Law Of The North

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Law Of The North により Mind Map: Law Of The North

1. Motive

1.1. The reason a person commits a crime

2. Canadian Bill of Rights

2.1. Slavery, Limited Franchise, Discriminatory laws and practices against aboriginal people, non-whites, immigrants and women classified as non-persons were all found in Canada and mainly all over Europe.

2.2. In 1960, the first attempt to codify rights in Canada occurred when the Canadian Bill of Rights was enacted by parliament. Recognizing many important topics.

2.2.1. Rights of individuals to life, liberty, security of the person and enjoyment of property.

2.2.2. Freedom of religion, speech, assembly and association.

2.2.3. Freedom of press.

2.2.4. The right to counsel and the right to a fair hearing.

2.3. The Bill of Rights had it's limitations as it was only a federal statue.

2.3.1. As a federal Statue it applied only to matters under federal jurisdiction, making it ineffective in provincial application.

2.3.2. As a federal statue it had the same force as other statues limiting its power.

2.3.3. As a statue, it could be amended, meaning the protection offered in the bill could be eliminated at any time.

2.4. The Bill of Rights was entrenched on November 5th, 1981 through Pierre Elliott Trudeau.

3. Patriating The Constitution

3.1. Pierre Elliot Trudeau worked to patriate Canada. Supreme court stated the federal government had legal authority to patriate the constitution.

3.2. The Constitution Act of 1982 included the BNA Act and came into being on April 17, 1982. It added key elements to BNA.

3.2.1. A principle of equalization: Section 36 provides equal access to essential services for all Canadians.

3.2.2. Clarification of responsibilities between government levels for natural resources.

3.2.3. A amending formula to change the constitution in the future.

3.2.4. A charter guaranteeing individual rights and freedoms.

3.2.5. The rights of aboriginal people were recognized and affirmed.

3.3. The bill was passed in the absence of Quebec Premier Rene Levesque. Which caused Constitutional Conflict.

3.3.1. In 1996, the federal government appealed to the supreme court to rule on Quebec's right to separate from Canada. The federal government submitted three questions. Under the Constitution, can the government declare independence from Canada unilaterally. Does international law give Quebec the right to secede ( withdraw ) unilaterally.

4. Classifying Law

5. Sources of Law In Canada

5.1. Constitutional Law

5.1.1. "The Boss Law"

5.1.2. Canadian constitution was enacted in 1867 by the BNA ( British North America Act ) It was amended in 1982 ( Constitution Act )

5.1.3. Body of law dealing with the distribution and exercise of government powers.

5.1.4. Sets out responsibilities for each level of government and limits the powers to levels of government.

5.1.5. Any law violating the constitution, instructed by courts are declared unconstitutional and struck down.

5.2. Statute Law

5.2.1. Law or acts passed by the Federal or Provinical

5.2.2. Generally overrides Common Law

5.2.3. Each level of government has their own jurisdiction on what legislation they can pass.

5.2.4. Federal government enacts laws within jurisdiction laid out by s.91 of the constitution. Criminal Law, Federal Penitentiaries, Employment Insurance, Banking, Currency, Marriage, Divorce... Etc.

5.2.5. Provincial government enacts laws within jurisdiction laid out by s.92 of the constitution. Hospitals, Police Forces, Property Rights, Highways, Roads, Provincial Jails... Etc. Provincial government creates municipal or local governments.

5.2.6. Municipal government can only make laws called Bylaws. Bylaws are laws which deal with local issues Backyard fence regulations, responsibilities for snow clearing from sidewalks, garbage collection routines... Etc.

5.2.7. Indian bands were established under federal Indian Act, they act like local government.

5.3. Common Law

5.3.1. Common law is common to all and universal in application. It is commonly refereed to as "case law" through it's derivation from decisions made by previous judges.

5.3.2. Canadian common law originates from early unwritten laws of England.

5.3.3. Common law is consistently evolving as judges decide a variety of cases with different outcomes.

5.3.4. Canadian courts follow a legal principle known as "Stare Decisis" or the rule of precedent. Judges rely on decision from past courts working with similar cases. These are known as precedents.

5.3.5. Distinguishing a case: The rule of precedent does not apply for a variety of reasons, judges reject previous decisions and create new precedents. Reasons include the precedent was set many years ago and is not relevant anymore, a case does not have much precedent to rely on or the judge disagrees with the precedent.

6. Categories Of Law

6.1. International Law: law governing relations between independent nations. Derived from sources such as formal agreements - NATO North Atlantic Treaty Organization

6.1.1. Diplomatic Unity: agreement not to prosecute foreign diplomats for certain crimes they may commit while working in the host country.

6.1.2. Organization can have international legal status such as the United Nations. Created in 1945, 192 countries have joined. A branch of the UN is the International Court of Justice which hears disputes submitted by nations and settles disputes between individuals and their governments.

6.2. Domestic Law: law governing activity within a nations borders.

6.2.1. Substantive Law: law that defines the rights duties and obligations of citizens and government. Public Law: law related to the relationship between individuals and the state. All public laws are subject to the Canadian Charter of Rights and Freedoms which is apart of the Canadian Constitution. Criminal Law: law that identifies crimes and prescribes punishment. Only the federal government has the jurisdiction to pass criminal legislation. In Canada crimes are commuted against society as whole and this is shown through ( R v Accused ) Administrative Law: law related to the relationship between people and government departments, boards and agencies. Constitutional Law Private Law: ( Civil Law ) law governing the relationships between private individuals, between individuals and organizations and between organizations. Tort Law: branch of civil law holding persons or private organizations responsible for damage they cause another person as a result of accidental or deliberate action. Contract Law: branch of civil law providing rules regarding agreements between people and business. Family Law: branch of civil law dealing with various aspects of family law. Wills and Estates: branch of civil law concerning division and distribution of property after death. Property Law: branch of civil law governing ownership rights in property. Employment Law: branch of civil law governing employer-employee relationships.

6.2.2. Procedural Law: law that prescribes the methods of enforcing the rights and obligations of substantive laws. Examples: police must follow the procedural law regarding the correct procedure to arrest someone.

7. Government and Statue Law

7.1. Canada's Constitution: Events such as the American civil war from 1861 to 1865 and people in Canada wanting a change led to the proposal of BNA to England and it was passed.

7.2. BNA ( British North America Act, 1867 )

7.2.1. Set out rules for how Canada should be governed and how it would be run.

7.2.2. It was a constitution for a colony.

7.2.3. It recognized Canada as a separate political entity within the British Empire.

7.2.4. United Canada

7.3. A government system had to be chosen in order to run Canada. Canada uses a Federal System.

7.3.1. Unitary System: a one level government. Great Britian uses a unitary system of government but it was found unfit for Canada considering its size.

7.3.2. Federal System: a two-level system of government. Canada uses this system as its balances power between the federal and provincial governments, using division of powers.

7.3.3. Canada's federal system implements division of powers to avoid problems found in America. Canadian constitution assigns jurisdictions to provincial and federal governments, set out in sections 91,92 and 93. Federal Responsibilities: Banking, Public dept, Taxation, Postal Service, Defense, Citizenship, Currency and coinage... Etc. Federal government has responsibility for Indian affairs, including Inuit affairs. For example: Indian bands through Indian Act The BNA act states that areas that are not specifically assigned to provincial jurisdiction fall under federal jurisdiction. These areas are called Residual Powers and are expressed in section 91. Provincial Responsibilities: Education, Labour and Trade Unions, Compensation to inured workers, Natural Resources Etc. Section 92 of the BNA act gave provincial governments jurisdiction to create municipal powers which enact bylaws and collect local revenue. Doctrine Intra Vines is within the power of government to pass laws. Ultra Vines is beyond the power of government to pass laws.

7.3.4. Statue of Westminster was a amendment to the BNA act passed in Britian in 1931. It gave Canada the authority to make its own laws independent of Great Britain. It granted Canada the independence to make agreements, including trade agreements, with other countries.

7.3.5. Canada was still not a sovereign state which caused problems. Canada had to ask Britain for permission to change the constitution. There was confusion between the division of powers. Nothing in the constitution guaranteed civil liberties.

8. Government and Law Making

8.1. Federal and Provincial government is made up of three distinct branches.

8.1.1. Executive Branch is the administrative branch of government is responsible for carrying out the governments plans and policies. Federal Government Queen Governor General Prime Minister Cabinet ( Elected members appointed by the prime minister Public or Civil Service ( people employed to conduct the business of government ) Provincial Government Queen Lieutenant-Governor Premier Cabinet ( Elected members appointed by the premier ) Public or Civil Service ( people employed to conduct the business of government )

8.1.2. Legislative Branch has the power to make, change and repeal laws. Federal Government Governor General Senate ( senators appointed by the governor general ) House of Commons ( elected members of parliament MPs ) Provincial Government Lieutenant Governor Legislative Assembly ( elected members of legislative assembly MLAs or MPPs )

8.1.3. Judiciary Branch is responsible for presiding over Canada's court system. Made up of judges appointed by government. They cannot be removed from office by government which removes concern about political pressure. Passing a Law A Idea is created - Royal Commission, Advisory Boards, Individual or interest Groups, Minister's initiates... Etc. Draft Legislatiom First Reading Second Reading Third Reading Vote Held

9. Canadian Charter of Rights and Freedoms

9.1. The Canadian Charter of Rights and Freedoms applies to all branches and levels of government, crown corporations, federally incorporated companies, banks and any other federally regulated organization.

9.2. Federal and Provincial human right codes can help with private matters beyond the charters reach.

9.3. Section 24 of the Charter gives people the right to challenge the government if their Charter rights have been violated.

9.3.1. To determine if a rights case has merit the supreme court considers three questions. Was the right infringed or violated by government or its agencies. Is the right in question covered under the Charter. Is the violation or infringement within a reasonable limit.

9.4. Sections 1 - 34

9.4.1. Section 1: Reasonable Limits Clause states all rights and freedoms are subject to reasonable limits. These limits are decided through the Oakes Test. (R. v. Oakes (1986) 1 S.C.R.103) The Oakes Test was created through this case to determine if a right should be subject to reasonable limits, it contains 4 criteria. The reason for limits the Charter right must be shown to be important enough to justify overriding a constitutionally protected rights. There must be a rational Connection between the limitation of rights and the objective of the legislation. The right must be limited as little as possible. The more sever the rights limitation, the more important the objective must be.

9.4.2. Section 2: guarantees fundamental freedoms. Freedom of conscience and religion. Freedom of through, belief opinion and expression, including freedom of the press and other media of communication. Freedom of peaceful assembly. Freedom of association.

9.4.3. Section 3: Democratic rights states that every citizen has the right to vote in an election and run for office.

9.4.4. Section 4: Democratic rights assures Canadians the opportunity to elect a new federal and provincial government every five years.

9.4.5. Section 5: Democratic rights states parliament and provincial legislative assemblies must hold at least one session a year.

9.4.6. Section 6: Concerns the rights of Canadian citizens to move in and out of the country and between provinces.

9.4.7. Section 7: Declares that everyone has the right to life, liberty and security of the person and can not be deprived of these rights except in accordance with the principles of fundamental justice.

9.4.8. Section 8: Guarantees people will not be subject to unreasonable search and seizure.

9.4.9. Section 9: Guarantees everyone's right to not be arbitrarily detained or imprisoned. Random police stop do fall into the category of arbitrarily detainment but are acceptable due to section 1.

9.4.10. Section 10: Provides legal rights when arrested or detained. To be informed promptly of the reason for your arrest or detention. Accused must be informed of his or her right to obtain legal counsel. Once a accused asks to speak to a lawyer, police must stop questioning the accused until the accused has had the opportunity to confer with counsel.

9.4.11. Section 11: Accused must be tried within a reasonable time, an accused can not be forced to testify at his/her own trail, presumption of innocence until proven guilty, accused can not be denied reasonable bail without just cause, removes double jeopardy, if someone is sentenced to a crime which has changed then the more lenient punishment must be provided.

9.4.12. Section 12: Government may not treat or punish individual in an unnecessarily harsh fashion. ( Cruel and unusual treatment or punishment ) is considered with 3 facts. The gravity of the offence. The personal characteristics of the offender. The particular circumstances of the case.

9.4.13. Section 13: Guarantees that witnesses giving evidence in court can not have their testimony used against them.

9.4.14. Section 14: States anyone who is hearing impaired or can not understand or speak the language used in court has the right to an interpreter.

9.4.15. Section 15: ( Equity and Equality ) Every person is equal before and under the law and has the right to equal protection. Programs set up by government to ameliorate or improve the condition of certain disadvantaged groups or individuals are permissible.

9.4.16. Section 16 to 22: Language Rights English or French can be used in parliament. Statues, records, and journals of Parliament are to be published in both languages. Members of the public are entitled to communicate with the federal government in either official language. Language Education Rights - Sec 23 Citizens have the right to have their children educating in french if any one of the following applies ( Vice Versa ) The federal government must provide services in both languages at central offices and elsewhere if there is sufficient demand. Either language can be used in courts established by Parliament, including the Supreme Court of Canada.

9.4.17. Section 25-26: Protects the culture, customs, tradition, languages and other rights or freedoms pertaining to Aboriginal people.

9.4.18. section 27: Acknowledges Canada's multicultural heritage and all rights in the the charter must be interpreted in light of the preservation and enchantment of our multicultural heritage.

9.4.19. Section 28: States clearly that all rights and freedoms referred to in the Charter apply equally to men and women.

9.4.20. Section 32: Application.

9.4.21. Section 33: The Notwithstanding Clause allows Federal and Provincial governments to pass legislation that is exempt from section 2 and section 7 to 15 of the Charter.

9.4.22. Section 34: Citation

10. Negligence

10.1. The most common intentional tort is Negligence: the careless conduct that causes foreseeable harm to another person. there are 3 factors affecting negligence that must be proven by the plaintiff.

10.1.1. Stage One ( Did the defendant owe the plaintiff a duty of care ) Duty of care is the obligation to foresee and avoid careless actions that might cause harm to others. Duty of care often is accompanied by "neighbour principle" which means the legal responsibility to owe a duty of care not to harm one's neighbor through carelessness or negligence. Your " neighbour" is anyone you can reasonably foresee being injured by your actions. Foreseeability: the ability of a reasonable person to anticipate the consequence of an action.

10.1.2. Stage Two ( Did the defendant fail to provide the plaintiff with proper standard of care that a reasonable person would have provided in a similar situation. Standard of Care: the degree of caution or level of conduct expected of a reasonable person. Specialized standard of care: the degree of caution or level of conduct considered necessary by a reasonable person with the same specialized training. Reasonable person: a legal term that describes a person who exercises a sensible level of reason intelligence, and care. This applies differently to a variety of different areas. Medical Negligence: a medical practitioner must get consent to touch a patient or perform any operation but when consent is not available, they must act depending on the level of emergency. Children have a special status under the law. The court recognizes that children may not have the experience and wisdom to foresee injury. Rescuers: In provinces like Quebec, it is illegal to fail to help someone in need of help. Other provinces are picking up on this by passing legislation known as tje good Samaritan law.

10.1.3. Stage Three ( Did the defendant's actions or failure to act cause the plaintiff's injuries. Cause-In-Fact: the actual "cause and effect" connection between one person's actions and another person's injuries. It is used to see whether the Plaintiff caused the injuries of the defendant. Apportionment: The division of fault among different wrongdoers, if multiple people were to blame of a defendants injuries or if the defendant was at fault as well. Remoteness of damage: harm that could not have been foreseen by the defendant due to the lack of a close connection between the wrong action and the injury. Intervening act: An unforeseeable event that interrupts the chain of events started by the defendant. Thin-Skull Rules is the principles where a defendant is liable for all damages caused by negligence despite any pre-exisiting condition that makes the plaintiff more prone to injury. It is often harsh on t he defendant.

11. Crime, Criminal Offences and Criminal Code

11.1. A crime is an act or omission of an act that is prohibited and punishable by federal statute, four conditions must exist to consider a act or omissiont a crime.

11.1.1. The act is considered wrong by society.

11.1.2. The act causes harm to society in general or to those ( Such as minors ) who needs protection.

11.1.3. The harm must be serious.

11.1.4. The remedy must be handled by the criminal justice system.

11.2. Criminal Law is the body of laws that prohibit and punish acts that injure people, property, and society as a whole. There are 3 main purposes to Criminal Law.

11.2.1. Protect People and property.

11.2.2. Maintain order.

11.2.3. Preserve standards of public decency.

11.3. Before confederation in 1867, each BNA colony had their own criminal laws. This was highly problematic.

11.4. Section 91 (27) of the Constitution Act, 1867, granted the federal government the power to make criminal laws for all of Canada.

11.4.1. In 1892, the Canadian Parliament passed a statue called the Criminal Code of Canada. It contains the majority of criminal laws passed by parliament. It is constantly changing as new aspects of crime are appearing and old aspects of law are changing. Ex: Technological crimes.

12. Elements of a Crime

12.1. To convict someone of a crime the crown must establish two elements.

12.1.1. Actus Reus: "The guilty Act" the voluntary action, omission, or state of being that is forbidden by the criminal code. ( Refers to the physical action of a crime )

12.1.2. Mens Rea: "The guilty Mind" a deliberate intention to commit a wrongful act, with reckless disregard for the consequences. ( Refers to the mental intention to commit a crime ) Intent is a state of mind which someone desires to carry out a wrongful action, knows what the results will be and is reckless regarding the consequences. Intention signifies Mens Rea. General Intent is the desire to commit a wrongful act with no ulterior motive or purpose. General offences are easy to prove Mens rea. Specific Intent is the desire to commit one wrongful act for the sake accomplishing another. Specific Intent is harder to prove Mens rea. Knowledge is an awareness of certain facts that can be used to establish Mens Rea. Criminal Negligence can be used by the crown to establish Mens Rea. The crown must show that the accused failed to take precautions that any reasonable person would take to avoid causing harm to others. Everyone is criminal negligent who ( in doing anything ) or ( in omitting to do anything that it is his duty to do ) shows wanton or reckless disregard for the lives or safety for other persons. Recklessness can be used by the crown to establish Mens Rea. Recklessness is consciously taking an unjustifiable risk that a reasonable person would not take. Wilful Blindness is a deliberate closing of one's mind to the possible consequences of one's actions. Wilful Blindess can help prove Mens Rea

12.1.3. Less serious offences, the crown does not have to establish Mens Rea to win a conviction. These offences are often against regulatory laws. These type of offences can be grouped into two liability categories. Strict Liability offences: Offences which do not require Mens Rea to convict but an accused can use due dilligence. Due diligence: The defense that the accused took every reasonable precaution to avoid committing a particular offence. Absolute Liability offences: Offences which do not require Mens Rea to convict and an accused can not offer any defense.

13. Involvment in a Crime

13.1. Perpetrator: The person who actually commits the crime.

13.2. Aiding: A criminal offence that involves helping a perpetrator.

13.3. Parties to an offence: Those people who are indirectly involved in committing a crime

13.4. Abetting: The crime of encouraging the perpetrator to commit an offence.

13.5. Counselling: a crime that involved advising, recommending or persuading another person to commit a criminal offence.

13.6. Accessory after the Fact: someone who knowingly receives, comforts, or assists a perpetrator in escaping from the police.

13.7. Party to Common Intention: the shared responsibility among criminals for any additional offences that are committed in the course of the crime they originally intended to commit.

13.8. Incomplete Crimes: crimes where both elements of a crime don't need to be present.

13.8.1. Attempt: the intention to commit a crime, even when the crime is not completed.

13.8.2. Conspiracy: an agreement between two or more people to carry out an illegal act, even if that act does not actually occur.

14. Unintentional Tort

14.1. Injuries caused by an accident or an action that was not intended to cause harm.

15. Tort

15.1. Harm caused to a person or property for which the law provides a civil remedy.

16. Special Types of Liability

16.1. Product Liability: The area of law that deals with the negligence on the part of manufactures, 4 factors come into play.

16.1.1. The design of the product is free from harmful defects.

16.1.2. The product is properly manufactured.

16.1.3. The consumer is informed about how to use the product safely.

16.1.4. The consumer is warned of risks associated with using the product.

16.2. Occupiers Liability: the responsibility of owners of renters to ensure that no ones entering their premises is injured. There are three types of visitors.

16.2.1. Invitee: a person invited onto a property for a business purpose.

16.2.2. Licensee: a person with express or implied permission to pay a social visit.

16.2.3. Trespasser: someone who has no legal right or permission to be on your property. Burglars, stalkers and vandals are examples. A owner of property owes a duty of care to not create a deliberate intent of harming a trespasser. Children when trespassing must be accounted for and all reasonable precautions should be met to safeguard allurements from children. Allurement: A site or an object that might attract children and result in causing them harm.

16.3. Vicarious Liability: legal responsibility for the negligence of another person. ( Usually refers to the workplace where employers can be held responsible for the actions of their employees )

16.3.1. A by group of Vicarious Liability is Automobile Negligence. For example, the owner is liable for damages that result from the negligent behavior of any one who drives the owner's car.

16.4. Hosts: someone who serves alcohol to guests or paying customers.

16.4.1. Commercial Hosts have a statutory duty of care to their patrons and to anyone who may be injured by their patrons negligent driving.

16.5. Strict Liability: the defendant is automatically liable for an injury caused by a dangerous substance or activity even if the defendant was not negligent. It is commonly used with fires or vicious animals that might cause harm.

17. Defenses to Negligence

17.1. Contributory Negligence: negligent acts by the plain tiff that helped cause the plaintiff's injuries

17.2. Voluntary Assumption of Risk ( or volenti mon fit injuria ) the defense that no liability exists because the plaintiff agreed to accept the risk normally associated with the activity. A waiver also uses this principle.

17.2.1. Waiver: a document signed bu the plaintiff, releasing the defendant from liability in the event of an injury.

17.3. Inevitable Accidents: a defense that claims an accident was unavoidable due to an uncontrollable event.

17.4. An act of God: a defense claiming that an accident was caused by an extra ordinary, unexpected natural event such as a tornado, an earthquake, or a flood.

18. Statue of Limitations

18.1. Law that specifies the time within which legal action may be taken.

18.2. Law differs bwtween law of provinces and type of defendants.