Transcript Fundamentals of Law

Our Legal Heritage
Rules Vs. Laws
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Rules are different from laws in that they
are not enforced by the courts. So if a
student is late for class they will not be
arrested but may face other kinds of
discipline.
Laws are enforced by the courts and are
meant to protect us and our property as
well as provide structure to society.
Why do laws change?
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Laws change as society’s values and
morals change.
At one time it was illegal to sell alcohol;
women could not vote; a criminal could be
hanged.
Laws can also be changed due to pressure
from Lobby Groups. These groups try
and persuade the government and
individuals to change laws.
Some Strange Canadian Laws
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30% of all radio and t.v. content must be
Canadian.
It is illegal for clear or non-dark soda to
contain caffeine.
It used to be a criminal offence in Canada
to try and commit suicide…if caught trying
you would be hanged.
The game of Lawn Darts is illegal in
Canada.
Rule of Law
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In Canada a three part theory of justice and law
is followed, in order for our system to work
called Rule of Law.
Individuals must recognize and accept that
laws are necessary to control society.
The law applies to everyone including the
people in power.
No one in our society has the right to take all
the power for themselves or take away people’s
rights.
Law and Morality
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Laws that are based on morality, show us
what values, attitudes and beliefs
Canadians share.
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For example, Canadians feel that killing
another person is morally wrong. Therefore,
we have laws to punish those who do.
People who do not share these moral
values can speak out publicly and try to
change the law.
Law and Justice
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The ultimate goal of law is to ensure
justice for all (everyone should be treated
equally).
The problem is that not all situations can
be treated equally for many different
reasons.
Code of Hammurabi
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King of Babylon codified one of the earliest known
sets of laws. (1792-1750 BCE)
Patriarchal society –
 Wealthy had more protection
 Slavery was legal
 Women and children were property
Restitution: payment made by the offender to the
victim.
Retribution: justice based on vengeance and
punishment
Mosaic Law
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Commonly called the Ten
Commandments, found in
the book of Exodus in the
Old Testament.
Written some 500 years
after the death of
Hammurabi, the basic
principles are similar.
It was forbidden to commit
murder, adultery, theft, and
to worship other gods.
Greek Law
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First form of democracy was born in Greece.
Only Athenian citizens had political rights
(women, children, aliens, and slaves were
excluded).
Voting and Jury Duty were major
responsibilities.
Women on trial were not allowed to speak on
their own behalf.
Roman Law
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There were 2 basic principles…
1.
The law must be recorded
2.
Justice could not be left in the hands of judges alone to
interpret.
The Twelve Tablets (450 BCE) determined the law of
England during Roman occupation and is now considered
the foundation of modern law.
Roman Law reflected a patriarchal society, women did not
have status as a “person”.
Rome was a complex society with numerous laws, legal
advisors helped those with not understanding of the law.
They were the forerunners of the lawyer.
Justinian’s Code
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Byzantine Emperor
Justinian I had the
1600 books of Roman
law codefied in 529
CE.
This code inspired the
concept of justice and
formed the basis of
civil law.
Napoleonic Code
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After the French Revolution,
Bonaparte unified French
Law under the Napoleonic
Code (1804).
The code regulated civil
matters such as property,
wills, contracts, and family
law.
Influences on Canadian Law
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British Law has had
the greatest influence
on Canadian Law.
Queen Elizabeth is
Canada’s Head of
State. Canada
Explained
Feudal System
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William the Conqueror, King of England, unified
England’s legal system and assumed total
control.
King William divided England into parcels of land
to be ruled over by noblemen who judged cases
that arose in their parcel.
There were no rules of evidence and the
accused had no rights.
By the 12th Century, people rose up against this
harsh, unfair treatment.
Common Law
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King Henry II established circuit judges
to resolve local disputes.
The judges recorded their cases and
decisions and shared them so they would
judge similar cases in the same manner.
This became known as case law or
common law.
Magna Carta
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Was the first step in
establishing individual
basic rights for the people
of England.
It recognized the principle
of Rule of Law, not
even the King would be
above the law.
Habeas Corpus
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The purpose of the order
is to secure the release of
people who are
unlawfully imprisoned.
This historic right is now
entrenched in the
Canadian Charter of
Rights and Freedoms.
Classifying Canadian Law
Three Sources of Canadian Law
Common Law (case law) – Common Law is
constantly changing as judges decide new cases
based on previous judicial decisions.
Statute Law – consists of laws that are pased by
elected representatives in the form of acts.
Constitutional Law – is a body of law dealing with the
distribution and exercise of government powers.
Sources of Law
Constitutional
Law
Statute Law
Common Law
Common Law
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Today, Canadian courts continue to rely
on decisions made by other courts when
determining the outcome of similar cases.
Rule of precedent is not the only way
courts judge cases – the judge may reject
previous decisions and create a new
precedent. This is called distinguishing
a case.
Statute Law
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As we know, acts become law only after
they are passed through a formal
procedure in the House of Commons or
Provincial Legislature.
Many of our laws today are actually
statutes – common law decisions that
have been codified.
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Statutes usually override common law
unless there is no statute to deal with the
particular situation.
Each of the three levels of government
have the authority to create legislation in
its own jurisdiction (authority and control).
Federal Statutes
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Criminal law
Federal Penitentiaries
Employment Insurance
Banking and Currency
Marriage and Divorce
Postal Service, etc…
Everyone in Canada is subject to laws passed by the
Federal Government.
Provincial Statutes
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Hospitals
Police Forces
Property Rights
Highways and Roads
Provincial Jails, etc…
Local Statutes
Municipal Governments make laws called
bylaws. Some areas of Municipal
Government jurisdiction would be;
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Who clears snow from sidewalks
Garbage collection
Curfews, etc…
Constitutional Law
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The Canadian Constitution determines the
structure of the federal government and divides
law-making powers between the federal and
provincial governments.
Constitutional law also limits the powers of
government by setting out basic laws, principles,
and standards that all others must adhere to.
Constitutional law overrides all other laws.
Categories of Law
The Law
International Law
Domestic Law
International Law
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International law governs the relationship
between independent nations.
Nations sign treaties and international
agreements that are as binding as law.
For example: extradition treaties
 free trade
 defense treaties
International Law (continued)
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A number of organizations have international
legal status. Two examples are
1) the United Nations (UN)
2) the International Court of Justice
The UN is a peacekeeping force, not a police
force. We have not developed an international
police force to enforce international law, but it
may be necessary.
Domestic Law
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Domestic law is law that governs activity within
a country’s boundaries.
When you travel to another country their laws
may be quite different from yours. For example
in some countries it is illegal to drink alcohol or
to dress in certain ways.
When in another country you do not have the
protection of Canadian Law. The Canadian
government may not be able to do much for you
if you break their laws.
The Law
International Law
Domestic Law
Substantive
Law
Procedural
Law
Substantive Law
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Substantive Law is a category of domestic
law.
It defines the rights and duties of citizens
and government. For example:
The right to enter a legal contract
The right to sue if that contract is broken
Failing to remain at the scene of an accident
Careless driving
Procedural Law
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Substantive law is the content of law, Procedural
law is the process of enforcing those laws.
It makes sure all citizens are treated fairly
during the legal process.
Procedural law refers to:
Gathering evidence properly
Following the proper steps to make an arrest
Following correct trial procedures.
The Law
Domestic Law
International Law
Substantive
Law
Public Law
Private Law
Procedural
Law
Public Law
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Public Law regulates the relationship
between the government and its citizens.
Public Law deals with:
Constitutional Law
Administrative Law
Criminal Law
Eventually all Public Law refers to the
Canadian Charter of Rights and Freedoms.
The Law
Domestic Law
International Law
Substantive
Law
Public Law
Constitutional Administrative
Law
Law
Procedural
Law
Private Law
Criminal
Law
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Administrative Law deals with the
relationship between government agencies
and the people.
An injured person looking for
compensation, or people concerned about
a subdivision being built on a nature
reserve would all deal with Administrative
law.
Examples of government agencies are:
 Liquor
Control Board
 Labour Board
 Workers’ Compensation Board
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Criminal Law is the area of law that
identifies crimes and hands out
punishment.
All crimes are described in the Criminal
Code of Canada.
This category attracts the most media
attention.
Case Citations
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In Canadian Law, a crime is carried out not only
against the individual, but against society.
Society is represented by the Crown.
The citation for criminal cases look like:
R. v. Accused
R. Stands for Regina or Rex, the Latin terms for
Queen or King.
v. Stands for versus (against)
Accused would be the name of the defendant.
The Law
Domestic Law
International Law
Substantive
Law
Public Law
Constitutional Administrative
Law
Law
Procedural
Law
Private Law
Criminal
Law
Tort
Law
Contract Family
Law
Law
Wills and
Estates
Property Employment
Law
law
Private Law
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Private Law (civil) is law that governs
the relationships between individuals and
between individuals and organizations (not
including the government).
The main purpose of private law is to
regulate the actions of and provide
compensation for people who have been
harmed by the wrongful actions of others.
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Tort Law: holds persons or private
organizations responsible for damage they
cause another person as a result of
accidental or deliberate action.
You often see headlines like “Woman
seeks $1.5 million for damages after…”.
Most of these claims are based on Tort
Law.
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Contract Law: is the branch of law that
provides rules regarding agreements
between people and business. Example: when
Student Council books a DJ for a dance, they enter a
legally binding contract with the DJ for that service.
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Family Law: is the branch of law that
deals with various aspects of family life.
Example: marriage, custody and support of children,
divorce, etc…
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Wills and Estates: is the branch of law
that deals with the division and
distribution of property after death.
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Property Law: is the branch of law that
governs ownership rights in property.
Employment Law: is the branch of law
that governs employer-employee
relationships. Example: child labour, work day
hours, minimum wage, hiring and firing practices,
workplace discrimination and harassment, work place
safety, union activities.
Chapter 3
GOVERNMENT AND STATUTE
LAW
Canada’s Constitution
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In 1867 the British Parliament passed the
British North American Act which
made Canada its own country although it
still had to have Britain’s permission to
amend its Constitution.
Canada decided to have a federal
system of government which divided the
responsibilities among the federal and
provincial government.
Federal Powers
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Are set out in s. 91 of
the BNA Act
Include matters that
should be applied
uniformly to every
province (criminal law,
currency, postal service,
etc.)
Provincial Powers
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Are set out in s. 92 of the
BNA Act
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Include matters of a local
nature and can vary from
province to province
(education, hospitals,
property, etc.)
Patriating the constitution
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The BNA was changed over the years and
Canada gained more and more independence.
In 1982, Pierre Elliot Trudeau finally brought
Canada’s Constitution home with the signing of
the Constitution Act, 1982.
Finally, Canada was fully independent from the
British Parliament and could pass laws on its
own.
Amending Formula
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Procedure for changing the
constitution
Requirements:
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Approval of Parliament
2/3 of the provinces
representing 50% of the
population
Charter of Rights &
Freedoms
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The Charter is entrenched
in the Constitution
Executive Branch
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The executive branch
is responsible for
carrying out the
governments plans
and policies.
This branch is made
up of the Prime
Minister, his Cabinet
Ministers, and the
Civil Service.
Legislative Branch
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The legislative branch
is the branch of
government that has
the power to make,
change, and repeal
laws.
This branch is made
up of the House of
Commons and the
Senate.
Creating A Law
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In order for an idea to become law it must
be presented to the House of Commons
in the form of a document known as a
bill.
Any member of the House of Commons
can present a bill or proposed law.
However if the Member of Parliament
(MP) is not a member of the party in
government the bill may not pass.
Parliament Hill; Ottawa, Canada
House of Commons
Senate
Steps in Creating A Law
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An Idea is created
The Idea is written down in a draft legislation.
First Reading
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MP discuss the purpose of the bill
Background information.
Bill is printed and distributed.
Second Reading
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Principle of the bill is debated
Each member can only speak once about the bill
Bill may be referred to a committee
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Third Reading
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Debate is restricted
No Changes can be
made
Vote
Steps are repeated
in the Senate
Governor General
signs the bill into
law