Glossary

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto
Pages:439-445
 
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Page 439

Absolute liability. An offence for which the accused is guilty once it is proven that the prohibited act was committed and regardless of the existence of any fault, including negligence.

Adjudicative facts. Facts relating to the immediate dispute between the parties, "who, what, where, and how" (as distinguished from "legislative facts").

Affirmative action. Positive measures intended to benefit a disadvantaged group.

Agency shop provision. A provision in a collective agreement compelling payment of dues to a union by non-member employees.

Appellate court. The court that hears appeals from judgments of the trial courts. There are provincial appellate courts to hear appeals from the provincial courts and the provincial superior courts, and a Federal Court of Appeal to hear appeals from the Federal Court, Trial Division.

Arbitrariness. A law that infringes a right, but bears an insufficient relationship with the state interest that lies behind the legislation.

Attorney general. The member of Cabinet who is the senior legal adviser to the government and who is ultimately accountable for prosecutions.

Civil law. A legal system in which private law is enacted by the legislature and is predominantly contained in a Civil Code. It is in contradis-

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tinction to the common law where the basis of private law is made by a judge. Quebec has a civil law tradition.

Closed shop provision. A provision in a collective agreement compelling membership in a union.

Commercial expression. Expression conveyed for the purpose of earning money, usually in the form of advertising.

Common law. Judge-made law, reflected by precedents established by the decisions of the courts, as distinct from statute-law passed by the legislature. In all provinces other than Quebec, the primary source of private law is the common law.

Constitutional convention. An unwritten rule, rather than formal law, that is enforced through the political process rather than in the courts. The Canadian constitution consists of the written constitutional texts, judicial precedents, and constitutional conventions.

Constitutional exemption. The law remains valid for all purposes, save that the court exempts a particular individual or situation from its application.

Contextual analysis. Assessing Charter issues in the light of the specific social, cultural, economic, and political factors that bear upon the right claimed or the basis asserted for limiting the right.

Damages. Monetary award received by the injured party to compensate for the wrong suffered or to vindicate or deter Charter violations.

Declaratory proceedings. A suit in which the only relief sought is a statement by the court delineating the ambit of a right, or stating that a statute or practice is contrary to the constitution, with no other concrete remedy provided.

Deference. The view that a court order is not the appropriate solution and that the matter should be left to the legislature.

Delayed declaration of invalidity. See Suspended declaration of invalidity

Dialogue. The relationship of give-and-take between courts and legislatures resulting from judicial decisions striking down laws and fresh legislation being enacted in response.

Disclosure. The obligation of the Crown to notify the accused prior to trial of any evidence it intends to use and any evidence that...

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