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Law Midterm Exam Review

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Carleton University
LAWS 1000
Phillip Steiner

Law Midterm Review 2013 What Is Law? Law - a recognized/accepted system of codified rules (often, but not always written) in a given jurisdiction  Is also; o Formal collection of processes and procedures o Profession - complete with systems of accreditation, hierarchies, pay scales ,and regulatory bodies o A lens - a perspective through which to view society and social conflict o A state institution involved of social regulation Legal studies approach law to focus on examining law from multiple perspectives, including some following assertions;  Law as one part of a complex set of institutions (law and society)  Law is more than the black letter - role of professionals and other 'players' in making decisions  Law and Politics are connected - there is no such thing as 'pure' law  Law isn't always able to address/see the 'big picture' - structural issues are often obscured by law's focus on individual cases  Law isn't neutral - law often serves and maintain particular interests  Law can be force for social change (positive or negative) Charter of Values in Quebec: Tolerance, Human Rights, and Secularism Proposed Legislation that would "entrench the religious neutrality of the state and the secular nature of public institutions" in Quebec's Charter of Human Rights and Freedoms Proponents Opponents Legal Issues Replaces idea of 'division of Shows strong preference for  Enacting Provincial church and state' with idea of certain dominant religious Policy government as a-religious or symbols and styles of dress -  Quebec Charter of Rights religious neutral designated part of Quebec's and Freedoms heritage.  Canadian Constitution Promotes secular values by Discrimination against various and Charter of Rights ensuring all public officials groups and creates intense and Freedoms (Charter appear as religiously neutral barriers for participating by challenge) when performing their providing individuals unwilling to  Democracy and public services compromise their religious opinion traditions regarding the wearing  Social Order, Social of certain symbols of faith Regulation Set 'reasonable' limits on the Contravenes and limits provincial  Norms and Values freedom of religion as and constitutional protections guaranteed in the Quebec on every citizen's freedom of Charter of Human Rights and religion Freedoms Law Midterm Review 2013 The Power of Language  Words don't only reflect our idea, they shape and constrain out thoughts  Specific words can reproduce broad ideas - almost invisibly  Power of language is especially apparent in Law - very specific and complex language develops Implications of the term 'primitive'  Implies a linear progression of cultures - from less to more advanced  Privileges the current cultural context as most advanced  Eurocentric - generally based on the assumption that western European values and systems are the most 'normal' or 'natural'  Suggests a paternalistic relation between 'primitive' and so-called advanced or modern culture, practices, or societies  Tends to minimize or obscure points or similarity, while emphasizing differences 'Him' and 'he' are not valid stand ins for human or humanity  Implies that 'man' or 'male' is the default of more 'natural' position  In association with law, it can reinforce the belied that legal work is men's work  It can, though obviously not always does, hint at a perspective in which women or other non- traditional male perspectives are not being considered, or even imagined Four Functions of Law 1. Purposive definition of personal relations and relationships  Offers basic language of relationships - mother in law, step brother etc.  Established rights and responsibilities - what does each person owe other members of society  Framework for establishing liability between individuals and between groups  Basic 'blueprint' for 'modern' society 2. Sanctioning the legitimate use of coercion and physical violence  Establishes and reinforces the State's monopoly on the legitimate use of violence  Sets out 'reasonable' limits and exceptions for individuals and groups to borrow the authoritative use of violence  Defines 'true' violence vis a vis other acts - sets out contexts in which violence isn't considered violent  Takes the necessary coercion role of law (punishment and discipline) out of the hands of those directly affected (wronged parties) and vests it within ostensibly neutral institutionalized positions (force confinement vs. prison terms) 3. Resolving disputes (application of existing law)  Restores order to an unbalanced or broken set of relationships, expectations, or claims  Establish guilt, fault, responsibility or parties Law Midterm Review 2013  Offers punishment or redress  Provides a 'neutral' framework for settling disputes  Offers closure - once completed, projects an expectation that things (society) should return to the way they were prior to the dispute 4. Redefine the relationships and rules as societies evolve (adaption)  The law must shift as societal norms, expectations, and values change  Must continually evolve and change along with society  There is always tension between law's tendency towards conservatism (maintaining the existing order) and law's capability to stimulate, support, or reflect social change (promoting a new social order)  Such legal change tends to reflect after significant social and cultural changes, but can sometimes be at the forefront of social change Functionalism Views society from a large scale perspective (macro), and suggests that it evolves in a way similar to a living organism. In this view, individual elements of a society (laws, customs, institutions, etc.) are likened to organs - each provide a vital function. Pros Cons  Strong emphasis on social structure  Unclear account of how/why societies ever  Takes institutions and their roles seriously change  Minimizes or ignores the importance or  Looks beyond individual interactions to broader social contexts productive power of conflict  Seeks to understand how a range of  Often assumes a linear understanding of different elements in society contribute to development where current practices are social stability taken for granted as more advanced and 'better' than previous practices Other Ways Law Can (Mal)Function 5. Checks and Balances in the Democratic System (Supreme Court) 6. Legitimation of existing or potential political orders, social behaviours, or cultural practices (good and bad) 7. Domination and Social Control 8. Both a reflection of, and contributor to, societal culture(s) and norms 9. Barriers to access or participation (complexity as an obstruction) 10. Self perpetuating industry (legal-industrial complex) Influences on Canadian Legal Culture  Socio-economic development o Modernization and modernity o Rise of bureaucracy and the technical expert Law Midterm Review 2013 o Capitalism and the logic of profit o Loosening of social ties - relations of strangership o Law as a growing/growth industry  Political structure, democracy and the Charter o Peace, order, and good government o Judiciary as a check against despotism o Rights discourses - social justice movements o Supreme court appointments  Legal culture, Bar Association, and two (dominant) legal traditions o Common Law and Civil Code o 'Independent' judiciary o Unified legal profession o Power of the Bar Association  Historical influences o Canada's questionable legal status o Acknowledging Aboriginal legal traditions  Non-adversarial traditions  Self government treaties  Restorative justice o The myth of homogeneity Cultural Hegemony of Law 1. Law and ideology (Marxism on Law) 2. Cultural hegemony (Gramsci on Law) 3. Law's effects on perception - Thinking in binary oppositions 4. Laws and norms 5. Law in television and movies - The C.S.I. Effect 6. Law in the media 7. Between laws and norms: rules Marx's Critique of Capitalism and Law  Marx famously claimed that the history of the world is the history of class conflict  In each economic system in human history, Marx argues that a dominant class oppresses and exploits a dominant class  Capitalism, according to Marx, is the height of this class struggle. The owners of the means of production (factories, expensive equipment to build things) exploit and oppress the working class (who only have their own hard work, labour, to sell)  Marx described one of the ways the ruling class controls the working class is through control of the means of intellectual production - they produce and disseminate idea that reinforce the system in which they are doing so well. Marx called this ideology. It is the lies the ruling class tells the working class to keep the status quo going. Law Midterm Review 2013  Law, according to Marx, is a tool of the ruling class. It protects their interests. Gramsci and Cultural Hegemony Antonio Gramsci (1891-1937)  Italian Political Theorist and famous Marxist thinker  Imprisoned by fascist Mussolini regime in 1926. Spent over 8 years in prison - where he wrote his most famous works the Prison Notebooks.  Building on Karl Marx's famous concept of ideology (the manipulated ideas presented to the dominated by those ruling), Gramsci came up with the idea of cultural hegemony - domination by the manipulation and control of cultural knowledge and knowledge production.  This is a very powerful form of control because it is invisible to those who it is being used upon. The ideas, language, and 'truths' presented not only appear innocuous but natural. Hegemony - leadership or predominant influence exercised by one nation over others, as in a Confederation  When we say Law is hegemonic, we mean that it in the Gramscian sense that it affects the very way in which people perceive, understand, and react to culture and society. It influences out language, and our basic classifications in a way that is very difficult to recognize. The pressure exerted by Law goes beyond invisible - it appears normal and natural. Law appears Law is Natural - it seems like it is the way it should be, Arbitrary - it is made by people, and could be and that how it is, is how it was 'meant to be' different than it is Static - law and legal principles seem to remain the Ever changing - it changes across time and same over time, are passed down from generation jurisdiction, constantly (d)evolving to generation Substantively unequal - law effects different Equal - one set of laws for everyone is 'equal' people in different ways under the law Binary - two opposite and mutually exclusive points Spectrum - various (potentially infinite) points in a range between two ends Laws Norms  Generally codified (in Western Traditions)  Implicit (known without being written)  Formal  Informal (no official rule set)  Supported by Institutions (i.e. - the State,  Socially Diffused (everywhere and courts, police) nowhere)  Systematic (supposed to be governed by  Arbitrary and Naturalized (presented as internal logic) 'normal') Law Midterm Review 2013 Law as a Cultural Force Borrowing the idea of 'cultural hegemony' from Marx and Gramsci, we also recognize that Law exerts a tremendous pressure on the way we think about and see the world. On our cultural understandings. The pressure exerted by Law goes beyond invisible - it appears normal and natural The Law has influenced our socio-economic development, political organization, established juridical institutions, and how we have historically treated with aboriginal and minority groups as a nation as a cultural force Law and culture(s) have a co-constituting relationship. Laws both depend on, and sometimes produce socio-cultural norms and ideas. Similarly, dominant socio-cultural norms and ideas can, over time, change formal legal rules. Law in the Mediate Public  July 2012 - Statistics Canada released a report on police-reported crime in Canada, revealing that 2011 had the lowest crime rate in 39 years (since 1972)  Media reporting has dramatically increased. This in part due to new media technologies (24h news cycles, social media, blogs) represents a shift in how news is produced and marketed (rising importance of advertising dollars) Constitutional Supremacy  The Constitutional and attached Charter of Rights and Freedoms represent the supreme laws of the land  All other laws, statutes, regulations, or policies must adhere to the explicit rules and implicit principles set out in both documents  The Supreme Court of Canada has the power to review the constitutionality of any other laws, and strike them down, in whole or in part, should they by found unconstitutional  In this way, the Constitution and Charter, and in some ways the Supreme Court, can be seen as substantial checks on the power of the government to enact laws Three questions exploring constitutional principles 1. Whether or not the government of Quebec has the power to unilaterally exit the federation (secede from Canada)? 2. What are the reasonable limits placed on the head of state (province) and other elected public officials in the application of their authority - specifically whether the Premier of Quebec (Duplesses) contravened the principle of the rule of law by interfering with and guiding the decision of the Quebec Liquor Commission? 3. Did the Federal Government overstep its authority, and interfere in provincial jurisdiction, by passing amendments to the Firearms Act and Criminal Code to create broader gun registry requirements? Law Midterm Review 2013 Reference re Secession of Quebec Basic values and principles expressed in the Constitution Reference re Secession of Quebec  Democracy  Rule of Law  Protection of Minority Rights Roncarelli v. Duplessis  Rule of Law  Freedom of Religion  Freedom of Association  Good Faith Administration  Neutrality of the State (connection with current 'values code') Reference re Firearms Act  Division of Powers (federal and Provincial)  Peace, Order, Good Government  Balance of Federalism  Double Aspect Doctrine Division of Powers in Canada Powers of the Parliament of Canada  Public debt and property  Weights and measures  Regulation of Trade/Commerce  Bankruptcy  Unemployment insurance  Patents  Direct/indirect taxation  Copyrights  Postal service  Indians/Indian reserves  Census/statistics  Citizenship  Defence  Marriage/divorce  Navigation/shipping  Criminal law, including Criminal  Quarantine Procedure  Sea coast and inland fisheries  Penitentiaries  Ferries (interprovincial, international)  Works connecting provinces; beyond  Currency/coinage boundaries of one province, within a  Banking/incorporation of banks/paper province but to the advantage of money Canada/or more than one province Law Midterm Review 2013 Exclusive Powers of Provincial Legislatures  Direct taxation within province  Property and Civil Rights  Management/sale of public lands  Administration of Civil/Criminal Justice belonging to province  Education  Prisons  Incorporation of companies  Hospitals  Natural resources  Municipalities  Matters of a merely local or private  Formalization of marriage nature Shared/Concurrent Powers  Old age pensions  Environment  Immigration  Health  Agriculture Legislature Democracy - demos (people) cracy (rule by)  Cabinet (formed by the ruling party, led by the Prime Minister), House (rest of the elected MPs), Senate (appointed body of 'somber second thought')  Laws passed according to the jurisdictional powers set out in the constitution act 1867  Acts, national and international treaties, regulations, and policies  Shares some power with the judiciary - especially the Supreme Court of Canada (checks and balances) Judiciary  Application of existing laws necessitates ongoing interpretation of law (precedent)  In some fields (tort) living law is constantly being made and remade by interpreting principles and applying them to facts in specific cases  Judiciary decision about interpretation of rights, responsibilities, obligations, adjust interpretations of, and applications of, existing laws  Supreme Court of Canada only court that can strike down legislation (laws) in whole or in part Public and Private Public Law Private Law Law that governs the relationship between Law that governs the relationship between individuals and the state. individuals. Includes: Includes: Constitutional Law Torts Administrative Law Contracts Criminal Law Law of obligations (civil code) Tax Law Law Midterm Review 2013 Tort as Opposed to Crimes Principles and process for determining culpability Criminal Law Torts (contract law)  Always against the Crown  Between individuals (legal persons)  Social control/order  Referee  Burden of proof - beyond a reasonable  Burden of proof - balance of probability doubt  Reasonable person test  Mens Rea and Actus Reus  Functions  Functions (of Punishment) o Compensation o Denunciation o Deterrence (both kinds, but more general) o Deterrence (general/specific) o Education o Incapacitation o Sublimated Revenge (Psychological o Rehabilitation (Corrections Can) Function) o Reparation o Third kind of Deterrence (Market) o Responsibility o Ombudsman (field complaints, force change) Legal Players Politicians –  Good: o Will of the demos, representative, pro-active o Why law is legitimate o Proactive – looks at arising issues, and address them before it becomes a major issue within the legal system  Bad: o Short sited, adversarial, populist, self-serving o Practical limitations – politicians want to be re-elected (where are we in the system as a cyclical time) o Populist – looks only at the in-term time period rather than far into the future Lobbyists – individuals who are paid to bring the perspectives of others and corporations forward and make others hear these ideal  Good: o Share client perspective o Can bring forward good technical expertise  Bad: o Secretive, undemocratic Law Midterm Review 2013 o Work for profit corporations – profit driven (not always in the best interest of the general public) o Way corporations can affect law Lawyers – people who are experts on the system  System needs lawyers as technical experts – in order to make it easy for those who lack the specialization (able to navigate)  Gatekeeper – need a lawyer to get something done (know how to ‘manipulate’ the system – how it works, how to respond, etc.) o Control access to the system and access to the outcome  Typology of motivation: 1. Public interest – bettering the environment and community in a general way 2. Corporate – looks to better the long term aspects of corporations (a job) 3. Service to the System – working for the state in order to create fair representation within the system 4. Service to the Individual – looks to help one person (ie. Defence lawyers help people get off)  Usually is a mix of multiple motivations – not as simplistic as stated Judges and Juries – has the job of determining guilt or innocence Judges – 99% judges before lawyers – legal experts  No formal training to become a judge  May have bias – however there are structural rules that prevent bias (controls) o Promotes neutrality  R. v. Ewanchuk – sexual assault case in Alberta (1990s) Juries – common people who judge peers (principle of right to be judged by a panel of peers)  General sense of the greater public  Problems of bias: o Interest prejudice – have an interest (finances, etc) within the case o Specific prejudice – know someone within the case o Generic prejudice – believing stealing cars is the worst crime, racial prejudices o Normative prejudice – responsibility to speak for the group you represent (religious and thinking of harsher punishments on crime, may not listen to the case details and pre- decide guilt) Litigants – those who are within a court system  Repeat Players – Involved in a system over and over again (will gain more knowledge than someone who only does it once) Law Midterm Review 2013  Motivation: each case does not hold extremely important to the person (major corporations for example) only care about the major principles and concepts determined  One-Shotters – Typically have less knowledge since they have limited experience within a system (specialty)  Motivation: personal gain, short term, care immensely about the one case Law Enforcement – those who reinforce the legal system through enforceability  Includes police  Only supposed to enforce the law but there is selection over which laws to enforce o Would be unreasonable to try to enforce every rule all the time (not enough police officers to do so)  Broken Windows Theory – the look of a neighbourhood/community will encourage criminality ( o The look of a deteriorating community asserts to people that no one cares and in turn there is a higher likely chance of people committing crime o Turns into a cycle with money being spent (spend money to fix areas, find more crime, circle) o Leads to a clear economic divide (more crime in poor communities than rich)  Bias – profiling (systemic problems) o DWB – Driving while black (racial profiling based on those who are driving nice cars) R. v. Ewanchuk  Example of judiciary bias  Criminal case regarding sexual assault (originally heard in Alberta)  Trial judge, and later Alberta court of appeal judge (Justice John McClung) held that the defendant was not -guilty by virtue of a defence 'implied consent' " must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines"  This was overturned at the Supreme Court of Canada, who ruled, not only that there was no defense of implied consent, but also that the mere idea, and comments made reflecting a deep and problematic bias against women, and perpetuated dated and misogynist stereotypes Citizenship and Law  Conceptually, the citizen is the primary individual unit of the contemporary Nation State  Citizens are also conceptualized as those that the State has duties towards  In practice, there are various other types of 'belonging' in a Nation State: permanent residents, visitors (various kinds of visas), migrations workers, and 'illegal' aliens  While laws are jurisdictional (applied to all in a geographic area), rights and privileges are often connected to status Law Midterm Review 2013 Canadian Citizenship Passive conception emphasizes the citizen as the holder of rights  Habeas Corpus  Freedom of conscience and religion  Freedom of thought, belief, opinion and expression, including freedom of speech and of the press  Freedom of peaceful assembly  Freedom of association  Mobility Rights  Official languages rights Active Conception emphasizes the citizen as bearer of responsibilities  Obeying the law  Taking responsibility for one's self and one's family  Serving on a jury  Voting in elections  Helping others in the community  Protecting and enjoying our heritage and environment Part I the Right to Citizenship Persons who are citizens 3. (1) Subject to this Act, a person is a citizen if a) the person was born in Canada after February 14, 1977; b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen; c) the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship Not applicable to children of foreign diplomats, etc. (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government b) an employee in the service of a person referred to in paragraph (a); or c) an officer or employee in Canada of specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or Law Midterm Review 2013 under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a) Inadmissibility 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur Criminality 36. (2) A foreign national is inadmissible on grounds of criminality for a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; Security 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for a) engaging in an act of espionage that is against Canada or that is contrary to Canada's interests; b) engaging in or instigating the subversion by force of any government; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; c) engaging in terrorism; d) being a danger to the security of Canada; e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1), or (c) Unmaking Citizens Deepan Budlakoti  Born in Canada (Ottawa) October 17th 1989  Issued two Canadian passports (1997 and 2003)  In 2003, at age 14, Deepan has significant problems with his family, and leaves home Law Midterm Review 2013  Deepan comes in contact with the law and is taken in under the Children's Aid Society - becomes a ward of the state  Deepan later reconciles with his family (2006-2009)  At age 20, Deepan is convicted of a break and enter, sentenced to probation 4 months  Canadian Government assert Deepan is not a Canadian citizen in 2010  Deepan gets into more trouble with the law - sentenced to three years for drug trafficking (there are allegations that this and another charge are issues of entrapment, brought on by increased attention on Deepan by authorities)  Upon release from prison (2012) Deepan is taken into custody by CBSA  CBSA attempts to deport Deepan to India, but India does not recognize him as an Indian Citizen, and will not issue him travel documents  Deepan remains in a state of 'legal limbo' living in Canada without status, subje
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