1. Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 1 – INTRODUCTION TO THE LAW Chapter 1 – The Law and the Legal System Prepared by Douglas H. Peterson, University of Alberta

2. Copyright © 2004 McGraw-Hill Ryerson Limited 2 CHAPTER 1 OVERVIEW The Nature of Law The Role of Law The Development of Law The Rise of Courts and the Rule of Law Sources of Law The Canadian Charter of Rights and Freedoms The Common Law and Equity Classification of Laws

3. Copyright © 2004 McGraw-Hill Ryerson Limited 3 THE NATURE OF LAW Definition No Universal definition All laws are rules, but not all rules are laws Law: Rules of conduct prescribed by government and enforceable by the courts Society’s Values Values and concerns of society Political, social, religious, moral, philosophical values

4. Copyright © 2004 McGraw-Hill Ryerson Limited 4 THE NATURE OF LAW Rights and Privileges Rights – protected by the state Freedom of religion; freedom of speech Privileges – given by the state Drivers license; liquor license

5. Copyright © 2004 McGraw-Hill Ryerson Limited 5 THE ROLE OF LAW Social Control By meeting the needs of the people Flexibility: changes with time Social Engineering Restricts individual rights and freedoms Public policy reasons E.g.) government insurance versus private insurance

6. Copyright © 2004 McGraw-Hill Ryerson Limited 6 THE ROLE OF LAW 3 Main Functions of the Law Settling disputes Procedural rules – how people resolve disputes between each other Establishing rules of conduct How to treat each other in society Purpose: bring order and minimize conflict E.g.) Rules of the road Provides protection From harmful behavior of others Persons Property E.g.) historical – land; modern – intellectual property

7. Copyright © 2004 McGraw-Hill Ryerson Limited 7 THE DEVELOPMENT OF THE LAW Historical Handed down from generation to generation (long-standing rules or customs) Govern conduct between families in a tribe Expanded from village to city state, to governments Law became an instrument of social control

8. Copyright © 2004 McGraw-Hill Ryerson Limited 8 THE RISE OF THE COURTS AND THE RULE OF LAW Historical creation of the common law Norman conquest of 1066 introduced centralized judicial system King Henry II (1181 A.D.) established traveling justices 1234 A.D. Justices began keeping written records of their decisions Rule of Law Established legal principles that treat all persons equally and that government itself obeys No one is above the law, not even the King

9. Copyright © 2004 McGraw-Hill Ryerson Limited 9 SOURCES OF LAW HIERARCHY Constitution Legislation Courts

10. Copyright © 2004 McGraw-Hill Ryerson Limited 10 SOURCES OF LAW: CONSTITUTION CONSTITUTION Provides basic rules for legal and political systems Supreme law – highest source of law Basis upon which a state is organized Defines powers of a government Can be written (formal) U.S.A. constitution Can be unwritten (informal) U.K. constitution

11. Copyright © 2004 McGraw-Hill Ryerson Limited 11 SOURCES OF LAW: CONSTITUTION Constitution: Sets Out Division of Powers Canadian Charter of Rights and Freedoms Division of Powers Topics divided into federal or provincial authority federal: (section 91) provincial: (section 92)

12. Copyright © 2004 McGraw-Hill Ryerson Limited 12 SOURCES OF LAW: CONSTITUION Federal government holds residual power topics not otherwise allocated (explicitly referred to in either ss. 91 or 92 (e.g. telecommunication) belong to federal government; any legislation created outside scope of government’s authority is of no force or effect Courts decide matters of constitutionality between federal and provincial governments

13. Copyright © 2004 McGraw-Hill Ryerson Limited 13 SOURCES OF LAW: CONSTITUTION Section 91 – Federal Powers Trade and commerce Criminal law Bankruptcy and insolvency Navigation and shipping Bills of exchange and promissory notes Military and defense Postal Currency Patents and copyrights Federal taxation and many others

14. Copyright © 2004 McGraw-Hill Ryerson Limited 14 SOURCES OF LAW: CONSTITUTION Section 92 – Provincial Powers Property and civil rights Incorporation of companies Licensing of certain businesses and activities Solemnization of marriage Local works and activities Health care Education Provincial taxation

15. Copyright © 2004 McGraw-Hill Ryerson Limited 15 SOURCES OF LAW: CHARTER Entrenches individual rights Protects individuals from infringement on their rights by governments or their agents Part of Constitution since 1982 Difficult to amend Amending formula requires consent of Parliament and ⅔ provinces with at least 50% of population Failed attempts to amend Meech Lake Accord Charlotte Town Accord

16. Copyright © 2004 McGraw-Hill Ryerson Limited 16 SOURCES OF LAW: CHARTER S.1 - subjects the Charter to “reasonable limitations” The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society Charter subject to “notwithstanding clause” (s.33) Government can override some rights and freedoms by enacting s. 33 Sunset clause - 5 years unless re-enact Balance individual rights and community interest Charter only applies to government action not (directly) applicable against private businesses or private persons

17. Copyright © 2004 McGraw-Hill Ryerson Limited 17 CHARTER RIGHTS Personal Freedoms S.2 Fundamental Freedoms Freedom of conscience and religion Freedom of belief Freedom of the press Freedom of peaceful assembly Freedom of association

18. Copyright © 2004 McGraw-Hill Ryerson Limited 18 CHARTER RIGHTS S.3 Democratic rights Right to vote and hold office S.6 Mobility Rights Free to remain in, enter, or leave Canada and to move freely within the country

19. Copyright © 2004 McGraw-Hill Ryerson Limited 19 CHARTER RIGHTS S.7-10 Legal Rights Right to life, liberty and security of the person Right to be secure against unreasonable search and seizure Freedom from arbitrary arrest and detention Right to legal advice No unusual or cruel punishment Right to a fair trial Cannot be compelled to testify against yourself

20. Copyright © 2004 McGraw-Hill Ryerson Limited 20 CHARTER RIGHTS SS.15(a) Equality Rights All individuals are equal before the law No discrimination based on race, creed, color, religion, sex, age, national or ethnic origin, mental or physical disability ss.15(2) - allows affirmative action Language Rights Various sections entrench rights of both languages (English and French) Aboriginal Rights

21. Copyright © 2004 McGraw-Hill Ryerson Limited 21 THE COMMON LAW AND EQUITY Common Law Great Britain and Commonwealth Judge-Made Law Developed in the courts Based on precedent or stare decisis

22. Copyright © 2004 McGraw-Hill Ryerson Limited 22 THE COMMON LAW AND EQUITY Doctrine of Precedent (Stare Decisis) Judges are bound by decisions of previous cases if: Facts are the same Same court or court of equal rank Higher or superior court Stare Decisis - to stand by a previous decision Advantages of Precedent Allows flexibility to relate to changing social conditions and attitudes Provides consistency and predictability

23. Copyright © 2004 McGraw-Hill Ryerson Limited 23 THE COMMON LAW AND EQUITY Canon Law Law developed by the church courts to deal with matter that fell within their jurisdiction Ecclesiastic courts – jurisdiction over religion, family and marriage, morals, and matters relating to the descent of personal property of deceased person Merchant Law Customs and rules developed by merchants

24. Copyright © 2004 McGraw-Hill Ryerson Limited 24 THE COMMON LAW AND EQUITY Equity Originally based on decisions of the King, rather than the law Intention is fairness Overcomes harshness and rigidity of the common law Body of legal principles that takes precedence over when the common law and the principles of equity conflict Court of Chancery followed principles of equity 19th century courts of common law and Chancery courts merged Judges can apply common law rules or principles of equity

25. Copyright © 2004 McGraw-Hill Ryerson Limited 25 STATUTE LAW Statute Law Written laws End result of legislative process Statute always takes precedence over common law Interpretation of statutes up to the courts

26. Copyright © 2004 McGraw-Hill Ryerson Limited 26 STATUTE LAW Process Bill – proposed law presented to legislative body Motion – bill requires a motion Several readings and debates Royal Assent – given by Queens representative Governor General (federal) Lieutenant-Governor (provincial) Proclaimed – when law becomes effective

27. Copyright © 2004 McGraw-Hill Ryerson Limited 27 STATUTE LAW Revised Statutes Statutes revised over time to reflect changing society Continuous process Civil Code Roman law Napoleon Code Used in Quebec A body of written law that sets out private rights of the citizens of a state

28. Copyright © 2004 McGraw-Hill Ryerson Limited 28 STATUTE LAW Administrative Law A body of rules governing the application of statues to activities regulated by administrative tribunals or boards Regulations – procedural rules made under a statute Administrative Tribunals – agencies created by legislation to regulate activities or do specific things E.g.) CRTC; Immigration Board; Securities Board; Land Use Boards

29. Copyright © 2004 McGraw-Hill Ryerson Limited 29 CLASSIFICATION OF LAWS Substantive Law All laws that set out the rights and duties individuals have in society E.g.) Charter rights Procedural Law The law of procedures that a plaintiff must follow to enforce a substantive right Laws that deal with protection and enforcement of rights and duties E.g.) criminal and civil procedure Substantive Right An individual right enforceable at law

30. Copyright © 2004 McGraw-Hill Ryerson Limited 30 CLASSIFICATION OF LAWS Public Law The law relating to the relationship between the individual and the government E.g.) constitutional, criminal, administrative Private Law The law relating to the relationship between individuals E.g.) contracts, torts, property, trusts, family law