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Geography 2122A/B
Micha Pazner

Jurisprudence: what is law? The study and theory of law, obtain deeper understanding of the nature of law, legal reasoning, legal systems, and legal institutions. Legal positivism: developed by (Jeremy Bentham). The existence and contents of law depends on the social facts and not its merits. The law depends on what type of governance is in place. Law is a matter of what is practiced and tolerated not the fact the law is just or unjust, wise or unwise etc. The view that the law is a social construction. Social thesis: law is a social phenomenon. Legal realism: (Karl Llewellyn) there is a conceptual seperation between law and morality(they are fundamentally different things), what the law is and what it ought to be. (seperation thesis). Moral content not essential to law. The law depends on the political, economic, and social context it is made. Judges make laws based on the views they have. Natural law: denies the social thesis and says that law is both a social and moral phenomenon. “and unjust law is no law at all”.. ideal law means that moral content essential to law. The law represents compromise, consensus, and power Compromise because it resolves conflicts within political, economical, and social contexts It is maintained on the basis of consensus to its social and moral legitimacy It represents power because it attempts to control behaviour and activity, supports certain world views and rejects others. Most of law originates from patterns of behaviour that the society ordered itself into Source of Canadian Law: The rule of law ---> opposed to the rule of man rule of law is based on non-arbitury rules – so there is no abuse of power Source of Canadian Law: the ConstitutionAct of 1867 TheAct sets out governance rules and strategy for Canada, which seperates federal and provincal powers. Source of Canadian Law: the ConstitutionAct of 1982 includes the charter of rights and freedoms which protects citizens from oppressive legislative action. took away all UK powers over canada as a colony therefore, constitutional law consits of the charter of rights and freedoms and federal (territorial) power, and provincial (municipal) power. Source of Canadian Law: Statutory is written law made by different levels of government (federal house of commons, provincial legislative assemblies) these laws are still lower in rank than constitutional laws, but higher in rank than other sources of law.Applying statutory law involves judges interpretations. Sorce of Canadian Law: Regulatory Statutory law grants certain executive branches and organizations power to make regulation legislation becxause they are more experienced with day to day operations and can make better laws.Applying regulatory law still involves judges iterpretations. Source of Canadian Law: Treaties government representatives can enter into agreements with other countries, then the agreement becomesstatute in Canada and becomes law eg. the chicago convention became the aeronautics act Source of Canadian Law: Common Law Judge made law (case law) where they determine existence of certain legal principles in question, and look to prior court decisions on similar matters for direction. (goes back centuries to roman period, UK, and US use same principles) Aviation common law is derived from motor law, employment law, and maritime law All provinces except quebec are the same for common law principles, common law can also be found in the writings of statutes, common law interprets the statutes, and common law can be overridden if it conflicts with statute law. Source of Canadian Law: Civil Law means that the core principles of the law are codified in writing and not evolving from case law interpretation by judges Case law: stare decisis (stand by decisions made) legal precedent: influential court has made decision regarding application of principles to certain facts and must be the same decision for same set of facts in the future. This guides the conduct of the courts. decidendi: the rationale for the decision carries the weight for the precedent. It is the legal, moral, social, and political principles used by the court to compose a rationale for a particular judgement. The reason behind the judgement. Obiter dicta: (said in passing) the judges opinion on the facts of the case, if there is no conflicting precedent to the judges opinion, it can be influential in the outcome, although their opinion is not binding the court it is presuasive. In the absense of precedent sufficiently similar to the case, the court is free to make it's own decision which in turn serves as the precedent in the future. In British Canada, the supreme courts of Canadas decision could be further appealed to a higher court in Britain (JCPC) until 1949. Binding impact highest authority to lowest Supreme court of Canada->Provincial court of appeals->Supreme court of the Province- >County of district court->Provincial court Persuasive impact: other countries courts etc. Source of Canadian Law: books of authority and experts these can influence a courts decision, scholars of law can analyze social implications and resolve complex Expert witnesses Source of Canadian Law: context increased knowledge and technology calls for different interpretation of law, likewise social developments such as changing values and beliefs call for law changes Types of law Domestic and International Domestic has substantive law: which is codified law or written law and procedural law: which is the rules by which a court hears and determines a case and administers the substantive written law Domestic law is also seperated into private and public law Public: constitutional, criminal, taxation, administrative Private: tort, contracts, property, family, company etc... The consitution act of 1867 sets rules for federalism, section 91 and 92 allocate power between federal parliament and provincial legislature as mentioned earlier.. The consitution of canada (1982) is the supreme law of canada, any law that is inconsistent with constitution has no effect Patriation means that only domestic parliament can amend the constitution, no more british influence. Division of powers Federal: Section 91 authoritative power after other powers have been delegated to provinces for “Peace, order and good government” Provincial: Section 92 power over matters of local or private nature there is 3 ways to attack a law: The law is invalid if its purpose and effect falls within jurisdiction of another government Ultra vires (beyond power) under ancillary powers doctorine the law can be saved if it complements a valid legislative scheme The law is inapplicable if it falls within jurisdiction of the government but impairs the core powers of the higher up government. Doctorine of interjurisdictional immunity The law is inoperative if there are inconsistent federal and provincial laws but both are within jurisdiction of the government in question (intra vires) federal jurisdiction prevails to the extent of the inconsistentcy. Doctorine of Paramountcy Case: Re regulation and control ofAeronautics in Canada Federal government enacted Air Board Act and Air Regulations to perform its obligations to convention with 17 other countries. This included the liscencing and inspection of pilots, planes, and aerodromes. Court found that the statute (Air BoardAct) and regulations (Air Regulations) were result of a treaty and therefore within the power of the federal government. S.132 of Constitution gives federal government exclusive power to enforce treaties with foreign nations. NOTE** the names of treaties and acts were renamed after british rule but principle of federal jurisdiction still holds. There is general tension between provincial interest in local land use planning and federal interest in a unified aeronautical navigation system Under CAR 302.01, except in built up areas and where scheduled passenger service is provided, people are permitted to construct aerodromes without registering. IF registered, must be available to anyone who needs to use it and maintain federal standards Case: Johannesson vs West St. Paul(SCC 1951) The West St. Paul by-law trying to limit the location of airports is ultra vires. It is encroaching on federal jurisdiction and therefore invalid. The SCC found that federal jurisdiction over aeronautics resides within Peace, Order, and Good Government power. Case: Venchiarutti vs Longhurst (Ontario CA1992) Longhurst made airstrip on moms land, by-law in Muskoka limits use of land to certain activities. By-law cannot limit location of airstrip because it is part ofAeronautics Act and federal jurisdiction over aerodromes. The by-law is inapplicable. It is intra vires but aerodromes are federal jurisdiction. Case: OrangevilleAirport vs Caledon (town) (Ontario CA1976) Airport had federal approval for building of 5 new hangars, Caledon didn't issue permits because Ontario zoning by-law. The law is inapplicable. Caledon cannot limit the design of the airport because it is integral to the aeronautics system throughout Canada. It is intra vires but cannot impair core powers ofAeronautics Act which is federal jurisdiction. Case: Greater TorontoAirportsAuthority vs Mississauga (Ontario CA2000) GTTAbegan redevlopment of Pearson. Mississauga under provincial law tried to levy development charges. The charges are inapplicable, construction of airports falls under core of exclusive federal aeronautics power. Case: Sacre-Coeur (municipality) vs Lacombe (SCC 2010) Lacombe obtained federal liscence to operate plane tour business on lake. Municipality created by-law to prohibit aviation on the lake. Law is invalid. No jurisdiction over aeronautics (ultra vires) cannot make law against it. Case: Laferriere vs Quebec (SSC 2010) Laferriere built airstrip on land designated farming land by Quebec law, they ordered it to be changed back, but even though the law is intra vires, it is impairing core competency of federal power. The location of aerodromes is a core federal competency. Provincial/municipal legislation cannot impair core of aeronautics, but can impair non- core. Core aeronautics: the authority necessary for federal government to achieve purpose of legislation. It is identified from case law. Location of airports and aerodromes, design of airports, Aeronautics: defined as the physical act of flight, from takeoff to landing. Case: Montcalm Inc vs Quebec (Minimum Wage Commission) (SCC 1978) Wage commision sought to recover compensation for employess of Montcalm who built runways at an MirabelAirport. Provincial legislation (minimum wage act) is not inapplicable because wages are not a part of core aeronautics. Case:Air Canada vs Ontario (Liqour Control Board) (SCC 1997) Mark-up of liqour sold in province for purpose of in-flight consumption. The mark-up is not inapplicable because supply of liqour is not part of core aeronautics and intra vires(within power) for provincial government. Case: R.Vs Pearsall (Saskatchewan CA1997) Pearsall was charged with unlawful use of aircraft for hunting, contrary to provincial legislation. Law is intra vires and not inapplicable because law is meant to regulate hunting not aviation. Almost every aspect of Canadian aviation law is related directly or indirectly with Canadas treaty obligations. Globaliztion demands uniform expectations to certain behaviours Treaties are a legal instrument that creates legal order among signing nations. Often requires new laws within the nation to perform obligations to treaty. This process of law making ultimately binds the signing nations. In Canada, treaties are part of British heritage. Process: 1. Minister of Foreign Affairs supervises the negotiation of treaties. (treaties are only a consent to be bound, no effect until a law is passed) 2. Treaty is sent to Cabinet for approval, and a signing order is issued. 3. Cabinet authorizes Minister of Foreign Affairs to sign instrument of ratification 4. Canada is bound as soon as treaty comes into force 5. Implementation requires passing of domestic legislation The main treaties for aviation: Convention on International CivilAviation (Chicago Convention)(1944) which are the rules of airspace, aircraft registration, and safety. To date, there is 191 member states. It is the source of international air law and reason the international organization exists (ICAO) Articles 1,2,3 give nation exclusive athority over its airspace. There is no accepted international limit to airspace vs outerspace. Warsaw Convention(1929) and Montreal Convention(1999) which are rule for air carrier liabilities ICAO is special agency under United Nations. ICAO developed standards and recommended practices. Standards are binding for signing states unless a member state is unable to comply and voices objection through their delegation council. Some states cannot comply due to lack of financial and human resources. Recommended practices are viewed as desirable suggestions. Member states need not comply with recommended practices. States need to keep their regulations uniform to the greatest possible extent to project the ICAO standards (article 12). States should collaborate to secure the highest practical degree of uniformity Fundamental problem is no law enforcing entity at international level, enforcement relies on negative publicity and economic sanctions. AeronauticsAct Part 1 substantive law provisions for regulation of aeronautics Minister of Transport responsible for development and regulation of aeronautics and the supervision of all matters within aeronautics. Governor Council can make regulations to carry out Ministers orders Canadian Aviation Regulations (CAR's) The basic safety and operational rules relating to aviation CAR's Advisory Council make changes to CAR's to improve safety and harmonize better with ICAO. Members are part of government and aviation community and there are 9 technical commities. Part 2 replaced by Canada TransportationAct. Act established Canadian TransportationAgency (CTA). It is an independent tribunal and economic regulator that supports accessible and competitve national transportation system. They resolve complaints about noise, fees, charges and rates as well as disabled persons accessiblity issues. Issues liscences and permits to transportation carriers under federal jurisdiction. Quasi-Judicial: excersise power like a court or judge. Part 3: miscellaneous administration provisions Part 4: replaced by Transportation Appeal Board of Canada. TransportationAppeal Tribunal of CanadaAct established Transportation Appeal Tribunal of Canada that deals with reviews and appeals (example permit refusals, refusing to issue, suspending, or cancelling, and monetary penalties. Approximately 250 aviation accidents in Canada per year and about 60-70 fatalities per year. Canadian Transportation Accident Investigation and Safety BoardAct established Transportation Safety Board of Canada(TSB) and its objective is to advance transportation safety by conducting independent investigations and locating risks in the transportation system. The findings do not assign fault or determin criminal liabilities and the opinions of investigators are not admissible in court. CivilAir Navigation Services CommercializationAct gave the Minister of Transport authority to transfer NAV CANADAthe air navigation services. They provide traffic control, weather briefings, airport advisory services, and aeronautical information services. Canadain Air Transport SecurityAuthorityAct established Canadian Air Transport SecurityAuthority (CATSA) and they screen people and their property who access aircraft of restricted areas. Canada Border ServicesAgencyAct establishes Canada Border ServiceAgency which regulates the inflow and outflow of good, people, plants, and animals. Operates at 13 international airports Aerodrome: land or water supporting surface for use for aircraft departures and arrivals and includes any buildings associated with that practice. Under CAR's they require inspections, markings, warning notices, wind direction indicator, lighting, prohibitions, and fire prevention. Registering an aerodome provides better safety and is included in Canadas flight supplement, and limits liability by listing hazarads and potential risks, as well as reduced hassles with documentation requirements. If aerodrome is listed in CFS can either be public or private use. Private use requires prior permission. Even if not listed as public, emergency use still allowed, and this carries greater liability to others to make sure it's safe to land. Must consider insurance options. Airport: must be located within built up area or town, must be used by operator for scheduled service, to become airport aerodrome needs accredidation from Minister. To receive airport status the operator must show how the operations will work and set out a manual with standards and services.An airport also has more strict safety obligations due to higher volume of traffic. It is costly to maintain airport certification status and there are no immediate advantages. Until 1992 the largest 25 airports in Canada were operated by federal government. There was pressure to transfer management to local authoritities to increase efficiency and responsiveness. NAS (national airports system) airports are now private not for profit corporations with 60 year leases to the federal government. They are efficient and self funded. The rates and charges they apply are unregulated. Members of governing board are nominated by different levels of government. Non-NAS airports are also run by local authorities. Government gives Airports Capital Assistence Program to these airports to help with infrastructure costs. Rights asscociated with airspace trespassing: does not require proof of damages, unjustified invasion of anothers possession. Trespassing law is codified in Ontarios trespass to property act but only in relation to land and structures, so planes on the ground. Old roman law that he who owns the soil, owns everything above (coelum maxim: a maxim is an attempt at a general statement of the law) but this does not seperate outerspace from airspace. IF this was common law every flight would be trespassing. Case: Lord Bernstein of Leigh vs Skyviews (1977 Quebec) Skyviews flew over Bernstein property and took photos, Bernstein claimed invasion of property and tresspass. No trespassing. Coelum maxim does not apply in a literal sense to common law. Impossible to conduct flight if this were true. But a low flying aircraft could still commit tresspass, owner of land has ownership to certain height to be able to to use and enjoy their land. Case: Lacroix vs Canada (Federal court 1950) air and space are a thing of the entire community (res omnium communis), Lacroix claim of interference with his property when planes are landing at airport. Coelum maxim is not a principle of Canadian law. Case: Air Canada vs Manitoba (1978) Manitoba tried to get tax from consumption of good over its airspace. Did not succeed, coelum maxim not a principle of Canadian law. Case: Didow vsAlberta Power (1988) power line wires intruded 6 feet onto Didows land and he sought to have them removed. This amounted to trespassing. The permanent struture impedes on his potential use and enjoyment of his land. Height of private airspace in U.S case determined at least 150 feet maybe even 300 feet. Under Aeronautics Act, cannot erect structures to block the flow of air traffic into airports due to airport zoning regulations. However, in certain circumstances can erect structures if it is a reasonable and neccessary use of the property. But it is unclear if they would be liable for nuisance damages. Nuisance requires proof of damages. It is indirectly interferring with use and enjoyment of property causing potential damage. It must be substantial interference and unreasonable interference. If inhibiting structure is deliberately erected to obstruct it is nuisance. If it is not deliberately erected it depends.. Case: Nor-Video Services vs Ontario Hydro (1978) Ontario hydro constructed new transformer station to save money directly in the path of Nor-videos television signal tower and reception tower. This caused interference with TV signal. Nor-video won nuisance case because substantial and unreasonable interference with Nor-videos enjoyment of property. Case: Hunter vs Canary Wharf (1997) Canary constructed building on their property interfering with TV signal into Hunters home. No nuisance claim.An owner is entitled to build on their land subject to planning control as long as there is no prior agreement and is not liable if the building interferes with enjoyment of neighbours land. Difference with Ontario hydro case is they built transformer on public land. The following are NOT a defence to nuisance Claim that activity is of public benefit. Claim that location is most suitable place for activity Claim that care and skill was taken to carry out activity Claim that multiple persons are to blame (in that case each is given proportion of liability) Claim that the use of the property is reasonable Defences to nuisance Statutory authority: if activity is authorized by statute and defendant can prove it. Case: Sutherland vs Attorney General (2002) Vancouver airport added a runway creating more noise, citizens sued for damages due to nuisance. There was an unreasonable and substantial interference with the use and enjoyment of land. However, the defense won because the precise location and exact configuration of the runway were authorized under a statutory scheme, noise nuisance was the inevitable result of the statute. Abnormal sensitivty of persons or uses of property: if the person is not normal, or easily irritated by nuisance, the court is saying the interference is not substantial to be considered nuisance. The person is the type to over react and too sensitive as opposed to a normal person. Their claim cannot hold in court. Canadian sources of liscencing: Acts create legislation, then regulation creates subordinate legislation such as Statutory Instruments Act, then standards are incorporated by reference into legislation. There is examinations and medical requirements for liscencing You recieve an aviation document booklet that is valid for up to 5 years Must have language proficiency for use of radiotelephony communications in international flights Pilots holding certain liscences can obtain those of another country when certain conditions are met. NAV CANADAissues liscences for air traffic and flight service specialists Domestic rules of the air require a properly liscenced pilot is allowed to fly within the rules of CAR's If there is an offence to Aeronautics Act- dealt with by Minister of Transport Offence to CAR's- minister of transport Criminal Code- cops most common general aviation offences low flying, overweight aircraft, incorrect/out of date liscence, knowingly flying a malfunctioning aircraft Information about offences comes from citizens, polices, air traffic, inspections, and investigations you are given letter of investigation and allowed 30 days to respond, they attempt to contact you by phone, or notice of suspension or monetory penalty, findings of investigation are non-negotiable SECOND HALF Criminal offences are concerned with public wrongs. Behaviour deviating from rules of society. (victims commonly receive no compensation- fines paid to the state) Society punishes deviant behaviours in order to: deter it from happening; express community outrage; reform the person(modern) Accused's state of mind: For absolute liability – doesnt matter for strict liability – was due cared owed by accused? (balance of probabilities) for negligence – prove that there was absense of due care (beyond reasonable doubt) for all others –provethat there was intention,recklessness or wilful blindness (beyond reasonable doubt) Eg absolute liability : parking tickets (state of mind doesnt matter, need only prove act was commited) NOT FOUND INAVIATION LA
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