Law 2101 December Exam
assault
"A person commits assault when without consent of another person, he applies force intentionally to that other person, directly or indirectly"
Attempts
(21) 1 Morally, a criminal who does not succeed is the same as a criminal who does succeed - gives police more ability to fight crime because they don't have to wait for the offence to happen
extortion
- "Everyone commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces, or violence induces or attempts to induce any person to do anything or cause anything to be done
s.91 charter: POGG
- "It shall be lawful for the Queen, by and with the advice and consent of the senate and house of commons, to make laws for the peace order and good government of canada" - Drafters of BNA act intended to use POGG as general broad powers of federal government to acquire authority over matters not assigned to either level of government
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied:
- "The measures responsible for a limit on a charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom" --> The standard must be high to ensure that objectives that are trivial or discordant with the principles integral to a free and democratic society do not gain section 1 protection - Once a significant objective is recognized, the party invoking s.1 must show that the means chosen are reasonable and demonstrably justified --> involves proportionality test
R v Cadwallader
- 14 year old boy who killed his father - testified to over 20 incidents before the murder that made it seem like his father wanted to kill him - heard his father grab a gun and say he wanted to kill him so the boy shot his father 5 times (4th or 5th was fatal) - prosecution wanted to charge him with manslaughter for excessive force but the conviction ended up being dropped
the Quebec act
- 1774 Canada became a Bijural country - one with 2 types of law - Common law is applied outside Quebec in matters of private law, while similar matters in Quebec were to be dealt with under Civil - Code law. - For public law, common law is used in and out of Quebec .
What happened in R v Clarkson?
- A girl was raped in the barracks in Germany by multiple soldiers - More soldiers waited outside the door and then "piled into" the room - Their presence wasn't enough to count as encouragement so the convictions were quashed
R v Pappajohn
- Actus reus of rape = an act of sexual intercourse without consent - Mens rea of rape = intention, or recklessness - The intention to commit the act of intercourse and to commit the act without consent are two separate and distinct elements of the office
SCC in Delgamuukw, 1998
- Arises from the original occupation of a specific amount of land by aboriginal people and the fact that the Crown historically claimed to have jurisdiction over that land - SCC has given rise to a common law aboriginal right called "aboriginal title" - Acknowledges that aboriginals have a right to make decision for themselves -Aboriginal title is a collective right that must be collectively managed by aboriginal people
untransformed treaties: Baker v Canada
- Baker was a jamaican national with 4 children born in canada - Baker was ordered to be deported, she lived in canada for 11 years as a domestic worker - applied for an exemption based on compassionate reasons (effect of her departure on her kids) - was denied and then appealed - reference cannot be made to values in an untransformed treaty
what has the ICJ considered opinio juris?
- Belief by a state that it's practice is rendered obligatory by the existence of a rule of law requiring it - States must feel that they are conforming to what amounts to a legal obligation → must feel legally compelled
case procedure under the Canadian human rights commission system
- CHRC examines allegation, determines if it involves federal jurisdiction and/or if its relevant to the human rights or employment equity acts - CHRC then pursues early resolution and preventative mediation - if the dispute is still not solved, the person must submit a formal complaint - if conciliation is unsuccessful, the CHRC refers the CHRT for adjudication
federal parliament
- Can make laws for all of Canada but only about matters assigned to it in the constitution - Deals with issues like trade between provinces, national defence, criminal law, money, patents and the postal service - Responsible for Nunavut, Yukon and NWT
Provincial/ Territorial legislature
- Can make laws only about matters that are within its jurisdiction (likely only within the provinces borders) - Authority to make laws concerning education, property, civil rights, the administration of justice, hospitals, municipalities, and other matters of a local or private nature.
Municipality of the City and County of Saint John v, Fraser-Brace
- Canada and the US agreed to build a radar defence system in Canada - The issue was whether the US must be forced to pay takes on the construction materials and the land lease - Customary international law exempts representatives of foreign governments from paying tax - Tax law will be interpreted to be consistent with customary international law to include this exemption - Court decided that customary international law should be read into the provincial tax law to create an exemption
Labour conventions reference of 1937 (privy council)
- Canada wanted to ratify and implement 3 treaties from the international labour organization - Privy council found that the federal gov is not granted wholesale power to implement - Which level can implement treaties into domestic law depends on the subject matter of the treaty as set out in s.91 and 92 of the constitution
r v caslake
- Caslake was found in patch of high grass by an officer and said that he was relieving himself. After leaving, the officer went to the grass and found a 9 pound bag of marijuana. He overtook the appellant's vehicle and arrested him for possession - Rcmp constable Boyle then searched the vehicle after it had been taken to a garage without a warrant - He found 1400 in cash and two packages of cocaine - Boyle said that the search was to safeguard the valuables belonging to the owner and said it was required by RCMP policy - This is now within the bounds of the legitimate purposes of search incident to arrest
section 92 of the BNA
- Certain classes of subjects were enumerated and the provinces were given exclusive power to make laws in relation to matters coming within these classes of subjects - The dominion was still authorized to take legislative power over any local work at any time by declaring it to be for the general advantage of Canada or for the advantage of two or more provinces
BNA Act 1867
- Created the federation - Gave parliament power to create provinces - Gave parliament power to set up SCC (supreme court of canada) - Set out division of powers - Granted quebec distinct civil law
municipal governments
- Created under provincial law - Make bylaws related to local issues such as smoking, zoning, pesticide use, parking, business regulations and construction permits
modified monism
- Customary international law is automatically incorporated into domestic common law - However, domestic Canadian legislation can be enacted to displace/trump customary international law - As far as possible, domestic legislation should be interpreted consistently with customary international law obligations
Case Example: Jose Pereira / Bouzari
- Demonstrates that customary international law is automatically incorporated into domestic common law - However, domestic Canadian legislation can be enacted that trumps customary international law - But: as much as it can, Canadian legislation should comply with customary international law obligations
regulations
- Detailed rules refining, applying or further describing broad statutory statements - Passed by Governor-In-Council - Flexible, easily hidden
schachter case
- Father of newborn denied benefits under unemployment insurance act → only applied to mothers and/or adoptive parents - Infringed s.15 (quality) - SCC agreed, he was given damages
Meiron case
- Firefighter in BC, everyone was held to the same standards but she couldn't complete one of the tests within the required amount of time and was dismissed - The union looked at her cause and noticed that most men could complete the test but most women could not - Complaints were made but were rejected because the manager has the rights to fire who they want - The prior pattern of women not completing the task and her gender led to them being able to use human rights to fight this - The union built a case about sex discrimination even though meiorin didn't want to complain - Case goes up to the SCC
Why did Canada choose federalism in 1867?
- Four original provinces - Ontario, Quebec, New Brunswick and Nova Scotia - too diverse to accept single unit/ level of government - Quebec wanted to preserve unique legal code, language and culture - Threat of american aggression - American example of federation weakened by slavery and states rights, leading to civil war, was a lesson for strong central government - -> Canada wanted to create a presence that would recognize the differences throughout the country (eg. Maritimes and Quebec) - Wanted a national economy for free trade and national transportation
Geroge Case (Drunkenness)
- George beat up a guy and stole his wallet - perpetrator is charged with robbery, but he was very drunk at the time - robbery and theft both requires specific intent, and he lacks this - he was convicted of assault which is a general intent crime
r v grant
- Grant was charged with a series of firearm offences after the police found him in possession of a concealed loaded revolver - He was walking down a street and the police arbitrarily detained him when they found the revolver, so the supreme court had to decide if the gun should be excluded from evidence - The court had to examine the seriousness of the charter breach, determine whether the truth seeking function of the criminal trial process would be better served by admission or exclusion of the evidence, and must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts condone state deviation from the rule of law
R v Hape 2007
- Hape was convicted of money laundering - investigation involved the search of his property in Turks and Caicos - RCMP were allowed to perform a warrantless search of his investment company under the supervision of the Turks and Caicos police - found documents that proved money laundering - hape claimed unreasonable search or seizure - Customary international law may be incorporated directly into domestic canadian law, without the need for legislation However, canada can adopt legislation that expressly conflicts with customary international law, in which case the canadian legislation prevails - SCC decided that section 8 doesn't apply to searches made by the RCMP outside of canada
provincial powers
- Hospitals and health - Local works and undertakings - Property and civil rights - Broadest of provincial powers includes : most physical property, most legal rights, labour relations, insurance, regulating professions, and intra-provincial trade - All matters of local and private nature, including regulating most commercial activities
what if there is a clash between international and domestic law (in monist systems)?
- If domestic law is different from international law, then most monist systems have a rule in place in the event of a conflict between the international and domestic laws the international law prevails - Canada adopts a different approach from this traditional approach (it is the reverse of the above)
the purpose test (expression)
- If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. - If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee of free expression - If the government only aims to control the physical consequences of a particular content, then it's purpose does not trench upon the guarantee. --> Must ask: Does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others; or does it consist rather only in the direct physical result of the activity,
economic powers regulated by federal gov
- International and interprovincial trade and transportation - Monetary and banking policy - Telecommunications and broadcasting - Nuclear power - Aviation - Companies (corporations)
Adga Group v Lane
- Lane has Bipolar 1 disorder, confided in his superiors - Lane was in a pre manic stage when his employers fired him - Went into a full manic stage and was hospitalized (his life fell apart) - claimed discrimination on basis of disability --> claim was successful because the employer had no case - case established two parts of the duty to accommodate
What is a crime?
- an act or omission considered to be wrong in society - prosecuted by the state in criminal proceedings - involves moral wrong - reserved for the most serious harms in society
Case Example: Germany v. Denmark: North Sea Continental Shelf
- Looks at how to prove general and widespread practice in customary international law by looking at uniformity of practice - The International Court of Justice counted the number of countries which has delimited their continental shelves - The ICJ suggested that the practice of some states (those with coasts) was more important, and counts more, than the non-existent practice of states without coasts - State practice does not need to be universal, but it needs to be widespread enough that it encompasses different political, economic, and legal systems
Capital cities communications v canadian radio television commission
- MUS television broadcasters argues that, under the inter-american radio communications convention, canadian commercials could not be substituted into american Tv shows being broadcasted by US networks across the border into canada - Canada argues that it's broadcast act permitted the substitution of canadian commercials - SCC said there were no domestic consequences of the treaty → canada has not implemented the international treaty and it is not applied - Case is dismissed
UK v Norway fisheries case
- Norway used a method of drawing straight lines across bays as a starting point for measuring it's sea territory, for over 60 years the UK did not oppose and others didn't either - This was taken by the ICJ as evidence that states did not view this method as contrary to international law → UK then protested in 1933 - ICJ said that the UK should have objected sooner
division of powers
- Peace, order and good government (now limited to national concern and national emergencies. - - Not used much: narrow interpretation) - Trade and commerce (now limited to interprovincial and international trade and commerce) - Criminal law (Sex, drugs, violence, fraud, regulation of economy, things injurious to health) -->Broad power given to provincial government, remains a broad power in the hands of the federal government - Economic - postal service, banking, currency, weights and measures, interest --> Most economic powers rest with the provinces - Military and defence federal - Taxation - broadest social power -->Provinces can only tax on top of the federal tax -->Broad taxation power is what allows the federal government to have a semi important role in social and economic affairs in canada - Disallowance (ss56 +90) → not used since 1943 - Declaratory power (s. 92. 10c) → rarely used -Reserve power (s57) - No longer used
Race/ Peel Law association v Pieters
- Pieters and Noble (black males) were asked to identify themselves while using a lounge for lawyers, as lawyers and no one else was - It was determined that their rights had been infringed (they were denied entrance to a room based on their colour) and they were awarded 2000$ injury
r v Mann
- Police got a call about an breaking and entering that was in progress and a description of the suspect - police arrived at the scene and saw Mann, asked him to identify himself and complied with a pat down search to look for concealed weapons - found marijuana, two valium pills and a status card confirming his identity - Mann was arrested for the possession of marijuana for the purpose of trafficking - The police's detainment of Mann was not problematic but him reaching into the pocket of his jacket after feeling a soft object was - The seizure of the marijuana was unlawful
the three p's of criminal law
- Prohibition - Penalty - Criminal purpose: public peace, order, security, health, morality --> All three parts of this test must be satisfied in order for a matter to be deemed a federal power under section 91.(27) --> If the federal gov. Can properly anchor the pith and substance of its legislation under one of those criminal purposes, then it will be legitimate provincial legislation
economic powers regulated by the provinces
- Property and civil rights - Legal and private matters - local economy, - retail - utilities - service sector - forestry - intra-provincial transportation - mining - manufacturing - natural resources, agriculture - companies
cooperative federalism
- Provinces have most of the economic and social powers (Responsible for education, health, social welfare), and didn't have the money to run large programs - Federal gov began giving provinces money if they would use that money on things the federal government wanted (national programs began)
Pushpanathan v. Canada 1998
- Pushpanathan claimed refugee status - The immigration act implements the UN convention on the status of refugees - He had previously been convicted of conspiracy to traffic in a narcotic and was excluded under the immigration act's clause rejecting people "who have been guilty of acts contrary to the purposes and principles of the UN" - SCC stated that, as a general rule, courts will be required to interpret implementing legislation to conform not only with treaty terms, but treaty obligations
Other Rights Arising from Historical Occupation:
- Right to engage in practices "integral" to distinctive Aboriginal cultures" at contact is another right protected by section 35 - Must be proved case by case (Sparrow, SCC) - Thus far mainly hunting and fishing practices have been recognized - Continue to occupy the land they occupied prior to the arrival of Europeans unless they consented to share the lands with the Europeans, protected by section 35
common law/ case law
- Rules laid down by the courts - Based on decisions resolving particular disputes - Each decision determines the law as it applies to that dispute and (in theory) helps them determine the law applicable to other similar matters - Based on principle of stare decisis, the idea that like cases should be decided alike - Court decisions guide the determination of future similar matters by courts
Brooks v Safeway
- SCC found that Safeway violated the Ontario Human Rights Code by failing to provide equal compensation for those who missed work due to pregnancy - Pregnancy discrimination will be treated as sex discrimination
notwithstanding clause
- Section 33 (1) Parliament or the legislature of a province may expressly declare in an act of parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this charter - Section 33 (2) A declaration made under subsection (1) shall cease to have effect 5 years after it comes into force or on such earlier date as may be specified in the declaration
constitution
- Supreme law of the country, to which all other laws must conform - Very broad statements of general principle that are given concrete application by the courts
informational duties of the police (Canadian Miranda Rights)
- That they have the right to retain and instruct counsel - That they have the right to retain and instruct counsel right away or as soon as reasonably possible - Of the opportunity to obtain counsel free of charge where they meet the prescribed legal aid financial criteria - Of the opportunity and means to access duty counsel - Must provide this information without delay
what is the ordinary person in relation to provocation?
- The "ordinary person" is given the characteristics that would make the insult etc. provocative - Drunkenness and temperament are not taken into account when you are determining the characteristics of the ordinary person
UNSC powers
- The UN Charter confers "primary responsibility for the maintenance of international peace and security" on the UNSC - It also gives the SC the power to decide what measures not involving the use of armed force are to be employed by countries to give effect to its decisions - Additionally, the UN Charter states that "Members of the UN agree to accept and carry out the decision of the SC in accordance with the Charter" - Canada has transformed the UN Charter into Canadian domestic law through the United Nations Act (due to Canada's dualist nature"
requirements of necessity
- The accused is facing imminent peril - Tends to be physical, but doesn't have to be - No other legal way out - Proportionality - must choose the lesser of 2 evils
motive
- The mental element of a crime ordinarily involves no reference to motive - Sometimes refers to the emotion prompting an act or means a kind of intention
what is the law?
- The publicly prescribed rules that we must follow, failing which we may suffer some adverse consequence - A reflection of common values of society - The process by which disputes are resolved
The court will allow a plaintiff to bring a charter challenge to a law if
- There is a serious question of constitutionality at stake - The plaintiff is either directly affected or has a genuine interest in the law and, - There is no other reasonable/effective means of bringing the issue before the court
defence of duress
- They made me do it - section 17 of criminal code or common law duress - only applies to perpetrators not accessories
two functions of section 1 of the charter
- To constitutionally guarantee the rights and freedoms set out in the provisions which follow - States explicitly the exclusive justificatory criteria against which limitations on those rights and freedoms must be measured
Guerin v Canada
- To determine if the chief and councillors of the Musqueam Indian band are entitled to recover damages from the federal crown in respect to the leasing of a golf club on land on the Indian reserve - The crown was in breach of trust, damages were assessed at 10,000,000 - The royal proclamation provide that no person could purchase from the indians any land that the proclamation had reserved to them, and provided further that all purchases had to be by and in the name of the crown, in a public assembly of the indians - The supreme court reinstated the compensation
securities reference
- Traditionally, provinces had authority to regulate securities industry --> Federal governments drafts legislations to create Federal regulator (FR), allowing provinces to opt in - Alberta and quebec strongly oppose, challenge legislation - federal gov't did not provide persuasive justification that securities legislation was a matter of national concern to bring it under s.91(2)
aboriginal treaty rights
- Treaty rights: current and modern land claims are considered treaty rights - Generally follow the Royal Proclamation - Treaties cover most of Canadian land mass - Treaties are a distinct and important part of settlement of this country - All persons living within those areas covered by treaties are "treaty people" - Written, oral and implied treaty promises are protected by section 35
Charlottetown conference of 1864
- Unity not between 3 maritime provinces but between all of Canada - Led to conference in Quebec city - Third conference in London, England in dec. 1866 where there was agreement in principle on the main features of what Canada would look like and the beginning of the BNA
persuasive authority: lesser weight is given to
- a decision containing a dissent - judges agreed on the outcome of the decision but not the reasons - a decision recorded by an unreliable reporter - court failed to take note of a relevant case or statute
persuasive authority: Greater weight is given to
- a decision of a court higher in the judicial hierarchy - a unanimous court decision - a series of cases standing for a single proposition - decision of a well respected judge or court
Defence - Property 35(1)
- a person is not guilty of committing an offence if they believe they are in peaceable possession of the property - the offence was for the purpose of preventing theft/trespassing or destruction
Accessories
- accessories are convicted of the charge they assisted with because there is no charge for being an accessory - consists primarily of mens rea - accessories can be convicted even if the main perpetrator is not
Duty of crown to first nations
- act as fiduciary - conduct negotiations in good faith - consult groups before taking action
interpretation and application of the Ontario Human Rights Code
- age = anything older than 18 - disability = physical, mental, developmental, learning disabilities - family status = being in a parent and child relationship - group insurance = the lives/wellbeing of a number of people are insured under a single contract
shared provincial and parliament powers
- agriculture and immigration - certain aspects of natural resources; but if their laws conflict, the national law prevails - They also both have power over old age, disability and survivors pensions but if their laws conflict, the provincial power prevails
The Historical Rules of Interpretation: the golden rule
- allows deviations from literal construction where such construction led to an absurdity - developed in response to the literal rule - the absurdity in question must be absurd in the sense of its logic - subjective
Canadian human rights tribunal
- avenue for litigation through the commission - inquires into complaints of discrimination - must only show that it is "more likely than not" that discrimination happened
civil law
- based on roman law - associated with a civil code --> contains a comprehensive statement of rules and general principles to deal with any dispute that may arise - looks first to code and secondly to past decisions - deals with private law
What happened in R v Black?
- black was tortured in a clubhouse while many watched - The spectators encouraged the perpetrators and therefore had enough presence to be held accountable
what is novus actus intervenes?
- can break the causal connection between the accused an a crime, if something happens that does not flow from the situation it is a NAI - relieves the defendant from responsibility for the happenings.
federal government
- can make laws that apply across the country - authorized to make laws respecting matters assigned to it by the constitution act 1867
anti inflation reference
- canadian economy in the grip of high inflation = high unemployment - Pierre trudeau enacts the anti inflation act to place control on wages, prices and profits. Applied to all sectors of economy, including provincially regulated sectors Unions launched BNA act challenge against AIA arguing it usurped s.92 provincial powers (province supported AIA) - SCC rejects federal gov argument about inflation, but accepts argument about POGG
Kelly Johnson and Campbell Case
- charged with dancing nude (immoral performance) - was convicted but appealed succesfully - Campbell then also danced nude and was charged with the same offence - The crown in the Johnson case appealed again and won so the law changed to how it had been originally, meaning that campbell was found guilty - Convicted at trial in provincial court - Reversed (Acquitted) on appeal to Riley J - Reversed (convicted) on Crown appeal to C. A --> This is when Campbell was tried - Reversed (acquitted) on appeal to SCC
Defence of Necessity
- common law defence - circumstances made them do it
the adversarial system
- contestants seek to establish through relevant supporting evidence a series of events that will form the basis of their allegations - trials (everyone get's their day in court)
firearms act and SCC
- criminal - Federal government enacts firearms act (amending Criminal code) in 1995 to ban some types of firearms and create gun registration and licensing system - Alberta gov't in 1996 challenges legislation by reference to Alberta CA. - Argues that firearms Act is colourable attempt to regulate property rights of gun owners --> it is a provincial authortity - Threat to public safety meant the legislation was properly anchored in section 91 - scc voted in favour of federal gov
who must comply with charter rights and freedoms?
- designed to control the actions of the state - do not control the actions of private individuals -controls the parliament(provinces and territories) - the executive and legislative branched of government
what is canada's international practice?
- dualist - we sign and ratify agreements but then the international law must be transformed into domestic law - when canada ratifies a treaty, canadian law does not automatically change
reasonable diligence
- duties to facilitate and hold off are conditional upon detainee exercising reasonable diligence in availing your rights - detainee must indicate that they want to contact counsel - detainee must also make reasonable efforts to contact counsel of choice
Canadian human rights commission
- emphasizes negotiation and conciliation through settlements - independent of the government because often deals with complaints of discrimination against the federal government
parry sound v OPSEU
- employment contracts - woman was fired after taking maternity leave - employers said she couldn't do anything about it because she was on probation still - SCC said that this went against the employment standards act of not being able to fire someone for taking maternity leave
r v sparrow
- explored scope of constitution act s.35(1) - appeal is about the alleged violation of the terms of the musqueam food fishing licence - The appellant was charged under s.61(1) of the fisher act for fishing with a drift-net longer than permitted by the terms of the band's Indian food fishing licence - appellant admitted the facts were right but that he was exercising his right under s.35(1) - The court of appeal held that the Indians have an existing aboriginal right to fish in the area that Sparrow was fishing in - The court defined the right as protecting the same interest as is reflected in the government's food fish policy - This position was attacked from both sides - new trial was issued
Section 2(b) of the charter
- expression - freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
criminal law (fed and prov powers)
- federal power under s.91(27) - provinces have some criminal-like powers such as speeding on the highway - Administering criminal justice (police forces, courthouses, prosecuting offenses) is provincial - Provinces have power under s.91(15) to impose fines, penalties and jail time for offences that are properly within the section 92 power
royal proclamation of 1763
- first unilateral declaration of the crown's will relating to first nations - created to alleviate conflict by declaring boundaries and defining jurisdictions between first nations and the crown
Abdelrazik v. Canada (Minister of Foreign Affairs):
- flees Sudan to Canada claiming protection as a refugee - mother gets sick in Sudan so he goes to take care of her - arrested in Sudan and detained for 11 months but was never charged with a crime - told CSIS he was being tortured when they interrogated him, Canada denies any knowledge of knowing he was tortured - moved to a halfway house in Sudan and requested to be able to go back to Canada many times, Canada never responded, he ended up on no fly list -Canada did not comply with the international law right allowing citizens to enter their own country - Canada put unnecessary road blocks in his way - unsc changed hot the 1267 list is managed because of this case
economic law
- greatest shift in power - most power lies within the provinces - Rulings by judicial committee of privy council gave primary economic powers to the provinces
specific intent
- higher level, more complicated offence - two step process: do X to achieve Y - eg. murder, robbery, theft
Supreme court
- highest court in Canada - hears appeals from other courts - constitutional questions are referred directly to the supreme court - decisions are binding on all other Canadian courts - not bound by past decisions but is reluctant to overrule them
stages of an offence
- ideas, thinking (pure mens rea) - preparing - doing (Attempt) - success (completed offence) --> the problem is determining when preperation ends and attempt begins
How people are charged for attempts?
- if someone is charged with a completed offence but the evidence only supports the attempt then the person can be convicted of an attempted offence only - if a person is charged with an attempted offence but in the middle or trial evidence shows that the offence was completed, they can't be convicted of a completed offence
4 elements of Treaties
- international agreement in writing - between states or states and an international organization like the UN - formed with the intent to be bound - governed by international law
warrants
- issued by judicial officers based on reasonable groups that an offence has occurred and the evidence will by found through the search of this location - only required where police conduct will invade a person's reasonable expectation of privacy
why are most aboriginal rights cases old?
- it was an offence for a lawyer to take money from an aboriginal to advance a claim on their behalf unless the government consented - aboriginals had no legal representation in key cases, no right in federal election, and no general negotiation processes
provincial government
- laws only apply within province - authorized to make laws only respecting matters assigned to it by provincial governments
general intent
- low level, simple offence - one step process: do X for its own sake - eg. man slaughter, assault
R v Morgentaler scc 1993
- morgentaler championed abortion rights in canada (while abortion was illega) - he opened an abortion clinic in halifax - nova scotia gov't enacted regulations preventing abortions outside of hospitals - constitutional question: was this within provincial power over health (92 (7) + (16)), or restricted to federal power over criminal law (91 (27)) ? - mortengaler won the case in the SCC
Family status/ Johnstone v Attorney General
- mother of 2, employed as a Canadian border service agent at Pearson - variable shift scheduling made it impossible to find childcare arrangements - dropped to part time status so she could work days - employer refused to accommodate once she had her second child - claimed discrimination on the basis of family status
Legal Cause in Criminal law (causation)
- need not be the sole cause - significant contributing cause - thick skull rule novus actus intervenes
search incident to arrest
- no requirements for reasonable grounds to believe evidence will be found - must be a lawful arrest - must not be conducted in an abusive fashion - search must be incidental to arrest: police must have a reason for the arrest - no time limit on when the search has to happen
Defence Team
- normally private lawyers - narrow role, directed at protecting interests of client - subject to duties of the court - can assume a purely adversarial role to the prosecution - no duty to disclose defence case to the prosecution
Mistake of fact
- not a defence and can only impact the case if it affects the accused mens rea - the mistake must be relevant
judges
- not elected, appointed - make law in the course of resolving specific disputes - do not (usually) make up law --> guided by precedent, principle, statue, and constitution - independent and impartial
Specific/General intent
- only relate to drunkenness - Drunkenness can help you if you are dealing with a crime that involves specific intent, but if it deals with general intent drunkenness won't help you
interveners
- participate in charter case - try to advance different arguments - the decision about who can intervene can be political
exception on the policy on treaty tabling
- peace treaty - treaty recognizing the independence of a state - treaty establishing boundaries --> these are all time sensitive
parties to a charter case
- person making claim (plaintiff or applicant) v. State ( represented as attorney general --> defendant or respondent)
investigative detention
- police have to power to detain for investigative purposes when they have reasonable grounds and detention is necessary
Duty to facilitate
- police must facilitate access to counsel and provide reasonable opportunity for the detainee to contact counsel - includes duty to offer detainee use of phone - includes duty to allow the detainee to call more than one person - includes duty to give the detainee an opportunity to consult with counsel in private
civil law
- private lawsuit between individuals - can also refer to the law system in quebec, operating based on civil code
fair practices legislation
- prohibited discrimination in employment, housing and services - Ontario was the first province to enact fair practices legislation - emphasizes conciliation and the settlement of companies through negotiation, criminal prosecution was a last resort
what does Intention (mens rea) not include?
- remoteness knowledge of illegality enthusiasm motive - willful blindness
promises made in the treaty of niagra
- respect for the sovereignty of first nations - creation of an alliance - free and open trade and passage between the crown and first nations - permission needed to settle on first nations territory - mutual peace, friendship, and respect
investigation
- responsibility for the investigation of crimes rests with the police - initiated by complaint from the public or the police finding evidence - police decide whether to lay charges
Roncarelli v Duplessis
- roncarelli owned a resteruant in montreal and was providing bail for jehovah's witnesses who were distributing religious tracts on the street - his liquor liscense was revoked - The challenge here is that it is difficult - if not impossible - to demonstrate why the right has been taken away
investigative search
- searches are not permitted in all circumstances - the officer must believe that their safety or the safety of others is at risk - the search must be for locating weapons not evidence - search must be reasonable
Search and Seizure
- should only be done with a warrant - criminal code s.487 regulates searches and seizures of buildings etc.
R v Ruzic (duress)
- smuggled heroin under threat that her mother would be harmed by drug dealers - problems: no threat of immediate death, the threat wasn't from someone who was present when the offence was committed. (doesnt meet the technical requirements of duress) - Rusick stated that these were contrary to the charter --> she wasn't morally culpable for these events and common law duress could help her
The Historical Rules of Interpretation: the mischief rule
- statutes were construed according to their purpose, with little importance attached to the words used - grew out of the conditions of judicial lawmaking - became unworkable when the legislature and judiciary are separate and the intention of parliament in enacting legislation isn't clear
The Historical Rules of Interpretation: the literal rule
- statutes were construed by a literal reading of the text (no regard to purpose of legislation) - evolved during the 18th and 19th century - makes no assumptions about the intention of producing fair results - produces absurd results
recklessness (mens rea)
- subjective/ objective → start with subjective aspect, the supect has to have knowledge of the risk - objective = reasonable people would not have run the risk
right to silence
- suspect doesn't have to answer any questions - constitutional right - not an absolute right, can be discharged by a waiver - asserting the right to silence doesn't mean the questioning will stop - police are not required to inform a detainee of their right to silence
is the canadian constitution written or unwritten?
- the Canadian constitution falls between written and unwritten because of its basis in the uk constitution which is unwritten - the written constitution is a collection of 25 primary documents
R v Perka (Necessity)
- the appelants were drug smugglers delivering weed from Colombia to Alaska - forced to dock in Canada because of a storm and were charged with importing drugs - argued necessity but it was countered that necessity is meant to excuse an act, not justify it
prosecution
- the corn attorney's office is responsible for prosecution - quasi judicial officers whose task is to achieve justice not obtain conviction - only prosecute the cases that are in the public interests - must disclose all evidence gathered to the accused before the trial
Regulating investigations
- there are legal rules to regulate what the police can and cannot do in their investigation of offences - attempt to achieve a balance between the community interest in law enforcement and the individual interests in liberty, autonomy etc.
provocation
- they made me do it by provoking me - only applies to murder - doesn't result in the aquitting of a charge, but the reduction of one (eg murder to manslaughter)
requirements of duress
- threat of bodily harm - threat has to be reasonably believed - no other legal way out - threat and harm in close time - proportionality between threat and crime
land claims resolutions
- timely - fair - strengthen relations between crown and aboriginals - division of responsibilities
mandates and responsibilities of the Canadian human rights commission
- to receive and investigate allegations of discriminatory practices - to attempt to resolve disputes through mediation - has the power to perform audits of public and private employers - responsible for developing and conducting information and prevention programs
when is exclusion of evidence most likely?
- when the police ignore established limitations on their powers - they significantly and unlawfully interfere with the privacy, dignity, autonomy, or liberty of the accused
requirements of provocation
- wrongful act or insult - deprive ordinary person of self control - deprived accused of self control - take into account things like drunkenness and temperament - acted in the heat of the moment (crime of passion)
ontario human rights code
- you must identify within a protected sphere (Eg, the discrimination that you experience must be significant such as being excluded from meeting as opposed to parties)
interpreting case law
-courts should decide like cases alike - A court is only bound to follow precedent if it deals with the same issue and the facts are sufficiently similar with no new material facts
specific features of canadian federalism (5)
1. Both levels of government are equal and have full jurisdiction within their assigned powers 2. John A Macdonald wanted strong central government, and thought the BNA had achieved this --> Did not occur 3. Interpretation of BNA Act by the courts after 1867 shifted power - particularly economic power - to the provinces 4. Today, Canada is relatively decentralized, with significant fiscal imbalance Federal government has considerable taxation powers while provinces have jurisdiction over expensive social programs, education, health and welfare 5. In Canada, federalism ensured we have a nation, but it also complicated democracy
What happens when someone's counselling does not result in an offence being committed?
464 a) they are still guilty of an indictable offence and liable to the same punishment they would be if the offence had been committed b) they are punishable on summary conviction and guilty of an offence
what did the BNA act do?
1. Created the federation: National government, provinces, territories and governments for each of them 2. Set out powers of parliament and provinces (mostly s.91 and s.92) 3. Vested formal power in Queen and created Queen's Privy Council (part 3) 4. Empowered parliament to create supreme court of canada (which it did in 1875 s 101) 5. Guaranteed right to english and french in parliament, legislatures and courts (s.133) 6. Guaranteed separate schools for protestant and roman catholic minorities in Quebec and Ontario 7. Guaranteed quebec the use of civil law (s. 129) 8. Gave the federal government powers over provincial governments, including disallowance (s.90) and declaratory powers for general advantage of canada (s. 92) ---> Has fallen into disuse → would be difficult for this power to be resurrected
General approach to Charter rights (2)
1. Define the right and determine whether or not it has been infringed by a law 2. If a right is infringed, determine whether the infringement was justified
s. 35 test
1. Does it interfere with the right? If yes: is the limitation on the right unreasonable? Does the limitation impose undue hardship, or deny Aboriginals of their existing rights? 2. Is there a valid legislative objective? If yes, does the legislative objective uphold the honour of the Crown?
what questions are involved in determining if something is justified
1. Is the limit established in pursuit of an objective that is sufficiently important - "pressing and substantial"? 2. If so, is the limit rationally connected to the objective 3. If so, does the limit impair the right as little as reasonably possible in the circumstances? - most important step 4. Finally, is the loss to the right proportionate having regard to the gain in terms of the object being pursued? --> most difficult step
the oakes test (s.1 of charter)
1. Pressing and substantial (broad) 2. Rational connection (more narrowly) 3. Minimally impairing (flexible), 4. Proportionate effect (flexible) - these thing combine to create the proportionality test
when is it appropriate to make a declaration temporarily invalid?
1. Striking down may pose a danger to the public 2. Striking down would threaten the rule of law 3. Suffered from under inclusiveness, and striking down would deprive deserving persons of benefits
3 components of the proportionality test
1. The measures adopted must be carefully designed to achieve the objective in question. 2. The means, even if rationally connected to the objective, should impair "as little as possible" the right or freedom in question 3. There must be a proportionality between the effects of the measures which are responsible for limiting the charter right or freedom, and the objective which has been identified as of "sufficient importance"
prima facie discrimination on the basis of family status
1. a child is under their care and supervision 2. the childcare obligation at issue engages the individuals legal responsibility for that child as opposed to a personal choice 3. they made reasonable efforts to meet the childcare obligations through alternative solutions, none of which worked 4. the workplace rule interferes in a manner that is more than trivial
royal proclamation policy
1. colonial governments were forbidden to survey or grant any unceded lands 2. colonial governments were forbidden to allow british subjects to settle on indian lands 3. an official system of public purchases developed to extinguish Indian title
three key concepts of federalism
1. criminal law 2. economic law 3. Peace, order, and good gov
8 features of the ideal rule of law
1. law must be prospective not retroactive --> laws must apply to future events 2. rules must be capable of being complied with --> laws cannot demand the impossible 3. rules must be promulgated --> people have to have access to what the law actually says 4. rules must be clear 5. rules must be coherent with each other --> the satisfaction of one law cannot result in the violation of another 6. rules must be sufficiently stable to allow people to plan their lives 7. the making of orders applicable to relatively limited situations must be guided by relatively general, clear, stable rules 8. people with the authority to make or administer laws in an official capacity must be accountable and must actually administer the laws consistently with their tenor
Three affects of drunkenness
1. produced insanity 2. leads to doing things that you wouldn't do sober 3. renders the accused incapable of forming the specific intent essential to constitute the crime
Adga Group v Lane duty to accomodate
1. substantive, the employers have the duty to accommodate to the point of undue hardship 2. procedural, requires the employer to adopt a reasonable procedure to determine what kind of accommodation is possible (this is where the employer failed)
three essential elements of statutory interpretation
1. the ordinary meaning of the words 2. the context 3. the purpose of the act
what are the 3 questions when s.52 is engaged?
1. what is the extent of the inconsistency --> determined by where legislation fails the oakes test 2. can inconsistency be dealt with alone? --> can severance or reading in fix problem? 3. should declaration be temporarily invalid? - these act as guidelines not hard rules
when was the charter entrenched
1982
what is the maximum jail time for summary conviction offences?
2 years - 6 months
Criminal Code on Accessories
21(1) Everyone is part to an offence who: - actually commits it - does or omits to do anything for the purpose of aiding any person to commit it (must be deliberate) - abets (encourages) any person in committing it
Criminal code on Common intention
21(2) when more than one person commit an offence they are guilty for all crimes that might stem from it - must be at least 2 people and at least 2 crimes
analyzing a crime: ARMD
AR: Actus Reus (guilty act) M: Mens Rea (guilty mind) D: Defences
the BFOR test
An employer must justify the impugned standard by establishing on the balance of probabilities 1. That the employer adopted the standard for a purpose rationally connected to the performance of the job 2. That the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose 3. That the standard is reasonably necessary to the accomplishment of that legitimate work related purpose. To show that the standard is reasonably necessary it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer
charter s.24
Anyone whose rights or freedoms have been infringed can apply to a court of contempt to obtain remedy, if the court finds that evidence was obtained immorally the evidence will be excluded
powers of the police
Broad - can question witnesses and suspects whether to lay charges - lay charges
the rule of law
hopes to constrain the discretion of decision makers by general laws - rulers must not be free to act arbitrarily or maliciously - the law must apply to everyone alike
when can POGG be used
Can only be used in a national emergency or in a case of national concern
what are the most common sources of law in Canada
Constitution statutes enacted by the federal parliament or provincial legislature federal/provincial regulations decisions made by judges.
what is federalism?
Constitutional structure of government - Stops one level of government from having too much power - Government jurisdiction shared by two levels of government: national and regional/provincial/state
what does the charter protect - s. 3-5
Democratic rights: Right to vote House of commons can only sit for a maximum of 5 years Sitting of parliament once every 12 months
Two part test per Withler (on discrimination)
Does law create a distinction based on an enumerated or analogous ground? Does distinction create a disadvantage by perpetuating prejudice or stereotyping?
section 24 of the charter: enforcement
Enforcement of guaranteed rights and freedoms - 24 (1) anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to ca court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances
what does the charter protect -s.15
Equality
Section 15 of the charter
Equality - Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability - These protection exist in respect to discrimination --> Equality from discrimination based on specific criteria
two step process of causation: Factual and Legal Cause
Factual cause: use the "but for" test: must be able to say "but for" fact A, fact B would not have occurred Legal cause: - Needs not be the sole cause - Significant contributing cause - Thin skull rule - Novus Actus Interveniens (NAI): if you have a new act that breaks the change of causation, that then removes the other thing from being a legal cause
what does the charter protect - s. 2
Fundamental Freedoms: (a) Conscience and religion (b) Thought, belief, opinion and expression; freedom of the press (c) Peaceful assembly (d) association
what is included in the charter
Fundamental freedoms Democratic rights Mobility rights Legal rights Equality rights Official languages of canada Minority language educational rights
court system
Hierarchical system in which the decisions of higher courts are binding on lower courts --> aspect of stare decisis
Common intention
If two people plan to commit a crime together, they can both be convicted of any other offence that the partner commits while carrying out the crime, if they knew or ought to have known that the other offence would happen
civil case v criminal case
In a criminal case, the burden of proof is beyond a reasonable doubt, which the crown must prove
actus reus and mens rea in criminal attempt cases
In most crimes the actus reus is the primary element, and the mens rea is only a necessary element of the offence, but in a criminal attempt, the mens rea is of primary importance and the actus reus is the necessary element.
acts passed by legislatures
Most acts passed by legislatures provide a general framework, the cabinet must fill in the blanks
What section of the constitution act 1867 lays out the office and powers of the prime minister?
NONE! → no mention of prime minister or cabinet in the constitution (all about the queen)
If the accused were aware of a rape taking place in their presence and did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act under law?
No, a person is not guilty just because they are present at the scene of a crime and do nothing to prevent it
when can severance or reading in fix the problem with the law?
Only appropriate in clear cases: 1. Legislative objective is obvious and it will further objective or constitute a lesser interference 2. Choice of means not unequivocal, so not an unacceptable intrusion on legislative domain 3. Does not involve significant intrusion into budgetary decisions
The two trial courts in Ontario
Ontario court of Justice and the Superior court of Justice
BNA (its start)
Ordinary statute of british parliament (at beginning) -Statue of the westminster parliament - Any time canada wanted to amend its constitution it had to beg the westminster parliament to pass the desired amendment - Widespread agreement that it was an embarrassment that the constitution was a statute of another country - Pierre trudeau re-patriated the constitution in the 80s
3 p's of law
Persons - torts - constitution Property Promises - contracts
recklessness
Recklessness involves a danger or risk and persistence in a course of conduct which creates risk that the prohibited result will occur
who are regulations enacted by?
Regulations are enacted by the cabinet acting as governor in council - most regulations are tabled unless they involve issues like national security
rights protected by ordinary legislation include:
Right to an education Right to health care Right to a minimum wage Right to a pension Freedom from discrimination by private people
r v oickle
Ruling on the common law limits of police interrogation
Haida Nation Case
SCC ruled that Crown has a duty to consult with meaningfully and to accommodate after hearing from aboriginals their concerns if the Crown is considering something that will have an impact on aboriginals
disability and accommodation under the ontario code
Section 17(1) a right of a person under this act is infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability - no tribunal finds a person incapable unless the needs of the person cannot be accommodated without undue hardship
Provisions in the criminal code that provide criminal negligence as a sufficient basis for information
Section 219: definition of criminal negligence, not an offence Section 220: causing death by criminal negligence, liable to life in prison Section 221: causing bodily harm by criminal negligence, liablie to prison for a term shorter than 10 years
counselling
Similar to abetting an offence, but is more appropriate towards a situation where it is a future event that has been encouraged
obiter dicta
Statements by the judge that are not part of the ratio - not binding, just persuasive
Section 15(2) of the charter
Subsection (1) does not preclude any law, program or activity that has at its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability --> Enables government to pro-actively combat discrimination
prima facie discrimination
The complaint must establish on the balance of probabilities - That they are a member of a group protected by the code - That they were subject to adverse treatment - That their membership in the protected group was a factor in the alleged adverse treatment - If the case has all these elements, the onus shifts to the employer or discriminator
Pieters case
The court of appeal confirmed the following propositions: - Prohibited ground of discrimination need not be the sole or even a major factor to the discrimination, it is sufficient if it was a factor or operative element - There is no need to establish an intention or motivation to discrimination, The focus is on the effects of the discrimination - There need to be no direct evidence of discrimination, discrimination may be grounded in circumstantial evidence - Racial discrimination is often the result of subtle unconscious beliefs, biases and prejudices
Who has to bring up the issue of drunkenness?
The crown has to disprove drunkenness, but the defendant must raise the issue of it
powers of national and provincial governments
The national parliament can make laws for all of canada except about subjects that are assigned to the provincial governments --> Some of these subjects are taxation in the province for provincial purposes, natural resources, prisons (except penitentiaries), labour laws (for most professions), social security, charities, hospitals (except marine hospitals), local works, property and civil rights etc
section 91 of the BNA
The residue of powers not expressly give to the provinces was reserved to the dominion
Division of federal powers: S. 91 federal
Trade and commerce International trade Federal taxation Defence and foreign affairs Banking and currency Bakrupcy Patents and copyright
What is the source of aboriginal ownership of land?
Unique inter-societal law: federal common law gives effect to the history of Aboriginal occupation and relations with the Crown
intent
What did the accused know, foresee, expect and intend?
the problem of incommensurability
a comparison of things that are difficult to compare
separation of powers
a constitution assigns responsibilities to different institutions within the government, --> legislative, executive, judicial
establishment of civil rights
a constitution can limit government power by providing legal rights to individuals, as was accomplished by the charter of rights and freedoms in 1982
binding authority
a court is only bound to follow the decisions of those courts that are higher in the same judicial hierarchy - a lower court must consider the ratio of a higher court as binding precedent until it is overturned
preliminary inquiry
a proceeding held in the Ontario court that is similar to a trial but the accused presents no defence and no verdict of guilt is rendered - if one is held, the trial occurs in superior court
statutory interpretation
a process that requires the exercise of judgment in balancing the ordinary meaning of words, the context of the entire statute and the purpose of the statute - Courts must decide if facts of particular case fit within general language This involves: Determining the meaning of statutory terms Determining the applicability of statutory term
reasonable grounds
a reasonable suspicion in all the circumstances that a person is connected to a particular crime - cannot be based on intuition or a hunch - not a high standard
opinio juris
a sense on the part of the states that this state practice is mandatory
example of objectivity in recklessness
a surgeon is going to operate on a patient. They perceive a risk - there is a 65% chance that the patient will die from the procedure. However, there is a 95% chance that they will die if you don't do the surgery. →If the surgery is not performed then subjectively the surgeon did nothing wrong Objectively it is a reasonable risk to run, and most people would take it
what is a statute
a written law of a legislative body
undue hardship
accommodation becomes unsafe or too costly
exclusion of evidence
accused can seek to have any evidence obtained in a manner that breached a charter right excluded from trial
operating mind
accused must know what they are saying and that they are saying it to a police officer who can use it against him
what relationships does private law deal with?
action between private parties
s. 95 shared jurisdiction
agriculture, immigration
notwithstanding clause
allows parliament or a provincial legislature to disregard a particular charter right for a 5 year renewable period
UN Act
an act through which canada has transformed the un charter - States that governor in council may make such order and regulations as are necessary to pit into effect decisions of the UNSC
state
an organized political community with a government and territory
persuasive authority
any decision that is not binding authority - eg. the dicta
Person Counselling Offence: 22(2)
anyone who counsels another person is party to every offence that the other commits in consequence of this counselling
willful blindness
arises when a person has become aware of the need for inquiry declines to make the inquiry because they do not want to know the truth
s. 443 of criminal code(warrants)
authorizes a warrant only when there has been information upon oath that there is a reasonable ground to believe that there is evidence of an offence in the place to be searched
positive right
benefit
bilateral treaties
between canada and one other country
plurilateral treaties
between one state and a group of states
multilateral treaties
between three or more countries
federal state
brings together a number of different political communities with a common government for common purposes and seperate "state" or provincial governments for the particular purposes of each community
hybrid offence
can be tried as either a indictable or summary conviction - likely will be tried by summary conviction - biggest category
Manitoba act 1870
can use french or english in house, courts acts of legislatures printed and published in both languages - consistent with the constitution act
what is a reference case?
cases where constitutional questions are referred directly to the supreme court
Terrorism
certain acts committed with the purpose of provoking a state of terror, intimidating a population or compelling a government or an international organization to do, or abstain from doing, any act
rigid constitution
certain fundamental constitutional laws cannot be changed in the same manner as ordinary laws
Oppression / R v Hoilett
charged with sexual assault, was left in a cell without clothes until his interview in which his requests for warm clothes and a tissue were ignored. He talked because he thought they would comply with his requests if he did
the official language act 1890
chose english, stopped publishing in french - Challenged numerous times, and ruled ultra vires
federalism
combines unity with diversity - brought about by a need for protection against the threat of the American invasion
private law
concerned with matters that affect society as a whole
public law
concerned with matters that affect society as a whole, includes criminal, constitutional, and administrative law
common law limits of interrogation
confessions are unusable if gathered through: - threats or promises - oppression - operating mind - other police trickery
written constitution
constitution that are contained in a single document
Ontario human rights code includes:
contract, services, employment, harassment, accommodation
what are some examples of what private law regulates?
contracts, property ownership, the rights and obligations of family members, damage to someone or their property
time duration
country needs to prove extensive and uniform state practice particularily when a country claims a custom emerged very close to present day
procedural law
court and pre-trial procedure and rules of evidence eg. the law relating to how a criminal charge can be worded
UNSC Resolution 1267
created a committee (1267) that could put people on an AL-Qaeda sanctions list - in response to a bombing
3 characteristics of a statute
deals in generalities, can be enacted in anticipation of events, does not rely on past decisions for its legitimacy
common law
deals with changing social or legal conditions as they emerge in disputes (cannot be enacted in anticipation)
what is it called when a cabinet makes the law more detailed
delegated legislation or regulations
criminal procedure: section 10b
detainees have to be advised of a phone service that provides 24hr legal advise - guarantee peoples right to counsel is fulfilled
r v herbert
determined that police can use "legitimate means of persuasion" to encourage the detainee to speak
Discrimination
differential treatment based indirectly on protected grounds - only arises when the grounds you are being discriminated on are protected
why was the notwithstanding clause added to the charter
distrust from the provinces towards the courts, they wanted to retain lawmaking authority in the event of a disagreement with judicial decisions
canadian human rights legislation/ Vriend case
employment case, teacher dismissed from his job because of his sexual orientation - sexual orientation was considered a viable reason to be fired - he argued that this went against the charter, SCC agreed and legislation was amended
what is common law based on
english law
substantive equality
equality in the most equitable way, people may be treated different but it looks at the outcomes and effects (everyone benefits the same
flexible constitution
every law can legally be changed with the same ease and in the same manner by the sovereign authority
section 9 of the charter
everyone has the right not to be arbitrarily detained or imprisoned
formal equality
everyone is treated the same regardless of the outcome or benefit
under section 2b, what has more power: thought, opinion, expression or belief?
expression
is the canadian constitution flexible or rigid
falls between the two
in canada, what legislatures can a law be passed by?
federal and provincial legislatures
law makers
federal gov, provincial gov, municipal gov, aboriginal governments, judges
originalism
giving the charter rights the meaning that those who drafter the charter intended them to have (intention based interpretation) - combine interpretation with construction (giving effect to terms)
what is constitutional law concerned with
governments, either in their dealings with other governments or with persons - sets limits on what governments can do
accessory after the fact
helping the perpetrator after the offence has occurred
Person Counselling Offence: 22(1)
if someone counsels a person to be party to an offence, they are also party to that offence even if it was committed in a different way than they suggested
division of powers
in a federal state, a constitution assigns jurisdiction over different matters to either the federal or provincial governments
Analogous grounds
in particular→ a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity
three types of criminal offence
indictable, summary conviction, hybrid
Mens reas includes:
intention willful blindness recklessness criminal negligence
mens rea
intention behind a crime
statutory construction: interpretation and application
interpretation: the meaning of the statute is determined application: the meaning is applied to the facts of specific cases
striking down
invalidating - the legislation is no longer enforceable
criminal case
involves prosecution by the crown under a public law statute such as the criminal code
why is common law at a disadvantage when confronting rapid social change
it is built up gradually
why can't you adjust the sentence with murder?
it's only penalty is life in prison Once a murder is reduced to manslaughter, the sentence can be adjusted (with manslaughter life in prison is the maximum sentence, so the court can adjust the sentence anywhere in between to account for the provocation)
dualism
law must be transformed before it can enter canadian domestic law - intl and domestic law regulate different things (domestic = interaction between individuals in a state, Intl = state to state interaction) - international law has no direct effect on a domestic legal system, the domestic system creates a new rule which mirrors the international rule
public law
law relating to relationship between the individual and society and the powers of various levels of government --> eg. constitutional, criminal law
what does the charter protect -s.7-14
legal rights: 7 - Right to life, liberty, and security 8 - Unreasonable search or seizure 9 - No arbitrary detention 10 - Rights on arrest/detention 11 - Procedural rights 12 - No cruel or unusual punishment 13 - Self- crimination 14 - Right to an interpreter
the problem of charter vagueness
legal standard are necessarily vague and in this sense are unlike rules - Charter rights are under determinate
summary conviction
minor offence, the accused will be tried alone with a judge in the Ontario court - light punishments - no preliminary inquiry
what does the charter protect -s. 6
mobility rights: right to move within canada
Canada has a ___ approach for customary international law
monist - Canadian international law enters Canadian domestic law directly without any transformative legislation
state practice
must show general and widespread nature of the practice and uniformity of practice - look at the number or distribution of states following the relevant practice - does not need to be universal, but needs to encompass states with different political, economic, and legal systems
does the cabinet have much accountability to the legislature?
no
is there common law tort action for discrimination?
no
Canadian constitutional law recognizes aboriginal differences in three main areas:
o Aboriginal title o Treaty rights o Cultural rights --> these rights are not absoulte
philosophical basis for law: natural law
objective natural principles discovered by natural reason
Criminal negligence (objective component, eg. ordinary person)
objective: - does not look at what the accused thought, but at what reasonable people think and the accused behaviour - To determine that someone is reckless you compare their behaviour with the behaviour of reasonable people → not good enough as a basis for criminal culpability (mens rea)
does the detainee have the right to have counsel present during questioning?
only if they are under 18
Where are most cases tried in ontario
ontario court of justice
asserting the principles of a nation
particularly in post-revolutionary societies, a constitution can make a statement marking the transition from one legal order to another
actus reus
physical aspects of the crime
duty to hold off
police must cease questioning or otherwise attempting to elicit evidence from the detainee until they have had the opportunity to retain and instruct counsel - police are only entitled to begin questioning after this has happened
arbitrary detention
police officers will often detain people in order to question them or make sure the detainee won't flee - little statutory regulation -
Indirect discrimination
ppears to be neutral but you are being treated differently based on the protected grounds, disproportionately negative impact (adverse effect)
what doesn't the charter apply to
private individuals or corporations - doesn't apply to universities, but does apply to community colleges
racial discrimination act
prohibited the publication, displaying or broadcasting of any materials involving racial or religious discrimination
In a criminal case, the defendant is ____ not sued
prosecuted or charged
what is criminal law
prosecution by the government to enforce a public law
Saskatchewan bill of rights act
provided the protection of civil liberties in the province as well as prohibited discrimination in a number of areas, including employment, housing, the workplace, land transactions, and education
right to counsel (charter s. 10b)
provides a constitutional right to counsel in the early stages of the investigatory process
Enumerated grounds
race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
private law
relating to relationship between private individuals, corporations, and other entities --> torts, contracts, family law
stare decisis
requires lower courts to follow the decisions of higher courts in the same jurisdiction
section 8 of the charter
right against unreasonable search or seizure
What did the crown use in R. v Salajko? (rape)
s(21) b and c
What did the judge enact in R v Dunlop and Sylvester (gang rape) ?
s.21 of the code which makes the person who commit the offence, any person who aids or abets in committing the offence, and people who form an intention in common to carry out an unlawful purpose leading to the commission of the event equally responsible
what charter section provides the right of the freedom of speech
s.7
most important federal powers
s.91 (2) Trade and commerce, s.91(27) Criminal powers, s.91 (opening) Peace, Order and Good Government Clause
most important provincial powers
s.92 (7) Power over health, s.92 (13) property and civil rights (widely interpreted power), s.92(16) local powers
what does the constitution do?
separation of powers division of powers establishment of civil rights asserting the principles of a nation
What trials have jury's
serious alleged offences - jury trials only occur in superior court
Indictable offence
serious offence, accused can decide if she wants to be tried by a judge or judge and jury - has the right to a preliminary inquiry
two steps that take place before a country becomes bound by a treaty are..?
signature: to express political support Ratification: to express agreement to be legally bound by the terms of the treaty
example of Novus actus interveniens
someone/victim being hit by a bolt of lightning (does not flow from the situation)
sources of law
statues, regulations, common law/case law, constitution
Section 52 of the Constitution
supremacy clause - If something is not in accordance with the Charter, it is in no force or effect
discrimination definition
takes the form of adverse treatment or disadvantage that one suffers due to their membership to a particular group
what instrument brought the federation
the BNA act
causation in criminal offences
the act must be willed for it to be criminal
s.35(1) of the constitution act
the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed eg, the right to fish
what rights are subject to the notwithstanding clause
the fundamental freedoms in section 2 and the legal and equality rights in sections 7-15 of the charter
Supremacy clause (Charter, s.52)
the government has to be consistent with the charter, if it isn't consistent then the law has no force or effect - charter is constitutional, applies only to government while provincial legislation is quasi-constitutional and has wider application
constitutionalism
the idea that the powers of government ought to be limited by law
willful blindness
the law treats willful blindness as equivalent to intention → if the accused does not have the intention in mind, they are still treated as if they did
s. 32 of charter
the protection of rights and freedoms, involves the state/gov
Attempts: question of law
the question whether an act or omission by a person who has intent to commit an offence is or isn't only preparation to commit the offence and is too remote to constitute an attempt to commit the offence
ratio decidendi
the reason for deciding - must explain the result in the case, can constitute a binding precedent
asymmetrical federalism
the recognition that Quebec is a different province than the rest of english canada - It has particular political social and cultural expectations and it felt too constricted by the BNA - The federal government began to politically give some of it's powers to Quebec, so that quebec could more actively defend and protect the french presence in canada - Has been controversial but has worked
what relationships does public law deal with?
the relationship between the individual and society, and for the roles of different governments
substantive law
the rights of the individual eg. the law related to the parameters of self defence
purposive interpretation
the scc often defines rights in regards to the purpose it supposes rights are required to serve - controversial because charter rights rarely have a single purpose
constitution in relation to the state
the set of rules defining its organisation and operation
robbery is a combination of what?
theft and assault
who is meant to inform a detainee of their right to silence?
their counsel
monism
theory of international law reception that allows IL to flow directly into the Canadian legal system - intl law is automatically incorporated as a part of a states domestic law - more common in civil law countries
problem with the historical rules of interpretation
they did not generate predictable outcomes
self defence
they made me do it by attacking me - force used has to be reasonable - you have to believe that you are in danger (reasonable belief)
customary international law
unwritten law - binds all states and cannot be altered by any state - made of two elements: state practice and time duration, and opinio juris
wampum belts
used in the treaty of niagara to "bind" the first nations with the english
Direct Discrimination
we will treat you differently based on one of the protected grounds → eg. we will not hire you because you are a woman
pith and substance
what's the essence of the powers we are talking about? What is the core power (federal or provincial) that we are looking at?
philosophical basis for law: legal realism
whatever the courts say
philosophical basis for law: legal positivism
whatever the ruler says
criminal negligence
when a person in doing or omitting to do anything, duty to do shows wanton or reckless disregard for the lives or safety of other people , who causes death to another person, who causes bodily harm to another person
When is mistake of fact a defence?
when it prevents the accused from having the mens rea for the crime they are charged with
common law
whole body of decisions rendered by courts in particular matters --> applies to private law matters outside of Quebec, and public law matters across the country
do corporations benefit from charter rights
yes, they are considered legal persons at law
what does it mean to have standing?
you need a legitimate reason to come before the courts (you have to have been affected by law)
