Intro to Canadian Justice Midterm
Something that is within law making authority?
Intra vires
Laws made by judges or courts are called?
Case law or Common law
Laws written by the government?
Statutes
When a court must make decisions based on a procedure decided by higher courts based off a previous case with the same legal issue
Precedents
Hiearchy of the courts
1) Trial court
2) Provincial/territorial court
3) Supreme court
Common laws created in _______ court are legally binding for all of Canada
Supreme
R. vs. Jacobson, (2006), 207 c.c.c(3d) 270 at 289(ONT.C.A)
What year was this created? What statute is it from?
2006
Criminal Code of Canada
Human Rights Code, R.S.O. 1967, Chapter 4. 15
What is the relevence of 1967?
The year it was revised
Laws made by judges via case decisons that become legal precedents for lower courts.
Common Law
Legal principle requiring lower courts to follow legal precedence/case law made by upper courts.
Stare Decisis
Court hierarchy
Trial->Provincial Court of Appeal->Supreme Court of Canada
What are provincial courts of appeal binding for?
Their own province
Are trial courts influential or binding?
Influential
What court decisions are binding for all of Canada?
Supreme Court of Canada
R. vs. Wilson
What kind of case is this?
Criminal
Where is there overlapping jurisdiction between federal and provincial laws?
Taxation, Criminal law, Marriage
When there is overlapping jurisdiction how is it decided who gets power?
Determining the dominant features of the case and giving power to the court it best aligns with.
What does the amending formula require agreement of?
-Federal Government
-2/3(7/10) provincials containing at least 50% of canadas population
How is the Canadian constitution changed?
Amending formula
What is the preamble of a statute?
Purpose
What are the 6 parts of reading a statute?
1) Short title
2) Definitions
3) Preamble
4) Parts
5) Sections
6) Care section
When "shall" is used in a statute what does it mean?
It is imperative
Non-negotiable, judge has no discretion
When may is used in a statute what does it mean?
It is permissive
The judge has discretion
What is it called when a judge assumes a fact, unless otherwise is proven?
Legal Presumption
Rules made within a statute are called?
Regulations
What is the purpose of common law?
Fairness and consistancy
How is a common law made?
When a case is appealed to a higher court and it is determined that a mistake was made in lower court, the new decision applies to all lower courts
Which court hears evidence from witnesses?
Trial
What 3 things does Trial court hear?
-Evidence
-Arguments
-Motions
Who does the provincial court hear from?
Lawyers tell judges what info was discussed in trial court
What cases make it to Supreme Court of Canada?
Unique cases or cases with national value
When can a Supreme Court decision be challenged?
-If the legislature revises
-If legislature is created to change the precedent
how many judges are usally involved in a provincal court of appeal case?
3
how many judges are usally involved in a supreme court case?
9
In the Supreme Court of Canada, how are decisions made between the judges?
Majority rules
When a minority of the supreme court disagrees with the decisions made by other judges what do they do?
Write dissenting opinions
Why do judges stay in their jobs for a long time?
-They're appointed till age 75
-Very difficult to fire
It takes a pannel of judges to decide if they should be dismissed
What does JJA mean?
Justices of Appeal
If only one J it means there is only one judge, two means multiple.
When the name of a party in a case is only their initials what does that mean?
They are a minor
what does ONCA, OCA, Ont.CA stand for?
Ontario Court of Appeal
What does a written judicial decision consist of?
-Brief description of the case
-Relevent statutes and case law
-The judges decision with reason
-Comments helpful to those reading the case
How does one win an appeal?
Show that an error was made in the lower court or show that the sentence given is excessive.
What do appeal judges consider when deciding whether to appeal the case?
-If the sentance is unfit
-Any precedents possible
-Factors are balanced
What are the 3 decisons the appeal judges can make when reviewing a case?
1) Uphelp: appeal denied
2)Overturned and sent for reconsideration: Appeal allowed and sent back to trial court
3)Overturned and appeal court imposed new sentace: Appeal allowed and the appeal court comes us with a different sentance.
What does overturned and sent for reconsideration mean in appeal court?
An appeal is allowed and is sent back to trial court for reconsideration
What two parties are involved in a criminal case?
The crown. vs. the defendant
What catagory of law applies when society alleges someone has done something wrong and should be punished?
Criminal
What catagory of law applies when someone alleges someone has caused them harm and they deserve compensation?
Civil
What catagory of law consists of smaller pannels of specialized individuals?
Administrative
Who are the 3 key players in the criminal system(not including defendant and plaintiff)?
1) Police
2) Prosecuter
3) Defence council
What must police have to lay charges?
Probable and reasonable grounds
Who is the prosecuter representing in criminal court?
The king and society
What is the prosecuter responsible for?
-Facing the accused
-Present evidence to the judge proving the accused is guilty
What must the prosecuter provide the accused with?
Full disclosure of their case against them
What is the accused entitled to in criminal court?
A lawyer, though they may chose to represent themself.
In criminal court, does the accused have to disclose their case to the court/prosecuters?
No
The _____ is on the person who as to prove the case?
The onus
Who is the onus on in criminal court?
Prosecuter
In criminal court, what happens when the accused pleads not guilty?
A trial occurs
What happens when the accused pleads guilty in criminal court?
Case goes directly to sentencing with no trial
The degree to which something must be proven is called?
The standard of proof
In criminal court, what must the prosecuter prove to persuade the judge?
Guilt beyond resonable doubt
What must reasonable doubt be based on?
Evidence beyond sympathy or prejudice
In criminal court, what might the accused try to raise to help their case?
Reasonable doubt
In criminal court, what happens when the accused is found guilty?
They are convicted and the prosecuters ask the judge for a specific punishment
In criminal court, what happens when the accused is found NOT guilty?
They are aquitted
In criminal court, who decides the sentence of someone found guilty?
Judge, jury has no say.
How many people are in a criminal court jury?
12
In criminal court when can the accused chose a jury?
when they face a maximum punishment of 5 years in jail
In criminal court, is the jury decision majority rules?
No it must be unanimous
When is there NO right to a jury in criminal court?
When the charge is under provincial legislation or municipal by-law.
In criminal court, what must the judge inform the jury of before they decide if the accused is guilty or innocent?
Instruct them on the law
What is the main reason people are sued?
Negligence
What are the 3 elements for torts of negligence?
1) Defendant owed a duty of care to plaintiff
2) Defendant behavoir fell below the standard of care
3) Harm was caused by lack of care
The legal obligation of a person to reasonably avoid acts that could cause someone harm is called?
The duty of care
The degree of care a reasonable person should extercise under the circumstances is called?
The standard of care
In civil court, what must be proven to appoint liabilty to the defendant?
-They had a duty of care
-They fell below the standard of care
In civil court, how do judges determine if the defendant owed a duty of care?
Should the defendant have reasonably foreseen that their actions could be harmful
In civil court, how do judges determine if the defendants behavoir fell below the standard of care?
Did the defendant do everything a reasonable person would do to avoid harm
In civil law, how does the judge determine if harm was caused by lack of care?
-Did intervening events add to injury
-Is there a link between lack of care and injury
Take your victim as you find them refers to what rule?
The thin skull rule
If the plaintiff had a pre-existing condition that made the outcome worse than what could be expected of a normal person is the defendant still responsible for damages?
Yes, they are responsible for all actions that are a result of their harm(thin skull rule).
In civil court, can the liability be divided amoungst multiple parties?
yes, the appointment of liability can be put on multiple parties by percentages
Can partial liability be appointed to the plaintiff?
Yes, it leads to less compensation from the defendant
What are the 6 major examples of intentional tort?
1) Assault and Battery
2) Trespassing
3) False arrest and imprisonment
4) Defamation
5) Invasion of privacy
6) Nuisance
What must be determined of the defence, for an intentional tort to be proven?
That they acted with purpose and knew they would cause harm
Uninvited threat or application of force is defined as what?
Assault and battery
How is assault and battery often defended?
The plaintiff gave consent, but must consider to what extent.
Entering or handling someones property without permission is called what?
Trespassing
How are tresspassing torts often defended?
The person had permission, but must consider if they overstepped.
Being stopped or confined without lawful reason is what tort?
False arrest and imprisonment
Is suspicion that someone has committed or is going to commit a crime a valid reason to detain or arrest someone?
No
Libel is what kind of defamation?
Written
Slander is what kind of defamation?
Spoken
What 3 things must happen for something to be considered defamation?
1) Publish a comment
2) Comment is heard or read by others
3) Damaged the plaintiffs reputation
How many people must read/hear a comment for it to be considered defamation?
only 1
Even if a comment is true, why is it still considered defamation?
because of common law privilege, meaning people are still responsible for communication on matters of public interest
Publicly disclosing private facts about someone is what tort?
Invasion of privacy
Indirect interference with someones enjoyment or use of property is what tort?
Nuisance
What is a common defence for a tort of nuisance?
There is a pre-existing use