The Canadian Legal System
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Transcript of The Canadian Legal System
Copyright © 2008 Pearson Education Canada 2-1
Chapter 2:Chapter 2:
Introduction to Introduction to the Legal the Legal SystemSystem
Copyright © 2008 Pearson Education Canada 2-2
What Is Law?What Is Law?
Difficult to come up with a definition for lawDifficult to come up with a definition for law Definition is affected by:Definition is affected by:
• HistoryHistory• TheoryTheory• Legal System in PlaceLegal System in Place• Social RealitiesSocial Realities
Copyright © 2008 Pearson Education Canada 2-3
Philosophical Basis of LawPhilosophical Basis of Law
Natural Law TheoryNatural Law Theory What God Says It IsWhat God Says It Is Based on MoralsBased on Morals
Legal PositivismLegal Positivism What the Ruler Says It IsWhat the Ruler Says It Is No Moral BasisNo Moral Basis
Legal RealismLegal Realism What the Court Says It IsWhat the Court Says It Is Social Moral ValuesSocial Moral Values
Copyright © 2008 Pearson Education Canada 2-4
Definition of LawDefinition of Law
Law is the body of rules that Law is the body of rules that can be enforced by the can be enforced by the courts or other government courts or other government agenciesagencies
Copyright © 2008 Pearson Education Canada 2-5
Categories of LawsCategories of Laws
Substantive LawSubstantive Law The rules that govern behaviour and set limits The rules that govern behaviour and set limits
on conducton conduct Procedural LawProcedural Law
How rights and obligations are enforcedHow rights and obligations are enforced
Copyright © 2008 Pearson Education Canada 2-6
Categories of Laws/2Categories of Laws/2
Public LawPublic Law Regulates our relationship with governmentRegulates our relationship with government
Private LawPrivate Law Regulates personal, social and business Regulates personal, social and business
relationshipsrelationships
Copyright © 2008 Pearson Education Canada 2-7
Civil Law Legal SystemCivil Law Legal System
Roman Law - JustinianRoman Law - Justinian CodifiedCodified Modified by NapoleonModified by Napoleon Used in Europe and most developing Used in Europe and most developing
countriescountries Quebec’s legal system is based on the Quebec’s legal system is based on the
French Civil CodeFrench Civil Code
Copyright © 2008 Pearson Education Canada 2-8
Common Law Legal SystemCommon Law Legal System
Great Britain and Commonwealth Great Britain and Commonwealth Judge-made LawJudge-made Law
Developed in the CourtsDeveloped in the Courts Based on precedent or Based on precedent or stare decisisstare decisis
• judges are bound by previous decisions of higher judges are bound by previous decisions of higher courtscourts
Copyright © 2008 Pearson Education Canada 2-9
Sources of LawSources of Law
Common LawCommon Law the precedent-making decisions of the courts the precedent-making decisions of the courts
of Great Britainof Great Britain Law of EquityLaw of Equity
decisions made by Court of Chancerydecisions made by Court of Chancery StatutesStatutes
Copyright © 2008 Pearson Education Canada 2-10
Statute LawStatute Law
Statute Law Statute Law Legislation overrides common law or Legislation overrides common law or judge-made law judge-made law
Often summarizes or modifies common Often summarizes or modifies common law. For example:law. For example:
• Criminal Code Criminal Code • Trespass Act Trespass Act
Includes government regulationsIncludes government regulations
Copyright © 2008 Pearson Education Canada 2-11
The Law in CanadaThe Law in Canada
Constitution Act, 1867 – Division of Constitution Act, 1867 – Division of PowersPowers
Statute of Westminster (1931)Statute of Westminster (1931) Constitution Act (1982) Constitution Act (1982) The Canadian Charter of Rights and The Canadian Charter of Rights and
FreedomsFreedoms
Copyright © 2008 Pearson Education Canada 2-12
ConventionsConventions
Canada inherited certain conventions or Canada inherited certain conventions or traditions from Britaintraditions from Britain
For example:For example: Democratic parliamentary systemDemocratic parliamentary system Rule of LawRule of Law Principles established in the Principles established in the Magna CartaMagna Carta and and
the the English Bill of RightsEnglish Bill of Rights
Copyright © 2008 Pearson Education Canada 2-13
Constitution Act (1867)Constitution Act (1867)
Formerly known as British North America Formerly known as British North America ActAct
Sections 91 and 92 divide powers Sections 91 and 92 divide powers between federal and provincial between federal and provincial governmentsgovernments
Structure of the judicial systemStructure of the judicial system
Copyright © 2008 Pearson Education Canada 2-14
Question for DiscussionQuestion for Discussion
Canada’s constitutional structure is Canada’s constitutional structure is essentially different from Britain’s because essentially different from Britain’s because it consists of the federal government and it consists of the federal government and ten provincial governments each with ten provincial governments each with power to act in their own jurisdiction. power to act in their own jurisdiction. What impact does this have on businesses What impact does this have on businesses operating within and between provinces?operating within and between provinces?
Copyright © 2008 Pearson Education Canada 2-15
Constitution Act (1982)Constitution Act (1982)
Lists government enactments having Lists government enactments having constitutional statusconstitutional status
Ends ties with British GovernmentEnds ties with British Government Establishes amending formula for Establishes amending formula for
constitutional changeconstitutional change Charter of Rights and FreedomsCharter of Rights and Freedoms
Copyright © 2008 Pearson Education Canada 2-16
Human Rights LegislationHuman Rights Legislation
Traditionally common law and custom Traditionally common law and custom protected human rights and individual protected human rights and individual freedomsfreedoms
Legislation now protects individuals Legislation now protects individuals against human rights violations in social against human rights violations in social and private relationshipsand private relationships
Canadian Bill of Rights attempted to Canadian Bill of Rights attempted to protect individuals from abuses by protect individuals from abuses by governmentgovernment
Copyright © 2008 Pearson Education Canada 2-17
Charter of Rights and FreedomsCharter of Rights and Freedoms
Entrenches individual rightsEntrenches individual rights Protects individuals from infringement on Protects individuals from infringement on
their rights by governments or their agentstheir rights by governments or their agents
Copyright © 2008 Pearson Education Canada 2-18
Charter of Rights and Freedoms/2Charter of Rights and Freedoms/2
Limitations on Charter rightsLimitations on Charter rights Section 1 - interference with right must Section 1 - interference with right must
be justifiable in a free and democratic be justifiable in a free and democratic societysociety
Section 33 - legislatures can pass acts Section 33 - legislatures can pass acts that infringe on rights “notwithstanding” that infringe on rights “notwithstanding” the Charter but legislation must be the Charter but legislation must be reviewed every 5 yearsreviewed every 5 years
Copyright © 2008 Pearson Education Canada 2-19
Personal FreedomsPersonal Freedoms
Democratic RightsDemocratic Rights Mobility RightsMobility Rights Legal RightsLegal Rights Equality RightsEquality Rights Language RightsLanguage Rights
Copyright © 2008 Pearson Education Canada 2-20
Human Rights LegislationHuman Rights Legislation
Canadian Human Rights Act – federal Canadian Human Rights Act – federal legislationlegislation
Provincial human rights acts – protect Provincial human rights acts – protect private relationshipsprivate relationships
Must comply with CharterMust comply with Charter Tribunals hear complaintsTribunals hear complaints
Copyright © 2008 Pearson Education Canada 2-21
Question for DiscussionQuestion for Discussion
Consider the principle of supremacy of Consider the principle of supremacy of Parliament and the limitations placed on Parliament and the limitations placed on Parliament by the Charter of Rights and Parliament by the Charter of Rights and Freedoms.Freedoms.
Is it appropriate for the Courts to have the Is it appropriate for the Courts to have the power to declare some legislation invalid?power to declare some legislation invalid?