Chapter 2 Introduction To The Canadian Legal System What is Law? * Law is the body of rules made by government that can be enforced by the courts or by other government agencies * Definition of law is affected by history, theory, legal system in place, and social realities Natural Law Theory * Law is based on prevalent moral code * Influenced by religious belief, reason, and logic Legal Positivism * Law is determined by those with the authority to do so * Legislatures have declared law Legal Realism Law is determined by what rules the courts are willing and able to enforce * Law allows judges to factor in current social and economic realities when they make their decisions Government Agencies Also Enforce The Law * Labour relations boards * Workers Compensation Board * Municipal Boards * Human Rights Commissions Substantive Law * The rules that govern behavior and set limits on conduct * Public and Private Law Procedural Law * How the substantive laws will be enforced * The rules governing arrest, investigations, pretrial, and court processes in both criminal and civil casesPublic Law * Regulates our relationship with government * Constitutional: how country is governed * Criminal: laws protecting society * Administrative: regulations created by government agencies (labour relations, CRTC, municipal) * Tax Law Private or Civil Law * Regulates personal, social, and business relationships * Torts: intentional negligence, other business torts * Property: personal property, real property, intellectual property * Contracts: sales of goods act, employment, negotiable instruments corporations, mortgages Civil Law Legal System (Civil Code) A list of rules stated as broad principles of law that judges apply to cases * Used in Europe and most developing countries * Quebec’s legal system is based on the French Civil Code (most recent came into effect in 1994) * Code determines the principle to be applied Common Law Legal System * Judge made law * A system of justice developed by judges, in which judges were required to follow each others decision * Based on precedent or “stare decisis” *Judges are bound by previous decisions of higher courts in the same jurisdiction, based on similar facts * May distinguish cases on the facts Used in Great Britain and Commonwealth including most of Canada (except Quebec) Common Law Sources 1.
Common Law * The precedent making decisions of the courts * Customs and traditions are a major source of common law * Common Law borrows from: * Roman Civil Law: concept of property and possessions * Cannon or Church law: contribute law in relation to family and estates * Law Merchants: trading between merchants, guilds (unions) and other nations 2. Law of Equity * Decisions made by court of Chancery * Based originally on fairness and justice * Developed to counter rigid common law Courts later merged, but not bodies of law 3. Statutes * Laws created by legislative bodies * Federal: criminal code, immigration, and refugee protection act* Provincial: Workers Compensation Act, Traffic Safety Act, Municipal Act * Legislation overrides common law and law of equity * Often summarizes or modifies common law * Includes government regulations British North American Act: 1867 * BNA act created Canada and assigned different powers between federal and provincial governments * Canada inherited certain conventions or traditions from Britain * Rule of law Principles established in Magna Carta * Parliamentary supremacy Sections 91 and 92 divide powers between Federal and Provincial Governments Federal Government under Section 91 * Currency and banking * International trade * Criminal law (although not enforcement) * Taxation * Interprovincial trade and transportation * Intellectual property * Bankruptcy * Residual power (broadcasting and transportation) Provincial Governments under Section 92 * Hospitals and education* The administration of courts * Natural resources * Property and civil rights * Consumer protection Employment * Secured transactions * Real estate, licensing *Conflict: Principle of Paramountcy – where both provincial and federal laws are valid but conflicting, federal law is obeyed Constitution Act of 1982 * Includes Canadian Charter of Rights And Freedoms * Neither the federal or provincial governments have the power to modify or otherwise interfere with the basic rights set out in the charter except through constitutional amendment * The constitution act is the supreme law of Canada * Courts are empowered to strike down offending statutes Establishes amending formula for constitutional change * Entrenches individual rights Limitations on Charter Rights * Section 1 – interference with rights must be justifiable in a free and democratic society * Section 33 – legislatures can pass acts that infringe on rights “notwithstanding” the charter but legislation must be reviewed every 5 years *the charter and its provisions only apply to our relations with government Charter provisions protect: 1. Fundamental Freedoms – religion, opinion, assembly, association, expression 2. Democratic Rights – right to vote 3.
Mobility Rights – right to travel and live anywhere within Canada, right to enter and leave the country 4. Legal Rights – everyone granted a right to life, liberty, and security of person. Secure from unreasonable search and seizure, detention or imprisonment 5. Equality Rights – every person is to be equal before and under the law. Discrimination is prohibited on basis of race, colour, religion, sex, age, mental or physical disability. Human Rights Legislation * Charter of Rights and Freedoms * Protects individual rights from abuses of government * Human Rights Legislation Protects an individuals rights in social and private relationships from abuse by other members of the public * Canadian Human Rights Act – Federal legislation * Ontario Human Rights Commission * Prohibits discrimination relating to gender, religion, ethnic origin, age, disabilities, sexual harassment * Protections extend to employment, tenancies, public facilities and services, public signs and notices * There is a duty to not discriminate and also a duty to take reasonable steps to accommodate any person who may be discriminated against