CANADIAN LAW

Canada’s Legal System The Judicial Branch “During times of universal deceit, telling the truth becomes a revolutionary act.” -George Orwell-

Provincial Courts Provincial Courts – judges are provincially appointed with jurisdiction to hear, for example, less serious Criminal Code offences, support and custody applications in family law, youth court issues and small claims cases Copyright © 2007 by Nelson, a division of Thomson Canada Limited

The Provincial Court System APPEAL COURT OF BC (Hears appeals from lower courts) SUPREME COURT OF BC (deals with indictable [serious] offences such as murder, robbery and civil cases involving large sums of money) PROVINCIAL COURT (deals with summary [less serious] offences) Includes criminal, family, and youth matters, small claims, traffic and municipal by-laws

The Provincial Court System Summary offences are tried by a judge or justice of the peace Indictable offences are tried by a judge or judge and jury Judges are free from government influence or interference Decisions can be appealed if an error of law has occurred during the trial; lower courts appeal to higher courts The appeal court can deny the request, agree with or reverse the original decision, or order a new trial

Federal Courts Supreme Court of Canada – nine federally appointed justices with jurisdiction to hear all criminal, civil and constitutional cases Federal Court of Canada – trial and appeal divisions with jurisdiction to hear, for example, cases on patents, copyright, trademark, aeronautics, maritime law, inter provincial and federal-provincial disputes Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Federal Courts 2 Tax Court of Canada Court Martial Appeal Court of Canada – military Court of Canadian Citizenship Copyright © 2007 by Nelson, a division of Thomson Canada Limited

The Supreme Court of Canada

The Supreme Court The Supreme Court is the highest court in the country: decides on constitutional issues and is the final court of appeal for civil and criminal cases Beverly McLachlin is the Chief Justice There are 9 Supreme Court judges who are appointed by the GG on advice of the PM 3 must come from Quebec 3 from Ontario 1 from the Maritimes 2 from the West

The Supreme Court The Supreme Court is important to Canadians because it upholds the rights listed in the Charter and sets precedents Rulings by the Supreme Court are final unless Parliament passes a constitutional amendment Rulings include a judgment and in some cases provide a way to right the wrong Previous rulings on abortion, cruise missile testing, Aboriginal rights, same-sex marriage

CANADIAN CHARTER OF RIGHTS AND FREEDOMS FUNDAMENTAL FREEDOMS An example of some of the freedoms granted by the Charter are in s. 2: Freedom of conscience and religion Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication Freedom of peaceful assembly Freedom of association © 2001 Nelson Thomson Learning

Some discussion topics: Religious Rights vs. Public Safety Human Rights Violations

Example of Religious Rights Case in Canada: This is an actual case known as Pandori v. Peel Board of Education

Explanation of the case and the resolution/outcome…

DIVISIONS/CLASSIFICATIONS IN LAW The Law International Law Domestic Law Substantive Law Procedural Law Public Law Private Law Taxation Law Criminal Law Contracts Torts Property Company Law Administrative Law Constitutional Law © 2001 Nelson Thomson Learning

SOURCES OF CANADIAN LAW Constitutional Convention- supreme law of the country (BNA Act and Charter) enforced by the judiciary created by (and subject only to amendment by) Parliament Royal Prerogative – historical rights and privileges of the Crown the right to conduct foreign affairs and to declare war Statute Law- legislation that is passed by parliament or legislatures (and is within their constitutional powers) All provinces follow british Civil Law except Quebec (French/Napoleonic Code) Common Law – rules that are formulated in judgments © 2001 Nelson Thomson Learning

Canada’s Legal Traditions Our 2 types of law are based on English common law and statutory law Common law = rules based on past decisions and court rulings (precedent) Statutory law = law passed by any of the 3 levels of government Quebec is unique: their civil laws are based on the Napoleonic Code, a single book of laws

CANADIAN LAW The legal system is made up of 6 main legal principles and the Charter of Rights and Freedoms: Presumption of Innocence Burden of Proof Habeus Corpus Right to a Fair and Speedy Trial Equality before the Law British Common Law Charter of Right and Freedoms

1 PRINCIPLES OF LAW Presumption of Innocence anyone charged with a crime is presumed (implied to be) innocent ; It is the responsibility of the Crown (represents the government or society) to prove the defendant guilty (person charged with the crime); Innocence is presumed through the whole process unless they admit guilt or are proven guilty by the Crown;

2 PRINCIPLES OF LAW Burden of Proof the Crown is responsible for providing proof “beyond a reasonable doubt;” If there is some doubt as to the guilt of the accused/defendant, they can be released or retried; If there is not enough proof there can be a hung jury (the decision of the jury is not unanimous); Police issuing warrants also have to follow this process through the arrest procedure;

3 PRINCIPLES OF LAW Habeus Corpus Latin that means “to have the body;” It means that the accused has the right not to be detained or imprisoned unlawfully; If the Crown cannot show the reason for detention, the person has to be released; The police can detain an accused, but unless there is adequate evidence to determine further investigation, the Crown cannot proceed;

4 PRINCIPLES OF LAW Right to a Fair and Speedy Trial Fairness is ensured through an impartial jury of one’s peers; Knowledgeable and unbiased judge; Strict rules governing evidence, appeals, etc; An individual cannot stay in jail for months or years without the judicial process starting;

5 PRINCIPLES OF LAW Equality before the Law All people will be judged by the evidence and only the evidence; “justice is blind” This aspect also relates to the rule of law – no one is above the law;

6 PRINCIPLES OF LAW British Common Law With the exception of Quebec Civil Law, the Canadian legal system follows traditions of British Law; Jury by one’s peers, double jeopardy, protection from self-incrimination, use of precedent;

PRINCIPLES OF LAW What cases can you think of where double jeopardy applies? Why is this an important feature for criminal law?

2. Criminal law DIVISIONS OF LAW There are two main branches of Canadian Law: 1. Civil law 2. Criminal law

CIVIL LAW

CIVIL LAW This involves a legal dispute between citizens; It does not usually involve criminal activity; These cases rarely involve a jury; Court awards damages (money) to the plaintiff (person making the complaint); The person who has to pay restitution cannot be sent to jail at the judgment; The burden of proof is not as strictas ciminal cases

CIVIL LAW CONTRACT LAW – LAW OF TORTS – FAMILY LAW – Contractual obligations LAW OF TORTS – Wrongdoings done to people, company, etc…. Negligence or Act of Omission/failure to Act Suffer injury or loss FAMILY LAW – Divorce, custody of children, alimony, child support

CIVIL BURDEN OF PROOF In civil cases, it is not as necessary to focus on the burden of proof; Instead, there is the preponderance of evidence or the balance of probabilities; This implies that a reasonable person has to be able to connect the evidence given to determine the outcome of action or inaction;

OTHER CIVIL LAW CATEGORIES There are three subdivisions to civil law: Contract Law legally binding contracts Purchases, services, accommodations, employment Law of Torts wrongs committed by one’s person’s act or their failure to act; Commission Omission Family Law relationship among family members Marriages, divorce, custody, child support, alimony

CIVIL LAW Conflict Resolution: Negotiation Mediation Arbitration People work out their differences through discussion; Mediation A third party (objective) helps to work out a decision; Arbitration A resolution is determined by a objective third party (usually a judge) and has to be accepted by the parties involved;

Civil Court Procedure 5 Stages: Pleadings Discoveries Pre trial or mediation Trial Appeal Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Pleadings Plaintiff files statement of claim and has it personally served on defendant Defendant responds with statement of defence Defendant may also counterclaim against defendant, crossclaim against co-defendant, and bring third party claim against someone not a party to the lawsuit Plaintiff responds with reply or statement of defence to the counterclaim Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Discoveries Purpose is to identify all facts, issues and evidence prior to trial Each party examines the other under oath. A certified reporter records the questions and answers and prepares a transcript of them. Each party must list all documents relevant to the case and the names of witnesses who will be called. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Pretrial or Mediation Purpose is to settle before trial or reduce the number of issues at trial If a pretrial occurs, that judge is disqualified from proceeding at the actual trial. In some provinces or territories, mediation is mandatory. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Trial Plaintiff makes opening statement and presents case. Plaintiff’s witnesses are examined in chief, and cross-examined by defendant Defendant presents defence in chief, and plaintiff cross-examines. Plaintiff must prove case on a balance of probabilities. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

TRIAL Jury Selection Judge’s Charge – instructions to jury Arraignment – charges read Crown presents Case perjury – lying under oath Rules of evidence - no hearsay; charged doesn’t have to talk Defence presents Case Alibis, forensic, ballistic Closing Statements Judge’s Charge – instructions to jury Jury Sequestering and Deliberation Jury put in room and decide decision (‘hung jury’ = re-trial) Verdict Appeal Verdict Crown or Charge may appeal Sentencing: decided by judge Hear about convicted past, etc…

Appeals Appeals of civil cases are not granted automatically. Appeals are usually limited to cases where there was an error of law, not of fact. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Offers to Settle, Costs and Enforcement Parties are encouraged to settle out of court before trial. A party who refuses a reasonable offer may be punished by the court and required to pay the court costs of the other litigant. Garnishment of wages and seizure and sale of the losing litigant’s assets by a sheriff may assist the winning litigant to realize upon a court’s judgment. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

CRIMINAL LAW Refers to any act that is committed against any other member of society This type of action is considered to be against all members of society

Criminal Procedure Purpose is to protect against acts that threaten the security of a person or the state Types of offences: summary conviction (minor), indictable (serious), and hybrid (the Crown chooses whether to proceed summarily or by indictment) The Crown must prove its case beyond a reasonable doubt. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

Evidence Rules of procedure require that evidence gathered in a manner that infringes or denies rights guaranteed under the Canadian Charter of Rights and Freedoms is inadmissible. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

CRIMINAL LAW Indictable Offences Much more serious offences; Accused usually have a preliminary hearing at which they can decide what kind of trial there will be (judge only or judge and jury); Examples: Drug trafficking Murder, Sexual Assault Extortion

CRIMINAL LAW Summary Offences Minor or less serious offences; The maximum sentence is $2000 or 6 months in jail; Examples: Shoplifting Vagrancy Petty theft

CRIMINAL LAW Hybrid Offences Offences that can be treated as either indictable or summary; Decision for this is made by the Crown; Usually based on record of offender and seriousness of the crime; Example: Drunk driving Assault Theft under $5000

Criminal Court Procedure First step is arraignment If plea is “not guilty,” the case proceeds to trial. Depending on the charge, the accused may choose trial by jury or by judge alone. Crown calls prosecution’s witnesses and examines in chief. Defence may cross-examine. If Crown does not meet the burden of proof, the presumption of innocence applies. Copyright © 2007 by Nelson, a division of Thomson Canada Limited

YOUNG OFFENDERS ACT

Crime and Youth In the 19th century, youths convicted of crime were given adult sentences In the 20th century, there was a movement to treat youths differently from adults and away from punishment towards rehabilitation and reintegration into society The philosophy is that youth should not be burdened for the rest of their lives for mistakes made in the past

Rights of a Young Offender Youths between the ages of 12 and 17 Youth charged or convicted of a crime and those involved in the court proceedings cannot be named Criminal record is destroyed at 18, except for those convicted of serious crimes Cases are dealt with by Youth Court and heard by a judge alone

Young Offenders Act 1984 The Young Offenders Act applied to youth aged 12-18 years who had committed offences under the Criminal Code Jail sentences were more lenient, with a maximum jail term of 3 years The name of the youth could not be published Changes were made: 1985 – courts could name a dangerous offender; 1992 – maximum sentence was 5 years for murder

YOUTH CRIMINAL JUSTICE ACT 2000

Youth Criminal Justice Act 2000 Distinguished between violent and non-violent crimes Harsher measures for violent offenders Improved efforts for rehabilitation and alternatives to jail time (restorative justice)

Rights of a Young Offender If a youth is convicted, the sentence is called a disposition Absolute discharge / Conditional discharge Fine up to $1,000 Up to 240 hr of community service to pay for the crime Probation up to 2 years Open or secure custody for up to 5 years Youths as young as 14 can be transferred to adult court and face adult sentences for serious crimes A pattern of serious crimes will also result in adult sentences

2010-“Sebastien’s Law” The ages of 14 and 18 may be sentenced as adults (but provinces have the right to alter the age limit) Specifically murder, attempted murder, manslaughter, and aggravated sexual assault, or the repeating of a serious violent offence. The adult sentences imposed in these circumstances would obviously be much harsher than those available for imposition by the youth court: first degree murder, for example, carries a maximum 10-year sentence, including a maximum custody period of six years