Law Exam Review - mrs. barrow PDF

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Unit 1: Heritage Law Chapter 1: Changes to the Law: Key Terms

Definition

ad hoc Organization

An organization created for a specific purpose.

Civil Disobience

A peaceful form of protest by which a person refuses to obey a particular law as a matter of conscience.

Entrenched in the Constitution

Forming part of the constitution, and amended only through the formal constitutional process.

Rule of Law

The fundamental principle that society is governed by laws applying equally to all persons and neither any person nor the government is above the law.

What are the Factors Driving Change in Law:

- Demographic Changes - Immigration (we have always been considered a melting pot, since we have so many -

people coming here were changing the laws) We have loosened up on our immigration laws because they’re are so many people who want to come here Technological Changes - self driving cars, we need laws for this because our society is moving too quickly for what were producing. - is it ethical for a machine to drive itself, doing 100km/h down the road with other people, is this putting other people in danger?

- Changes in Values - abortion (it used to be illegal but it is now widely accepted) - National Emergencies - Customs act (911, we became stricter when people are crossing the boarder) - These laws allowed a few of the follow to occur: - made terrorism a criminal act - allowed police to arrest people suspected of terrorist activity without charging them first

- allowed police to force people to testify in secret investigations - made it easier for police to use wiretaps as an investigative tool - allowed the Canadian Government to freeze and take away the assets of terrorists and their supports

2 of 17 Why do we Have Laws:

- As an instrument in society - to secure the operation certain social policies the law in place to help individuals fulfil certain goals

- As a mechanism for resolving disputes - so one can take the law into their own hands, to resolve disputes peacefully, we rely on court to resolve conflict fairly

- To protect persons, property, and rights - a legal system secures as a whole - laws also depend on a system to enforce them - laws which protect a persons right not to be treated unfairly by police - To provide order in society - laws which provide order and protection to society as a whole - people know and understand the laws

Chapter 2: Sources & Categories of Law: Key Terms

Definition

Constitutional Law

In Canada, the body of written and unwritten laws that set out how the country will be governed. This type of law sets out the distribution of powers between the federal government and the provinces and embodies certain important legal principles.

International Law

A law that has jurisdiction in more than one country.

Primary Sources of Law

Those parts of a legal system that have the longest historical development and represent the system’s cumulative values, beliefs, and principals.

Parliamentary Supremacy

The principle that Parliament has the supreme power of making Canadian laws.

Secondary Sources of Law

Current laws that enshrine a society’s values in written rules and regulations that have been formulated by legislators and judges.

Canadian Charter of Rights & Freedom:

- Provides Canadian Citizens with rights that the government cannot take away from you, unless you have committed a crime. It protects those living in Canada from breaches of their rights and freedoms. Constitution Act 1867:

- The Constitution Act, 1867, originally known as the British North America Act (BNA Act) was the law passed by the British Parliament creating the Dominion of Canada at Confederation. The Constitution Act, 1867, originally known as the British North America Act (BNA Act) was the law passed by the British Parliament creating the Dominion of Canada at Confederation.

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Constitution Act 1982:

- The Constitution Act, 1982 enshrined the Charter of Rights and Freedoms in the Constitution, and completed the unfinished business of Canadian independence — allowing Canadians to amend their own Constitution without requiring approval from Britain. Racial Discrimination Act, 1944:

- In 1944, Ontario enacted the Racial Discrimination Act. The Act prohibits the publication or display, inlands, premises, by newspaper or radio, of any notice, sign, symbol, emblem, or other representation indicating racial discrimination. Primary & Secondary Sources of Law:

- Primary sources: parts of a legal system that have the longest historical development and they give our laws their value or content.

- They include religion, customs and conventions, and social and political philosophy. - Secondary sources: transform society’s value into legally binding rules governing a state (written down), it is a legal pyramid.

- They include the constitution, statute regulations (Acts), and court decisions (common law, case law, judge-made law). What are Historical Influencers:

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Ancient Hebrew Law Ancient Roman Law Anglos-Saxon Law Norman Law English Common Law The French Civil Code

How Does a Bill Become a Law:

- House of commons > introduction and fi rst reading > second reading > second reading debate > referral to committee > report stage > third reading > Senate > introduction and fi rst reading > second reading > second reading debate > referral to committee > report stage > third reading > Governor General > royal assent > coming into force

4 of 17 Name and Describe the Different Categories of Law: Type of Law

Description

Substantive Law

Law that identifies the rights and duties of person or level of government.

Procedural Law

A law that outlines the methods or procedures that must be followed in enforcing substantive laws.

Domestic Law

The law that governs activities within a particular county.

International Law

A law that has jurisdiction in more than one county.

Public Law

The area of law that regulates activities between a state and its citizens.

Administrative Law The category of public law that governs relations between people on the one hand and government agencies, boards, and departments on the other hand. Criminal Law

The category of public law that prohibits and punishes behaviour that injures people, property, and society as a whole.

Private Law

The body of law that regulates disputes between individuals, businesses, or organizations; also called civil law.

Family Law

The area of private that governs relations among members of a family.

Contract Law

The area of private law that governs agreements between people or companies to purchase or provide goods or services.

Tort Law

The area of private law covering civil wrongs and damages that one person or company causes to another, when the wrongs or damages arise independently of a contractual relationships.

Estate Law

The area of private law that regulates wills and probates and determines what happens to a persons property after death.

Property Law

The area of private law that applies primarily to the buying, selling, and renting of land and buildings and the use of which lands may be put.

Chapter 3: Theories & Concepts of Law: Key Terms

Definition

Natural Law

The theory that human laws are derived from eternal and unchangeable principles that regulate the natural world, and that people can become aware of these laws through the use of reason.

Positive Law

statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want.

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Describe the Ancient & Medieval Theories of Law (Socrates and Plato; Aristotle and Rationalism; St. Thomas Aquinas): Describe the English Theorists (Hobbes, Locke, Bentham, and Austin): Legal Philosophers

Source of Law

Purpose of Law

Role of the State

Role of the Citizen

Socrates and Plato and the ideas of the Law and Justice

Natural Law (there is a moral imperative in the law, and it must guide people in the right living

Obeying the law is based on the eternal principles that govern the universe (natural law)

Each class of person performs its own functions properly and does not interfere with the functions of any other class

Do good and avoid evil.

Aristotle and Rationalism

Natural Law

Humans are political animals but their ability to reason sets them apart. Used reason to analyze the natural world from observations. Law has a moral purpose.

To force people to live according to their reason rather than their passions.

Should train to be legislators to regulate the behaviour of their fellow citizens and insure the prosperity of the state.

St. Thomas Aquinas

Eternal law, natural law, divine positive law, and human positive law

only through government can every person benefit from the insights of the best moral and intelligent leaders.

Subordinate to the church.

Must consent to be ruled for his/hers own benefit and to live in a manner that will unite them with god after death.

Thomas Hobbes

Positive law

To curb the greed, fear, and violence that is part of human nature.

To have a government with a strong leader to rule and maintain law.

To accept the dictatorship of one man to prevent constant fighting. The citizen must be passive and cooperative.

John Locke

Positive law and natural law

To enhance the natural rights of citizens and restrain any abuses.

To preserve the rights to life, liberty, and property.

Th right to rebel an unjust government.

To provide the “greatest happiness (for) the greatest number” of people ~ utilitarianism

To enforce and measure.

To bend their will to that of the governing body.

Jeremy Bentham and Positive law John Austin

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Unit 2: Rights & Freedoms Key Term

Definition

Entrenchment

Protecting a portion of a constitution by ensuring that it can be changed only through constitutional amendment.

Notwithstanding Clause

A clause in the Charter that may be invoked by Parliament or provincial legislatures to override basic Charter provisions.

Strike Down

To rule that a piece of legislation is inconsistent with the Charter and is no longer valid.

Read Down

To rule that, while a pice of legislation may generally be consistent with the Charter, it is inconsistent in the particular case at hand.

Discrimination

Treating a person differently or adversely fo no valid reason.

Sterotyping

Judging one person of a group and applying that judgement to all group members.

Prejudice

An opinion or judgement, especially an unfavourable one, based on irrelevant considerations or inadequate knowledge.

Harassment

A formal agreement between two autonomous entities to conduct themselves in certain ways or to do certain things.

Sexual Harassment

Behaviour characterized by the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation.

Poisoned Environment

A poisoned work environment is created when a workplace is hostile or unwelcoming because of insulting or degrading comments or offensive actions aimed at an employee or others.

Constructive Discrimination

Sometimes a rule or practice unintentionally singles out a group of people and results in unequal treatment. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination. For example, an employer has a rule that male employees must be clean-shaven.

Systemic Discrimination

refers to patterns of behaviour, policies or practices that are part of the structures of an organization, and which create or perpetuate disadvantage for racialized persons. It has a broad impact on an industry, profession, company, or geographic area.

Human Rights

The rights of an individual that are considered basic to life in any human society, including the right to religious freedom and equality of opportunity; when such rights require protection, intervention by the state in necessary.

Undue Hardship

The result of a change that could affect the economic viability of an employer or produce a substantial health or safety risk that outweighs the benefit of accommodating someone.

Separatism

The desire to establish a politically independent Quebec and to withdraw from confederation.

Treaty

A formal agreement between two autonomous entities to conduct themselves in certain ways or to do certain things.

Cultural Genocide

Deliberate and systemic destruction of the culture, traditions, language, and customs of a specific cultural group.

7 of 17 Natural Vs. Positive Rights: • Natural: • Rights beyond human manipulation or control • Inalienable • Universal • Comes from God? • “The Right to Life” • Freedom of religion • Grounded in natural law theory are views as enduring and universal; that is, subject to minimal or np limitation • Positive: • Rights created by humans • Governments and lawmakers make and change them for the benefit of society • “The right to be free from discrimination” • Mobility rights • Derived from positive laws that are shaped by political authority, wether doctoral or democratic and are subject to culture, social, economic and political changes within society Three Legal Sources of Rights: • Common Law - Derived from precedent in the English tradition. Current rights determined by past court decision (precent). • Statutory Rights - Granted by the authority of governments legislation. • Constitutional Rights - Guaranteed by the Charter of Rights and Freedoms. Historical, the Constitution Not Withstanding Clause:

- A clause in the Charter that may be invoked by Parliament or provincial legislatures to -

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override basic Charter provisions. This allows governments to pass legislation notwithstanding that it might violate one of a certain group of rights. The use of the notwithstanding clause has a time limit of five years. The five-year limit requires the government to review and restate its right offending legislation at least once an election period, possibly risking loss of election if that measure does not receive the support of the electorate. Section 33 of the charter, if the government feels that its needed, they can go in and change the law.

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Human Rights in Canada: Where they Come From, Main Statement of Rights, Prior to the Charter, Bill of Rights, The Ontario Human Rights Code:

- Where they came from: - The constitution (charter of rights and freedoms) - Common law (judge made) - Statues and codes (Ontario human rights code) - Universal Declaration of Rights - Main statement of rights: - It is entrenched in the constitution (the charter of fright and freedoms) - An act for the recognition and protection of human rights and fundamental freedoms assented to 10th August 1960

- Prior to the charter: - The bill of rights (1960) - The Ontario human rights code (1962) - The universal declaration of rights - The bill of rights: - Was the first statue in Canada - Established to entrench certain rights in law - Because it was only a statue, it could be repealed by parliament - Ontario Human Rights Code: - Provides protection from discrimination in five areas of our lives - It states that every person has a right to freedom from discrimination - Is a provincial law to protect human rights in a way that the Bill of rights was not doing, the code legislates equal treatment according to: place pf origin, ethnic origin, creed, gender, sexual orientation, age, martial status, record of offence

9 of 17 Read Down:

- To rule that, while a pice of legislation may generally be consistent with the Charter, it is inconsistent in the particular case at hand.

- Forcing a law to comply with the charter. Strike Down:

- To rule that a piece of legislation is inconsistent with the Charter and is no longer valid. - A judge can strike down a law or declare that a law is of no force or affect it if it conflicts with charter rights. Discrimination:

- Treating a person differently or adversely fo no valid reason. - Results when people base their actions on stereotyping and prejudice and treat others unfairly. Human Rights:

- The rights of an individual that are considered basic to life in any human society, including

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the right to religious freedom and equality of opportunity; when such rights require protection, intervention by the state in necessary. The right to fair and equitable treatment is referred to as human rights, they are the benefits and freedoms to which all people are entitled, not because they're citizens of a particular country, but because they're human beings.

Prejudice:

- An opinion or judgement, especially an unfavourable one, based on irrelevant considerations -

or inadequate knowledge. Prejudice occurs when individuals or groups are prejudged based on a stereotype of the group.

Stereotyping:

- Judging one person of a group and applying that judgement to all group members. - Stereotyping occurs when the characteristics of one member of the group are applied to all members of a group.

10 of 17 Undue Hardship:

- The result of a change that could affect the economic viability of an employer or produce a substantial health or safety risk that outweighs the benefit of accommodating someone. Difference Between the Canadian Human Rights Act and the Ontario Rights Code: - The Canadian Human Rights Act: - It was enacted in 1977, its jurisdiction covers services agencies and organizations regulated by the federal government, including those in banking, communications and transportation sectors and crown corporations. - It provides protection against discrimination on many of the same ground as the Ontario code. It protects employees in these areas (CBC, Canada post, chartered banks). - The protected grounds are race, national or ethnic origin, colour, sex, sexual orientation, age, martial status. - The Canadian human rights act is enforced for the Canadian human rights commission. - This applies to federal government departments and agencies and crown corporations; applies to all Canadians. - The Ontario Human Rights Act: - It was enacted in 1962. The Ontario human rights code takes precedence over all other legislation in Ontario unless a legislation specifically states that the code does not apply - The protected ares are race, ancestry, place of origin, colour, ethnic origin, creed, sex, sexual orientation, age, martial status, sexual harassment. - This is provincial; only applies to Ontarians. Separation:

- The desire ...