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Grd.

12 Law Notes (yall owe me)


By Bridget Walsh Legal Literacy Actus reus- latin for guilty act, must be voluntary Mens reus- latin for guilty mind, intent Obiter dictum- opinion necessary for the decision of a case Ratio decidendi- latin for reason for decision Style of cause- part of the title of a case referring to the parties involved Stare decisis- latin for rule of precedent Conciliation- a voluntary method of settling disputes whereby an impartial 3rd party mediates Voir dire- trial within a trial Patriate- to bring back to the country Orders-in-council- regulations in a broader scope that statutes keep their details in legal documents Perjury- lies! Under oath Tort law- civil law dealing with compensation from damages resulting from negligence Ultra vires- legislation falls outside jurisdiction Bill- draft legislation subject to approval Intra vires- legislation falls within authority Res judicata- judge decision is final. Matter adjudicated Habeas corpus- court order to determine if a person has been detained legally Chapter 2-Origins of Law Jurisprudence- means philosophy or science of law, from the Latin juris meaning of right or of law and prudens meaning skilled or learned in law. Today encompasses many aspects of law including history, concepts, theories, theorists, principles and institutions Sources of Law Primary Sources

Those that have influenced our ideas and values about law throughout history o Customs and Conventions Customs are general practices or rules that arose from everyday living, passed on instinctively, some survive to actual written law e.g. adverse possession laws (squatters rights, living on land long enough you may be entitled to it) Conventions are agreements or arrangements that are not necessarily formal contracts but impose an obligation or a way of doing something because it is the way it has always been done o Religion Inclusion of supremacy of God found in our Charter Prohibitions against murder, theft and perjury found in the Ten Commandments remain present in our Criminal Code, other things like adultery as grounds for divorce o Social and Political Influences Law cannot be separated from the social, political, economic and cultural characteristics of a country or time period e.g. womens rights before 1983 a man could rape his wife in Canada Laws continue to be influenced by these factors but now aim to strike a fine balance

Secondary Sources Codified written down laws in response to values as listed above o Constitutions Highest level of law in Canada Basic blueprint for governance o Statute Law (Substantive Law) Refers to a law passed by our elected representatives at either the federal or provincial level Intro-ed as a bill, 3 reading in the House of Commons must receive majority vote in both Parliament and the Senate, governor general or lieutenant governor signs it becomes law o Judicial Decisions (Case Law/Common Law) Dual system that is based on written law and precedent (common law, based on judicial decisions) Collective of judgements known as case law Common law has 3 meanings Law that came from Britain Law that is common to all Law based on precedent or judicial decisions o British Common Law Based on adversarial trial

Burden of proof lies with the Crown Judge plays an important albeit limited role Judge does not ask questions

Chapter 3-Concepts, Theories and Theorists Legal Concepts Law is a system for conflict resolution, balancing the interests of individuals against those of the community it must uphold shared values while resolving conflicts Relating abstract concepts is called judicial reasoning Democracy- form of government in which the power resides in and is exercised by the people. However socialists and capitalists differ on which system is more democratic and democracy is also criticized because freedom given to the majority may be used to harm the minority (ex. United States slavery) Sovereignty- the principle that nation states can impose whatever laws they choose within their own borders, however the United Nations has limited sovereignty since WW2 when it was decided that acts of genocide and war crimes warrant international intervention Jurisdiction- Similar to sovereignty but is more limited, can apply to levels of government or physical boundaries generally just the parameters within which power may be exercised o Contemporary example of sovereignty vs jurisdiction: artic claim to land Power- the ability to act or refrain from acting Authority- the legal right to make and enforce law o Key differences: power can be obtained without authority, contemporary example would be a police officer having the power and authority to apprehend a criminal but if that criminal takes the officers weapon he has the power to act even with no legal authority Legitimacy- lawful right to inherit either property or title Ownership- the exclusive right of possession o Key differences: legitimacy cannot be changed whereas ownership can change hands by external forces contemporary example would be a guy willing his land to his son but this idea of ownership may vary greatly from a communistic view of state ownership Rights and Duties- a right means little without a duty to uphold that right a contemporary example would be you claiming the right to watch TV but the state doesnt obligate anyone to provide you a TV to watch or your right to a jury, that would mean little if the state couldnt impose a duty for citizens to sit on a jury Equity and Equality- equality is treating everyone the same, equity is treating like cases alike and different cases differently in the interest of fairness ex. Treating adults and children the same in all situations would promote equality but not equity Morality and Humanity- morality is that which renders an actions right or wrong and can be subjective while humanity means kindness towards mankind, morality defines character

while humanity stresses a social system ex. Many Canadians support the death penalty but we do not apply it because its against the moral values of the legal system Law and Justice- law provides order and is a written account of set institutions impartially applied whereas justice provides fairness and is a moral concept ex. For it to be considered murder the person has to die within 1 year, morally it doesnt matter whether the person dies on day 366 or 361 but the law draws the line not based on morality but because it has to draw the line somewhere

Philosophies of Law Divine Law- Rests on the belief of divine intervention and that all law comes from God(s) , human laws that violate the laws of God are invalid Natural Law- Universal law, human nature to be good, goodness is essential to wellbeing believes in a moral responsibility for society to give each person his or her due, seek out truth by constantly questioning the meaning and purpose of law. Law condemns and so does morality even if the victim consented and the accused is not a danger to society Positive Law- law and justice are not the same thing, law is nothing more than the opinion of the person who holds power at the time, positive law could be based on natural law but did not have to be. Law doesnt condemn but morality does, could have saved someone but didnt

Philosophers of Law Plato- naturalist, believed that the just person was a reflection of the just society a perfect society would be ruled by a philosopher king who would be chosen on merit rather than social class, however he recognized the practical need for law Aristotle- student of Platos, naturalist who believed in equity he opposed oligarchy in favour of meritocracy believed citizens should always follow the law Cicero- naturalist, agreed that the state should represent the collective will of its citizens but if the state enacted evil laws it would be permissible to withdraw support Justinian- Roman philosopher, naturalist, believed all men are born free i.e. no slavery (sweet) law comes in 2 parts, universal laws that apply to all and specific laws to a particular society or country Saint Augustine- Christian bishop that believed in Divine Law, God would punish evil and reward good, the church had a moral duty and authority to act as a check on abuses of state, church should exercise moral veto only perfect law is Gods law Thomas AquinasThomas Hobbes- positivist, atheist, security and preservation of peace were fundamental, justice depends largely on the existence of superior power, citizens make a social contract to surrender the right to govern themselves, injustice is the breaking of a contract

John Locke- naturalist, collective rights are not more important than individual rights, government should protect individuals from arbitrary acts interfering with their freedom Jean- Jacques Rousseau- man is born free society corrupts, necessity of state governing, state could be removed if the people willed it Jeremy Bentham- first person to support utilitarianism, theory that laws should be based on what is practical rather that ideal moral views, shaped by the industrial revolution, way assess law was to measure the extent of its benefits to the community, his concern was mainly legal and social reform, law has nothing to do with morality its just a way of social control John Austin- influenced by Bentham, greatest possible advancement of human happiness function as important as quality John Stuart Mill- believed in altruistic happiness, utilitarian influenced by Bentham, actions are right if they promote happiness, wrong if they do the reverse

Contemporary Legal Theories Legal Formalism- treats law as though it were a science or math Legal Realism- rejects the principles of legal formalism Critical Legal Studies- shares some values with legal realism but goes further in its criticism of legal theories; law should be used as a tool to achieve social justice Feminist Jurisprudence- the legal system upholds political, economic and social inequality for women Law Based on Economics- a law is only successful if it plays to the favour of economics

Contemporary Theorists H.L.A. Hart- purpose of law to make people do or not do certain things John Rawls- justice is fairness veil of ignorance Richard Posner- modern utilitarian Noam Chomsky- elite class makes all the true decisions in their own favour

Chapter 6 Human Rights in Canada Canadian Bill of Rights Brought on by the systematic brutality of WW2, and the subsequent Universal Declaration of Human Rights drafted by the UN Canada as a signatory embraced its underlying principles and ratified it by creating the Bill of Rights PM John Diefenbaker lead the movement and its goals were achieved in 1960 Left to the courts to interpret the meaning of various protections provided Flaws:

o o o o o

Risk of narrow interpretation of rights Ordinary federal statute that could be amended or revoked Does not apply to provincial or territorial governments Did not confer any ability to create new rights Not part of any constitutional document

Charter of Rights and Freedoms Created under PM Pierre Trudeau No longer would rights be interpreted solely within narrow confines and federal jurisdiction Rights protection now applied to all citizens in their interaction with provincial and federal government Rights entrenched in the Constitution meaning they could not be repealed or changed without using the constitutional amending formula which requires the agreement of the feds and legislatures of two thirds of the provinces with 50% of the population = hard thing to do Specifically entrench 4 fundamental freedoms o Religion o Expression o Peaceful assembly o Association Charter= supremacy

Canadian Human Rights Act 1977 Provides protection against race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted Sec 11- equal pay for equal work Sec 15- bona fide (in good faith) occupation requirement= for safety or efficiency Accommodation- eliminate or adapt requirement Undue Hardship- change might be too costly or unsafe, it outweighs the benefit of the accommodation

Chapter 7 the Canadian Charter, the Legislature and the Judiciary Limitations of Fundamental Freedoms and Rights Sec 1 reasonable limits clause demonstrably justified in a free and democratic society Oakes Test (proportionality test) o Rational connection between limit and objective (not arbitrary) o Impairs freedoms as little as possible o Effects proportional to objective (balance) Sec 33 override or non withstanding clause

Charter Violations May initiate a Charter challenge if a law or government action is considered to violate their rights, can be used to declare a law unconstitutional and also to provide remedy When a court declares a law unconstitutional it can o Strike down in entirety o Use a process of reading down i.e. narrowing legislation that has been interpreted too broadly o Use a process of reading in a term so legislation will stand Sometimes a law will be declared unconstitutional but the court will give the government time to change it Charter cases involve the validity but also the actions of the government in applying the law Remedies under Sec 24 o If a complaint made is successful the Court can issue and injunction (court ordering for a party to take or not take a particular action) or can award damages Remedies may take the form of a stay of proceedings meaning the court can stop the proceedings against the accused bringing the administration of justice into disrepute

Fundamental Freedoms Freedom of Religion o Under Sec 2 (a) two situations: Individual feels their right to religious customs is being infringed upon Evidence that one religion is overriding others Freedom of Expression o Sec 2 (b) freedom of thought, opinion, belief and expression includes freedom of press and other media o Expression is any action that conveys meaning o Provisions challenged under hate law sections under the Criminal Code Freedom of Association and Peaceful Assembly o Sec 2 (c) allows for getting together in groups but is not a guarantee to strike or conduct collective bargaining o Critical word here is peaceful, free to gather and express discontent but limited by ability to keep peaceful

Legal Rights Ss. 7-14 Life, Liberty and Security of Person o Sec 7 o Challenge in balancing the rights of an individual with the rights of the majority o security of person is less clear Unreasonable Search and Seizure

o Sec 8 o What constitutes unreasonable? Arbitrary Detention o Arbitrary- no justifiable reason for an action o Right to be informed on the reasons for arrest, right to retain and instruct legal counsel Other o Right not to be subjected to cruel and unusual punishment o Right of a witness not to have any incriminating evidence used to incriminate in subsequent proceedings, unless evidence of perjury o Right to an interpreter Corporal punishment abolished, same with capital punishment Legal rights ensure the correct trial process is upheld

Civil Liberties Actions exercised without government interference

Chapter 9 Criminology Why do people commit crimes? Why do we consider this behaviour bad?

Classical Criminology Classical theories came about is response to chaotic systems of justice in Europe in the 18th century, focus on the legal system Two main proponents: o Italian Cesare Beccaria and English Jeremy Bentham Beccaria believed we are driven by self interest, in our best interest to limit some of our freedoms e.g. freedom to run a run vs. personal peace and security Punishment should be proportional to and greater than the pleasure of breaking the law Bentham, utilitarian greatest good for greatest number Both belived that governments should enact laws that were seen to be in the best interest of society Positivism o Focused on biological and psychological factors rather than the legal system o Importance of understanding positivism lies in understanding how wrong they are o born criminal o XYY theory abnormal chromosomes lead to criminals = not true

Sociological Perspectives and Biological Perspectives both historical and contemporary Anomie o Proponent: Emile Durkheim

o Given the anonymity that comes with living in a big city people turn to crime o If there isnt enough crime society is too conforming Ecological School o Proponent: 1930s Chicago School o Crime in certain environments Social Conflict Theory o Focus on external factors o Proponents: Karl Marx and Frederick Engels o Capitalism encourages crime o Those in power control the definition of a crime, more likely to punish the poor Consensus Theory o Crime is behaviour most consider wrong o Criminals do not accept the view of the majority Strain Theory o Rational choice/deterrence theory o Cant achieve goals legitimately Socialization Theory o Upbringing, peer groups, role models Social Conflict Theory o Capitalisms fault Biological Trait Theory o Research into thee biology of a criminal mind o Predisposed to engage in crime Biochemical Theory o Poor diet, hormones, drugs Neurophysiologic Theories o Neurological dysfunctions Genetics o Genetic component

Purpose of our Criminal Code Preventing harm to people and property Preventing action that challenges governments, authorities and institutions Discouraging personal revenge Preventing harm to oneself (legal paternalism) Expressing or enforcing morality (reflection of societies moral values)

Recklessness and Wilful Blindness Person is reckless when they are extremely careless o Aware of danger (would a reasonable person)

Wilfully blind when they suspect harmful or criminal outcome but prefers not to question it in case suspicions are confirmed (would a reasonable person not realize)

Indictable Offence More serious (aggravated assault)

Summary Conviction Less serious (water skiing at night, theft, common assault)

Chapter 10 Trial Process Formal arrest occurs when law enforcement officer has reasonable and probable grounds to believe a person has committed or will commit an indictable offence, or is found committing said offence Detention may occur o By physical restraint o By psychological means (person is lead to believe no choice but to remain) o By giving a demand or direction (legal consequences is person refuses) Wrongful arrest or detention can lead to the omission of evidence obtained because of this

Chapter 11 Defences and Sentencing Criminal Defences The right to a criminal defence is one of our fundamental rights known in Latin as audi alterum partem meaning the right to hear the other side, can be traced back to British common law Many defences are in the Criminal Code and others arose from case law and judicial decisions like battered womens syndrome Mistake of Fact o Depends on the accused not having the mens rea o Courts do not accept this defence under all circumstances (sexual assault) Not a defence if: Arose from the accused self induced intoxication Recklessness or wilful blindness Accused did not take reasonable steps Its an absolute liability offence o Generally can escape culpability if The mistake was honest No crime would have been committed had the circumstances been as the accused believed them to be Mistake of Law

Can be used if the actions were done upon reliance of incorrect legal advice from an official Intoxication o Difficult to use because its hard to believe in the accused moral innocence o Based usually on a balance of probabilities- the likelihood that the defence is true o Specific intent- deliberate aim to commit a particular offence o General intent- requires the accused intended to commit a criminal act but may not intended all harm from that act e.g. accused of murder (specific offence), could argue you meant to assault but not kill, would get convicted with the general offence of manslaughter o Lots of ambiguity in the courts around this defence Mental Disorder o Intoxication self induced but people with mental illness are not responsible for their affliction o Must prove that the accused is not only suffering from a mental disorder but that the severity is so that the person is incapable of appreciating the nature and quality of the act o Knowledge of a criminal act and capacity to for see and measure consequences o Would commit the crime right in front of a police officer o Not widely used defence because the law assumes everyone is sane burden of proof lies with the defence Automatism o Refers to a state where a person has no conscious control over their actions o Non-insane automatism No mental disease, instead the actions were a result of a recent psychological shock or blow to the head (temporary factors) and the accused may be acquitted o Insane automatism Falls under mental disorder so even if aquitted may not be released into society Self-Defence o Offers justification for a criminal act The accused believed he or she was about to be physically harmed The accused used only the required force to avoid alleged harm Provocation o Does not lead to a complete acquittal o Partial defence that lowers the crime of murder to manslaughter Committed the crime in the heat of passion Entrapment o Only can be used if the defence can show the accused was set up o Does not lead to acquittal but to a permanent stay of proceedings o Burden of proof on the accused on a balance of probabilities

Necessity o Rarely used o Only used as an excuse not as justification Duress o Forced under threat of personal injury or death

Purpose/ Objective of Sentencing To denounce unlawful conduct (societal distain) To deter the offender and others (specific and general) Separate offender from society Assist in rehabilitation (restorative justice) Provide reparations (payment) Promote a sense of responsibility in offenders

Other Sentencing Considerations Cruel and Unusual Punishment o Sec 12 of Charter Aggravating Factors o Evidence that shows the crime was motivated by hate o Evidence the accused was an abusive person o Evidence of abuse of trust o Offence was committed for a criminal organization o Act of terrorism Mitigating Factors o First time offender o Remorse o Good character o Positive rep in the community o Good record of employment o Engagement in rehabilitation programs Partiality and Totality o Parity- concept that ensures judges dont give markedly different sentences in comparable cases o Totality- where consecutive sentences are given the total shouldnt be unduly long or harsh o Both principles considered Restraint o Encourages judges not to use incarceration, our jails are crowded

Sentencing Options

Incarceration o Fundamental o If the term of imprisonment is less than 90 days, can serve an intermittent sentence. Sentence enables offender to continue employment, in jail on weekends o Cant have intermittent sentence if youre a dangerous offender i.e. poses a threat to society o A person could be subject to an indeterminate sentence for which no maximum is set o The status of a dangerous offender and their eligibility for parole is reviewed every 7 years Probation o Allows offender to live within their community as long as they meet certain conditions o Report to a probation officer Absolute and Conditional Discharge o Absolute discharge- not convicted, results in no criminal record for the accused o Conditional discharge- subject to probation conditions Restitution o Cash money! (to the victim) Fines o Cash money! (to the government) Conditional Sentencing o House arrest and such

Chapter 14 International Law: Concepts and Issues Sovereignty o The power of a country to make laws is internal sovereignty o External sovereignty the right to engage or not engage into relationships with other states o Increase in worldwide social interconnectedness = less sovereignty Extradition o Extradition is the legal surrender or delivery of a fugitive to the jurisdiction of another state o Most extradition treaties contain principles and rules that must be followed Double criminality Crime must be a crime in both nations Reciprocity If one country extradites someone it is expected that the corresponding country act similarly in the future Evidence of guilt Speciality Accused will be charged only for the crime in question Subterfuge

No deception Diplomatic Immunity o Diplomatic corps- branch that provides foreign services o Embassies header by ambassadors who are either civil servants or political appointees o Assisted by diplomats and attaches o Embassies help with international affairs o A countrys decision to expel a diplomat is very taxing on foreign relations with that country

Uncivil Disobedience (Borovoy) Making noise to get an unjust law changed while working within the law Negative effects of civil disobedience include always breaking the law and disturbing the peace resulting in the law becoming less of a social controller. Also may result in the government restricting our rights

Judge Stuff To be a judge you must have been a lawyer for 10 year previous Apply when a position opens Judicial independence is important to ensure the judges are not influenced by other means, that they are able to use their discretion Judges can interpret the law and expand definitions of crime as not covered by the Criminal Code o E.g. knowingly transmitting HIV

Who Commits Crimes? There are a lot of theories Males are more likely Unloved children, who were neglected/abused/emotionally rejected and grew up in homes with considerable conflict maybe violence are most at risk for being delinquents Socioeconomics dont play a huge role

Possible Questions Q: Distinguish between direct and adverse-effect discrimination by providing an example of each. A: Direct discrimination involves and practice or behaviour that is overt and clearly discriminatory while adverse-effect involves a requirement or standard that may appear neutral but is in fact discriminatory in effect toward an individual. E.g. employer advertises for electrician but refuses to hire female= direct discrimination. Employer hire a female but requires all electricians to carry 70kg of cabling thus barring many women from holding the job= adverse-effect discrimination

Q: Briefly summarize how a case of discrimination would be proven in court. A: Law requires the complaint to establish a prima facie case of discrimination, meaning one in which there is sufficient evidence to justify a finding of discrimination for the complaint in the absence of evidence from the respondent. Burden of proof lies with the employer to establish infringement is a bona fide occupational requirement.