Canadian Law: Key Concepts

Criminal Code of Canada

• Defines crimes and their punishments in Canada
• Establishes what actions are offenses and the penalties for committing them

Public Law

• Regulates activities between a state and its citizens

Statute of Westminster (1931)

• British law granting Canada full legislative independence
• Allowed Canada to make its laws without British approval

Magna Carta (1215)

• Historic document establishing the rule of law, ensuring no one, including the king, was above the law

Charter of Rights and Freedoms

• Passed in 1989, a bill of rights entrenched in the Constitution of Canada
• Forms the first part of the Constitution Act

Ultra Vires

• Latin term meaning "beyond the power of"

Anti-Terrorism Act

• Passed after a terrorism attack on the United States of America demolished the World Trade Center and damaged the Pentagon
• Canadians were fearful something similar would happen in their country

Trial by Ordeal

• Involved torturing the accused to determine guilt/innocence
• Sometimes involved forcing the accused to hold a hot bar of iron

Canadian Council for Tobacco

• Organization focused on public health
• Reduces the use and consumption of tobacco, prevents smoking-related diseases

Public Safety Act

• Greatly increased the investigative powers of police and security forces

Trial by Combat

• Accused and accuser would fight until one was defeated
• People believed God would favor the innocent and reveal the guilt of the defeated party

Apartheid

• Former policy of the South African government
• Involved discrimination and segregation against non-whites

Lord's Day

• Made it illegal to transact business on a Sunday, based on Christian beliefs
• Struck down as unconstitutional because not all people are Christian

The Apology

• Clear and dramatic statement of the theory of natural law
• Accurate summary of Socrates' defense (399 BCE)

Krever Commission

• Canadian government inquiry into the tainted blood scandal of the 1980s and 90s
• Resulted in thousands of infections due to contaminated blood products

Intra Vires

• Latin term meaning "within the power of"

Leviathan

• Famous book by Thomas Hobbes
• Introduced a new purpose for law

Private Law

• Regulates disputes between individuals, businesses, or organizations
• Sometimes called civil law

Dialectic

• Process of clarifying an idea through discussion

Jurisprudence

• Philosophical interpretations of the meaning and nature of law

Rationalism

• Philosophical belief that logic and reason are the primary sources of decision-making

The Republic (Plato)

• Philosophical work discussing justice and the structure of an ideal society led by philosopher-kings

Constitution

• Body of written and unwritten laws setting out how the country will be governed
• Sets out the distribution of powers between the federal government and the provinces
• Embodies certain important legal principles

Utilitarianism

• Theory that the law should achieve the greatest good for the greatest number of people

Entrenchment

• Protecting a portion of a constitution by ensuring it can only be changed through formal amendment

Idealism

• Law should reflect certain universal, absolute, and eternal truths

Marxism

• Economic and political theory
• States that law is an instrument of oppression and control used by the ruling classes against the working classes

Feminist Jurisprudence

• Theory that law is an instrument of oppression by men against women

How a Bill is Passed

• Bills follow a review, debate and voting process
• After being passed by both the Senate and the House of Commons, the Governor General grants Royal Assent, and the bill becomes law

How Many Readings Before a Bill Becomes Law

• A bill must go through three readings before it becomes law

R. v. Sauve (2002)

• Supreme Court case upholding the voting rights of prisoners
• Reinforces democratic principles and the right to vote under the Canadian Charter of Rights and Freedoms, section 3

Tainted Blood Scandal

• National health scandal where thousands of Canadians were infected by contaminated blood supplies
• Involved HIV and hepatitis C
• Led to legal reforms in medical safety requiring blood to be tested

Canada's Highest Court of Appeal

• The Supreme Court of Canada has the final say on legal matters

Appointment of Judges

• Federal judges are appointed by the prime minister
• Recommendations are from the minister of justice

R. v. Big M Mart

• In 1982, Big M Drug Mart opened for business in Calgary
• Charged with violating the Lord's Day Act after witnessing business transactions
• The Supreme Court struck down the act as unconstitutional

Aspects of Roman Law Adopted by Canada

• The use of codes
• The use of Lawyers

Influence of Rome on Canada's Legal System

• Canada adopted two aspects of Roman Law: the use of Lawyers and codes

Three Secondary Sources of Law

• The constitution
• Statute law
• Case law

Four Primary Sources of Law

• Values
• Beliefs
• Principles
• Historical development

Categories Under Private Law

• Contract law governs agreements between people or companies to purchase or provide goods or services.
• Family law governs relations among members of a family.
• Tort law covers civil wrongs and damages caused independently of a contractual relationship.
• Estate law regulates wills and probates and determines what happens to a person's property after death.
• Property law applies primarily to the buying, selling, and renting of land and buildings and their usage.

Public Law

• Criminal law prohibits and punishes behavior that injures people, property, and society.
• Constitutional law in Canada sets out how the country will be governed, distributing powers between government levels.
• Administrative law governs relations between people and government agencies, boards, and other departments.

Aquinas's Definition of Human Law

• Law is an ordinance of reason for the common good, promulgated by the caretaker of the community.
• Law is a product of human reason, made for the common good by a ruler who cares for the community and publishes it for all to know.

Differences Between Aristotle and Plato

• Aristotle believed people fall into 3 classes: some are born good, some can be made good through education, and the majority are ruled by their passions and require law to be good.
• Aristotle believed most people follow reason only through fear of punishment and thought law had a moral purpose to force people to live according to their reason rather than their passion.
• Plato thought education makes people “good” and that humans are social by nature, with organized society as a natural institution.
• Plato believed society helps people develop a good life led by principles of justice and that human laws must be based on knowledge of external laws that rule the universe, providing the foundation for idealism.

Natural Law vs. Positive Law

• Positive law is a body of rules formulated by the state that citizens are obliged to obey for the state's good.
• Natural law is the theory that human laws are derived from eternal and unchangeable principles regulating the natural world and are understood through reason.

Socrates

• Greek philosopher known through his pupil Plato, who never recorded his own thoughts.
• His method involved discussions in Athens about topics like love, virtue, justice, and knowledge, aiming to reach agreement through questions.
• Socrates believed the law demands that each person do what is right and avoid what is wrong.

Plato

• Thought humans are social by nature and organized society is natural.
• Believed society exists to help people develop a good life based on justice.
• Argued human laws must be based on external laws and provided the foundation for western idealism.

Aristotle

• Student of Plato who disagreed with him in several ways.
• Agreed with Plato that humans are political animals but believed reason sets humans apart, allowing them to distinguish between right and wrong known as Rationalism.
• Thought law had a moral purpose, forcing people to live according to reason.

St. Thomas Aquinas

• Adapted Aristotle's thought as a Christian philosopher.
• Identified four kinds of law: eternal law, natural law, divine positive law, and human positive law.
• Eternal law is the body of laws by which God created and keeps the universe in operation, existing outside time.
• Natural law is the eternal law as it operates in humans and can be known by them.
• Divine positive law is part of the eternal law revealed in scriptures, including the 10 Commandments.
• Human positive law consists of laws humans make for society, with humans created for a spiritual purpose to be united with God after death.

Thomas Hobbes

• Wrote "Leviathan", introducing a new purpose for law.
• Theorized that the state of nature was a perpetual war where the strong plundered the weak, leading the weak to unite against the strong.
• Believed law protects man from his own brutality, with an absolute ruler for the state, ensuring laws serve the state's good/benefit.

John Locke

• Opposed Hobbes and recommended, in "Two Treatises of Government (1690)", that the people were justified in rebelling and replacing the king if he violated their natural rights.
• Believed every man has rights to life, liberty (freedom of thought, speech, and religion), and property.
• His synthesis of natural and positive law theory influenced philosophers for hundreds of years, laying the foundation for modern democracy and inspiring the American and French Revolutions.

Jeremy Bentham

• His analysis of human nature led him to believe that people strive for maximum pleasure and happiness.
• His philosophy became known as utilitarianism.

John Austin

• Agreed with Bentham's utilitarianism and separated law from morality
• Dismissed judging law by morals or religion as subjective.
• He Believed every law passed must be obeyed.
• Said Individuals must yield to the governing body, as the purpose of law, as set by the government, ensures the majority's happiness.