Canadian Law Unit 1

JUSTICE 

  • The concept of justice is open to debate because our ideas of justice originate from our morals, values, attitudes, and beliefs; all of which may change over time 

CHARACTERISTICS OF JUSTICE 

  • Justice occurs when the law treats simular cases alike, and different cases differently. 

  • If a person with Tourette’s Syndrome was charged with causing a disturbance, it might be dismissed by the judge once informed of the person's condition. 

  • The law is unjust if it discriminates based on irrelevant characteristics 

  • It is fair to be denied access to an R rated movie if you are under the age of 18. However, being denied access to the R rated movies based off eye colour is unjustifiable.  

  • Justice should be impartial; laws should apply regardless of position or financial status. 

  • Being a celebrity should not offer any special protection or privileges. Abusive celebrities should be charged with assault just as other Canadians who committed simular crimes. 

  • Just laws should conform to society's values and beliefs. 

  • Government-imposed DNA registration would be opposed by many due to the value of an individual right to privacy in our society. In contrast, the government sex offender registry was not strongly opposed as most people value public safety. 

THE RULE OF LAW 

 Rules: Not created by the government and not enforced by the government. They apply to specific people in specific places.  

Ex. No hats in school 

Laws: A set of rules created by and enforced by the government. They apply to everyone equally. 

Ex. Speed limits 

Rules of law – Government of law and not of people 

          - Rule of person-monarchy, tyranny, or theocracy 

Rule of law states: 

- Society is governed by law 

- No person or government is above the law. The law is applied equally to all. 

- No one in our society has the right to exercise unrestricted power to take away our rights except in accordance with the law. 

Historical Roots of Law 

Code Name 

Description of Laws 

Modern day Impact 

Code of Hammurabi  

The laws under Hammurabi (1792-1750 BCE), the wealthy were given more protection than the poor. The laws also stated that women and children were property, as well as slavery was legal. The punishments were cruel but were reasonable. You must protect the weak and repay damages. This law was based on retribution, eye-to-eye justice. Babylon. Patriarchal. 

The principals had an impact on modern legal systems. It introduced the concepts of presumption of innocence and the importance of evidence. As well as publicly accessed law 

Mosaic Law  

The Mosaic Laws (1446 BC), also known as the ten commandments, were more justifiable laws that forbid certain acts. These forbidden acts include murder, adultery, theft, and worshiping other gods. This law cared for the poor, women, and children, but made punishments equal for all if a law was broken. Found on Mount Sinai. 

These laws impacted the modern day by setting standards of morals and influenced the development of the systems of law. 

Greek Law  

In (400 BCE), only a portion of Athenian people were citizens, this excludes women, children, aliens, and slaves. Being a citizen meant you had political rights. Greek law had a democracy, which being an involved citizen was important to this democracy, ex. Voting, jury duty. The first form of democracy was originated in Greece. 

This impacted the modern day as it influenced the Roman Law, which then became the source of the civil law system and the law systems of Europe. 

Roman Law 

What is now considered a foundation of modern law, Roman law (450 BCE) had patriarchal ideals but still ruled equality between the rich and poor. Two principles of Roman law included the law must be recorded and justice could not be left in the hands of judges alone to interpret. Public prosecution of law was normalized in this society. Seeking law advice (lawyers) became prevalent in this time when facing criminal charges. 

This law had formed the basis for the law codes of most countries in Europe. This law shaped the concepts of property rights, ownership, and contract law.  

Justinian’s Code 

A new body of law, known as the Justinian’s Code, influenced the modern concept of basic law and justice (527-565 CE). This law formed the basics of civil law, criminal law, and the legal systems of Western civilization and European countries. This code also regulated religious practice. Created justice. Took books of Roman law and squished it. 

This impacted modern day as it influenced the regulations of religions today. This code also impacted the formation of civil law and the legal codes throughout Europe and Latin American. 

Napoleonic Code  

During the French Revolution (1789-1799), the Napoleonic Code, also known as the French Civil Code, went into effect and spread throughout Europe. This code regulated civil matters, such as family law, contracts, wills, etc. This represented the compromise between influences of Germanic law of northern France and the Justinian Code of southern France. Easy to access. 

Had influenced developing countries outside of Europe which attempted to modernize and defeudalize their countries though legal reforms. This became one of the most widespread systems of law in the world. 

 

INFLUENCES ON CANADIAN LAW 

 

 

EARLY BRITSH LAW 

Trial by ordeal – Trial by ordeal was a judicial practice used in early British law, particularly during the medieval period 

  • This method meant that divine intervention would protect the innocent and reveal the guilty 

  • This included ordeal by fire and ordeal by water, which tests medieval were done to prove innocence 

Trial by oath helping – This is by following out deeds such as asking for support, and by checking reputation of the accused 

Trial by combat – In some cases, the accused could challenge their accuser to a duel 

Adversarial system – Making informed choices based off data analysis, expert knowledge, and specific context  

 

 

THE FEUDAL SYSTEM 

- A social, economic, and political structure that dominated medieval Europe in the 9th to 15th centuries 

- Was characterized by a hierarchy of lords, where land ownership and obligations were central to the system 

- The king/monarch owned all land and granted portions to nobles in exchange for loyalty and military service 

Devine Right: Refers to a political and religious doctrine that ensures the monarch absorbs their authority from God, rather than consent of the people 

 

 

COMMON LAW 

Assizes – Refers to the periodic sessions or courts held to administer justice, particularly in England. Historically, this was established to provide a means for the judged to hear and resolve disputes. 

Circuit judges – Known as judicial officers who preside over court in specific geographic areas, known as a circuit.  They hear cases and can oversee trials 

Case law – Refers to the body of law that is established through judicial decisions made in court. It is created to clarify and apply legal principles to situations. 

 

Stare decisis – Is a legal principle that mandates courts to follow precedents established in previous judicial decisions when making rulings in simular cases. This promotes consistency and predictability in law. 

Rule of Precedent – Is another term for ‘stare decisis’ 

 

 

 

 

 

LEGAL REFORMS 

Magna Carta – Also known as the Great Charter, this was a pivitol document in history of democracy and the rule of law. Used originally in England in 1215, this established the principle that everyone is subject to law. 

Rule of Law – A fundamental principle that asserts all individuals, institutions, and the government, ensuring they are accountable to the law. This includes; equality before the law, legal certainty, access to justice, separation of powers, and judicial independence.  

Habeas Corpus – A legal principle that protects an individual's right to be free from unlawful detention or imprisonment. 

 

 

ABORIGINAL LAW 

- Refers to the body of legal principles and statutes that govern the rights and interests of Indigenous peoples, particularly in relation to their land, culture, and governance. 

- Influenced by historical treaties made between Indigenous peoples and colonial or federal governments.  

- Key aspects include; land rights, self-governance, cultural preservation, and consultation & consent 

Great Binding Law – Associated with the concept of natural law or universal principles that govern moral and ethical behavior. This binds humanity together, promoting harmony, justice, and mutual respect. 

 

 

Retribution - is a concept rooted in the idea of punishment or retaliation for wrongdoing. It is often associated with seeking justice or revenge for a perceived harm or injustice. In legal terms, retribution refers to the act of imposing a penalty or consequence on an individual or group as a form of recompense for their actions. 

Restitution - Focuses on the idea of restoring or making amends for a wrong that has been committed. It involves the act of compensating or repaying someone for damages, losses, or injuries that they have suffered. Restitution is often seen as a way to restore balance and rectify a situation that has been disrupted by an unjust act 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TYPES OF LAW 

INTERNATIONAL LAW 

  • Governs the conduct of nations in relationships with each other 

  • International treaties or agreements are binding 

  • Canadian examples  

  • Extradition treaties, free trade agreements (USMCA), and defence treaties (NATO) 

  • Some organizations have international legal status 

  • Develop laws and act as a court to settle disputes (UN & International Court of Justice {ICJ|) 

  • The ICJ has a dual role: 

  • Settles the legal disputes submitted to it by states 

  • Gives advisory opinions on legal questions from authorizes organisations and agencies 

  • International law power is limited 

  • National law enforcement agencies co-operate to fight crimes 

  • There is no international police to enforce the international law system 

  • United Nations were an international body that has established international agreements in the area of war crimes and crimes against humanity. 

 

DOMESTIC LAW 

  • Law made and enforced within a nation's borders (common law and statute law) 

  • Each country creates its own law 

  • Once out of your country, Canada, or your origin country laws will not protect you 

  • If you break laws in another country, Canada, or your origin country will not protect you 

  • There are specific instances where assistance may be provided, particularly in cases that involve political motivations behind arrests. 

 

PROCEDURAL LAW 

  • Methods of enforcing the rights, duties, and responsibilities found in substantive law 

  • Substantive law – Right to a fair trial 

  • Procedural law – How the trial is conducted 

  • Ensures that all citizens are treated fairly 

 

 

 

 

 

SUBSTANTIVE LAW 

  • Defines the rights, duties, and obligations of citizens and levels of government 

  • The right to own and protect property, to enter a legal contract, seek remedies if contract is broken 

 

PUBLIC LAW 

  • Category under substantive law 

  • Regulates relationships between the government and its citizens 

  • Public laws are subject to the Charter of Rights and Freedoms 

3 categories of public law: 

  • Administrative law 

  • Refers to the many governments departments, boards, and tribunals that play roles in regulating the relationship between people and government agencies 

  • This includes liquor control boards and labour boards 

  • Criminal law 

  • Prohibits and punishes behaviour that causes harm to others; such as murder, robbery, or assault. 

  • All crimes can be found under the Criminal Code of Canada and other related federal statutes. 

  • Constitutional law 

 

PRIVATE LAW 

  • Also known as civil law as it deals with relationships between people in certain situations 

  • Legal relations between two individuals, and individuals & organizations – not the government 

  • Main purpose – regulate conduct and compensate those who have been injured by wrongful actions of others 

 

 

 

6 sections of private law 

  • Tort 

  • Demands for a large sum of money for harm, pain, suffering, & financial loss due to the careless actions of others 

  • Ex. Mcdonalds coffee too hat when lady spills and burns self 

  • Contract 

  • Everyday transactions where people buy or provide goods & services 

  • If satisfied with purchase/service received, they pay 

  • If satisfied they can go to court 

  • Family 

  • Marriage, property division when separating, custody/child support & divorce 

  • Wills & estates 

  • Laws governing life from birth to death 

  • Division of property after death 

  • Legal & binding wills outline how estate/assets are divided upon death 

  • Will can be challenged under estate law 

  • Property 

  • Regulates property ownership rights including the ownership & transfer of real estate 

  • Employment 

  • Relationships between employer & employee 

  • Both provincial & federal laws 

  • Some examples: child protection, restriction on hours, minimum wage, hiring/firing procedures, protection for discrimination/harassment, safety rules, protection in workplace, unions