Canadian Legal System and Sources of Law

  • Rule of Law and Adversarial Process

    • Rule of Law: Consists of interconnected principles providing a level playing field, consistency, and predictability in the application of law and ordering of affairs.

    • Adversarial Process: A legal system where two parties (litigants) with opposing ideals, goals, and desired outcomes contest a dispute.

    • Parties to a Dispute: The two sides in a legal proceeding. They have 'legal standing,' which means they can participate, hire lawyers, and decide how their case unfolds. Individuals without legal standing (e.g., non-lawyers not representing a party) cannot make arguments or call witnesses.

  • Parties in Criminal Cases

    • The Crown: Represents the power of the government on behalf of all communities and citizens. The Crown brings the action, alleging a crime.

    • The Accused (or Co-Accused): The person or group of people against whom a crime is alleged. If multiple individuals commit or conspire to commit offenses together with similar evidence, the Crown can prosecute them jointly as 'co-accused.'

    • Representation: Parties are generally represented by legal counsel (a lawyer). The legal system is complex, making lawyer representation highly advisable. In criminal cases, the Crown is always represented by a lawyer. The accused is usually represented but can be 'self-represented,' which is generally not recommended (“If you're a lawyer for yourself, you have a fool as a client.”).

    • Access to Lawyers: While a lawyer might decline a specific case, it's generally asserted that a person can always find a lawyer to take their case, as lawyers are in business.

  • Presumption of Innocence and Certainty

    • No 100% Certainty: It's never 100\% certain that a person committed a crime until evidence is presented, tested in court, and a judge or jury finds them guilty beyond \, a \, reasonable \, doubt.

    • Lawyer's Role: A lawyer's job is to presume their client innocent while providing a realistic assessment of the evidence, highlighting potential defenses, and seeking information the lawyer might not know.

    • Testing Evidence: Evidence must be tested through methods like cross-examination and various legal applications.

  • Self-Representation in Criminal Cases

    • Right to Self-Represent: In any criminal case, the accused has the right to represent themselves.

    • Judge's Intervention: In certain cases, especially those involving interpersonal violence, a judge might appoint a lawyer for part of the case to prevent direct cross-examination by the accused of an alleged victim (e.g., in sexual assault cases).

    • Challenges of Self-Representation: Most self-represented individuals lack the legal knowledge and skill to effectively navigate trials, often realizing this difficulty once the process begins. Self-representation is common when individuals cannot afford a lawyer and fall through the cracks of legal aid qualification.

  • Style of Cause and Case Citation

    • Style of Cause: The name given to a legal case, identifying the parties involved. It indicates whether a case is criminal or not.

    • Format: Cases are formatted like a battle: Party \, A \, v. \, Party \, B, where v. is short for versus.

    • Criminal Cases: Always feature the Crown as the party bringing the action. The Crown is almost always indicated by R. (short for Regina or Rex, Latin for Queen or King), representing the global Crown (government on behalf of citizens). Example: R. \, v. \, Ryan \, Johnson. Historically, HMTQ (Her Majesty the Queen) was also used, but R. is now standard.

    • Appeals: Even when an accused appeals a conviction (e.g., Bouche \, v. \, The \, Queen), the style of cause often retains the R. \, v. \, Accused format because the appeal is against the Crown's original action.

    • Publication Bans and Initials: Sometimes, an accused's name is replaced with initials (e.g., R. \, v. \, R.J.). This indicates a publication ban to protect the identity of an allied victim or witness, especially when there's a close connection between the accused and the complainant (e.g., family members). The ban is to protect the victim/complainant, not the accused.

    • Unique Identifiers: Because many people share names, after the style of cause, a unique identifier is included to specify a particular case. Example: R. \, v. \, Ryan \, Johnson \, 2013 \, BCCA \, 123.

    • Case Citation: The full style of cause combined with the unique identifier (e.g., court, year, sequential number) is called the case \, citation. Proper citation is required for quizzes and exams.

    • Civil Cases: Do not feature the global Crown. Instead, they typically name two companies or individuals. Example: Ryan \, Johnson \, v. \, ABC \, Contractors.

    • Family Cases: Similar to civil cases, listing two parties (e.g., Ryan \, Johnson \, v. \, George), or an individual versus a government agency (e.g., Ryan \, Johnson \, v. \, Ministry \, of \, Children \, and \, Family \, Development).

    • Reference Cases (R.E.): Very rare cases, indicated by R.E. (e.g., R.E. \, B.C. \, Motor \, Vehicle \, Act), are not traditional adversarial actions. They occur when a court's opinion is sought without litigation. It's crucial not to confuse R.E. with R..

  • Inquisitorial vs. Adversarial Systems

    • Inquisitorial System: Used in many countries in Europe and Asia. The judge plays an active, investigative role, often directing police investigations and working with the prosecutor as a team to uncover the truth. There's less focus on procedural fairness and individual rights; the goal is to get information, regardless of how it's obtained (e.g., no strict rules on search warrants or access to legal counsel for statements).

    • Adversarial System (Canada): Judges are impartial arbiters, ensuring rules are followed. The focus is on procedural fairness for the accused and protecting individual rights. Police investigations are independent of judicial direction. Evidence obtained without proper procedure (e.g., without a search warrant, or a statement taken without access to counsel) may be excluded.

    • Goal Differences: The Inquisitorial system seeks the truth directly, while the Adversarial system seeks a just and fair outcome for the individual through a fair process.

  • Independent Arbiters in Canada

    • Definition: Decision-makers who have no relationship with the parties regarding the case and no personal interest in the outcome of the dispute.

    • Types: In Canada's adversarial system, these are judges and juries.

    • Impartiality: Independent arbiters must not have a personal investment or relationship with any party that could compromise their objectivity. If a judge or juror has a personal relationship (e.g., neighbor, business partner, old friend) with a party or lawyer, they must \, recuse \, themselves.

    • Disclosure: Judges and potential jurors are required to disclose any relationships that could compromise their impartiality. Hiding such relationships can lead to charges of obstructing justice.

    • Discretion: In ambiguous situations (e.g., knowing someone as a classmate without interaction), the judge has the discretion to determine if a relationship impacts impartiality.

  • Certainty, Consistency, and Predictability in Law

    • Foundation: These principles stem from the rule of law and the fact that Canadian laws are written in two main forms: statute law (legislation) and case law (common law).

    • Benefits of Written Laws: Written laws provide certainty (they don't disappear), consistency (everyone has access to them), and predictability (their application and effects are generally foreseen).

    • Impact on Citizens: Citizens can understand the laws they are subject to, plan their affairs, and navigate legal proceedings because laws are accessible and their application is generally predictable, even if outcomes in criminal cases are not always certain.

    • Contrast with Unwritten Laws: If laws were unwritten, it would be unfair to the public, create confusion, and hinder the ability to order one's affairs.

    • First Nations Law: Acknowledge the tradition of unwritten First Nations law in Canada, accessible via resources like BCFMJC.com. The course focuses on mainstream Canadian legal systems.

    • Open Courtrooms: Canadian courtrooms are generally open to the public, promoting transparency, accountability, and public scrutiny of the justice system. Rare exceptions for closure occur in extreme circumstances (e.g., protecting a witness from high-level criminals), but these are exceedingly uncommon.

  • Fairness as an Overriding Principle

    • Supreme Court of Canada Ruling: In R. \, v. \, St-Onge \, Lamoureux (paragraph 40), the Supreme Court states that every person tried in Canada is entitled to a fair trial, which is the foundation of the criminal justice system.

    • Charter of Rights and Freedoms: Section 11(d) of the Charter guarantees the right to be presumed innocent until proven guilty, according to law, in a fair and public hearing by an independent and impartial tribunal (court).

    • Fundamental Justice: The right to a fair trial is also a principle of fundamental justice under Section 7 of the Charter, which protects an individual's liberty when it is at stake in criminal cases.

    • Definition of a Fair Trial (Paragraph 45): A fair trial must appear fair from both the accused's and the community's perspectives. It is a balance that leans heavily towards the accused due to the power of the state. However, a fair trial is not confused with the most \, advantageous \, trial \, possible for the accused or a perfect \, trial. Perfection is seldom attained; a fair trial satisfies \, the \, public \, interest \, in \, getting \, at \, the \, truth \, while \, preserving \, basic \, procedural \, fairness \, to \, the \, accused.

    • Limits to Fairness: Accused individuals are not entitled to disrupt trials simply because they are stressed or not \, feeling \, it. Judges will generally proceed with scheduled trials.

    • Disclosure: Fair trial tenets include the accused's right to full, frank, and fair disclosure, meaning the Crown and police must provide all evidence that could be useful for the defense.

    • Alibi Defence Exception: While the accused generally doesn't have to disclose anything, if they plan to advance an alibi defense (claiming to be elsewhere when the crime occurred), they are required to disclose this to the Crown and police beforehand to allow for investigation. Failure to disclose would be the most \, fair \, trial \, imaginable for the accused, but it is not what they are entitled \, to.

    • Disclosure of Test Results: If a party possesses test results and their interpretation, both must be disclosed. Attorney-client privilege (mitigation privilege) might cover the explanation of results, but the results themselves are subject to disclosure.

  • Sources of Law in Canada

    • The Constitution: The foundational document establishing the system of government, law-making, enforcement, national values, and power distribution. It consists primarily of:

      • The Constitution Act, 1982: Includes the Canadian Charter of Rights and Freedoms.

      • The Constitution Act, 1867: Originally called the British North America Act.

      • These acts were repatriated to Canada in 1982, making Canada sovereign over its own Constitution.

    • Division of Powers: The Constitution Act, 1867, contains Sections 91 and 92, which divide legislative authority between the Federal and Provincial governments.

      • Section 91 (Federal Authority): Grants the federal government power to make laws for the peace \, order \, and \, good \, government of Canada, including matters not exclusively assigned to provinces, and specifically subsection \, 27 (S. \, 91(27)) gives exclusive power over criminal \, law \, and \, criminal \, procedure.

      • Section 92 (Provincial Authority): Grants provincial governments exclusive power over a list of subjects, including subsection \, 13 (S. \, 92(13)) for property \, and \, civil \, rights \, in \, the \, province (not U.S.-style civil rights, but matters like real estate and civil interactions). Provinces also administer the courts for criminal trials.

      • Interpretation by Courts: Since the Constitution was written in 1867 (before cars, internet, etc.), courts interpret these sections in light of new technologies and societal changes. For example, motor vehicle regulation falls under provincial property \, and \, civil \, rights.

    • Federal vs. Provincial Application: Federal laws (like the Criminal Code) apply across all of Canada. Provincial laws (like the B.C. Motor Vehicle Act) only apply within the province that enacted them. Disputes over legislative authority are resolved by courts based on the Constitution's division of powers.

    • The Immediate Roadside Prohibition (IRP) Act Example (2010):

      • Problem: Backlog in criminal courts, with 40\% of cases being drinking and driving offenses.

      • Provincial Solution (B.C.): The B.C. government passed the IRP \, Act to remove these cases from criminal courts. It allowed police to immediately issue license suspensions (30 \, or \, 90 \, days) for roadside breathalyzer failures, with no criminal record and very limited appeals. This was an appendage to the Motor \, Vehicle \, Act.

      • Federal Challenge: The federal government argued this was criminal law, their exclusive jurisdiction.

      • Supreme Court Ruling: The Supreme Court found the IRP \, Act too close to criminal law but suggested changes (e.g., allowing a second test, modifying penalties) that would make it a valid exercise of provincial power over motor vehicle regulation.

      • Outcome: B.C. swiftly amended the law, and the revised IRP legislation has been effective in reducing criminal drinking and driving cases, demonstrating the dialogue between courts and legislatures.

    • Identifying Federal (RSC) vs. Provincial (RSBC) Legislation:

      • RSC: Revised \, Statutes \, of \, Canada. Indicates federal legislation, applies nationwide.

      • RSBC: Revised \, Statutes \, of \, British \, Columbia. Indicates provincial legislation, applies only within B.C.

      • (RS refers to Revised \, Statutes, followed by the jurisdiction and a year/chapter number).

  • Jurisdiction and Application

    • Criminal Jurisdiction: If a crime is committed in a province (e.g., British Columbia), the accused will be prosecuted in that province, regardless of their origin. Courts in each province have jurisdiction over legal actions within their territory. Federal criminal law applies nationwide, but administration (courts) is provincial.

    • Evidence Across Provinces: If a crime happens in one province (e.g., Ontario) and evidence is on a device in another (e.g., British Columbia), federal criminal law and procedure apply to the gathering of that evidence. Disputes over common law application in such cases might be resolved by the Supreme Court of Canada.

  • Two (or Three) Main Sources of Criminal Law in Canada

    • Common Law (Case Law): Judge-made law. Judges make decisions in individual cases, applying legal principles to facts. These decisions create precedent that binds lower courts in subsequent similar cases.

      • Evolution: Common law evolves. For example, the principle `$$