The Canadian Legal System: An Overview

The Canadian Legal System

• This chapter provides the historical background to Canadian law
• This chapter identifies sources of Canadian law
• This chapter introduces the concept of legal jurisdiction
• This chapter compares and contrasts criminal and civil legal procedures

What is Law?

• A formally enacted or customary body of rules recognized as binding on people within a state/community
• Enforcement of rules is part of the design in an organized society

Purposes of Law

• Maintain the integrity of state boundaries
• Maintain law and order
• Protect citizens from each other and abuse of power by officials
• It is designed to provide forum for dispute resolution between citizens or between citizens and government
• It establishes and maintains standards relating to areas such as health, education and employment

Theoretical Bases of Law

• Positive Law is law created by a person or body with authority to enact and enforce it
• Natural Law means law based on moral, religious or philosophical grounds
• Legal Realism means law is whatever judges say it is

Divisions of Law

• Public law is associated with government and the public interest
• Private law is associated with interpersonal matters
• Criminal law seeks to provide protection of the political security of the state and its citizens
• Civil law seeks to provide non-criminal resolution of disputes
• Substantive law relates to rights and remedies
• Procedural law relates to the procedures through which substantive rights are protected

Canadian Governmental Hierarchy

• The sovereign, Queen Elizabeth II
• Federal parliament (House of Commons and Senate)
• Provincial or territorial legislatures
• Municipal governments

Players in the Legal System

• Legislators are elected
• Judges are appointed
• Jurors are chosen from citizens who have no criminal convictions
• Lawyers must be "called to the bar" and have a law degree
• Clients
• Police

Sources of Canadian Law

• Royal prerogatives are a source of Canadian Law
• Legislative enactments
• Delegated lawmaking
• Judge-made law

Federal Courts

• Supreme Court of Canada has nine federally appointed justices with jurisdiction to hear all criminal, civil and constitutional cases
• Federal Court of Canada has trial and appeal divisions with jurisdiction to hear cases on patents, copyright, trademark, aeronautics, maritime law, interprovincial and federal-provincial disputes
• Tax Court of Canada
• Court Martial Appeal Court of Canada deals with military matters
• Court of Canadian Citizenship

Provincial Courts

• Superior Courts of the Province have federally appointed judges with jurisdiction to hear indictable offence cases like murder/ treason
• They also hear divorce cases, civil cases above the ceiling for small claims, and admin law applications from boards and tribunals
• Provincial Courts have provincially appointed judges with jurisdiction to hear less serious Criminal Code offences
• Also to hear support and custody applications in family law, youth court issues and small claims cases
• Provincial Boards, Commissions and Tribunals jurisdiction includes liquor licensing, employment standards and labour relations

Civil Court Procedure

• There are 5 stages: Pleadings, Discoveries, Pre-trial or mediation, Trial, Appeal

Civil Court Procedure Stages

• Pleadings involve the plaintiff filing a statement of claim that is personally served on defendant
• The defendant responds with a statement of defence
• The defendant may also counterclaim against the plaintiff and crossclaim against co-defendant
• Defendant can bring third party claim against someone not a party to the lawsuit
• The plaintiff responds with reply or statement of defence to the counterclaim
• Discoveries seek 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
• Parties must list all documents relevant to the case and the names of witnesses to be called
• Pretrial or mediation is intended to facilitate settlement or reduce issues at trial
• If a pretrial occurs, that judge is disqualified from proceeding at the actual trial
• In some provinces/territories, mediation is mandatory
• The plaintiff makes opening statement and presents case at trial
• Plaintiff's witnesses are examined in chief, and cross-examined by the defendant
• The defendant presents defence in chief, and plaintiff cross-examines
• The plaintiff must prove case on a balance of probabilities
• Appeals of civil cases are not granted automatically
• Appeals are usually limited to errors of law, and not of fact

Civil Court: 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 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 in judgment

Civil Court: Evidence

• Rules of procedure require that evidence gathered that infringes rights guaranteed under the Canadian Charter of Rights and Freedoms is inadmissible

Criminal Procedure

• Designed to protect against acts that threaten the security of a person or the state
• Types of offences: summary conviction (minor), indictable (serious), and hybrid
• In hybrid offences the Crown can proceed summarily or by indictment
• The Crown must prove its case beyond a reasonable doubt.

Criminal Procedure Stage

• First step is arraignment If plea is "not guilty,” the case proceeds to trial
• 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

An introduction to Canadian law, its historical background, various sources, and the concept of legal jurisdiction. A comparison of criminal and civil legal procedures. Understanding the purposes and theoretical bases of law.