Chapter 2 Chapter 2 QuestionsQuestions

1) Jurisprudence is derived from the 1) Jurisprudence is derived from the latin “juris” meaning knowledge. latin “juris” meaning knowledge. Jurisprudence refers to the science or Jurisprudence refers to the science or philosophy of law. It is important philosophy of law. It is important because expanding the study of law because expanding the study of law to include the study of legal to include the study of legal principles, concepts and theories principles, concepts and theories leads to a better understanding of leads to a better understanding of law.law.

2) Bylaw may have been implemented 2) Bylaw may have been implemented in keeping with the expectation at in keeping with the expectation at the time that women dress modestly, the time that women dress modestly, especially in public places such as especially in public places such as swimming pools.swimming pools.

2b) At the time, some municipalities were 2b) At the time, some municipalities were probably not responsible for street probably not responsible for street sweeping and cleaning. Homeowners were sweeping and cleaning. Homeowners were also expected to keep streets/ sidewalks also expected to keep streets/ sidewalks clean. Also, homes had no indoor toilets at clean. Also, homes had no indoor toilets at that time, nor were there adequate sewage that time, nor were there adequate sewage systems, so waste would have been thrown systems, so waste would have been thrown on the street. Bylaw may have been on the street. Bylaw may have been enacted to ensure streets were cleaned up enacted to ensure streets were cleaned up early in the morning before people walked early in the morning before people walked by early in the day.by early in the day.

2c) A bylaw prohibiting spitting in 2c) A bylaw prohibiting spitting in public places, a public health issue public places, a public health issue may have been in response to may have been in response to outbreaks of disease or to complaints outbreaks of disease or to complaints from peoplefrom people

2d) Bylaw was in response to out of 2d) Bylaw was in response to out of control pigs when farmers took them control pigs when farmers took them to the market. Confining the pigs to to the market. Confining the pigs to vehicles to ensure they did not get vehicles to ensure they did not get lost or wander the streets.lost or wander the streets.

2e) Possibly, people were giving 2e) Possibly, people were giving moose beer, and the drunken moose moose beer, and the drunken moose cause damage to propertycause damage to property

2f) This bylaw may have been enacted 2f) This bylaw may have been enacted because flower shop owners, who because flower shop owners, who paid property tax, complained that paid property tax, complained that street vendors, who did not have to street vendors, who did not have to pay tax, were taking away from their pay tax, were taking away from their business.business.

3) The prayer tells us that Canada’s 3) The prayer tells us that Canada’s values and beliefs are still very much values and beliefs are still very much influence by religion and British values influence by religion and British values as evidenced by the reference to as evidenced by the reference to “almighty God”. The inclusion of the “almighty God”. The inclusion of the words “freedom, opportunity and words “freedom, opportunity and peace reflect the importance peace reflect the importance Canadians place on such values. Canadians place on such values. Reference to governor general reflects Reference to governor general reflects our acceptance of tradition and our acceptance of tradition and hierarchy.hierarchy.

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1. Ultra vires is a latin term meaning 1. Ultra vires is a latin term meaning “outside its power” or outside its “outside its power” or outside its jurisdiction. Eg. Federal and jurisdiction. Eg. Federal and provincial responsibilities on criminal provincial responsibilities on criminal law.law.

2)2)

a) Ten Commandments- primary lawa) Ten Commandments- primary law

b) Presumption of innocence- b) Presumption of innocence- secondary lawsecondary law

c) BNA Act 1867- secondary lawc) BNA Act 1867- secondary law

d) Consumer Protection Act- secondary d) Consumer Protection Act- secondary lawlaw

3. Examples of statute law:3. Examples of statute law:

Federal- Criminal code, Youth Criminal Federal- Criminal code, Youth Criminal justice Actjustice Act

Provincial- Highway Traffic Act, Safe Provincial- Highway Traffic Act, Safe Streets ActStreets Act

Municipal- Smoking By lawsMunicipal- Smoking By laws

4. In Canada the authority to make law 4. In Canada the authority to make law resides in the BNA Act, 1867 and the resides in the BNA Act, 1867 and the Constitution Act, 1982 which outline Constitution Act, 1982 which outline the responsibilities of each level of the responsibilities of each level of government.government.

6. Judges do not make la. It is governments 6. Judges do not make la. It is governments role to make law. Judges merely interpret role to make law. Judges merely interpret existing law. Our elected reps. pass all existing law. Our elected reps. pass all statutes. For example, if the government statutes. For example, if the government passes a law such as the Safe Streets Act, a passes a law such as the Safe Streets Act, a person convicted under this law may claim person convicted under this law may claim that the law violates his right to freedom of that the law violates his right to freedom of expression under Charter or Rights and expression under Charter or Rights and Freedoms. Judge decides if one violates the Freedoms. Judge decides if one violates the other. But both laws are enacted by other. But both laws are enacted by parliament.parliament.

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1)1) Civil law can mean private law, law Civil law can mean private law, law that regulates disputes between that regulates disputes between individuals. Civil law can include individuals. Civil law can include property, family or tort law. It can also property, family or tort law. It can also refer to law that is written down or refer to law that is written down or codified. Common law can mean law codified. Common law can mean law that is common to all, law that comes that is common to all, law that comes from England, and law that is based from England, and law that is based on the decisions of judges (case law)on the decisions of judges (case law)

2) The present day equivalents would 2) The present day equivalents would be:be:

a)a) Court of the exchequer- Federal or Court of the exchequer- Federal or Tax CourtTax Court

b)b) Court of common pleas- Civil courtCourt of common pleas- Civil court

c)c) Court of the Kings Bench- Criminal Court of the Kings Bench- Criminal CourtCourt

3a) Judicial authority lies with the 3a) Judicial authority lies with the crown as evidenced in the courts crown as evidenced in the courts where cases are referred to as “R. v where cases are referred to as “R. v accused” with “R” standing for accused” with “R” standing for Regina (Latin for Queen). Attorneys Regina (Latin for Queen). Attorneys in Canada are referred to as Crown in Canada are referred to as Crown AttorneysAttorneys

3b) If Canada abolished all ties to the 3b) If Canada abolished all ties to the British monarchy, judicial authority British monarchy, judicial authority would lie with the state or would lie with the state or government.government.

4) A jury must be independent of the 4) A jury must be independent of the state because its members must be state because its members must be free to reach an independent verdict free to reach an independent verdict based on the evidence presented based on the evidence presented rather than on either fear of rather than on either fear of punishment from the state or desire punishment from the state or desire for a reward from the state.for a reward from the state.

AdversarialAdversarial Judges role limitedJudges role limited

Accused can remain Accused can remain silentsilent

Accused is Accused is presumed innocentpresumed innocent

Burden of proof on Burden of proof on crowncrown

Accused has many Accused has many rightsrights

InquisitorialInquisitorial Judge can ask the Judge can ask the

accused questionsaccused questions Accused must Accused must

answer questions answer questions from lawyersfrom lawyers

Accused may not Accused may not be presumed be presumed innocentinnocent

Burden is on him to Burden is on him to prove innocenceprove innocence

Similarities Adversarial and InquisitorialSimilarities Adversarial and Inquisitorial Both systems can have a judge or juriesBoth systems can have a judge or juries Judge can ask questionsJudge can ask questions Both sides seek the truthBoth sides seek the truth

p. 68 #1-5p. 68 #1-51. 1. Substantive law is the body of law Substantive law is the body of law

described in our statutes (Highway Control described in our statutes (Highway Control Act, Criminal Code) and judicial decisionsAct, Criminal Code) and judicial decisionsExample of substantive law would be the Example of substantive law would be the

definition of murder in the Criminal Codedefinition of murder in the Criminal CodeProcedural law refers to how the law Procedural law refers to how the law

should be carried out, such as how a trial should be carried out, such as how a trial should be conducted, how an arrest should be conducted, how an arrest should be made etc.should be made etc.

3. 3. In a criminal case, the burden of In a criminal case, the burden of

proof rests with the crown and is proof rests with the crown and is based on the principle of a based on the principle of a reasonable doubtreasonable doubt

http://www.youtube.com/watch?v=S2YbY9eYmdM&feature=player_embedded

In a civil case, proof is based on a In a civil case, proof is based on a balance of probabilitiesbalance of probabilities

4.4.Three examples of administrative lawThree examples of administrative law

A worker injured on the job applies for A worker injured on the job applies for adjudication to the Worker’s adjudication to the Worker’s Compensation BoardCompensation Board

A refugee claimant appeals to a refugee A refugee claimant appeals to a refugee tribunaltribunal

A tenant who has been evicted may A tenant who has been evicted may appeal to the Landlord and Tenant appeal to the Landlord and Tenant TribunalTribunal

5a) French authorities should be able to convict the 5a) French authorities should be able to convict the man because he deliberately went to Thailand to man because he deliberately went to Thailand to circumvent the law. circumvent the law.

5b) There would be major problems finding witnesses, 5b) There would be major problems finding witnesses, gathering evidence, and determining venues for a gathering evidence, and determining venues for a trial. Another issue is if another countries laws are trial. Another issue is if another countries laws are harsh. For ex., if a precedent were set that a harsh. For ex., if a precedent were set that a country could prosecute a citizen violated laws country could prosecute a citizen violated laws outside its borders, problems could ariseoutside its borders, problems could arise

Eg. Saudi citizen living in Canada who consumed Eg. Saudi citizen living in Canada who consumed alcohol here could be arrested when returning to alcohol here could be arrested when returning to Saudi Arabia because it is against the lawSaudi Arabia because it is against the law