Ch 1 and 2. Nature and Sources of Law

WHY STUDY LAW?

• Law influences all aspects of life, including business.

• Legal Consequences of Business Decisions:

  • Negative: e.g., polluting, leading to liability.

  • Positive: e.g., enforceable agreements, enabling transactions.

NATURE OF LAW

• Definition: Rules enforced by courts or legally empowered tribunals.

• Morality vs. Law:

  • Morality: Informal punishments (e.g., broken relationships) for moral wrongs.

  • Legal Wrongs: Formal punishments (e.g., fines, imprisonment) for legal violations.

• Legal Reasoning: A unique logic grounded in statutory provisions and binding precedents, not personal opinion.

MAPS OF THE LAW (CLASSIFICATIONS)

• Methods of Categorization:

  • Substantive Differences: Criminal law vs. civil law.

  • Sources of Law: Statute law vs. common law; federal vs. provincial law.

  • Traditions: Civil law (Quebec, from France) vs. Common law (rest of Canada, from England).

• Key Categories (Criterion for Categorization):

  • Public Law:

  • Defines rights and obligations between individuals and the government.

  • Examples: Criminal Law, Administrative Law, Constitutional Law.

  • Private Law:

  • Governs relationships among individuals.

  • Examples: Contract Law, Tort Law, Property Law.

• Specific Areas of Law:

  • Contract Law:

  • Deals with legally enforceable agreements between parties.

  • Elements of Formation: Valid offer, unequivocal acceptance, mutual consideration, intention to create legal relations.

  • Breach: Failure to perform obligations, leading to remedies (e.g., damages, specific performance).

  • Tort Law:

  • Addresses civil wrongs causing harm, leading to legal liability for the wrongdoer.

  • Type: Private Law.

  • Concerned Parties: Identified persons (including corporations).

  • Obligation Breached: Private legal action by the aggrieved person.

  • Usual Remedy: Damages for determined loss.

  • Examples:

    • Negligence: Duty of care, breach of duty, causation of harm, actual damages.

    • Intentional Torts: Deliberate acts causing harm (e.g., battery, defamation).

  • Criminal Law:

  • Deals with offenses against society.

  • Type: Public Law.

  • Concerned Parties: The person (including corporations) and the state.

  • Obligation Breached: Prosecution of the person by the state.

  • Usual Remedy: Punishment (fine, prison).

  • Elements of a Crime: Criminal act (actus reus) and criminal intent (mens rea).

  • Administrative Law:

  • Governs government administrative agencies (rulemaking, adjudication, enforcement).

  • Ensures fairness and adherence to jurisdiction.

  • Property Law:

  • Governs ownership and tenancy of both real (land and attached) and personal (movable) property.

CANADIAN CONSTITUTION

• Definition: The supreme law governing all other Canadian laws.

• Importance: Establishes government framework, power distribution, and Canadian rights.

• Key Statutes:

  • Constitution Act, 1867: Defines government structure and federal/provincial powers.

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

• Overview of Powers (Division of Powers):

  • Federal Powers (s. 91): Criminal law, taxation, employment insurance.

  • Provincial Powers (s. 92): Property rights, education, civil rights.

  • Shared Areas (s. 93, s. 95): Education, agriculture, immigration.

LEGISLATION

• Definition: Laws created by Parliament and legislatures across Canada.

• Types of Statutes:

  • Federal statutes: Apply nationally (e.g., Criminal Code).

  • Provincial statutes: Apply within the respective province or territory (e.g., Ontario Highway Traffic Act).

COMMON LAW

• Definition: A legal system based on the precedent set by judges' rulings.

• Characteristics:

  • Derived from English tradition and is distinct from civil law systems.

  • Central to common law is the principle of stare decisis (let the decision stand), ensuring predictability and consistency in legal interpretation.

COURT HIERARCHY

• Supreme Court of Canada:

  • The highest court, hears appeals and decisions are binding.

  • Established by the Supreme Court Act in 1875.

  • Functions as an appellate court only; most cases heard with permission.

• Provincial and Territorial Courts:

  • Include trial and appellate courts, with judges appointed by the respective governments.

CHARTER OF RIGHTS AND FREEDOMS

• Definition & Purpose: Part of the Constitution, guarantees political, legal, and equality rights; protects individuals from government infringement.

• Application: Applies to all levels of government, generally not private entities.

• Key Provisions:

  • Fundamental Freedoms (s. 2): Conscience, religion, thought, expression, press, assembly, association.

  • Democratic Rights (s. 3, s. 4, s. 5): Vote, seek election, five-year parliamentary elections.

  • Mobility Rights (s. 6): Enter/leave Canada, move/earn livelihood in any province.

  • Legal Rights (s. 7 - s. 14): Life, liberty, security; protection from unreasonable search/seizure; right to counsel, fair trial, presumption of innocence; protection from cruel/unusual punishment.

  • Equality Rights (s. 15): Equal protection/benefit of law without discrimination (race, origin, colour, religion, sex, age, disability).

  • Official Languages (s. 16 - s. 22): English and French equal in federal institutions.

  • Minority Language Education Rights (s. 23): Education in English or French where numbers warrant.

• Enforcement (s. 24): Courts provide remedies for infringed rights.

• Limitations:

  • Reasonable Limits Clause (s. 1): Rights are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

  • Notwithstanding Clause (Override Clause) (s. 33): Allows Parliament or a provincial legislature to declare that a law operates notwithstanding certain sections of the Charter for a renewable period of five years.

DUTY TO CONSULT

• Framework: The constitutional protection of Indigenous rights necessitates the Crown's obligation to consult Indigenous peoples when actions may affect them.

• Context: Critical in contexts such as development projects that might harm Indigenous lands.

SOLVING A LEGAL QUESTION

• Step 1: Identify Facts

  • Understand all relevant facts from the scenario.

• Step 2: Identify Legal Issues

  • Determine applicable legal principles (e.g., contract enforceability, tort liability).

• Step 3: Apply Law to Facts

  • Use authoritative legal tests, rules, or criteria to analyze the facts.

• Step 4: Formulate Legal Judgment

  • Base judgments on established law, not personal opinion.