Our Legal Heritage

1. Our Legal Heritage

2. Rules Vs. Laws • Rules are different from laws in that they are not enforced by the courts. So if a student is late for class they will not be arrested but may face other kinds of discipline. • Laws are enforced by the courts and are meant to protect us and our property as well as provide structure to society.

3. Why do laws change? • Laws change as society’s values and morals change. • At one time it was illegal to sell alcohol; women could not vote; a criminal could be hanged. • Laws can also be changed due to pressure from Lobby Groups. These groups try and persuade the government and individuals to change laws.

4. Some Strange Canadian Laws • 30% of all radio and t.v. content must be Canadian. • It is illegal for clear or non-dark soda to contain caffeine. • It used to be a criminal offence in Canada to try and commit suicide…if caught trying you would be hanged. • The game of Lawn Darts is illegal in Canada.

5. Rule of Law • In Canada a three part theory of justice and law is followed, in order for our system to work called Rule of Law. • Individuals must recognize and accept that laws are necessary to control society. • The law applies to everyone including the people in power. • No one in our society has the right to take all the power for themselves or take away people’s rights.

6. Law and Morality • Laws that are based on morality, show us what values, attitudes and beliefs Canadians share. • For example, Canadians feel that killing another person is morally wrong. Therefore, we have laws to punish those who do. • People who do not share these moral values can speak out publicly and try to change the law.

7. Law and Justice • The ultimate goal of law is to ensure justice for all (everyone should be treated equally). • The problem is that not all situations can be treated equally for many different reasons.

8. Code of Hammurabi • King of Babylon codified one of the earliest known sets of laws. (1792-1750 BCE) • Patriarchal society – • Wealthy had more protection • Slavery was legal • Women and children were property • Restitution: payment made by the offender to the victim. • Retribution: justice based on vengeance and punishment

9. Mosaic Law • Commonly called the Ten Commandments, found in the book of Exodus in the Old Testament. • Written some 500 years after the death of Hammurabi, the basic principles are similar. • It was forbidden to commit murder, adultery, theft, and to worship other gods.

10. Greek Law • First form of democracy was born in Greece. • Only Athenian citizens had political rights (women, children, aliens, and slaves were excluded). • Voting and Jury Duty were major responsibilities. • Women on trial were not allowed to speak on their own behalf.

11. Roman Law • There were 2 basic principles… • The law must be recorded • Justice could not be left in the hands of judges alone to interpret. • The Twelve Tablets (450 BCE) determined the law of England during Roman occupation and is now considered the foundation of modern law. • Roman Law reflected a patriarchal society, women did not have status as a “person”. • Rome was a complex society with numerous laws, legal advisors helped those with not understanding of the law. They were the forerunners of the lawyer.

12. Justinian’s Code • Byzantine Emperor Justinian I had the 1600 books of Roman law codefied in 529 CE. • This code inspired the concept of justice and formed the basis of civil law.

13. Napoleonic Code • After the French Revolution, Bonaparte unified French Law under the Napoleonic Code (1804). • The code regulated civil matters such as property, wills, contracts, and family law.

14. Influences on Canadian Law • British Law has had the greatest influence on Canadian Law. • Queen Elizabeth is Canada’s Head of State. Canada Explained

15. Feudal System • William the Conqueror, King of England, unified England’s legal system and assumed total control. • King William divided England into parcels of land to be ruled over by noblemen who judged cases that arose in their parcel. • There were no rules of evidence and the accused had no rights. • By the 12th Century, people rose up against this harsh, unfair treatment.

16. Common Law • King Henry II established circuit judges to resolve local disputes. • The judges recorded their cases and decisions and shared them so they would judge similar cases in the same manner. This became known as case law or common law.

17. Magna Carta Habeas Corpus The purpose of the order is to secure the release of people who are unlawfully imprisoned. This historic right is now entrenched in the Canadian Charter of Rights and Freedoms. • Was the first step in establishing individual basic rights for the people of England. • It recognized the principle of Rule of Law, not even the King would be above the law.

18. Classifying Canadian Law

19. Three Sources of Canadian Law

20. Sources of Law

21. Common Law • Today, Canadian courts continue to rely on decisions made by other courts when determining the outcome of similar cases. • Rule of precedent is not the only way courts judge cases – the judge may reject previous decisions and create a new precedent. This is called distinguishing a case.

22. Statute Law • As we know, acts become law only after they are passed through a formal procedure in the House of Commons or Provincial Legislature. • Many of our laws today are actually statutes – common law decisions that have been codified.

23. Statutes usually override common law unless there is no statute to deal with the particular situation. • Each of the three levels of government have the authority to create legislation in its own jurisdiction (authority and control).

24. Federal Statutes • Criminal law • Federal Penitentiaries • Employment Insurance • Banking and Currency • Marriage and Divorce • Postal Service, etc… Everyone in Canada is subject to laws passed by the Federal Government.

25. Provincial Statutes • Hospitals • Police Forces • Property Rights • Highways and Roads • Provincial Jails, etc…

26. Local Statutes Municipal Governments make laws called bylaws. Some areas of Municipal Government jurisdiction would be; • Who clears snow from sidewalks • Garbage collection • Curfews, etc…

27. Constitutional Law The Canadian Constitution determines the structure of the federal government and divides law-making powers between the federal and provincial governments. Constitutional law also limits the powers of government by setting out basic laws, principles, and standards that all others must adhere to. Constitutional law overrides all other laws.

28. Categories of Law

30. International Law • International law governs the relationship between independent nations. • Nations sign treaties and international agreements that are as binding as law. For example: extradition treaties  free trade  defense treaties

31. International Law (continued) • A number of organizations have international legal status. Two examples are 1) the United Nations (UN) 2) the International Court of Justice • The UN is a peacekeeping force, not a police force. We have not developed an international police force to enforce international law, but it may be necessary.

32. Domestic Law • Domestic law is law that governs activity within a country’s boundaries. • When you travel to another country their laws may be quite different from yours. For example in some countries it is illegal to drink alcohol or to dress in certain ways. • When in another country you do not have the protection of Canadian Law. The Canadian government may not be able to do much for you if you break their laws.

34. Substantive Law • Substantive Law is a category of domestic law. • It defines the rights and duties of citizens and government. For example: • The right to enter a legal contract • The right to sue if that contract is broken • Failing to remain at the scene of an accident • Careless driving

35. Procedural Law • Substantive law is the content of law, Procedural law is the process of enforcing those laws. • It makes sure all citizens are treated fairly during the legal process. • Procedural law refers to: • Gathering evidence properly • Following the proper steps to make an arrest • Following correct trial procedures.

37. Public Law • Public Law regulates the relationship between the government and its citizens. • Public Law deals with: Constitutional Law Administrative Law Criminal Law • Eventually all Public Law refers to the Canadian Charter of Rights and Freedoms.

39. Administrative Law deals with the relationship between government agencies and the people. • An injured person looking for compensation, or people concerned about a subdivision being built on a nature reserve would all deal with Administrative law. • Examples of government agencies are: • Liquor Control Board • Labour Board • Workers’ Compensation Board

40. Criminal Law is the area of law that identifies crimes and hands out punishment. • All crimes are described in the Criminal Code of Canada. • This category attracts the most media attention.

41. Case Citations • In Canadian Law, a crime is carried out not only against the individual, but against society. Society is represented by the Crown. • The citation for criminal cases look like: R. v. Accused R.Stands for Regina or Rex, the Latin terms for Queen or King. v.Stands for versus (against) Accusedwould be the name of the defendant.

43. Private Law • Private Law (civil) is law that governs the relationships between individuals and between individuals and organizations (not including the government). • The main purpose of private law is to regulate the actions of and provide compensation for people who have been harmed by the wrongful actions of others.

44. Tort Law: holds persons or private organizations responsible for damage they cause another person as a result of accidental or deliberate action. • You often see headlines like “Woman seeks $1.5 million for damages after…”. Most of these claims are based on Tort Law.

45. Contract Law: is the branch of law that provides rules regarding agreements between people and business. Example: when Student Council books a DJ for a dance, they enter a legally binding contract with the DJ for that service. • Family Law: is the branch of law that deals with various aspects of family life. Example: marriage, custody and support of children, divorce, etc… • Wills and Estates: is the branch of law that deals with the division and distribution of property after death.

46. Property Law: is the branch of law that governs ownership rights in property. • Employment Law: is the branch of law that governs employer-employee relationships. Example: child labour, work day hours, minimum wage, hiring and firing practices, workplace discrimination and harassment, work place safety, union activities.

47. Chapter 3 Government and Statute law

48. Canada’s Constitution • In 1867 the British Parliament passed the British North American Act which made Canada its own country although it still had to have Britain’s permission to amend its Constitution. • Canada decided to have a federal system of government which divided the responsibilities among the federal and provincial government.

49. Federal Powers Provincial Powers Are set out in s. 92 of the BNA Act Include matters of a local nature and can vary from province to province (education, hospitals, property, etc.) • Are set out in s. 91 of the BNA Act • Include matters that should be applied uniformly to every province (criminal law, currency, postal service, etc.)

50. Patriating the constitution • The BNA was changed over the years and Canada gained more and more independence. • In 1982, Pierre Elliot Trudeau finally brought Canada’s Constitution home with the signing of the Constitution Act, 1982. • Finally, Canada was fully independent from the British Parliament and could pass laws on its own.