Law 101 Final Modules 5 - 8: University of Alberta

Criminal Law, Indigenous Law, Indigenous Legal Traditions, Tort Law

What is Criminal Law

The area of law that deals with offences against society, setting out what acts are crimes and the penalties for committing them

Where does Criminal Law come from?

Falls under the federal legislation, mainly the Criminal Code, under Section 91(27) of the Constitution Act, 1867.

Provincial role in criminal law

Provincial courts and police services. Can set fines and penalties for breaking laws

Mens Rea

Mental Fault. The guilty mind — the intention, knowledge, or recklessness behind committing a crime.

Actus Reus

The physical act or conduct of a crime — what the accused did or failed to do that broke the law.

Regulatory

Minor legal violation of government rules. Do not need to prove mens rea

Elements of an offence

Mens Rea and Actus Reus. Both must be proven beyond a reasonable doubt. Actor is presumed innocent

Defence

A legal reason or circumstance that can justify, excuse, or negate criminal responsibility for an offence

True defence

A legal justification or excuse that, if accepted, means the accused is not criminally responsible, even if they committed the act.

True defence examples

• self defence

• duress

• provocation

• necessity

• automation

• mental disorder

Sentencing

Section 718.1 CC: Sentence should be proportional to the gravity of the offense and the degree of responsibility of the offender

Sentencing purposes

Denunciation, deterrence, incapacitation, rehabilitation and responsibility

Section 9 of CCRF

One cannot be arbitrarily detained nor imprisoned

Types of detainment

• Physical

• Legal compulsion

• Psychological restraint

When is detainment arbitrary?

• Not authorized by the law

• Limits of power to detain exceeded

• Questions cannot be detailed, cannot search for evidence

R v Mann, 2004

Mann was stopped by police who suspected criminal activity. The Court ruled that police can perform a limited pat-down search without a warrant if they reasonably believe a person is armed, but any search beyond protecting officer safety violates Section 8’s protection against unreasonable search and seizure.

Section 8 of the CCRF

Protects individuals from unreasonable search or seizure, ensuring their right to privacy is respected by the government and police

Expectation of Privacy is a…

normative rather than a descriptive standard

Reasonable search components

• Warrant

• Probable grounds

Criminal Court Types

1. Provincial Trial Courts

2. Superior Trial Courts

3. Provincial Courts of Appeal

4. Supreme Court of Canada

Intake Procedures

1. Arrest/police custody

2. Appearance notices and summons

3. Lay charges

Bail Procedure

• Must present to court within 24 hours

• Presumption of Release

Pretrial Procedures

1. Disclosure

2. Pleas and plea barginning

3. Election (choice of court)

4. Preliminary procedures (learn more about Crown’s case)

Criminal Trial

1. Information and indictments (jury and jury selection)

2. Prosecution and evidence

3. Defence (optional)

4. Verdict (judge + jury)

Indigenous People

The original inhabitants of a land before colonization. In Canada, this includes First Nations, Métis, and Inuit peoples, each with distinct cultures, histories, and legal rights recognized under the Constitution.

Indians

Outdated, but legal term. Constitutes all Indigenous People

Metis People

Distinct indigenous people born from the mixed race marriages of European men and First Nation women. Birth of nation 1812, language Michif.

Crown

Federal, Provincial, Territorial Governments of Canada

Treaty

Solemn agreement between between two parties made at the highest diplomatic level.

Indigenous Dark Ages (1850s - 1969)

Relations between European Canadians and the Native populations soured. Treaties were disregarded and disrespected. Time marked by systemic assimilation and cultural suppression

The Indian Act 1876

An Act passed in 1876 that still governs many aspects of life for First Nations peoples, including status, land, and band governance, and has been widely criticized for being colonial and restrictive.

Section 35 (1) Constitution Act 1982

Treaty Rights are recognized and affirmed. They are constitutionally protected

Before infringing upon treaty rights the Crown must…

Consult with indigenous people

R v Sparrow, 1990

The Supreme Court ruled that Aboriginal rights under Section 35 of the Constitution are constitutionally protected and can only be limited if the government can justify the infringement.

R v Van der Peet, 1996

The Court ruled that Aboriginal rights must be based on practices that were integral to the distinctive culture of the Indigenous group before European contact, creating the “Van der Peet test.”

Van der Peet Test

1. Is the practice or custom a defining feature before european contact?

2. What is its significance to the tribe?

3. Has it continued?

4. Not developed solely because of colonization

Aboriginal Title

Rights and ownership and control over their territories

Aboriginal Self Government

Right to autocracy in their own territories and lands

R v Badger 1996

The Court affirmed that treaty rights must be interpreted generously, and any limitation must be clearly stated in the treaty. Ambiguities should favour Indigenous peoples.

Sparrow Framework

The government needs an objective (compelling and substantial) to breach treaty lands and regulations. Must be within its fiduciary duty. When and how can it breach rights.

Modern treaties

• Complex regulation regimes

• Relies on the Sparrow framework

Early Treaties

• 1850s

• Trades and diplomacy shifted towards dominance and control

• White supremacy

Residential School System

• 1880 - 1996

• Government/Church run program to assimilate indigenous children

• Legacy of abuse and neglect

• Over 150,000 forced from their homes, 3200 dead

Indian Residential School Settlement Agreement (IRSSA) - Class Action Suit

• Setup of the Truth and Reconciliation Commission

• Gather evidence

• Produce a report

• 2015, 94 calls to action

• Largest class action suit, 5 billion payout

National Inquiry into Missing Women and Girls

A government inquiry launched in 2016 to investigate the systemic causes of violence against Indigenous women, girls, and 2SLGBTQ+ people, concluding in 2019

R v Gladue, 1999

The Supreme Court ruled that judges must consider the unique circumstances of Indigenous offenders during sentencing, as required by Section 718.2(e) of the Criminal Code, to help address overrepresentation in prisons

Systemic discrimination

Patterns of policies, practices, or institutional structures that create or perpetuate disadvantage for certain groups

Substantive qualitative

Ensures that people’s needs coming from varying backgrounds can receive fair treatment

Gladue Factors

Unique factors a court must consider for indigenous offenders during sentencing

Duty to learn

It urges all Canadians to learn about Indigenous laws and legal traditions, recognizing this as a shared responsibility and a step toward reconciliation

Indigenous Laws

Traditional legal systems developed by Indigenous Peoples, based on their customs, stories, relationships, and community practices, used to govern conduct and resolve disputes

Internormativity

Plurality of justice systems in one state interact other

Indigenous Legal Research Council

A body that supports the recognition, revitalization, and application of Indigenous legal traditions by working with Indigenous communities to research, document, and teach their laws.

Wahkohtowin Law and Governance Lodge (U of A)

The University of Alberta’s indigenous law research facility

Sacred Law

• Spiritual principles from the creator

• Treaty law

Natural Law

Observation of the physical world

Deliberative Law

• Conversational process/Open dialogue

• Human interpretation

• Debate

Positivistic law

Legal rules based solely on the authority of the person giving them

Customary Law

Repetitive patterns of social interaction, routine and tradition

Legal Traditions within the Context of Cultural Genocide

Law must be intelligible and debatable

Methods for learning about indigenous law

• Land based learning

• Community embedded method

• Narrative analysis

UNDRIP

United Nations Declaration on the Rights of Indigenous Peoples 1998

Self Determination

The right of Indigenous peoples and nations to freely govern themselves, make decisions about their lands, cultures, and laws without external interference

Bill C-92

Affirms inherent rights of First Nations, Inuit and Metis to exercise jurisdiction over family matters/services in section 35 of the Constitution. Allows national standards to help them best grow up in their communities

What is Tort?

A type of civil wrong for which the person wronged can often obtain damages or some other remedy

Who does tort apply to?

Everything and everyone

Plaintiff (tort)

Allegedly harmed

Defendant (tort)

Person Plaintiff claims is at fault

Burden of proof in Tort Law

Balance of probabilities (more likely than not)

Goals of Tort Law

• Compensation

• Deterrence

• Psychological comfort

Types of Tort law

• Intentional

• Negligence

• Strict Liability (eg. vicarious liability)

Tort compensation

• Damages (monetary)

• Injunction

Intentional Tort

Intentional interferences with interests that the law protects. Generally personal property or a person’s body

What does a person have to demonstrate for an intentional tort to have occured?

Plaintiff doesn’t have to have demonstrate actual damage, only prove interference.

Battery

Direct, intentional and harmful or offensive physical contact

Assault

The act of threatening or attempting to cause harm or make someone fear immediate physical harm

Elements of battery

1. Direct consequence of the force set in motion by the defendant

2. Intentional by the defendant

3. Harmful or offensive touch by the defendant that violates the personal dignity of the plaintiff

4. Does not need to result in physical injury

Defences of Battery

Consent - can be written or implied. Must be voluntary

Malette v Shulman

• Due to religious beliefs, doesn’t accept blood transfusions

• Life threatening condition, Dr. administered blood

• Court ruled it battery

Negligence

When one creates an unreasonable risk toward a person to whom you are owed a duty, which caused them damage

Duty of Care

Person or organisation has a legal responsibility to be careful and not cause harm to others

Neighbors

Anyone who can be closely and directly affected by your actions

Establishing a New Duty of Care

1. Is the harm reasonably foreseeable

2. Is there a close and direct relationship

3. Would recognizing this duty be good for society?

Standard of Care

Objective standard of caution, attention and judgment that a reasonable person would exercise. Sometimes tort law exceptions are made

Dobson v Dobson, 1992

The Supreme Court of Canada ruled that a child cannot sue their mother for injuries sustained prenatally due to the mother’s negligent driving, emphasizing concerns about maternal autonomy and the legal complexities of imposing such duties.

Causation in Fact

Did the defendants actions actually cause the harm? Did it produce the plaintiff’s injury?

But For

It asks: But for the defendant’s actions, would the harm have occurred? If the answer is no, the action is a legal cause of the harm. No causation, No negligence

Causation in Law

Must be reasonably foreseeable. Is the damage too remote? The plaintif must demonstrate that the injury falls within the risk created by the defendant

Strict Liability Torts

Defendant is held liable even if the consequences of their tortious actions were not intended and even if they were not negligent

Vicarious liability

The responsibility that one person may have for the torts of another because of the relationship between. Ex: Employer and Employee

Rationale

Holds employers legally responsible for the wrongful acts of employees done within the scope of employment, based on fairness, deterrence, and ensuring victims have access to compensation.

Elements for Vicarious liability

1. There must be a tort

2. Person who committed the tort must be an employee

3. Tort must be committed during the course of employment

Lockhart v CPR Company 1942

The court found the CPR Company vicariously liable for injuries caused by its employee's negligence while acting within the scope of his employment, reinforcing employer responsibility in tort law