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Law 2101 Midterm: LAW2101 Comprehensive Midterm Review - 39 Pages

Course Code
Law 2101
Mysty Sybil Clapton
Study Guide

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LAW 2101 FINAL REVIEW 1 of 43
Lecture 1: Introduction to the Legal System
What is Law?
- The publicly prescribed rules that we must follow, failing which we may suffer some ad-
verse consequence
- A reflection of common values of society
- The process by which disputes are resolved
Sources of Law
- Statutes
Broad and broadly applicable rules passed by legislatures
Highly diverse
Can be enacted in anticipation of future events
- Regulations (‘subordinate legislation’)
Detailed rules refining, applying or further describing broad statutory statements
Passed by Governor-in-Council
Flexible, can be changed easily
Found within statutes — the “nitty gritty”
May completely change the provisions of a statute (by using exceptions)
- Common Law/Case law
Historically the most important source of 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 de-
termine the law applicable to other similar matters
- Look at prior disputes and find one that is similar to the case they are presently
dealing with (similar decisions)
based on principle of stare decisis — the idea that like cases should be decided
- 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
Allows for a large amount of argument/interpretation
- i.e. International Law
Law Makers
- Federal government
Can make laws that apply across the country
Authorized to make laws respecting matters assigned to it by the Constitution Act, 1867
Also technically responsible for government of the territories
- Provincial governments
Laws only apply within the province
Authorized to make laws respecting matters assigned to it by the Constitution Act 1867
Create municipal governments
- Municipal governments
Laws only apply within the municipality
Authorized to make laws only respecting matters assigned to it by provincial government
Very local matters (bylaws)
- Aboriginal governments
- Judges
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LAW 2101 FINAL REVIEW 2 of 43
Appointed (NOT elected)
Make law in the course of resolving specific disputes
Do not just “make up” law — guided by precedent, principle, statute and constitution
Independent and as impartial as possible
Divisions of Law
- Public vs. Private
• Public: law relating to relationship between the individual and society and the powers of
various levels of government
- Relates to the rules that regulate public bodies
- i.e. constitutional law, criminal law
• Private: law relating to relationship between private individuals, corporations and other enti-
- i.e. torts, contracts, family law
- Civil vs. Criminal
Civil law — Private lawsuit between individuals
Criminal law — prosecution by the government to enforce a public law
- Civil vs. Common Law
Civil — private law system operating in Quebec based on Civil Code
- Quebec’s criminal code for private matters
Common/case law — whole body of decisions rendered by courts in particular matters
(private and public)
- Applies to private law matters outside of Quebec
- Applies to public law matters everywhere across the country
-Substantive vs. Procedural
• Substantive — laws dictating what rights people have
• Procedural — laws dictating how rights can be enforced
- Common law vs. equity
No longer any official division, but equitable doctrines continue to have importance
- i.e. trusts: giving property to someone under certain conditions
Court System
- Hierarchical system in the decisions of higher courts are binding on lower courts
Both in the matter at hand and for future cases
This is another aspect of stare decisis — the principle that courts are required to follow
the decisions of higher courts in the same jurisdiction
- Court cases almost always start in the lower (trial) courts and, if appealed, move up to
the higher courts
- Different lower courts are assigned original jurisdiction over different matters
- Different courts fulfill different functions
Trial courts are based on fact finding (determine who did what, when, where and in what
state of mind)
Appeal courts fulfill the review functions
- Highest: Supreme Court of Canada
- Lowest: Ontario Court of Justice
Adversarial System
- Phillips v. Ford Motor: Trial procedure based on the adversary system in which contes-
tants seek to establish through relevant evidence, before an impartial trier of facts, the events
which form the bases of allegations
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LAW 2101 FINAL REVIEW 3 of 43
Adversarial system is the system we use in our courts
Court decisions are based upon the evidence presented by the parties (not judge’s respon-
Not a scientific inquiry — decision to be based on evidence adduced by parties who are
presumed to be best able to advance their case
Judge is the neutral arbiter — removed and disinterested
Distinguished from inquisitorial system — judge is much more active
Consequences: sometimes people are not able to come up with relevant evidence, which
may lead to wrong or improper decision; favour people who have more money/resources
Case Names
- Civil case: Smith (Plaintif) v. Jones (Defendant)
- Criminal: R. (The Crown) v. Jones (Accused)
- Appeal: Smith (Appellant) v. Jones (Respondent)
Interpreting the Law
-Statutory Interpretation
Process that requires the exercise of judgement in balancing the ordinary meaning of
words, the context of the entire statute and the purpose of the statute
statutes are often couched in general language
Courts must decide if facts of particular case fit with general language
This involves determining the meaning and applicability of statutory terms
No set formula for determining legislative meaning
“Rules” of statutory interpretation are better understood as guidelines
-Case Law Interpretation
Stare decisis: to stand by decisions and not disturb settled matters
- Courts must follow the decisions of higher courts in the same jurisdiction
- Courts should decide like cases alike (follow precedent)
- Creates certainty in the law and ensures equity and fairness
Courts are only bound to follow decisions of those courts with the same facts that are high-
er in the same judicial hierarchy
- Don’t have to follow if there are different circumstances
- Decisions of other courts can be persuasive (LS-14)
- A case is only binding authority for the legal principles on which the case was decided
(the ratio decidendi)
- Other statements in the decision are obiter dicta (things said by the way) and not
technically binding
- Distinguishing between the two is not always easy — answer is not truly known
until a subsequent court determines the answer
A court is only bound to follow precedent if
- It deals with the same issue
- The facts are sufficiently similar, with no new material facts
- i.e R. v. Mara
Present case vs. Tremblay
- Tremblay took case in a private room, and there was physical contact between
dancer and patron which was prohibited (therefore convicted)
- Present case took place in an open tavern and touching wasn’t against the law
(not convicted)
-R. v. Ancio (textbook)
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