Law 101 Final Modules 1 - 4: University of Alberta

Modules 1 - 4 Law Creation, Constitution, Justice System, Charter

What is Law

a system of rules that exist to govern everyday things, grant privileges and set obligations

Our Constitution is a…

Living tree - always growing, constantly evolving

Public Law

Law that governs the relationship between individuals and society

Types of Public Law

Constitutional law, administrative law, and criminal law.

Private Law

Law that governs relationships between private individuals or entities including coporations.

Types of Private Law

Tort Law, Family Law, and Contract Law

Why do we need laws?

To ensure functionality and predictability in society

What happens without law?

• Impossible to conduct business

• No consistent criminal punishment

• Societal breakdown

Where does Law come from?

• Convention

• Indigenous Tradition

• International Sources

Three Branches of Government

• Executive

• Legislative

• Judicial

Legislative Branch

Comprised of the Provincial and Federal governments. Citizens elect representatives democratically.

Municipalities

Not true forms of government. Given their power via provincial legislation

Provincial

Provincial legislature

Federal

Parliament (House of Commons)

Cycle of Legislation

1. Bill Proposal

2. First Reading

3. Second Reading

4. Committee Stage

5. Final Reading

6. Royal Assent

7. Act

Bicameral System

Two-chambered system: bills must pass through the House of Commons and the Senate before being confirmed.

Acts

A law passed by Parliament or a legislature. Can change (amend) or remove (repeal) existing laws

Regulations

A rule made under the authority of an Act. Attached to an Act called their enabling statute. Details, procedures, and technical rules.

Driedger’s Modern Principle of Statutory Interpretation

• everyday language (define)

• contextual approach (conflict with other Acts?)

• purposive approach (objective of the Act)

Common Law

Law made by judges through court decisions. It is based on precedent (past court rulings)

Jurisprudence

Judge-made

Judges are…

appointed not elected, permanently by judicial advisory commitee

What precedents do Courts follow?

Binding Precedent

Rule that emerges from a court

Ratio Descendi

Decision that emerges from a court (~100 paragraphs)

Obiter Dictum

Common law is subordinate to…

Legislation

Rule of Law

• Rules are not arbitrary

• Nobody is above the Law

• Foundational tenant and ensures fairness

Code Civil

a written collection of laws that sets out the rules for private relationships, eg. contracts, property, and family matters. Used in Quebec, replaces common law

Why do we have a Constitution?

• We have a Constitution to set the rules for how Canada is governed.

• It divides power between levels of government and protects fundamental rights and freedoms.

• It ensures that all laws and government actions follow basic legal principles.

Where can the Canadian Constitution be found?

Not one single document; the constitution is made up of several components. As well as principles and practices in Canada’s constitutional history

Components of the Constitution of Canada

1. Indigenous Constitution/Treaty Relationships

2. Constitution Act 1867

3. Constitution Act 1982, Charter of Rights and Freedoms

4. Unwritten constitutional principles and conventions from British Parliament

Constitutional Supremacy

Any law that is in conflict with the Constitution takes no effect (1982 Cons. Act)

Division of Power in Canada

Legislative division: federal and provincial governments each have their own areas where they are allowed to create law. Cannot interfere with one another.

Federation

Power is divided between two levels of government: the federal government and the provincial governments, each with their own law-making authority. It protects the diversity of the provinces, but unites them under one flag

Main controversies of federation:

• Jurisdictional disputes reflect the push and pull between a centralizing tide (more federal power) and a decentralizing tide (more provincial power).

• Funding conflicts, like over equalization, fuel debates about whether the federal government should have a stronger role in ensuring national standards (centralizing) or leave more control to provinces (decentralizing).

• National unity tensions, especially from Quebec and Indigenous nations, often drive the decentralizing tide as they seek more autonomy within or even outside the federation.

Trial Courts/Low Court

• Courts of first instance

• receive evidence

• written affidavits

• Single Judge

Appellate Court/High Court

• Review trial decisions

• Rarely receive new evidence

• Review for legal errors

Provincial Superior Court

Both functions of Low and High Courts

Deference

How readily the appellate court will intervene

High deference

Reluctant to overturn

Low deference

Easier to overturn

R v Hussein, 2022 ABCA 219

The trial judge wrongly used judicial notice – assuming how fingerprints got on a garbage bag (that gloves must be removed) without evidence, which led to an unfair trial and a new trial was ordered.

R v Morin - Poitras, 2022 ABCA 216

The court ruled that a trial judge’s decision to rely on a witness's intoxicated testimony was not inherently wrong; judges can properly evaluate credibility even if a witness was drunk, as long as no clear misapprehension of evidence occurred.

Stare Decisis

Stand by things decided. Abide by decisions made by higher courts. Higher the court, higher the influence

Open Court

Public has access to matters and documents associated with all court cases. Promotes transparency, accountability and retains confidence

Why avoid going to court?

• Finite resources

• Too many disputes to bring to court

• Expensive

Alternatives to going to court

• Mediation

• Negotiation

• Arbitration

Lis

Legal action or case that is currently before the courts

Administration tribunals

Specialized decision-making bodies set up by the government to resolve specific types of legal issues outside of traditional courts. Decisions do not form precedents.

Plaintiff

The person who brings the lawsuit

Defendant

The person who is being sued

Pleadings

The written document version of events

Discovery

Requires parties to disclose relevant information about the trial before court

Trial

Parties appear before a judge and argue their version of events. They present evidence, call witnesses, present documents and argue how they should be applied to the case.

Decision

Court decides which litigant should win. May grant remedies. Will be formalized via court document. Can be appealed

Resolution without trial

• Settlement

• Alternative dispute resolution

• Summary procedure (resolve in court’s favour)

• Discontinuance

Judgement Enforcement

Court order requiring one person to pay damages to someone else

Judgement Debtor

Someone the court has ordered to pay a debt or fulfill a duty after losing a legal case

Judgement Creditor

the person the court says is entitled to collect a debt or obligation after winning a legal case

How to get them to pay

• seize personal property

• garnishment (court allows money to be taken from income or wages)

Exempt from seizure

Property that allows them or their dependents to care for themselves or earn a living

Being held in contempt of the court entails…

• Fines

• Lawsuit in favour of the advisory

• Being imprisoned

Lawyer’s Professional Code of Conduct

Regulated by the provincial or territorial law society. It provides a high model code of professional conduct covering ethics and principles for all lawyers

Code of Conduct Components

Competence, Confidentiality, Conflict of Interest and Integrity

Competence

A lawyer must have the knowledge, skill, and preparation to handle a case properly

Confidentiality

A lawyer must keep all client information private, even after the case ends

Conflict of Interest

A lawyer must avoid situations where their duty to one client conflicts with their duty to another or their own interest

Integrity

A lawyer must always act with honesty, fairness, and strong moral character, even when no one is watching

Declaratory Remedy

A court ruling that clarifies legal rights but doesn’t order action or damages

Standard of proof in civil law trials

Balance of probabilities

Injunction

Legal tool used to prevent or compel actions

Constitution Act, 1982

Introduction of the Canadian Charter of Rights and Freedoms (CCRF). Defining feature of Canada

What is the CCRF?

Part of the Constitution Act 1982, Part of the British Statute, the last act passed by Britain about Canada

Why is the CCRF important?

It is what allowed Canada to claim full legal control of its constitution and gain independence from Britain. April 17th, 1982

Purpose of the CCRF

• To guarantee the enjoyment of the rights and freedoms it enshrines

• To protect from governmental interference

Who does the CCRF apply to?

• The Federal and Provincial Governments and the laws they create

• Non-governmental bodies implementing policy

Section 2b of the Charter

Protects freedom of Thought, expression, opinion belief

R v Keegstra

A teacher was convicted for willfully promoting hatred against Jews. The Supreme Court ruled this limited freedom of expression, but it was justified under Section 1 of the Charter to protect society from hate speech.

Section 1 of the Charter…

Both generates and reasonably limits charter rights

Why should the Charter be able to be limited?

Limiting certain rights and freedoms is sometimes necessary to protect other rights and freedoms

Oakes Test Step 1

Pressing and Substantial Objective:
The law must aim to fix an important problem.

Oakes Test Step 2

Rational Connection:
The law must logically help solve that problem

Oakes Test Step 3

Minimal Impairment:
The law must limit rights as little as possible.

Oakes Test Step 4

Proportionality:
The law’s benefits must outweigh its harm to rights.

Rights to property in the CCRF?

Not included in the charter because it can block public development. It is left to legislative powers of the provinces

Supreme Court of Canada

Canada’s highest court, with authority to hear appeals on any area of law and make final, binding decisions that shape Canadian law and interpret the Constitution.