Chapter 2: Introduction to the Legal System Flashcards
What Is Law?
Define “law” and identify the types of law that exist in
Canada
Law definition
Note there is multiple debates on the definition of this word
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
2 Categories of Law
1) Substantive law
2) Procedural law
1) Substantive law
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
2) Procedural law
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
Law can also be distinguished by its ___ or ______function
Public or Private `
Public law
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
Private Law
i.e. civil law
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)
Canada’s Legal Systems
LO 2.2 Distinguish between Canada’s civil law and common law legal systems
Explorers and colonists brought ____ legal systems to Canada in the seventeenth and eighteenth centuries
2
Following the Battle of Québec in
1759, the country fell under ________, except for Québec
History of the common law
common law
It is important to note that
the term “_________” has two distinct meanings
civil law
Civil law legal system
Used in two different contexts in text
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”
Common law legal system
History
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)
The ________ was adopted throughout Europe and most of the European colonies
Napoleonic Code
French civil law central code
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
Québec courts rely on the rules set out in the __________ to resolve private disputes in that province
Civil Code
Precedent
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
Common Law Legal System
The topic of the following slides
Stare Decisis
Star-ee De-cisis
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”
Stare Decisis
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
The most significant feature of the common law legal system today is that
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
One major disadvantage to Stare decisis
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
Distinguishing the facts
the process judges use to decide which case is the binding precedent; involves comparing the facts relevant to the issues being determined
Bijuralism
expresses that two legal traditions, the civil law
and common law legal traditions, coexist in Canada
Common Law and the Law of Equity
Slide moving forwards
At an early stage in the development of common law, three great courts were created:
1) The Court of Common Pleas,
2) the Court of King’s Bench,
3) and the Exchequer Court
Common law courts
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
Where did the name “common law” come from?
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.
Common law borrows from
1) Roman civil law
2) Canon or church law
3) Law merchant
Roman civil law
the law of the Roman Empire, from which the common law drew its
concepts of property and possessions
Canon or church law
the legal system of the Catholic Church, from which common law drew principles relating to families and estates
Law merchant
rules developed by the merchant guilds and the source of common law relating to negotiable instruments such as cheques and promissory notes
Court of chancery (aka Court of Equity)
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)
Law of equity
Created from court of chancery
a system of law collateral to the common law, developed by the Court of Chancery
Equity definition
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
Are common law and equity the same?
Think of common law and equity as
two distinct bodies of rules.
What happens when a person today asks a judge to apply equity?
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.
Trust
a provision in equity whereby one person transfers property to a second
person obligated to use it to the benefit of a third person
Statutes definition
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
Parliamentary supremacy
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
Confederation
LO 2.3 Explain how powers are divided and exercised under Canada’s Constitution
BNA Act
BNAA
British North America Act
The BNA Act was renamed to _____________________
Constitution Act, 1867
Again, in 1999 to add Nunavut
Confederation
the process that united the British colonies in North America as the Dominion of Canada in 1867
The BNA Act’s primary significance is that
(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.
Rule of law
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
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
Constitution
Canada’s Constitution comprises three elements:
Constitutional act is made up of
(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.
In Britain, how powerful is parliament?
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
In Canada, how powerful is parliament?
the Constitution Act, 1867 and the Charter of
Rights and Freedoms place some limitations on this supremacy
The federal government has exclusive power over such matters as:
Division of powers (section 91)
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
The provinces, on the other hand, have exclusive jurisdiction:
Division of powers (section 91)
hospitals, education, the administration of the
courts, and commercial activities carried on at the provincial level.
Most business activities that are carried on within the province are governed by provincial legislation or municipal bylaws, including
statutes dealing with the sale of goods, consumer protection, employment,
workers’ compensation, collective bargaining, secured transactions, incorporation, real estate, and licensing
For a visual of federal vs provincial control
Table 2 .1 Division of Legislative Powers
Canada’s Constitution divides law-making power among three branches of government:
1) legislative branch
2) Judicial Branch
3) Executive branch
1) legislative branch
the part of government empowered with enacting laws; Parliament and legislatures
2) Judicial Branch
the part of the government composed of courts and officers of the court
3) Executive branch (crown)
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
Legislation
laws enacted by Parliament or legislatures; also known as statutes
Regulations
supplementary rules passed under the authority of a statute and having the status of law
Indigenous Rights and Self-Government
LO 2.4 Outline the protection of Indigenous rights and self-government
Inherent
means a pre-existing right rooted in Indigenous people’s long occupation and government before European settlement.
Indigenous peoples also enjoy _________ dating back to early 1700s
Treaty Rights
Royal Proclamation of 1763
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.”
Support for recognition of Indigenous self-government is growing. Points
in its favour include:
- Before the coming of the Europeans, Indigenous peoples were organized as self-governing societies;
- Indigenous peoples were recognized by the Crown as nations capable of entering into treaties;
- Indigenous peoples did not give up their right to selfgovernment;
- Although the right to self-government may have been restricted, it was never extinguished; and
- Restrictions on self-government may not have been legally valid.
Indigenous Self-Government in Canada
Future slides moving forward
The James Bay and Northern Québec Agreement (JNBQA) of 1975, and the
companion Northeastern Québec Agreement of 1978, were created
largely in response to Indigenous opposition to proposed hydroelectric power development
The Nisga’a Final Agreement (NFA)
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
Constitutional Challenges before the
Courts
Slide moving forward
Colourable legislation
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
Paramountcy
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
Bill definition
a draft of a proposed law introduced before Parliament or a legislature
Royal assent
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
How does a bill get passed?
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
Protection of Rights and Freedoms
LO 2.5 Describe the rights and freedoms protected by the Charter of Rights and Freedoms
In the aftermath of world war 2 WWII Two streams of legislation developed
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.
Canadian Bill of Rights
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
Charter of Rights and Freedoms
Slides beyond this explain in more detail (came from Bill of rights)
-Does not protect individuals from each other or from corporations
The effect of including the Charter in our Constitution is twofold
Two reasons why it is a charter of rights and freedoms
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
There are _______ important limitations on the entrenchment of these basic rights:
three
Limitation 1
Limits on Rights and Freedoms
Section 1 - allows ‘reasonable limits’ of those rights and freedoms when such limited can be ‘demonstrably justified in a free and democratic society’
Limitation 2
Limits on Rights and Freedoms
Section 33 - “notwithstanding clause.”
Applies to only certain provisions and allows government to say that the new law applies notwithstanding the charter provisions
“notwithstanding clause.”
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.
Fundamental freedoms (section 2)
Charter provisions
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
Legal rights (Section 8 and 9 - unreasonable search and seizure or arbitrary imprisonment)
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
Equality rights
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
The sections that can be overridden in this way include
Fundamental freedoms
Legal rights
Equality rights
The notwithstanding clause does not apply to sections guaranteeing _________, ________, or _________
Democratic rights
Mobility rights
Language rights
Sunset clause
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
Limitation 3
the restriction of the operation of the Charter to
government and government-related activities
Does not apply to private employers or individuals
Explaining limitation 3
When institutions such as universities, schools, hospitals, and crown corporations are acting as a branch of government, the charter applies
Fundamental Freedoms
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
Democratic Rights
Charter provisions
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
Section 4 ensures
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
Mobility Rights
Charter provisions
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
Legal Rights
Charter provisions
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.
_________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.”
Section 7
Procedural fairness
“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.”
____________ prohibit unreasonable search and seizure and arbitrary imprisonment
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.
Equality Rights
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
Language Rights
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.
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.
section 23
Section 52
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
Human Rights Legislation
LO 2.6 List the areas and grounds upon discrimination is prohibited by human rights legislation
The Canadian Human Rights Act (CHRA)
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.
_________________ 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
Human rights legislation
A complaint before the CHRC, for example, must be filed within _____ months of the alleged incident
12
_____ 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.
Section 14
Indigenous Peoples and Human Rights
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.
Travelling courts
King Henry II era
Court had no precedents for similar cased with similar facts
Basic appeal system developed
The constitution is the
supreme law of Canada, nothing is above it
Basic Charter Analysis
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)
Travelling Courts
Established by King Henry II
No specific rules to apply, so their jobs was to be fair and apply tradition
Basic appeal system developed
Constitutional law is made up of:
1) Statutes
2) Conventions (unwritten rules on how gov’t operates)
3) Case law on constitutional issues
Division of Powers
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)
