts through precedents. - Precedents are prior judicial decisions that serve as authoritative guidance for judges in resolving similar legal issues. 2. Subsidiary Sources: - Custom: Traditional practices influencing law. - Books of Authority: Authoritative legal writings used as references. Branches of Government & Law 1. Legislature: Makes and changes laws. 2. Executive: Enforces and administers laws. 3. Judiciary: Interprets and applies laws through courts. Legislation/Statute Law - Statute Law: Laws created by elected bodies, like Parliament or provincial legislatures. - Reflects parliamentary supremacy, meaning statutes take priority over other types of law. The Legislative Process in Canada - Federal Process: A bill goes through: 1. First reading (Introduction) - bill is introduced in either the House of Commons or the Senate. 2. Second reading (Debate and approval in principle). 3. Committee review (Detailed examination). 4. Third reading (Final approval). - Reviewed by the Senate before becoming law. Case Law - Case Law: Based on judicial decisions that set legal precedents. - Dynamic: Adapts over time as new cases and judgments shape the law. - Key Case: R v. Gunn and Ponak (1971) (Lawful search and seizure, positivism, legal realism, critical legal theory) - Sentencing: Governed by section 718 of the Criminal Code. Customs & Books of Authority - Custom: Long-standing practices that become law. - Example: British legal traditions in Canadian law. - Books of Authority: Legal texts written by scholars, often cited in court. - Key Case: R v. Ipeelee (2012), using legal scholarship to guide decisions. (Influenced consideration into Indigenous background before sentencing, natural law, legal realism, critical law theory) Example: Drugs & the Law in Canada - 1908: Act prohibiting non-medical opium. - 1911 Opium and Drug Act: Expanded drug restrictions. - 1961 Narcotic Control Act: Updated laws on drug use and control. - 1997 Controlled Drugs and Substances Act: Regulates drugs and controlled substances. - 2012 Safe Streets and Communities Act: Toughened drug penalties. - 2017 Cannabis Act: Legalized recreational cannabis. Indigenous Law in Canada - Resistance to Indigenous Legal Orders: - Canadian law often marginalized Indigenous legal systems. - Indigenous laws are adapted into Canadian legal forms but often lose their original context. - On-Reserve Jurisdiction: - Governed by federal laws like the Indian Act (1876) and the First Nations Land Management Act. - Indian Act - Aimed to regulate Indigenous affairs, governance, land management, and assimilation into Canadian society, the Canadian government uses it to administer “Indian Status”. - First Nations Land Management Act - Empowers First Nations to manage their lands independently from the Indian Act, fostering self-governance and economic opportunities while allowing for cultural preservation.  Topic 3 Constitutions I & II Definition and Significance 1. Constitutions: - Serve as the foundational charters and supreme laws of a legal system and political society. - Constitute: Constitutions form the basis for a society’s governance and legal framework. - Social Contract: They symbolize the social contracts that societies create, where authority is conferred to political actors in exchange for order and rule of law. - Quote: “Constitutions have come to symbolize the social contracts that societies make to ‘constitute’ themselves...” (Dickovick et al, 2020). Key Functions of Constitutions 1. Express Founding Principles & Shared Values: - Reflect the core beliefs and values of a society. 2. Establish the Political System: - Outline how power is structured and exercised within a government. 3. Establish Fundamental Laws of Society: - Set the legal foundations for societal governance. 4. Confer Power: - Assign authority to specific actors or institutions within the government. 5. Limit Government Power: - Place restrictions on how the government can exercise its power to protect citizens’ rights. 6. Outline Rights and Obligations: - Define the basic rights of citizens and their responsibilities to the state. 7. Highlight a Particular History: - Reflect the historical context and evolution of the society. 8. Contain Aspirations: - Include goals and values that the society aims to achieve. Constitutional Design Features 1. Constitutional Design: - Refers to the specific features and characteristics of constitutions. 2. Length: - Constitutions can be short or long, affecting their complexity and detail. 3. Written vs. Unwritten: - Written/Codified: Constitutions that are formally documented. (Civil Law) - Unwritten/Uncodified: Constitutions that rely on statutes, conventions, and judicial decisions without a single formal document. (Common Law) 4. Amendment Processes: - Constitutions are typically designed to be difficult to change, requiring specific procedures to amend. 5. Judicial Review: - Many constitutions provide for judicial review, allowing courts to interpret and enforce constitutional provisions. 6. Omission of Political Structures: - Some constitutions may omit details about important political structures and legal processes, leaving room for interpretation and flexibility. 7. Diffusion of Authority: - Definition: Most constitutions diffuse the authority of the state through: - Division of Powers: Separating governmental powers among various entities. - Checks and Balances: Ensuring that no single branch of government becomes too powerful. - Horizontal Diffusion: Authority is spread across different branches at the same level. - Vertical Diffusion: Authority is shared between different levels of government (e.g., federal and provincial). 8. Separation of Powers:  - Definition: Division of governmental powers among three branches: - Executive Branch: Enforces laws. - Legislative Branch: Creates laws. - Judicial Branch: Interprets laws and conducts judicial review. 9. Federalism: - Definition: A political system with multiple levels of government, each with autonomy and specific jurisdictions, equally the same. - Contrast with Unitarism: Unitarism has no subnational governments with delegated authority. - Asymmetrical Decentralization: refers to a form of governance in which different regions or groups within a state have varying degrees of autonomy and power. - In a unitary system, the national government holds the majority of the power, and any subnational units (like provinces or regions) operate under the authority granted to them by the central government. The Constitution of Canada 1. Key Historical Events: - 1764 Royal Proclamation: Transferred French territory to the UK. - 1867 British North America Act: Established the Dominion of Canada. - 1931 Statute of Westminster: Gave Canada legislative independence from the UK. 2. The Constitution Act, 1982: - Patriation: Brought the Constitution under full Canadian control. - Judicial Review: Allowed courts to examine and potentially invalidate laws. - Amending Formulas are the specific procedures or rules outlined in a constitution that dictate how amendments to that constitution can be made. They ensure that changes to the fundamental legal framework of a country follow a structured process, typically requiring a higher level of consensus than ordinary legislation. - Section 38 establishes the general procedure for amending the Constitution, which requires approval from both the federal Parliament and a specified number of provinces. - Section 41 identifies certain parts of the Constitution that require a more stringent amendment process (The Queen, Senate/House of Commons, Minority Rights, etc.) - Section 43 allows for amendments to provisions of the Constitution that apply specifically to: - The distribution of powers and responsibilities between the federal and provincial governments - The representation of the provinces in the House of Commons and the Senate  - Any amendments that affect the rights of a specific province, including its boundaries or legislative powers. - 7/50 Formula: Requires approval from 7 provinces representing at least 50% of the population. - Includes the Canadian Charter of Rights and Freedoms. Canadian Federalism 1. Federal Structure: - British North America Act, 1867: Established Canada as a federal state. - Section 91: Outlines federal powers, including exclusive authority over criminal law (Section 91(27)). - Section 92: Outlines provincial powers. - Section 36(2): Addresses equalization payments between provinces. - Case Reference: Canada (Attorney General) v. PHS Community Services Society. (Approval of legal injection sites, constitutional/administrative law, natural law, legal realism, legal positivism) Pre-Charter Era 1. The Canadian Bill of Rights (1960): A federal statute aimed at protecting individual rights. 2. Significant Case: R. v. Drybones (1970): A landmark Supreme Court case addressing Indigenous rights. (Federalism) The Canadian Charter of Rights and Freedoms I 1. Section 1: The "limitations clause" which allows reasonable limits on rights and freedoms. - 2-Part Test: - Sufficient importance evaluates whether the objective of the law or government action that limits a Charter right is significant enough to warrant the infringement of that right. - Proportionality examines whether the means used to achieve the law's objective are proportional to the impact on the rights being limited. - Saskatchewan v. Whatcott (2013). (Hate Speech, Constitutional Law) 2. Fundamental Freedoms: Section 2 outlines freedoms of expression, assembly, and association. 3. Basic Rights: Sections 3, 5, and 6 cover democratic rights, including voting. 4. Legal Rights: Sections 7–14 define rights during legal proceedings. 5. Equality Rights: Section 15 addresses discrimination and equality under the law. 6. Minority-Language Rights: Sections 16–23 protect the rights of official language minorities. The Canadian Charter of Rights and Freedoms II 1. Section 24: Courts can exclude evidence obtained in violation of rights. 2. Sections 25–34: Relate to the Charter's application. - Section 32: Applies to federal and provincial governments. - Section 33. Notwithstanding Clause - Section 33 allows governments to temporarily override certain Charter rights for up to five years. - Significant Case: R. v. Morgentaler (1988). (Abortion Rights, Constitutional Law) Quebec’s Rejection of the Constitution Act, 1982 1. Rejection: Quebec never approved the Constitution Act, 1982. 2. Meech Lake Accord (1987): Attempt to persuade Quebec to sign. 3. Charlottetown Accord (1992): Further attempt at constitutional reform, which ultimately failed. Topic 4 Canada’s Court System Canadian courts are central to: Dispute resolution Dispensing justice Enforcing contracts Answering legal questions Enforcing the constitution Creating case law Setting directions in society toward social control Administrative Boards & Tribunals - Definition: Bodies that resolve disputes outside the traditional court system. - Creation: Established by provincial and federal legislation; regulated by statute. - Functions: - Adjudication: Resolving disputes. - Rule-making: Setting regulations and standards. - Dealing with both public and private law. - Examples: - Labour Relations Board resolves disputes between employers and employees, overseeing collective bargaining processes. - Human Rights Tribunal deals with cases of discrimination and violations of human rights, enforcing relevant legislation. - National Parole Board responsible for granting or denying parole to federal offenders, assessing their rehabilitation. - Worker’s Compensation Review Board reviews disputes related to workers’ compensation claims and entitlements. Military Courts - Function: Address violations of the Code of Service Discipline. - Structure: Composed of various military court types and the Court Martial Appeal Court. - Authority: Have rights, powers, and privileges equivalent to superior courts. - Judges: Appointed by the Minister of National Defence. - Key Case: R. v. Genereux (1992) 1 SCR 259 (Military Authority vs Individual Rights, Constitutional Law) Provincial & Territorial Courts - Role: Primary entry point into Canada’s court system. - Legal System: Common law practiced, except in civil law in Quebec. - Judges: Appointed by provincial governments. - Divisions: - Youth Division - Family Division - Civil Claims Division - Criminal Division Superior Courts of the Provinces - Status: The highest level of courts in provinces and territories. - Judges: Appointed by the federal government. - Divisions: - Trial Division: Handles indictable offenses, larger claims, and criminal appeals from lower courts.  - Appeal Division: Deals with appeals from the Trial Division. Federal Court of Canada - Divisions: - Trial Division: Addresses civil disputes involving federal actions, federal-provincial disputes, intellectual property, citizenship/immigration, refugee law, and maritime law. - Key Cases: - McLean v. Canada (Attorney General) (2018) FC 642 (Administrative vs Constitutional Law) - Merlo v. Canada (2017) FC 51 (Administrative vs Constitutional Law, Procedural Fairness) - Appeal Division: Hears appeals from the Trial Division and federal administrative boards/tribunals. - Tax Court of Canada: Focuses on appeals from tax assessments by individuals and companies. The Supreme Court of Canada - Function: Canada’s final court of appeal. - Composition: 8 justices and 1 chief justice, with representation from various regions. - Appointment: Made on the Prime Minister's recommendation. - Jurisdiction: Hears appeals from provincial court appeals and the Federal Court of Appeal, addressing constitutional matters and offering legal opinions. - Key Cases: - R. v. Morgentaler (1998) 1 SCR 30 (Abortion Rights, Constitutional Law) - Vriend v. Alberta (1998) 1 SCR 493 (Discrimination Against LGBTQ+, Constitutional Law) - Dunmore v. Ontario (Attorney General) (2001) 3 SCR 1016 (Unionized agricultural workers, created precedent and legislative change) Characteristics of Canada’s Court System - Adversarial System: The court system is based on opposing sides presenting their cases. - Formality: High level of formality in court proceedings. - Open Access: Courts are accessible to the public. - Jury of Peers: Right to a trial by a jury of peers. - Timeliness: Emphasis on reasonable timeliness in legal proceedings. Alternative Dispute Resolution (ADR) in Canada - Definition: Methods of resolving disputes outside the traditional court system. - Methods: Involves negotiation, mediation, and conciliation. - Facilitators: Typically conducted by non-judicial officers. Restorative Justice in Canada - Definition: An approach seeking to repair harm by facilitating communication between those harmed and those responsible. - Principles: Focus on recognition, inclusion, accountability, dialogue, and voluntariness. - Key Case: R. v. Gladue (1999) 1 SCR 668 (Lead to a push to check the background (lives) of individuals and understanding circumstances before sentencing, promotion of justice for Indigenous people, guidance for lower courts)