Law: Its Purpose and History Chapter One Law: Its Purpose and History

Focus Questions What is Law ? Why do societies have laws? What are the historical roots of Canadian law ? Who is responsible for law making in Canada ? How are Canadian laws interpreted, applied and enforced ?

Introduction FACT: Three of the four most-watched television shows on the major U.S. television networks are crime or law shows. WHY IS THIS?

What Is Law ? Why Do We Have it ? · Most people have had direct experience with the law · Our world is governed by law · How were you affected by the law today?

Every country has a history and culture that shapes its laws and punishments What is legal in one country is not necessarily legal in another

       Laws of a society reflect the values and beliefs of the people in that society        Law is dynamic, NOT absolute; it is always changing as values of a society change

WHY SHOULD WE KNOW THE LAW? 1) To be aware of your rights and responsibilities as citizens 2) You are affected by it everyday 3) Canada is a democracy which allows citizens to elect governments

RULES OR LAWS? RULES: of a game or an organization apply only to participants in that game or organization; rules are optional to follow; no clear enforcement of the rules generally LAWS: of a society apply to all members of that society and visitors to that society; laws are mandatory to follow; a formal system of procedures for enforcing laws

If you do not like a rule, what could/would you do If you do not like a rule, what could/would you do? If you do not like a law, what could/would you do?

The Functions of Law: What Laws Do for Us Settle disputes/disagreements Resolve disputes/disagreements through discussion or negotiation Disagreements solved fairly and peacefully

Establishing Rules of Conduct Laws exist to reduce or eliminate conflicts Highway Traffic Act

Protecting Rights and Freedoms Police were established to enforce laws Courts established to force people to answer for criminal acts Laws are designed to discourage people from harming one another

Protecting Rights and Freedoms Law makers and law enforcement agencies are limited by constitutional law Canadian Charter of Rights and Freedoms ensures that limitations of individual rights are not taken too far

Protecting People Criminal activity is not the only reason we have laws Labour laws and contract laws are designed to protect people

5 Functions of Law Establish rules of Conduct Ex: Provide a system of Enforcement Protect Rights and Freedoms Protect Society Resolve Disputes EX:

The Divisions of Law

Divisions of Law CANADIAN LAW Substantive Law (Statute and Case Law) Procedural Law Public Law Private (Civil) Law Family Law Tort Law Labour Law Criminal Law Constitutional Law Administrative Law Contract Law Property Law

Substantive Substance of law consists of all laws that list rights and obligations of each person in society.

Procedural Process of law outlines the steps involved in protecting the rights given under the substantive laws

Substantive Private (Civil) Public Family Criminal Contract Tort Property Labour Public Criminal Constitutional Administrative

Public Law There are 3 types of public law: Criminal Law: outlines offences against society and their punishments. Constitutional Law: outlines the structure and powers of governments. Administrative Law: outlines the relationship between citizens and government agencies.

Private Law Also known as Civil Law; there are 5 types: Tort Law: a person is held responsible for damage caused to another; "tort" is Latin for "a wrong". Family Law: deals with the various relationships of family life (e.g. marriage) Contract Law: outlines requirements for legally binding agreements. Property Law: outlines relationship between individuals and property. Labour Law: outlines relationship between employers and employees.

Early History of Law

Code of Hammurabi King of Babylonia (Iraq) Wrote 300 laws for citizens to understand “an eye for an eye, a tooth for a tooth”

Moses and Mosaic Law Moses delivered the “Ten Commandments” Punishments were also severe

Roman Law First legal system of early Rome Basis of law in Europe (not England) Emphasized “equity” Justinian Code “the law should be fair and just, and that all people were equal under law”

French Revolution Napoleon revised French law after revolution Napoleonic Code, still used in Quebec

The Development of Canadian Law Based on systems in England and France French law codified (written down) English law not codified and based on court decisions and customs

Feudalism and Common Law In 1066 William, Duke of Normandy invaded England Introduced European government called feudalism The king owned all the land and divided it among his lords and nobles Basis of modern property laws Lords acted as judge and jury Great inequity followed

King appointed judges to travel the land and dispense justice Judges met to discuss criminal and civil matters, their decisions became “common law” Introduced to North America by first colonists

Precedent A “precedent” is something that has been done that can later serve as an example or rule for how other things should be done. Common is the English legal community Needed to be written to be remembered Introduces a degree of certainty into the law King could overrule judges

Case Law With the increase in judges and cases decisions needed to be recorded and published “Common law” is also called “Case Law” Each case is given a title or “citation”, to make it easy to find

Criminal Citation R. v. Bates (2000), 35 C.R. (5th) 327 (Ont C.A.) R. -Regina (Latin for queen or king) society v. -Versus (Latin for against) Bates –defendant (accused) 2000 –year of decision 35 –volume number C.R. –name of reporter (criminal reports) 5th – series 327 –page number Ont. C.A. – jurisdiction (Ontario court of Appeal)

Civil Citation Langille v. McGrath (2000), 233 N.B.R. (2nd) 29 (N.B.Q.B.) Langille. -plaintiff v. -Versus (Latin for against) McGrath –defendant (accused) 2000 –year of decision 233 –volume number N.B.R. –name of reporter (New Brunswick Reports) 2nd – series 29 –page number N.B.Q.B. – jurisdiction (New Brunswick Court of Queen’s bench)

The Rule of Law King John (1199-1216) considered himself above the law Forced to sign Magna Carta in 1215 Monarchs could no longer restrict the rights of people

Habeas Corpus Guaranteed by Magna Carta No person can be imprisoned without explanation and needs to appear before court in a reasonable time

Parliament King Henry III was abusing his powers in 1265, a group of nobles revolted against him to take power for themselves, the formation of the first parliament In 1688 King James II tired to get rid of parliament to make England more Catholic Parliament made William and Mary King and Queen

Statute Law Laws are called statutes Parliament filled gap where common law and case law failed Common laws became codified People now had direct access to laws

Canada’s Constitution British North America Act July 1, 1867 Ontario, Quebec, New Brunswick & Nova Scotia Britain still controlled our foreign affairs Britain could overturn our laws World War I

Canada’s Constitution Statute of Westminster 1931 gave Canada power over foreign affairs 1949 Supreme Court of Canada became highest court in the land BNA act still had an amendment formula that required British parliament approval of all laws passed in Canada

Canada’s Constitution 1981 after years of negotiation an amending formula was finalized Consent from Canadian Parliament 2/3 of the provinces with 50% of the population

Canada’s Constitution April 17, 1982 Signed by PM Pierre Trudeau and the Queen

How Laws are Made in Canada

How Laws are Made in Canada Parliament makes our federal laws Parliament consists of : House of Commons Senate Governor general

Passage of a Bill onto Law at Federal Level House of Commons First reading-Bill introduced-vote taken Second reading-introduced again-debate-vote Committee Stage-studied in detail-changes made-vote Third reading-briefly debated-vote

Passage of a Bill onto Law at Federal Level Senate First reading-Bill introduced-vote taken Second reading-introduced again-debate-vote Committee Stage-studied in detail-changes made-vote Third reading-briefly debated-vote

Passage of a Bill onto Law at Federal Level Governor General Signs bill into law

Divisions of Powers Federal Peace/order Criminal law Unemployment Banking Jails Marriage/Divorce Post Office Aboriginal Peoples Provincial Property & civil rights Marriage ceremonies Police Highways Provincial jails Hospitals Education

Canada and International Law Customary Law Treaty Law Resolutions

Customary Law Sovereignty- A nation’s right to govern itself. Recognition- Sovereign nations must be recognized by other countries. Consent- Agreements cannot be entered into by threats. Good faith- States are expected to conduct their affairs with common sense.

Customary Law Freedom of the seas- No nation can claim ownership of the seas. International Responsibility- Penalties will be applied for not being responsible. Self-Defence- The use of threat or force is illegal, but you may defend your nation. Humanitarianism- Respect the interest of humankind, disaster relief

Treaty Law International treaties are another part of international law. These are binding written agreements, freely entered into by states, that spell out their rights and obligations to each other.

Five Steps in the Treaty Making Process Negotiate the precise content and wording of the treaty Formally sign the treaty. This means that the state leaders who sign the treaty support it completely Approve the treaty. This step commits all the states to follow the treaty

Five Steps in the Treaty Making Process 4. Let the treaty “come into force”. This happens when a specified number of states ratifies the treaty 5. Implement and enforce the treaty. These measures ensure that everyone complies with the terms of the treaty

Treaties Territory Diplomatic Law and Immunity The protection of Nationals abroad Extradition and Asylum International Trade Arms Control