Unit 1: The Heritage of Law in Canada
Lesson 1: Rule or Law?
Aristotle:
“Whereas the law is passionless, passion must ever sway the heart of man.”
What does this mean?
While the ideal law is objective and not based off emotions
Human beings are naturally driven by their emotions and passions, which can affect their judgement and require an external, rational framework to guide them towards a virtuous life
What is Law?
Laws control/maintain our social, political and economic activites from birth to death
Law are enforced by the courts
The Law Impacts Your Everyday Life:
You might not realize it, but everyday the law impacts your life
Whether you are planning to buy a house, get married, renew your passport, or applying for state pension, all of these actions require you to comply with the law that’s currently in place in Canada
The Law and Where You Live (Examples):
If you listened to the radio this morning, the law tells the radio station hwo much content they have to play
Actually, radio stations have to play 35% Canadian music
If you showered this morning, the law ensures that the water you are using is safe
When you get dressed and have breakfast, the laws ensure that the foods you consume are safe
The Law and Where You Work:
Canadian Labour Law ensures that the conditions you work in and are asked to do are safe
The law also determines how much you are paid and the maximum amount of hours you can work
e.g. if you work over 5 hours, you get a 30 minute break
Also 12 hour shifts are legal, but the next 12 hour shift has to be 11 hours away
The Law and How You Can Expect To Be Treated:
The Canadian Charter of Rights and freedoms makes sure that no one treats you differently because of your age, gender, race, religion, culture, or sexual orientation
The Law and Your Well-Being:
In Canada, the law ensures that you are eligible to receive a number of services, including health care, education, and social security
The government collects taxes from citizens to support these services
Rules and Laws:
What is the Difference between Rules and Laws?
Reasoning:
You are asked to give your opinion as to whether you are either for or against the rule in Adrak
State your reasoning
The ability to reason legally is a skill every lawyer must develop
The concepts of reason, reasoning and resonability are all important for the application of the law
Lesson 2: Magna Carta
Life Before the Magna Carta:
England in the 1200s..
The King has absolute power
No constitution or rights documents
Laws were enforced unfairly/unevenly
Punishment was often unfair and unequal
The Magna Carta (1215):
This document was instrumental because it began to cause a shift from a monarchy to a democracy in England.
King John provided important legal and political concessions by allowing a council of 25 barons.
It aimed to limit the king’s power and protect certain rights of the nobility, such as protection from illegal imprisonment, access to swift justice, and limits on taxation without consent.
Though initially a political compromise, it became a foundational symbol of liberty and the rule of law, influencing later democratic principles and legal systems, especially in England and the United States.
Discussion Questions Responses:
All men have the right to a fair trial and justice under the law. Specifically, it states that no free man shall be seized, imprisoned, or punished without “the lawful judgement of his equals or by the law of the land.”
This applied originally to FREE MEN in England. Primarily the nobility and landowners, not peasons, labourers (serfs), or women.
Rights Introduced:
The Magna Carta protected:
Property rights
Fair legal treatment
Legal process before punishment
Why does the Magna Carta Matters?
First documents to limit a ruler’s power by law
Introduced accountability in government
Laid groundwork for constitutional law
The Rule of Law:
The Rule of Law is generally something that we take granted in Ontario and in Canada.
Most people would agree that we are all subject to the law and that, for the most part, it is accessible and applies equally to all.
When politicians propose laws, they need to make sure that the laws are presented in a way that most people can understand
What does section 231 of the Criminal Code of Canada tell you?
The Criminal Code of Canada provides us with an example of how laws must be written so that they are easily understood
Core principles of holding government authorities to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism.
In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law
In continental Europe, notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism.
The Rule of Law means that the law must be written down, must be available to the people it governs, and must apply to all people, regardless of title. (Code of Hammurabi)
The Rule of Law says that the law must be independent of influence from other parts of government and that there must be legal processes to enforce justice. (Magna Carta)
The Rule of Law applies to government as well (European influences)
The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself
The Code of Hammurabi, promulgated by the King of Babylon around 1760s BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler.
In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law
The Fudal System:
The rank
Magna Carta: Historian Margaret Ogilvie
“Magna Carta was a feudal charter, a restatement of classical feudalism, and as such, benefitted the baronial interests. The barons sought a written guarantee of established feudal usages was significant in itself; the Great Charter was a description of the past, not a prescription for the future”
It was not until 1666 that the feudal system was abolished in England
Feudalism consisted of the political and economic system that granted nobility and land in exchange for the labour and miltary service of serfs or vassals on the land
At this time, the French and the English had established themselves in Canada in what were to become Quebec and Ontario
Magna Carta vs. The Charter:
The Constitution Act of 1791:
It divided Quebec into Upper and Lower Canada
The ultimate legislative authority was still retained by the British Parliament
The 1791 Act created the legislative and executive branches of government in each of the Canada’s modelled to some extent on the emerging British parliamentary form
The executive branch consists of the Lieutenant governor and a council appointed by him or her
The legislative branch consists of the Legislative Council and the Legislative Assembly
Lesson 3: Types of Law
Criminal Law:
Any matter related to the Criminal Code of Canada and other provincial standards
Cases that fall under Criminal Law typically involve someone who is accused of breaking the law
Constitutional Law:
How the government interacts with its citiens, and how governments interact with themselves
Outlines the power that a government is given and the jurisdictions that is has
Quebec tried to separate from Canada and leave Confeduration in 1995
As an example, the government set out criteria that Quebec would have to follow if it left confederation
Tort Law:
A tort deals with someone who has been hurt or who’s property has been damaged
For example, in 2000 the town of Walkerton sued the government for providing water that was unsafe
The water has been infected with e. Coli bacteria that caused 2,000 people to get sick and 6 people to die
Family Law:
Is wide-ranging and includes the relationship between people in immediate relationships
The Marriage Act is an example of Family Law
Contract Law:
Involves the agreement between two parties for a service and the laws that govern people or parties involved in the contract
You have a contract with your phone or internet provider
You have a contract with your employee
Contract law defines what could happen if either party failed to provide the services they agreed to provide
Labour Law:
Deals with the issues specific to the relationship between the employer and employee
Some labour laws ensure that you have a safe place to work, and that you are being paid the right amount
The law also governs what happens when employers and employees who are negotiating a contract fail to reach an agreement
Property Law:
Deals with the fact that, as someone who lives somewhere, you have the right to enjoy your property and have the right to enjoy a certain level of freedom on your property
For example, The Trespass to Property Act places restrictions on which individuals can visit your property and describes what you can do when someone is visiting your property and you want them to leave
Categories of Law:
Categories of Law:
Public Law:
The subject of the law applies to society as a whole
e.g. speed limit applies to everyone equally
This includes:
Constitutional Law
Applies to matters between different govnerments
The Canadian Constiutions was patriated in 1982
It explains the federal government’s roles and responsibilities in dealing with provincial and municipal governments, and society as a whole
Prime Minister Pierre Trudeau was successful in changing it
Quebec was reluctant to sign the patriation of the constitution
Criminal Law
The Criminal Code
The Highway Traffict Act
Proper garbage diposal in Guelph (no dumping)
Administrative Law
Deals with how the law is applied and enforced
For example, you have to answer certain questions on your income tax return each year
Private Law:
Contract Law:
Deals with the way contacts are performed between specific parties
People sign contracts all the time
You have a contract with your cell phone provider (Bell, Rogers)
You have a contract for expensive items like a car of a house
Tort Law:
One party injuries another party, either intentionally or unintentionally
Tort law establishes how the injured party can prove the amount of damage they have suffered and the amount of money they can receive as compensation when they claim that they are injured
For example, in August 2005 an Air France flight that landed in Toronto veered off of the runway and a fire started afterwards
Passengers sued Air France for their lost luggage and for their injuries
Family Law:
Deals with any laws related to personal relationships
For example, a married couple may choose to get divorced
The Divorce Act outlines how custody works and how to divide the property
Lesson 4: Principles of Justice
What is Justice?
Equality
All are equal before the law
All have equal access to education and for all citizens
Symbolism of Lady Justice:
What is the significance of the blindfold, sword, and scales?
The Blindfold:
Signifies that justice is blind to external factors, such as a person’s appearance, wealth, or social status
It represents a commitment to objective decision-making, ensuring that all decisions are made without prejudice or bias
The Scales:
Represents the idea of weighing evidence and facts to reach a just verdict, symbolizing the impartiality of the court’s decisions
They emphasize the duty to consider all sides of a case and to restore balance to society by ensuring fairness
The Sword:
Symbolizes the power and authority of justice, representing the ability to make decisions and enforce rulings.
Judicial Precedent:
Our legal system in Canada is referred to as a “common-law” system
The law is viewed as something that is built over time, and requires that similar circumstances should result in similar judicial decisions
For example, the judge’s job is to weigh the evidence and to answer the legal questions that is being asked
Judges must consult previous case decisions with similar circumstances to ensure that the decision they make respects what other judges have already decided
Why is Judical Precedent Beneficial?
It provides guidance to people seeking remedy before the court
Promotes consistent development of legal decisions
Controls what judges can say and do
Reinforces the system’s values as a whole
Stare Decisis:
This is Latin for “to stand for things decided”
What does it Means?
“To stand for things decided”
Courts following precedent
Why does it Matters?
Allows unfairnes to rule out
Precedent-Setting Case Study:
R. v. AM
The case is cited with initials because the person involved was under the age of 18 and their identity was being protected
In 2002, the school gave police permission to enter St. Patrick High School in Sarnia
The principal instructed students to remain in the classes and to leave their backpacks in their lockers
Students who were late left their backpacks in the cafeteria
The sniffer dogs checked all of the bags in the school
The dogs signaled to one of the bags in the cafeteria that contained drugs, and the police opened the bag without a warrant
The bag contained marijuana (this was before the Cannabis Act)
At the trial, the accused said that his rights under Section 8 of the Canadian Charter of Rights and Freedoms, which provides protection against unreasonable search and seizure, had been violated
The Crown argued that since the incident happened at school, the right to be safe from an unreasonable search and seizure was not in effect
Judical precedent means judges follow past court decisions, especially ones made by the Suprume Court of Canada
In R. v. A.M., the judges looked at ealier Charter cases about search and privacy instead of making up new rules
They used those same rules to decide if a search at school was fair and reasonable
The Court explained that students still have rights at school, but they don’t have as much privacy as adults
R. v. A.M. itself become a precedent, guiding future cases involving searches of students in schools
Constituional Supremacy:
Before 1982, Canada was ruled by constitutional supremacy
This idea is that parliament is the most powerful institution in the country, and that no other governing body can be as powerful
As a results, if parliament passed a law, no one could change it, because parliament is the most powerful
Since power resided in parliament, only parliament could repeal or amend laws
After 1982 all laws have to comply with the constitution and a Canadian can sue the government to have the law changed
Lesson 6: Two Court Systems
Criminal Law:
Comes from The Criminal Code
An act that is performed against the entire society, not just an entire individual
Depending on the crime’s severity, the type of charge and punishment varies
When working with the accused, it is important to remember that everyone is innocent until proven guilty
The Crown represents society
What Kind of Proof Is Required?
The Crown must prove beyond a reasonable doubt that the accused is guilty of the specific crime that they have been charged with
Beyond a reasonable doubt means that all evidence has been considered and a group of people are positive that he or she has committed the crime
Criminal charges are very serious and can have a lasting impact on one’s life
What Kind of Punishment?
Limiting their rights
Fine
Community Service
Going to jail
Canada’s Court Structure:
Supreme Court of Canada
(nine justices, chosen by the prime minister) - Cases of national significance are heard here
↑
Provincial/territorial courts of appeal
(three judges) - Most cases end here
↑
Provincial/territorial superior courts
(cases heard either by judge or jury) - All cases begin at this level
↑
Provincial/territorial trail courts
(cases heard either by judge or jury)
Trial Courts:
Where evidence is presented and examined for the first time
Arguments are made
The judge makes a decision about the evidence presented
In civil law, you have to go to a superior court if the amount you are suing for is over 25,000
In criminal law, if it is a minor offence, like a parking ticket, it is a provincial trial court
If it is a charge like “dangerous operation of a motor vehicle”, you would go to the supreme court
Appeal:
At the end of the trial process in either civil or criminal courts, either party is allowed to appeal the decision
Parties cannot appeal the decision simply because they are unhappy with the verdict
You have to prove that the law was misinterpreted by the court, or how there was an error in the way your case was handled
Appeal Courts:
Deals with the trials or supreme courts
There are three judges who will listen to hwo the evidence is presented about how the trial was unfair
An appeal will look at all of the evidence, and they may decide that a trial was run fairly, and may decide that there is no reason to change the verdict
Appeal Courts: Two Options:
After all the evidence is presented, there are two options:
1. Dismiss the appeal:
The judges decide that the court was run fairly and that there is no reason to change the verdict
2. Uphold the appeal:
The appeal court agrees that the previous trial was not conducted fairly
The appeals court will order a new trial and the case will return to the provincial supree court or the superior court to be tried again
Appeals:
Approximately 20% of cases are allowed to be appealed (it is rare)
For criminal trials, the most common reason is
1) Ineffective representation of council
2) Out-of-date case law is applied
3) Statutes not applied correctly
Civil cases:
1) Gross of miscarriage of justice
2) Error of law
Case Study: R v. Keegstra (1990)
In the case of R.v. Keegstra, the accused, was a high school teacher in Alberta who taught his students that the Holocaust, which killed millions of Jews and other minority groups during World War II in Gernmany and surrounding coutnries, never happened. In the classroom, he made many degrading, anti-Semitic (anti-Jewish) comments to his students. Eventually Mr. Keegstra was fired from his job and was charged with the criminal offence of willfully promoting hatred against an identifiable group under the Criminal Code of Canada. In his defence, Mr. Keegstra argued that the criminal law violated his freedom of expression.
The Case Brief in Alberta:
The accused, an Alberta high school teacher, was cahrged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students. Prior to his trial, the accused applied to the Court of Queen’s Bench for an order quashing the charge.
What Do You Think the Final Ruling Was?
In this case, the Surpeme Court of Canada decided that the criminal law violated the accused’s right to freedom of expression.
Next, the court had to consider the Oakes test, to determine whether the Charter vioaltion was justified
Oakes test is used to determine if a government action limits a guaranteed right or freedom under the Canadian Charter of Rights and Freedoms is reasonable and can be justified under Section 1
Final Outcome:
The Supreme Court of Canada found that the criminal law was reasonable limit on the accused’s freedom of expression
The law was therefore valid and Mr. Keegstra was convincted of the criminal charge
Lesson 7: How Laws are Passed
Step 1: Idea
As an individual, you are unable to propose a law to be changed directly
Only those who are elected as MPP’s have the ability to propose a law
Some MPP’s get elected for promising to introduce or enact a law in their ridings
They may propose a law based on a specific need that they have identified or based on feedback from someone in their riding who has identified a need for a law
Someone on the MPP’s staff will draft a copy of the law and the specific language
Step 2: First Reading
Once the MPP has a draft of their law, they stand up in the Legislative Chamber and share their idea with the other MPP’s
The proposed law is called a bill
The MPP has to explain the purpose of the bill
Step 3: Second Reading
The MPP proposing the bill debates it with the other MPP’s
The bill is translated into English and French so that it is available to the public
The MPP’s vote on the principle/idea of the law
If a majority of the MPP’s support the bill, it will move on
If not, the bill does not move on and it becomes “dead”
Step 4: Committee Examination
A committee of MPP’s representing all political parties at Queen’s Park will then examine the bill in detail if it has successfully passed a second reading
The committee makes changes to the bill and asks for the public’s opinion; this creates a refined bill
If the majority of members support the new bill, it will move on to the Legislative Chamber
Step 5: Third Reading
All members of the Legislative Assembly debate the bill in its updated form
There is a vote and if the bill gets a majority of the votes, the bill is passed
If the bill does not receive a majority of the votes, it dies
The bill becomes law
Step 6: Royal Assent
Due to our legal tradition, our Lieutenant Governor must sign the bill in order for it to be approved
The law will come into effect as soon as it is signed or at a later date
The Lieutenant Governor for Ontario, Canada is Edith Dumont
Passing A Law in Ontario:
A bill that is passed goes from the House of Commons to the Senate, and the Governor General signs the bill as part of the Royal Assent
The Governor General of Canada is Mary Simon, the first Inuit Govnernor General
Bill C-14: Medical Assistance in Dying
On Feb 6th, 2015, the Supreme Cout of Canada sent a powerful message heard around the world.
In a unanimous decision, the justices of the high court struck down the federal prohibition on physician-assisted dying, arguing the old law violated the Canadian Charter of Rights and Freedoms.
Fourteen months later, MPs in Parliament passed an assisted dying law in respones to the Supreme Court’s decision.
Bil C-14 formally legalized assited dying and laid out new rules for how it could be accesed. The government called its legislation “a responsible first step” and says that Bill C-14 complies with the Canadian Charter Rights and Freedom.
Factors That Influence the Law:
Technological change
Techology changes so fast that the law is often forced to play catch-up
Examples include cars that are driving themselves and drones that are delivering parcels to your door
The Law and Technology
Is it even possible for the law to keep up with changes in technology?
Think about AI, Uber, AirB and B, Pirate Bay, and Tesla
Search and Technlogly
In today’s society, technology has raised some new legal issues about searches. People generally have very significant expectations of privacy regarding their electronic devices (such as cell phones or laptop computers). The laws have had to evolve in order to keep pace with these invitations
Are the police allowed to search your cell phone?
In Canada, police generally need a warrant or your consent to search your cellphone, as Section of the Charter of Rights and Freedoms protects against unreasonable search and seizure, extending to digital devices.