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LAWS2502
Law, State, Citizen (Carleton Uiversity
| QUESTION | ANSWER |
|---|---|
| Why are rule important? | They create PREDICTABLE behavior and ENFORCEABLE punishments. |
| What philosophers had "organic theories"? | Plato and Aristotle |
| What philosophers had "individualist/contract theories"? | Hobbes and Locke |
| What did Plato and Aristotle think about the state? | They believed that there was no clear division between the people and rulers. |
| What did Hobbes and Locke think about the state? | That the state was obliged to the people in exchange for their willingness to obey it |
| What did Max Weber think about the state? | That it is comprised on three things: people, territory, sovereign government (regulation) |
| Who said that, "A monopoly on the legitimate use of force belongs to the government"? | Max Weber |
| What are the four basic goals of the state | 1. collective goals 2. private rights 3. citizen control 4. equality (opportunity and result) |
| What are the three branches of power? | 1. physical 2. intellectual 3. social (influence, coercion, authority). |
| What said "law is a coercive order"? | Hans Kelsen |
| Which of the following is enforceable, law or morality? | Law |
| Three components of natural law | 1. universal and unchanging 2. overrides positive law 3. discoverable by individual reason. |
| What is Administrative Law? | Lawful powers of government, it attempts to balance out collective interests and private interests. |
| What is Constitutional Law? | Provides ground rules for government and society of a state. |
| What are the two sides of administrative law? | Positive and negative |
| What is positive administrative law? | It regulates government law makers (i.e. compensation board) |
| What is negative administrative law? | Concerned with ensuring minimal harm is done because of a legal decision. |
| Is wording important in law? | yes! |
| In a legal document, Shall = | it MUST happen |
| In a legal document, May = | it COULD happen |
| Tribunals have a small or large amount of discretion? | A large amount |
| What are prerogative wits? | Public law review, and habeas corpus |
| What is "habeas corpus"? | Lawfulness of detention |
| What are the strengths of the judiciary? | A. rule oriented B. fair/independent C. decisive results |
| What are the weaknesses of the judiciary? | A. Slow B. Formal C. Expensive D. Winner-loser oriented D. Unaccountable |
| what are the strengths of a tribunal? | A. Special expertise B. Faster results (time) C. Cost (Time=money!) |
| What is the "Rule of Law"? | Equality before the law |
| What is the "supreme law of the land" in Canada | The Charter of Rights and Freedoms |
| What came first, parliamentary supremacy or constitutional supremacy? | Parliamentary supremacy |
| What does the judicial system operate on now, parliamentary supremacy or constitutional supremacy? | Constitutional supremacy |
| What are the non judicial ways to amend laws? | (1) internal/institutional (2) Parliamentary & Elected (3) The Media (4) Interest Groups (5)Misc: ombudsperson, auditor general, privacy commissioner, official language commission |
| What are the judicial ways to amend laws? | (1) Judicial appeal (2) Judicial review (3) Action for damages |
| What is judicial appeal? | a "redo" which deals with the merits of the case |
| What is judicial review? | an examination of the lawfulness of a decision. |
| What is a privative clause? | It means that courts will essentially ignore literal language of the clause and apply those clauses "at odds" with the decision maker. It is FINAL and CONCLUSIVE for all purposes -> it is an attempt to control the judiciary. |
| Is a privative clause an attempt to control the judiciary? | Yes. |
| What is "Certiorari"? | An order fro the SC compelling an inferior tribunal to render up all of the records of its proceedings to all the SC to examine their lawfulness |
| What is "Prohibition"? | It occurs before conclusion of the proceedings by the inferior body and prohibits it from proceeding unlawfully. |
| What is "Mandamus"? | It is an attempt to get a statutory body to do a lawful duty. This will allow the court to order them to do what they are supposed to do. |
| What are the two rules of natural justice? (old/past) | (1) both sides must be heard (audi altera partem) (2) Nobody can be a judge in their own case (nemo judez in causa sua). |
| What are the two rules of natural justice? (new/today) | (1) duty to act fairly (2) both FAIRNESS and EFFICIENCY are important values in adjudicaation |
| What was the Singh case about? | About the Charter and the Bill of Rights. The respondent made a request for refugee status and a decision was made without hearing from both sides. This gets back to the SC & look at S7 & S2E. First case to deal w/ procedural rights + security of person. |
| What is "Trio De Novo"? | The three ways to get control of the administrative action of the state (judicial appeal, review + action for damages) |
| What are 3 reasons that a decision might be quashed? | (1)correctness (2) unreasonableness (3)patent unreasonableness |
| What is deference? | Discretion, courts often treat privative clauses w/ this. |
| What is "Patent Unreasonableness"? | The decision is wrong on its face, you have the right to be wrong. |
| What is "Correctness"? | You MUST be right, this deals with constitution/legal documents. |
| What are correctness, reasonableness and patent unreasonableness seen as in a court case? | They are seen as departure points for the judiciary to begin from. |
| Dunsmuir V. New Brunswick, 2008 (basic facts) | He (Dunsmuir) was terminated from his job after his probation period had been extended from 6 to 12 months. He filed for grievence...court found that he was right and that he was unfairly terminated. He got his job back |
| What did the Dunsmuir case prove? | That there are TWO standards to each case...reasonableness and correctness. The idea of patent unreasonableness no longer used. |
| What is the new unified standard of reasonableness that cam out of Dunsmuir? | (A) absence of a privative clause (B) the purpose of the tribunal as determined by interpretation of enabling legislation (C) the nature of the question/issue (D) the expertise of the tribunal |
| Is correctness deferential or indeferential? | Indeferential |
| Is reasonableness deferential or indeferential? | Deferential |
| What was Bertha Wilson? | The first women appointed to the SC by Trudeau - says JR has issues with accuracy |
| Why would having elected judges be a bad idea? | (1) decreases independence (2) no test for their qualifications |
| What is the adjudicative approach? | Interpreting the law to settle concrete disputes -> this type of judging does not care about cases that fall under precedent (protects it in fact) |
| What is the Oracular approach? | Seen as developing/making the law -> Judges only resolve the dispute as a means to expound upon the law. |
| Which approach (adjudicative or oracular) is seen as a problem for democratic legitimacy? | The oracular approach |
| Why is the oracular approach seen as a problem for democratic legitimacy? | Because the judges are appointed and not elected, yet still making policy decisions |
| What are the six different categories of substantive rights? | (1) fundamental freedoms (2) mobility rights (3) democratic rights (4) legal rights (5) equality rights (6) language rights |
| What does Section 32 of the charter deal with? | It deals with the SCOPE of the right (not private rights) -> the charter is designed to regulate you and the state (i.e. dating example prof gave in class) |
| Which two sections can limit your rights? | Section 1 (unreasonable limits) & Section 33 (notwithstanding) |
| Who was deferential balancing termed by? | Peter Hogg |
| What is deferential balancing? | The respondent needs to demonstrate that they have been harmed and the government needs to prove that their actions of limiting your rights were reasonable. |
| What is the Oakes test (brief definition) | Court uses it to determine if something is reasonably limited. |
| Describe the procedure of the Oakes Test | (1)The laws OBJECTIVE must be pressing and substantial (2)The means chosen must be PROPORTIONAL to that objective meaning (it needs to be rationally connected, impair charter rights as little as possible, not become a cure more harmful than the disease). |
| R v. Kegstra | Alberta teacher that denied the holocaust happening. Spread hate propaganda. The court finds that his expression is covered under freedom of expression, but by a 4:3 margin, the court finds that the criminal codes attempt to regulate this IS reasonable. |
| R. Zundel | A holocaust denier spreading hate propaganda pamphlets. Section 181 catches him and the court says the charter right is triggered here, Criminal code provision = unreasonable by a 4:3 margin. |
| What is the point of R v. Kegstra and R v. Zundel? | They are two very similar cases with two very different outcomes (one won and the other lost) |
| What is the interpretative approach? | Judges should look for the intention and meaning of the legislation. This is also called the TEXTUAL approach |
| What is the NON-interpretative approach? | Otherwise known as the CONTEXTUAL approach, means the judges are not confined by the words -> they use reason to figure out what the words mean. |
| What is legal positivism? | When a judge stays extremely close to the text |
| What is section 7 of the charter of rights and freedoms? | Security and liberty of the person |
| B.C. motor Vehicle Reference (Basic Facts | The law said you should not drive on the road if you has a suspended licence and you could be put in jail whether or not you knew your licence had been suspended. |
| Did the court look at the B.C. Motor Vehicle Reference in a procedural or substantive way? | The looked at it in a substantive way, meaning they make it up case by case. |
| Hogg's Critique of the substantive method | Law language is precise for a reason. Whee scope of then judges interpret it, it may lose its original meaning. When we use the term "purposive", it narrows the right and purpose of the law. Purposive = textual Generosity = contexua; |
| Morgentaler 1988 Case (Basic Facts) | There was a law in Canada that said women seeking an abortion had to get it approved by this dysfunctional "therapeutic abortion committee". Morgentaler was a doctor who did his own abortions without this committee's approval |
| Morgentaler 1988 Case (Judge's Disputes) | Judge Wilson says it is unreasonable to have a bunch of men making a decision about a womens body (Dickson + Lamer agree). McIntyr rejects the idea that S.7 includes abortion (he acting in a restrained way) |
| Morgentaler 1988 Case (Outcome) | Parliament attempts to passed a bill making it legal for women to obtain an abortion without the approval from the committee, passes the house but fails the senate, and now there is no law about abortion in Canada. |
| What does Hans Kelsen say about equality? | That justice and equality yields only an empty shell (which positive law/morality has to fill in with content). |
| What does Peter Hogg say about equality? | That not all groups should be treated the same, but instead groups with different needs get treated fairly within their categories (i.e. innocent/guilty, child/adult, etc.) |
| Andrew's Case (Basic Facts) | This is the non-Canadian lawyer case. A case ni BC where the restrictions on being a lawyer were that you had to be a Canadian citizen. Andrews (who was not) filed for an appeal |
| Andrew's Case (Judges Reasoning) | Court took a purposive/narrow appraoch and defines the equality provision in terms of harm. |
| Andrew's Case (Outcome) | After this case, you need to NOT discriminate based on individual character. (prohibits SYSTEMATIC and DIRECT discrimination) |
| Hogg's comments on the Andrew's case outcomes | The grounds mentioned are more functional than the oakes test. He states that the oakes test seeks "benigh objective". |
| Eldridge V. BC | sign language case |
| Vriend v. Alberta | Employment discrimination based on sexual orietnation |
| Egan Case | Same sex benefits |
| Miron v. Trudel | Common law couple denied spousal benefits (not married). |
| R. Daviault | Sexual assault case of paralyzed women by an intoxicated alcoholic. Court let him go. Parliament did not like the decision, so reacted by reinstated the "common law rule" that was struck down in the case with no section 33. |
| What is the golden rule? | Do onto others as you would have them do onto you |
| National justice can only be found in.... | democratic legal positivism |
| What does Section 35 of the Charter of Rights and Freedoms deal with? | Deals with aboriginal rights to land, fishing, hunting, treaties etc. |
| Can section 1 or 32 apply to section 35? | No. |
| What is "radical title" | Absolute ownership i.e. the Queen |
| What is "Fee Simple" | Closest to absolute owner (i.e. home owner) |
| what is "aboriginal title"? | Super imposed over the crown title -> aboriginal land held collectively. |
| What is "fiduciary"? | Trust line OR a "form of priority". |
| What is the are the requirements of the Sparrow Test? | (1) law can only infringe on the right if for benefit of society, must be justified, economic + land development, protection of environment/species or building an infrastructure. (2) law must give priority to the population. |
| Who can one get an aboriginal title | (1) pre sovereignty occupancy (2) substantial continuity with land you are claiming (3) exclusive possession of land. |
| Marshall (Mikmac Caase) Nova Scotia | Aboriginal people can use the land to "earn a moderate living". Gets violent, court redefines its parameters. |
| What is the center of Public International Law? | STATES -> they interact with one another and make treaties |
| What is "custom"? | General practice accepted by law that is repeated and wide spread (i.e. thou shall not kill) |
| Can international law be enforced? | No. |
| Who is on the UN security council? | UK, US, France, Russia, China |
| What are the internal functions of government? | public projects, day-to-day functions |
| What are the external functions of government? | international affairs, protection from other countries |
| What is natural based on? | Reason, will of god - universal and subjective |
| What is positive law based on? | books and rationality, not morality |
| What is a "prerogative writ"? | Official orders directing the behavior of another arm of government |
| Quebec Succession Act's effect on government function | Went from parlemntary to constitutional supremacy. Before, parliament was responsible for holding all of the power, not with the constitution/charter that has changed. |
| What kind of executive are the PM and the cabinet? | Political executives |
| Irwin Toy Case | Upheld a law that you can't advertise to people under 13 explicitly in Quebec. S.1 found it to b a reasonable limit |
| What is "mootness"? | when something becomes irrelevant |
| What is "standing" | Grounds/reasoning for bringing an issue to court |
| What does Peter Hogg say about "Purposive"? | That courts misuse the terms and purposive shouldn't mean the same as generous or liberal. |
| Jean Bodin on Sovereignty (3things) | (1) power to override all powers, (2) centralized and undivided (3) NOT subject to any one person. |
| What is primary (sovereign) legislation? | Both constitutional and simple statute |
| What is subordinate (delegated) legislation? | Formal rule enacted by the executive branch. Regulations: more specific and able to do something, includes municipal by-laws |
| What is "ad-hoc balancing"? | Can the charter right be reasonably infringed despite having been violated? Onus on the Crown to prove that the violation an be justified in a "free and democratic society". |
| Ford v. Quebec Case (Basic facts) | Bill 101 restriced all commerical signs in any language other than french. The SC struck down bill 101 and QC attempted to create bill 178 which stated the same thing. The bill was shut down using s.33 |
| What is Section 3 of the Charter of Rights and Freedoms? | Democratic rights |
| What is section 6 of the Charter of Rights and Freedoms? | Mobility Rights |
| What is section 15 of the Charter of Rights and Freedoms? | Equality Rights |
| What is section 16 of the Charter of Rights and Freedoms? | Official languages of Canada |
| What does Bertha Wilson say about the legitimacy of Judicial review? | Judicial review and deference to the legislature is an "ill matched pair" because it weakens Charter protect & muddies jurisprudential waters. |
| Which approach focuses on only concrete cases/disputes that come before the judge? | Adudicative |
| What approach has a problem with democratic legitimacy? | Ocular |
| What case featured the parliament using section 33 to protect a piece of legislation after the court struck it down? | Ford v. Quebec |
| What is the significance of the Morgentaler case? | The SCC engaging in procedural and substantive considerations to interpret the principles of fundamental justice. |
| In what cases did "reading in" apply? | Vriend and Eldrige |
| What does Plato suggest justice is? | retribution, reason and idea of the good. |
Created by:
cassienagy
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