Chapter 2: Introduction to the Legal System

Question 1

What Is Law?

Answer 1

Define “law” and identify the types of law that exist in

Canada

Question 2

Law definition

Note there is multiple debates on the definition of this word

Answer 2

the body of rules made by government that can be enforced by the courts or by other government agencies

Rules that can be enforced by the courts govern these situations; thus, they are laws within the definition presented here.

**do not mistakes laws for courtesy demands, morality, and ethics like wearing a shirt in a restaurant, or having an abortion

Government agencies, such as labour relations
boards, workers’ compensation boards, or city and municipal councils fall into this definition too

As per lecture

• Laws are made by government
• Enforced by the courts

Question 3

2 Categories of Law

Answer 3

1) Substantive law

2) Procedural law

Question 4

1) Substantive law

Answer 4

the law establishing both the rights an individual has in society and also the limits on her conduct

Example: The rights to travel, to vote, and to own
property are guaranteed by substantive law, CHARTER OF RIGHTS AND FREEDOMS, Freedom to religion

Example 2: Prohibitions against theft

Question 5

2) Procedural law

Answer 5

the law determining how the substantive laws will be enforced

For example, the rules governing arrest and criminal investigation, or pre-trial and court processes in both criminal and civil cases

Example: Police needing a warranty to search your property or explicit consent from owner, an individual in custody has a right to see a lawyer

Question 6

Law can also be distinguished by its ___ or ______function

Answer 6

Public or Private `

Question 7

Public law

Answer 7

The public good; law concerning the government and individuals’ relationships with it, including criminal law and the regulations created by government agencies

Examples: Constitutional law, Criminal law and the regulations created by government agencies

Question 8

Private Law

i.e. civil law

Answer 8

The rules that govern our personal, social, and business relations, which are enforced by one person’s suing another in a private or civil action

Example: Contract Law and Tort Law, Civil Law (does not deal with the Government)

Question 9

Canada’s Legal Systems

Answer 9

LO 2.2 Distinguish between Canada’s civil law and common law legal systems

Question 10

Explorers and colonists brought ____ legal systems to Canada in the seventeenth and eighteenth centuries

Answer 10

2

Question 11

Following the Battle of Québec in
1759, the country fell under ________, except for Québec

History of the common law

Answer 11

common law

Question 12

It is important to note that

the term “_________” has two distinct meanings

Answer 12

civil law

Question 13

Civil law legal system

Used in two different contexts in text

Answer 13

One Context:
-the legal system used in most of Europe based on a central code, which is a list of rules stated as broad principles of law that judges apply to the cases that come before them

• Only used in Quebec for Canada (based on French Civil Code)
• Not bound by precedent (prior judges decision)
• Obligation of good faith (does not exist in common law)

Second Context:
-To describe private law matters within the common law system

“Private law mater within the common law system”

Question 14

Common law legal system

History

Answer 14

the legal system developed in England based on judges applying the customs and traditions of the people and then following each other’s decisions

Trial by battle (armed combat) or trial by ordeal (physical test like witch trials)

Question 15

The ________ was adopted throughout Europe and most of the European colonies

Answer 15

Napoleonic Code

Question 16

French civil law central code

Answer 16

Most important feature of French civil law

a list of rules stated as broad principles of law that judges apply to the
cases that come before them. Under this system, people wanting to know
their legal rights or obligations refer to the Civil Code

Question 17

Québec courts rely on the rules set out in the __________ to resolve private disputes in that province

Answer 17

Civil Code

Question 18

Precedent

Answer 18

an earlier court decision; in a common law system, judges are required to follow a decision made in a higher court in the same jurisdiction where the facts are similar

Question 19

Common Law Legal System

Answer 19

The topic of the following slides

Question 20

Stare Decisis

Star-ee De-cisis

Answer 20

Gradually, a system of justice developed in which the judges were required to follow each other’s decisions.

Means ‘following precedent’
“Let the Decision Stand”

Question 21

Stare Decisis

Answer 21

Gradually, a system of justice developed in which the judges were required to follow each other’s decisions.

Means ‘following precedent’

To avoid appeal courts trial judges would try
to avoid the embarrassment of having their decisions overturned and declared in error

From Class:

• The most significant characteristic of common law system
• Decision by one level of judge is binding o the judges below him or her

Question 22

The most significant feature of the common law legal system today is that

Answer 22

the decision of a judge at one level is binding on all judges in the court hierarchy who function in a court of lower rank, provided the facts in the two cases are similar

Question 23

One major disadvantage to Stare decisis

Answer 23

However, a significant disadvantage of following precedent is that a judge must follow another judge’s decision even though social attitudes may have changed. The system is anchored to the past, with only limited capacity to make corrections or to adapt and change to meet modern needs

Question 24

Distinguishing the facts

Answer 24

the process judges use to decide which case is the binding precedent; involves comparing the facts relevant to the issues being determined

Question 25

Bijuralism

Answer 25

expresses that two legal traditions, the civil law

and common law legal traditions, coexist in Canada

Question 26

Common Law and the Law of Equity

Answer 26

Slide moving forwards

Question 27

At an early stage in the development of common law, three great courts were created:

Answer 27

1) The Court of Common Pleas,
2) the Court of King’s Bench,
3) and the Exchequer Court

Question 28

Common law courts

Answer 28

the three historical English courts (the Court of Common Pleas, the Court
of King’s Bench, and the Exchequer Court), where in theory law was
discovered in the customs and traditions of the people

Question 29

Where did the name “common law” come from?

Answer 29

because the judges, at least in theory, did not create law but merely discovered it in the customs and traditions of the people to whom it was to be applied However, the foundation for a complete legal system could not be supplied by local custom and tradition alone, so common law judges borrowed legal principles from many different sources.

Question 30

Common law borrows from

Answer 30

1) Roman civil law
2) Canon or church law
3) Law merchant

Question 31

Roman civil law

Answer 31

the law of the Roman Empire, from which the common law drew its
concepts of property and possessions

Question 32

Canon or church law

Answer 32

the legal system of the Catholic Church, from which common law drew principles relating to families and estates

Question 33

Law merchant

Answer 33

rules developed by the merchant guilds and the source of common law relating to negotiable instruments such as cheques and promissory notes

Question 34

Court of chancery (aka Court of Equity)

Answer 34

a court administering equity and proceeding according to the forms and principles of equity; sometimes referred to as the Court of Equity

The Court of Chancery did not hear appeals
from the common law courts; rather, it provided an alternative forum

Eventually the court of chancery and the common law courts were amalgamated by the Judicature Acts of 1873-1875
-Now there is only 1 court system, but two different bodies of rules (common law and the law of equity)

Question 35

Law of equity

Created from court of chancery

Answer 35

a system of law collateral to the common law, developed by the Court of Chancery

Question 36

Equity definition

Answer 36

legal principles founded upon fairness, as developed in the Court of Chancery to relieve the harshness of the common law; also the value left in an asset after subtracting what the owner owes

Question 37

Are common law and equity the same?

Answer 37

Think of common law and equity as

two distinct bodies of rules.

Question 38

What happens when a person today asks a judge to apply equity?

Answer 38

they are not asking for fairness—they are asking that the rules developed by the courts of chancery be applied to the case. Equity should be viewed as a supplement to rather than a replacement of common law.

Question 39

Trust

Answer 39

a provision in equity whereby one person transfers property to a second
person obligated to use it to the benefit of a third person

Question 40

Statutes definition

Answer 40

law in the form of legislation passed by Parliament

aka take precedence over judge-made law based on either common law or equity

From lecture:
-The English civil war of the 17th century established the principle that parliament and not the king was supreme

-Parliamentary enactments are referred to as ‘statutes or legislation’

Statutes take precedence over common law (judge-made law) or the law of equity

Question 41

Parliamentary supremacy

Answer 41

the principle that the primary law-making body is Parliament or the provincial legislatures in their respective jurisdictions, and that statutes take priority over the common law

Question 42

Confederation

Answer 42

LO 2.3 Explain how powers are divided and exercised under Canada’s Constitution

Question 43

BNA Act

BNAA

Answer 43

British North America Act

Question 44

The BNA Act was renamed to _____________________

Answer 44

Constitution Act, 1867

Again, in 1999 to add Nunavut

Question 45

Confederation

Answer 45

the process that united the British colonies in North America as the Dominion of Canada in 1867

Question 46

The BNA Act’s primary significance is that

Answer 46

(1) it created the Dominion of Canada;
(2) it divided power among the executive, judicial, and legislative branches of government; and
(3) it determined the structures and powers of the
provincial and federal levels of government.

Question 47

Rule of law

Answer 47

an unwritten convention inherited from Britain that recognizes that although Parliament is supreme and can create any law considered appropriate, citizens are protected from the arbitrary actions of the government

Question 48

Canada’s ________ includes those Acts passed by both the British and Canadian Parliaments subsequent to the Constitution Act, 1867 that have status beyond mere statutes, such as the Statute of Westminster
(1931) and the Constitution Act, 1982, which includes the Charter of Rights and Freedoms

Answer 48

Constitution

Question 49

Canada’s Constitution comprises three elements:

Constitutional act is made up of

Answer 49

(1) statutes, such as the Constitution Act, 1982, and the statutes creating various provinces;

(2) case law on constitutional issues, such as decisions clarifying whether the federal or provincial governments have jurisdiction to create certain
statutes; and

(3) conventions, which are unwritten rules dictating how the government is to operate and include the rule of law.

Question 50

In Britain, how powerful is parliament?

Answer 50

Parliament is supreme and traditionally has had
the power to make laws that cannot be overruled by any other body and are subject only to the realities of the political system in which they function

Question 51

In Canada, how powerful is parliament?

Answer 51

the Constitution Act, 1867 and the Charter of

Rights and Freedoms place some limitations on this supremacy

Question 52

The federal government has exclusive power over such matters as:

Division of powers (section 91)

Answer 52

the military, trade and commerce, banking, currency, the postal service, criminal law (although
not its enforcement), and the appointment of judges in the federal and higher-level provincial courts

The federal government passes considerable legislation affecting such matters as the regulation of all import and export activities, taxation, environmental concerns, money and banking, interprovincial and international transportation, as well as important areas of intellectual property, such as copyrights, patents, and trademarks

Question 53

The provinces, on the other hand, have exclusive jurisdiction:

Division of powers (section 91)

Answer 53

hospitals, education, the administration of the

courts, and commercial activities carried on at the provincial level.

Question 54

Most business activities that are carried on within the province are governed by provincial legislation or municipal bylaws, including

Answer 54

statutes dealing with the sale of goods, consumer protection, employment,
workers’ compensation, collective bargaining, secured transactions, incorporation, real estate, and licensing

Question 55

For a visual of federal vs provincial control

Answer 55

Table 2 .1 Division of Legislative Powers

Question 56

Canada’s Constitution divides law-making power among three branches of government:

Answer 56

1) legislative branch
2) Judicial Branch
3) Executive branch

Question 57

1) legislative branch

Answer 57

the part of government empowered with enacting laws; Parliament and legislatures

Question 58

2) Judicial Branch

Answer 58

the part of the government composed of courts and officers of the court

Question 59

3) Executive branch (crown)

Answer 59

the part of the government composed of the Queen acting through the prime minister, cabinet, deputy ministers, and government departments
and officials; also known as the Crown

Examples; Organizations such as the
RCMP, the Employment Insurance Commission, and the military

Question 60

Legislation

Answer 60

laws enacted by Parliament or legislatures; also known as statutes

Question 61

Regulations

Answer 61

supplementary rules passed under the authority of a statute and having the status of law

Question 62

Indigenous Rights and Self-Government

Answer 62

LO 2.4 Outline the protection of Indigenous rights and self-government

Question 63

Inherent

Answer 63

means a pre-existing right rooted in Indigenous people’s long occupation and government before European settlement.

Question 64

Indigenous peoples also enjoy _________ dating back to early 1700s

Answer 64

Treaty Rights

Question 65

Royal Proclamation of 1763

Answer 65

established the relationship between the Crown and Indigenous communities as nation-to-nation

explicitly states that “all lands not ceded by or purchased from them by
[the Crown] are reserved to the said Indians.”

Question 66

Support for recognition of Indigenous self-government is growing. Points
in its favour include:

Answer 66

1. Before the coming of the Europeans, Indigenous peoples were organized as self-governing societies;
2. Indigenous peoples were recognized by the Crown as nations capable of entering into treaties;
3. Indigenous peoples did not give up their right to selfgovernment;
4. Although the right to self-government may have been restricted, it was never extinguished; and
5. Restrictions on self-government may not have been legally valid.

Question 67

Indigenous Self-Government in Canada

Answer 67

Future slides moving forward

Question 68

The James Bay and Northern Québec Agreement (JNBQA) of 1975, and the
companion Northeastern Québec Agreement of 1978, were created

Answer 68

largely in response to Indigenous opposition to proposed hydroelectric power development

Question 69

The Nisga’a Final Agreement (NFA)

Answer 69

a treaty negotiated between the Nisga’a Nation, the Government of British Columbia, and the Government of Canada. It gave the First Nation the right to selfgovernment on its land within the Nass Valley, including the authority to manage their lands, assets, and resources; and the ability to make laws in
regard to Nisga’a citizenship, language, and culture

Question 70

Constitutional Challenges before the

Courts

Answer 70

Slide moving forward

Question 71

Colourable legislation

Answer 71

One level of government cannot invade the area given to another by trying to make it look like the legislation is of a different kind

Question 72

Paramountcy

Answer 72

the principle that when a matter is addressed by both valid federal and provincial legislation and there is a conflict, the federal legislation takes precedence

Question 73

Bill definition

Answer 73

a draft of a proposed law introduced before Parliament or a legislature

Question 74

Royal assent

Answer 74

the final approval of the representative of the British Crown by which a bill becomes law in Canada

Such a statute does not have the status of
law until it receives the approval of the governor general at the federal level or the lieutenant-governor in a province

Question 75

How does a bill get passed?

Answer 75

Look at figure 2.1 Traditional passage of bills

First introduced to Parliament as a “bill” - sequence of introducing the bill, debating, modifying, approval in the form of a first, second, and third reading.

Once passed through Parliament it gets approved by the Governor General (federal) or the Lieutenant-Governor (Provincial) this is called royal assent

Question 76

Protection of Rights and Freedoms

Answer 76

LO 2.5 Describe the rights and freedoms protected by the Charter of Rights and Freedoms

Question 77

In the aftermath of world war 2 WWII Two streams of legislation developed

Answer 77

1) one dealing with protecting human
rights against abuses by the government (see slide 78)

2) and the second aimed at protecting individuals against discrimination and intolerance by society at large.

Question 78

Canadian Bill of Rights

Answer 78

The first attempt at limiting the federal government’s power to pass legislation that violates basic human rights was the passage (in 1960)

-Could be changed by any government

Question 79

Charter of Rights and Freedoms

Answer 79

Slides beyond this explain in more detail (came from Bill of rights)

-Does not protect individuals from each other or from corporations

Question 80

The effect of including the Charter in our Constitution is twofold

Two reasons why it is a charter of rights and freedoms

Answer 80

First, neither the federal government nor the provinces have the power to modify or otherwise interfere with the basic rights set out in the Charter
except through constitutional amendment

Second, the burden of protecting those rights has shifted from politicians to judges. Now, an individual who feels that her rights have been interfered with by legislation or other forms of government action can
seek redress from the courts, relying on the provisions of the Charter

Question 81

There are _______ important limitations on the entrenchment of these basic rights:

Answer 81

three

Question 82

Limitation 1

Limits on Rights and Freedoms

Answer 82

Section 1 - allows ‘reasonable limits’ of those rights and freedoms when such limited can be ‘demonstrably justified in a free and democratic society’

Question 83

Limitation 2

Limits on Rights and Freedoms

Answer 83

Section 33 - “notwithstanding clause.”

Applies to only certain provisions and allows government to say that the new law applies notwithstanding the charter provisions

Question 84

“notwithstanding clause.”

Answer 84

It allows each of the provinces and the federal
government to override the basic rights contained in section 2 and
sections 7 through 15 of the Charter simply by stating that the new
legislation operates “notwithstanding” (regardless of) the Charter.

Question 85

Fundamental freedoms (section 2)

Charter provisions

Answer 85

basic rights enumerated in the Canadian Charter of Rights and Freedoms, including freedom of conscience and religion, of thought and belief, of opinion and expression, and of assembly and association

Question 86

Legal rights (Section 8 and 9 - unreasonable search and seizure or arbitrary imprisonment)

Answer 86

basic rights enumerated in the Canadian Charter of Rights and Freedoms, such as the right to life, liberty, and security of the person; and security
against unreasonable search and seizure or arbitrary imprisonment or detention

Question 87

Equality rights

Answer 87

basic rights enumerated in the Canadian Charter of Rights and Freedoms, including the right not to be discriminated against on the basis of grounds
such as gender, age, religion, race, or colour, and the guarantee of equal benefit of and protection by the law

Question 88

The sections that can be overridden in this way include

Answer 88

Fundamental freedoms
Legal rights
Equality rights

Question 89

The notwithstanding clause does not apply to sections guaranteeing _________, ________, or _________

Answer 89

Democratic rights
Mobility rights
Language rights

Question 90

Sunset clause

Answer 90

is applied to the operation of section 33. If the
notwithstanding clause is invoked, the statute must be re-enacted by that
legislative body every five years

Question 91

Limitation 3

Answer 91

the restriction of the operation of the Charter to
government and government-related activities

Does not apply to private employers or individuals

Question 92

Explaining limitation 3

Answer 92

When institutions such as universities, schools, hospitals, and crown corporations are acting as a branch of government, the charter applies

Question 93

Fundamental Freedoms

Answer 93

Section 2 of the Charter declares certain underlying fundamental freedoms available to everyone in Canada

Examples: freedom of conscience and religion; freedom of belief, opinion, and expression; and freedom of assembly and association

Question 94

Democratic Rights

Charter provisions

Answer 94

Sections 3, 4, and 5 protect our rights to vote and to qualify to be elected to the House of Commons or the provincial legislative assemblies

Limitations: Under age or mentally incompetent

Question 95

Section 4 ensures

Answer 95

there will be an election at least every five years, except in times of war

The government in power still has
the right to decide when to call an election within that five-year period
and also whether to call the session into sitting more often than the “once
every 12 months” minimum

Question 96

Mobility Rights

Charter provisions

Answer 96

Section 6 of the Charter ensures that Canadians can travel and live anywhere within the geographic limitations of Canada as well as enter and leave the country at will

It also ensures that all Canadians have the
right to earn a livelihood in any part of Canada

Question 97

Legal Rights

Charter provisions

Answer 97

are intended to protect individuals from unreasonable
interference from the government or its agents. They ensure that when there is interference, it is done in a way that is both procedurally fair and
consistent with basic principles of fundamental justice.

There is no specific reference to property rights in
the Charter.

Question 98

_________states that we have the right to life, liberty, and the security of person and the right not to have these rights taken away except in accordance with the “principles of fundamental justice.”

Answer 98

Section 7

Question 99

Procedural fairness

Answer 99

“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions
affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.”

Question 100

____________ prohibit unreasonable search and seizure and arbitrary imprisonment

Answer 100

Sections 8 and 9

Subsequent sections provide for the right to be informed of the reason for an arrest, the right to retain counsel, the right to be tried within a reasonable time, the right to the presumption of innocence, the right not to be tried twice for the same offence (Double Jeopardy), and the right not to be subjected to any cruel or unusual punishment.

Question 101

Equality Rights

Answer 101

The equality rights set out in section 15 of the Charter prohibit discrimination in the application of the law on the basis of gender, religion, race, age, or national origin and ensure that all people in Canada have the same claim to the protection and benefits of the law

Question 102

Language Rights

Answer 102

The part of the Charter headed “Official Languages of Canada” and outlined in sections 16 to 22 ensures that French and English have equal status and that rights of minorities to use those languages are protected

Of the Canadian provinces, only New Brunswick is officially bilingual

All federal government activities, including court proceedings, publications, and other services where numbers warrant, must be available in both official
languages.

Question 103

Minority-language educational rights, outlined in ___________, are guaranteed for the citizens of Canada, ensuring that those whose first language is English or French and who received their primary education in English or French, or have had one of their children educated in English or French, have the right to have their other children educated in that language.

Answer 103

section 23

Question 104

Section 52

Answer 104

Declaring that the Constitution is the

“supreme law of Canada,” section 52 sets out all the statutes that have constitutional status in an attached schedule

Question 105

Human Rights Legislation

Answer 105

LO 2.6 List the areas and grounds upon discrimination is prohibited by human rights legislation

Question 106

The Canadian Human Rights Act (CHRA)

Answer 106

applies to abuses in sectors regulated by federal legislation, such as the broadcast and telecommunication industries; similar provincial statutes apply only in areas controlled by provincial legislation

These statutes aim at ensuring that individuals have access to employment (including membership in professional organizations and unions) without facing barriers created through discrimination.

Question 107

_________________ prohibits discrimination based on various protected grounds, including gender, religion, ethnic origin, race, age, and disabilities

The CHRA now specifically protects against
discrimination on the grounds of sexual orientation, gender identity, gender expression and pardoned criminal conviction

Answer 107

Human rights legislation

Question 108

A complaint before the CHRC, for example, must be filed within _____ months of the alleged incident

Answer 108

12

Question 109

_____ of the Canadian Human Rights Act states that it is a discriminatory practice, to harass an individual on a prohibited ground of discrimination, and sexual harassment is deemed to be harassment on a
prohibited ground - gender.

Answer 109

Section 14

Question 110

Indigenous Peoples and Human Rights

Answer 110

Since 1977, the CHRA did not apply to the federal government and First
Nations governments for decisions authorized by the Indian Act.

In 2008, this exemption from the CHRA was removed and gender equality
stipulations were expressly protected.

Question 111

Travelling courts

Answer 111

King Henry II era

Court had no precedents for similar cased with similar facts

Basic appeal system developed

Question 112

The constitution is the

Answer 112

supreme law of Canada, nothing is above it

Question 113

Basic Charter Analysis

Answer 113

1) Whether the charter applies to the circumstances (Is the government involved (applied) or between two individuals (not applied))
2) Whether a Charter right has been infringed (i.e. mobility issues, equality issue, language issue etc.)
3) Whether the infringement can be justified as a reasonable limit in a free and democratic society (Section 1 allows for breaches of certain charter rights to be restricted - such as losing mobility rights if in jail)
4) What is the appropriate remedy (is it striking down the legislation? Sending it back down to the federal law)

Question 114

Travelling Courts

Answer 114

Established by King Henry II

No specific rules to apply, so their jobs was to be fair and apply tradition

Basic appeal system developed

Question 115

Constitutional law is made up of:

Answer 115

1) Statutes
2) Conventions (unwritten rules on how gov’t operates)
3) Case law on constitutional issues

Question 116

Division of Powers

Answer 116

Constitutional Act, 1867 established division of power:

• Federal (section 91)
• Trade and commerce
• Employment insurance
• Raising money by taxation
• Criminal law (although not enforced)
• Banking, currency, postal service
• Residual powers under P.O.G.G clause

Provincial (section 92)

• Municipal institutions
• Hospitals and health care
• Direct taxation within the province
• Administration of justice within the province
• Property and civil rights
• Generally matter of a local or private nature
• Now allowed to delegate power from one to the other
• There are agreements to share power in certain areas (i.e. transfer payment schemes)