CARLETON UNIVERSITY FINAL EXAMINATION

DECEMBER 2021
DURATION: 3 HOURS (Fixed Duration, Online in Brightspace)
LAWS 1001 section C
Professor Barry Wright
AUTHORIZED MEMORANDA: OPEN BOOK
This examination question paper MAY NOT be copied or distributed and your
answers must reflect your own effort (unauthorized disclosure or collaboration may be
considered academic offences in violation of University academic integrity policies).

Final Exam General Instructions:

The exam consists of two parts: 20 multiple choice questions in Part One, and a short essay
on one of four topics set out in Part Two, immediately following the multiple choice
questions (see p.8 below). The exam should be completed within three hours, and while you
may consult your notes and course readings, it must reflect your own work and you may
not communicate, consult or collaborate with others in completing it (answers will audited
and suspected violations of academic integrity will be reported to the Chair and Dean).

Please submit your answers to both Parts (One and Two) electronically as a single
MSWord or PDF file in Brightspace (via the Assignment 3 Final Exam submit tab). Please
ensure the integrity of the submitted electronic file (eg., that it is not corrupted; if your
answers cannot be accessed it will have a significant impact on your final grade).
Submission is the same process used for your two term essays (see the Brightspace support
site for more information about electronic submissions). Please note that you are allowed
one attempt and if you exceed 3 hours, Brightspace will not accept your submission unless
there is a PMC accommodation.

The exam is administered by Carleton Scheduling and Examination Services. If you

encounter technical difficulties during the exam please contact exam services (not me or
your TA) at: onlineexams@carleton.ca or call toll free 1 877 557 2930.
If Brightspace freezes or other technical difficulties are encountered at your end, save your
file, close your browser, and try logging in again after a minute (at the 3 hour deadline
there is a 2 minute delay before the Brightspace submission window closes altogether). If
technical problems persist contact Carleton Examination Service at the above contacts
immediately.

For issues such as unanticipated illness or emergency please contact the Registrar’s Office
(not me or your TA) as soon as possible and make a deferred exam request.

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Part One (20 marks)

Select the correct or best (most accurate, complete) choice for each question on the
following pages and please indicate you answers on your submitted file in the following
format: (Question numbers and answer letters on four lines, five per line; your answers to
this Part should appear at the beginning of your submitted file before your Part 2 essay):

1-[indicate choice of a,b,c,...], 2- , 3- , 4- , 5- ,

6- , 7- , 8- , 9- , 10- ,

11- , 12- , 13- , 14- , 15- ,

16- , 17- , 18- , 19- , 20- .

1. The positivist school of speculative jurisprudence rejects the natural law perspective. Why?

(a) Natural law is preoccupied with questions around the rule of law;
(b) Natural law is insufficiently concerned about questions of justice;
(c) Natural law is preoccupied with constitutional questions about duly constituted
authority, the valid lineage of law and its administration.
(d) There is no shared higher moral code, morality is a private matter and changes over
time

2. Which of the following statements best describes the approaches of the ‘critical legal
studies’ and ‘law in context’ movements within legal scholarship?

(a) They focus on what the law ‘is’ not on what the law ‘ought’ to be as expressed in
doctrine and therefore study the law in action, not the law as found in books;
(b) Laws can be validated against higher principles of justice or morality;
(c) They reject the legal realist focus and emphasize a critical assessment of legal
doctrine as presented in law books;
(d) They build on the legal realist focus set out in (a) and examine how law allocates
power in society and various external influences on law’s administration;
(e) None of the above

3. Which of the following statements incorrectly describe the laws governing European imperial
expansion into North America?

(a) International law in the 18th century offered no recognition whatsoever of Indigenous
customs because all ‘discovered territories’ were considered juridically vacant;
(b) International law in the 18th century recognized that colonizing powers should
conclude treaties with those Indigenous populations with discernable systems of
governance and authoritative customary rules;

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(c) The Royal Proclamation, 1763 promised British protection of Indigenous rights with
title to unceded lands and associated rights held in trust by the Crown until modified
by subsidiary treaty.
(d) British North American and later Canadian legislatures and courts neglected the
promises made under the Royal Proclamation, 1763 until recently.

4. Which of the follow describes what happened to the Royal Proclamation, 1763 in
practice?

(a) It was one of the grievances that led to the revolt in the American colonies
because it restricted permanent European settlement west of the Appalachian
mountains;
(b) It was ignored after formal reception by the colonial legislatures and courts in the
remaining British North American colonies and the Crown became negligent in
its trusteeship of Indigenous rights;
(c) The Crown’s trusteeship was transferred from London to Ottawa in 1867 without
consultation with Indigenous nations, the Indian Act policies of segregation and
assimilation were implemented;
(d) The Canadian courts and legislatures continued to neglect the Proclamation until
it was constitutionally entrenched in the Constitution Act, 1982;
(e) All of the above.

5. Which of the following statements about the historical differences between English and
continental European laws and legal systems is false?

(a) English common law and an adversarial justice system related to the challenges of
consolidating authority and absorbing local customs after the Conquest of 1066;
(b) European civil laws and inquisitorial processes derived from earlier Roman codes;
(c) English common law develops general principles inductively out of specific cases
decided consistently, while European civil law applies general principles
deductively to specific cases;
(d) English common law uses deductive logic while European civil law uses
inductive logic.

6. In addition to developing laws through common law powers, judges also shape the
practical reach and application of legislation. Which of the following best describes the
current approach to statutory interpretation set out by Driedger and endorsed by the
Supreme Court of Canada?

(a) The literal rule of statutory interpretation as set out in the Sussex Peerage case;
(b) The golden rule of statutory interpretation as set out in Grey v. Pearson to narrow,
the reach of legislation, the mischief rule as set out in Heydon’s case to widen it;
(c) Statutory words to be read in their grammatical and ordinary sense in conformity
with the context and general object of the entire act and legislative intent;
(d) Statutory words are to be read in their literal meaning in conformity with the
general object of the act without speculation about legislative intent.
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7. Dicey identified three criteria that must be met to ensure the rule of law. Which of the
following is not part of that criteria?

(a) Only those laws enacted by duly constituted authority are valid;
(b) Representative legislative authority must be subordinate to the courts;
(c) Laws must be impartially administered by an independent judiciary;
(d) Laws apply to all and no one is above the law.

8. The preamble of the Constitution Act, 1867 (formerly known as the British North America
Act) states that the fundamental rules governing Canada's constitution should be those
prevailing in the United Kingdom. This implies:

(a) Appeals to the Judicial Committee of the Privy Council in London;

(b) Federalism and a division of legislative powers between the central and provincial
governments;
(c) Adoption of British public institutional arrangements and constitutional
conventions, including parliamentary sovereignty and the rule of law;
(d) The applicability of British imperial legislation.

9. A literal reading of the Constitution Act, 1867 suggests that strong central government
authority was planned for Canada. The reality has proved otherwise because:

(a) The distribution of powers under the Constitution Act, 1867 were unilaterally
amended by the British government;
(b) The federal government refused to enact laws under its jurisdiction over residual
powers, the Peace, Order and Good Government clause, and refrained from using its
powers to disallow provincial legislation;
(c) Judicial review of jurisdictional disputes by the Judicial Committee of the Privy
Council in London and the Canadian courts had a decentralizing effect by way of
restrictive interpretations of s.91 and expansive interpretations of s.92;
(d) Domestic constitutional amendments since 1867 have resulted in significant
modifications to s.91 and s.92.

10. What are the main additions to Canada’s constitution by way of the Constitution Act, 1982?

(a) Replacement of the Constitution Act, 1867, a new distribution of powers between
provincial and federal governments, and replacement of the Crown acting on the
advice of government as seat of executive power;
(b) Patriation of the constitution with adoption of domestic constitutional amendment
processes, the Charter of Right and Freedoms, and constitutional entrenchment of
the Royal Proclamation, 1763 and other historical cultural rights;
(c) The abolition of appeals to the Judicial Committee of the Privy Council, the
replacement of the Queen as symbolic head of state, and the Canadian Bill of
Rights;

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(d) Replacement of the Westminster parliamentary system by a republican system

and corresponding changes to the operation of the legislative, executive and
judicial branches of the state under the Charter of Rights.

11. Which of the following statements is false?

(a) The Canadian Charter of Rights and Freedoms sets out rights that have, in most cases,
long-existed in our constitution, but marks a departure by introducing an effective new
process for judicial review of alleged rights violations by the state;
(b) The Charter guarantees protection from all rights violations by state and private
interests;
(c) The Charter enhances the influence of the judiciary over matters of public policy;
(d) The Charter provides direct access to the courts and remedies for alleged rights
violations, whereas before 1982, rights could only be raised indirectly in the
context of another action.

12. On the basis of the readings and lectures, which of the following statements would most
constitutional experts disagree with?

(a) The Charter of Rights fundamentally transforms our constitution by guaranteeing

rights that did not exist in Canada before 1982, giving judges unqualified authority to
protect these rights against state intrusions;
(b) Parliament and provincial legislatures must now pay more attention to rights when
passing laws or empowering officials, and must clearly articulate the public interests
served by these measures;
(c) Judges have always had an influence on public policy but the Charter enhances this
influence by directly asking judges to weigh alleged rights violations against the
public interest justification of challenged state measures;
(d) The Charter introduces a new form of ‘dialogue’ between our courts and legislatures
that have the effect of improving our laws.

13. Which of the following is false?

(a) Most criminal offences are found in the Canadian Criminal Code, but some are
found in federal legislation outside it, and the provinces have limited powers to
enact minor provincial offences;
(b) Serious criminal offences in Canada are called felonies, minor offences are called
misdemeanours, and all those convicted of felonies and misdemeanours, except
for common law offences not in the Code, are punished in federal correctional
institutions;
(c) Serious criminal offences are called indictable offences and those convicted of
such offences punishable by more than two years’ imprisonment will in most
cases serve time in federal correctional institutions;
(d) Less serious offences are called summary offences, and those convicted of them
may receive fines or other non-custodial sentences, but if sentenced to
imprisonment serve less than 2 years in a provincial correctional facility.
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14. Which of the following is not an element of the presumption of innocence in criminal law?:

(a) The Crown prosecutor has the burden of proof;

(b) The Crown prosecutor must prove the actus reus and the mens rea elements of the
offence;
(c) The plaintiff must prove the case against the defendant on a balance of probabilities;
(d) The Crown prosecutor must to prove the case against the accused beyond a reasonable
doubt.

15. Which of the following comments about the fact-finding in adversarial processes of
adjudication is false?

(a) Trial judges may insist on the introduction of evidence not raised by the parties in the
interests of fairness or where it is necessary in the judge’s view in order to decide the
case;
(b) Best proof in the adversarial process is not necessarily the same thing as the truth;
(c) Judges rule on the admissibility of evidence but cannot introduce evidence which in
trials can only come from the litigating parties;
(d) Excessive judicial intervention in the introduction of evidence or bias in the summing
up of evidence, may interfere with the rights of the parties and may be grounds for
appeal.

16. Which of the following statements is false?

(a) Mediation, arbitration and adjudication involve the intervention of a third party to
facilitate the resolution of a dispute;
(b) Adjudication and arbitration involve the imposition of a resolution by a third party;
(c) Arbitration and adjudication involve the intervention of a third party who in the case
of adjudication is given the power to impose a compromise solution;
(d) The third party resolution is usually a compromise in the case of arbitration and
mediations, a win/lose or zero sum outcome in the case of adjudication.

17. Which of the following is true?

(a) Coke suggested that a judge's primary duty is to the integrity of the law and Bacon
suggested the judge’ primary duty is to king and state policy;
(b) The formal constitutional protections of judicial independence in the British
constitution (Act of Settlement 1701) were extended to Canada when the British North
America Act, 1867 ended colonial judicial appointments according to royal pleasure
and created security of tenure based good behaviour as determined by Parliament;
(c) Judges may serve on royal commissions, and the federal government can refer cases
directly to the Supreme Court of Canada for advisory opinions and this raises
questions about separation of powers;
(d) The Canadian Judicial Council can reprimand, temporarily suspend or recommend to
Parliament the removal of federally appointed judges;
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(e) All of the above.

18. Which of the following figures gives the most accurate indication of the prevalence of jury
trials in Canada?

(a) Roughly 50% of criminal trials and about 20% of civil proceedings;
(b) Juries are no longer permitted in civil proceeding but are involved in the criminal trial
of all indictable offences;
(c) Roughly 10% of civil proceeding, and less than 3% of criminal trials;
(d) Roughly 10% of criminal trials and less than 3% of civil proceedings

19. The Law Society of Upper Canada governs all but which of the following in Ontario?

(a) Professional legal education, certification and admission to the bar;

(b) Provincially-appointed judges;
(c) Professional conduct and the handling of complaints against its members;
(d) Regulation of the marketing, delivery and billing of legal services.

20. Scholars who have studied the emergence of modern professions in the 19th century observe
common characteristic features. Which of the following is not one of the identified features?

(a) Control over professional training and entry into the profession;
(b) The claim to exclusive specialized knowledge and monopoly claims in practice
areas;
(c) Objective standards of performance and direct public accountability;
(d) Self -regulation and peer control of standards, review of complaints, and discipline.

Part Two: See following page --

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Part Two (10 marks)

Please write a short essay (500- 800 words) on one of following four topics:

(Your essay should appear immediately following your selected answers to the Part One.
Submit your answers to both Parts as a single MSWord or PDF file in Brightspace)

.
1. Judicial review in Canadian constitutional law involves more that review of alleged rights
violations under section 1 of the Charter of Rights in the Constitution Act, 1982. Explain the role
of the courts in the review of jurisdictional conflicts between the provincial and federal
governments under sections 91 and 92 of the Constitution Act, 1867 and the impact on Canadian
federalism. Also explain the advisory role of the Supreme Court of Canada in reference opinions
and how this raises concerns about judicial independence.

2.. Criminal law is best considered a branch of public law because it prohibits harmful actions that
not only affect victims but also public interests, and this is reflected in the powers of the state in
law enforcement and punishment. Explain the rights of the accused and how they serve as a
check on these state powers, and why criminal proceedings brought by a Crown prosecutor differ
from civil proceedings where a plaintiff brings a tort or negligence action seeking compensation
for harms.

3. English laws were introduced in the British North American territories in what we now know as
Canada initially by way of informal reception, when there was some co-existence between new
and old legal systems or customs. This was followed by formal reception, when imported laws
were fully adopted and applicable to all residents, subject to further modification by the new
colonial legislatures and courts. Explain with examples drawn from relations with Indigenous
nations after the 1763 Royal Proclamation and in Quebec after 1759 (including reference to the
1774 Quebec Act compromises)

4. Which is the better approach to improving public policies and unlocking the progressive potential
of law, legislative law reform or rights struggles in the courts?