Transcript Document

Part 1 – Introduction to the Law
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Chapter 1 – The
Law and the Legal
System
Prepared by Douglas Peterson,
University of Alberta
Chapter 1 - Overview
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The Nature of Law
Rights and Privileges
The Role of Law
Development of Law
Sources of Law
Constitution and the Charter of Rights
Classification of Laws
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Legal Environment of Business
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Business law
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Divided into a number of general areas
 Tort law – injuries to another's person, property or
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reputation
Contract law – day-to-day operations of a business
Business Organizations
– Partnership, sole proprietorship, corporation
Land Law
Intellectual Property
Environmental Law
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Nature of Law
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Reflects the society we live in
Historical influences
Definitions
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A set of rules enable people to live together and
respect each others rights
Rules of civil conduct
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Rights versus Privileges
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Distinguish between a right and a privilege
Right – the “right” to do something
 Rights are associated with duties
Privilege – under certain circumstances and can
be taken away by the State
Rights can become privileges
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Due to social pressure or the state’s desire for
funds
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Role of Law
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Law – body of rules of conduct that are obligatory
Sanctions imposed if a rule is violated
Social Control – using laws to shape society
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Role of Law
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3 Functions of the Law
1.
2.
3.
Settlement – settle disputes
Rules – to bring order and minimize conflict
Protection – of one’s self, possessions, ideas.
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Development of the Law
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Within the Family
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word of mouth from generation to generation
Early form of precedent
Within the City-State
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Formation of governments to deal with disputes
Roman Empire, Western Europe, Middle East
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Common Law
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Customary Law
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Religious laws
Community based
Pre-Norman England
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Roman law followed by Germanic influence to the
Norman conquest in 1066
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Common Law
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Norman England
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Power consolidated with the King and the King’s
justices
Central judiciary established under King Henry II
 Beginning of the precedent system of common law
 Written records began to be kept
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Sources of Law
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Common Law
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Stare Decisis – “to let a decision stand” applies
if:
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Law as found in the recorded judgments of the
courts
“case law”
From the judges own court
Form a court of equal rank
From a court of higher rank
Bound to follow the decision
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Common Law
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Creates certainty and predictability
Predictable yet flexible
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More flexible than a civil code
Can adapt to social changes such as same sex
marriage
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Sources of Law
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Canon Law – church law
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Original jurisdiction over religion, family, marriage,
morals, estates
Influence today (Sunday shopping laws)
Merchant Law
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Customs or rules established by merchants to
resolve disputes
Example today would be the sales of goods
legislation
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Sources of Law
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Equity
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Rules originally based on decisions of the King
rather than on the law
Fairness, equality, justice
Overcomes the harshness and rigidity of the
common law
Takes precedence over common law when equity
and common law conflict
Overtime decisions of the King became principles of
equity
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Statute Law
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Statute
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Latin word “statutum” meaning “it is decided”
Laws made by governments
Result of legislative process
Voted upon and passed through a process
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Statute
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Process
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Bill – proposed law presented to a legislative body
Motion – decision to read a bill the first time
Royal Assent – granted by the Governor General
or Lieutenant Governor
1. Required in order to become law
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Proclaimed – when a law becomes effective
Revised Statutes – updated or amended to
reflect changes in society
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Quebec’s Civil Code
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Influence of the French Civil Code system
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A body of written law that sets out private rights of
the citizens of the state
Historical from Prussia and codified by Napoleon in
the 1800’s
Recent code is from 1994.
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Codification of Common Law
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Codification of the common law into statutes
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Bills of Exchange Act; Partnership Act; Sale of
Goods Act
Took place during late 1800’s
Advantage over common law is certainty
Still requires judges interpretation
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Administrative Law
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A body of rules governing the application of
statutes to activities regulated by administrative
tribunals or boards
Regulations – procedural rules made under a
statute
Administrative Tribunals – agencies created by
legislation to regulate activities or do specific
things
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Constitutional Foundations
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Constitution
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basis upon which a state is organized, and the
powers of government defined
The supreme law
2 Major Parts
 Canadian Charter of Rights and Freedoms
 Amending Formula
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1867 B.N.A. Act and 1982 Canada Act
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Constitution
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Division of Powers
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Section 91: Federal powers
Section 92: Provincial powers
Residual power
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given to the federal government; all matters not
expressly given to the provinces belongs to the
federal government
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Charter of Rights
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Sets out basic rights and freedoms of all
Canadians
Entrenched in the Constitution
Section 1 (Reasonable Restrictions)
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The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it,
subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free
and democratic society.
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Charter of Rights
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Notwithstanding Clause (s.33)
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Permits the government to pass legislation that
conflicts with or overrides charter rights by way of
a “notwithstanding clause”
Some sections of the Charter cannot be overridden
Sunset clause – s.33 last for a five year period,
unless renewed
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Fundamental Freedoms
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S.2
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Freedom
Freedom
Freedom
Freedom
Freedom
of
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of
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conscience and religion
thought and expression
the press
peaceful assembly
association
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Other Rights
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Mobility
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Permits free movement within Canada
Personal Liberty
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Enjoy life without interference of the State
Life, liberty and security of the person
Right to be free from unreasonable search and
seizure
Free from arbitrary detention or imprisonment
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Other Rights
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Right to Due Process
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Informed of rights on arrest
Right to a lawyer
Only arrested for committing an offence
Innocent until proven guilty
Right to fair trials, reasonable bail
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Other Rights
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Equality Rights
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Every individual is equal before the law
Note language of charter language: person, citizen,
individual
No discrimination based on race, creed, colour,
religion, sex, age, national or ethnic origin or any
mental or physical disability
Affirmative action is allowed for disadvantaged
groups
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Other Rights
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Language Rights
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2 official languages of English and French
Government (federal) provide services in both
official languages
Rights of education in preferred language
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Enforcement of Rights
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Apply to the courts
Charter only applies to governments not private
groups
Private matters dealt with through human rights
legislation
“Read Into” the recent trend of courts to read into
the Charter words or provisions that the legislative
bodies did not
Reference Cases – example is the Same Sex
Marriage case
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Classification of Laws
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Substantive Law
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Procedural Law
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An individual right enforceable at law
Public Law
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Procedures taken to enforce a substantive law
Substantive Right
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All laws that set out the rights and duties of
individuals
Relates to relationship between governments and
persons
Private Law
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Relates to relationship between individuals
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SUMMARY
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Law is the means by which state maintains social
control
Courts used as vehicle of enforcement
Common law and statute law exist today
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Charter Rights
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Precedent “stare decisis” exists in our system
S.1 not absolute
S.33 can be overridden with notwithstanding clause
Substantive rights and law enforced through
procedural law
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