LAW Merged Exam Notes

Module 1: The Role of Lawyers and Judges – The Canadian Legal System Lesson 1A What do lawyers do in society? - Many different roles o Politicians o Poli ake s Go e e t, NGO’s, i te atio al o ga izatio s o Private practise, in-house counsel o Judges o Academics - But the overriding role of lawyers in society is to protect the rule of law The Rule of Law - The law must be fairly applied to all - The law must be created fairly - Everyone is accountable to the law - Law must be promulgated and enforced fairly - The rule of law is not a defined statute or common law rule o It is instead an overarching principle which governs the creation of laws and their implementation in democratic nations - Requires constant vigilance The Anti-Terrorism Bill (Bill C-51) - Government devoted website to Bill - Purposes of Bill o Stop the promotion of terrorism o Prevent terrorists from implementing their plots o Disrupting terror plots - Canadian Bar Association objects to the Bill o Bill is too broad o Would restrict free speech o Would criminalize legitimate expressions of freedoms o Offends charter o Goes agai st fu da e tal ole of judges as p ote to s of Ca ada’s o stitutio al ights - The government however has public safety concerns in mind and says: o Some restrictions of personal freedom are justified in order to protect the public at large The Internal Conflict for Lawyers - Neutral partisan vs moral activist - Are lawyers just a sophisticated mouthpiece for their clients? - What if a client wants to do something morally or legally wrong? - Are lawyers required to take positions on behalf of clients that offend their own views? - Or should they ignore what their clients instruct them to do in service of what they may perceive as higher social values? - Ho do the esol e this o fli t? ... Ethics 1 1A Textbook Reading – pages 21-25 Rule of Law - The term rule of law concerns fairness in the administration of the law 1. Everyone in a society, regardless of their social or political position, should be treated equally before the law 2. Power under the law should not be used arbitrarily Origins of The Rule of Law - King John of England (1167-1216) signed one of the most famous legal documents in the democratic world, The Magna Carta (1215) o The seeds of the rule of law were planted with the Magna Carta Di e ’s 3 Core Rule of Law Principles 1. Law must have supremacy over the influence of arbitrary power. It follows from this that no one can be punished expect for breach of an established law as determined through an established process before the courts 2. No one is above the law whatever his place in society or the law applies equally to everyone. It is recognized judicial process that will make the rulings to ensure this occurs 3. Personal rights and liberties must be protected by giving every person the ability to apply to the courts for a remedy should any of those rights and liberties be denied - Di e ’s o eptio of the ule of la elates o e to the “procedural fai ess tha to the su sta ti e fai ess o It deals with when and how the lows are applied rather than the fairness of the laws themselves Joseph Raz’s Pri iples 1. All laws should be prospective, open, and clear 2. Laws should be relatively stable 3. The making of particular laws (legal orders) should be guided by open, stable, clear, & general rules 4. The independence of the judiciary must be guaranteed 5. The principles of natural justice must be observed 6. The courts should have review powers over the implementation of the other principles 7. The courts should be easily accessible 8. Crime prevention agencies should not be allowed to pervert the law at their discretion - Raz’s fi st p i iples elate to the la s the sel es o The clearer and more certain out laws are, the better they will guide us, and the less scope there will be for arbitrary power - The 5 remaining principles relate to fairness in the enforcement process, primarily through the court system but also through the police and other crime-prevention arms of government Other legal scholars have suggested other requirements for the rule of law: - Independence of the legal p ofessio the a ust e se u e - Lawyer-client confidentiality must be guaranteed - Legal services must be affordable for the average person Lesson 1B: Legal Ethics and Professional Responsibility Law ers’ o ligatio s a o fli t with ea h other - Obligations to client o Confidentiality o Following instructions o Ad o ati g fo lie t’s positio o Obtaining best result for client