Law Notes Pt 1 PDF

What is the Law? -​ Law gives us rules of conduct that protects everyone's rights -​ Balances individual rights with our obligations as members of society Key foundations and principles of our legal system -​ People should be treated equally -​ Law should not be influenced by power or wea...

What is the Law? -​ Law gives us rules of conduct that protects everyone's rights -​ Balances individual rights with our obligations as members of society Key foundations and principles of our legal system -​ People should be treated equally -​ Law should not be influenced by power or wealth -​ Our courts should be fair and unbiased -​ Judges should treat all people with respect -​ People would agree that the points above are important in a legal system. They are known as the principles of fundamental justice. -​ These principles of fundamental justice are significant because they have a broad impact on society. Helps us live up to the democratic and free nation we are today. Legal Reform (reasons our laws change) Factors driving changes in law -​ Demographic changes -​ Technological changes -​ Changes in values -​ National emergencies Demographic Changes -​ Change relating to birth and death rates, trends in immigration, education and employment Technological Changes -​ As technology advances our laws need to evolve to reflect these advancements and deal with the changes Change In Values -​ People used to tolerate things that cannot be tolerated today. As our values change our laws have to change. It took time for the public to realize how harmful these behaviours could be (Marijuana, alcohol can be sold in convenience stores now, smoking inside a restaurant) National Emergencies -​ Throughout Canadas history, parliament has passed laws in response to national emergencies. Sometimes these laws were meant to be temporary but were never appealed The Possibility of Change -​ For legal changes to occur 3 conditions must be met  1.​ Rule of Law -​ Individuals must recognize and accept that law is necessary to regulate society -​ The law applies equally to everyone, including people in power -​ No one in our society has the authority to exercise unrestricted power to take away our rights expect in accordance with the law -​ A peaceful procedure must exist to change the law 2.​ Democratic system of government -​ Easiest to bring about peaceful and orderly legal change in a country that has democratic system -​ Some democracies also have advantage of a constitution and bill of rights -​ Democracy allows people to protest for legal change in other ways. (Protest, petitions) 3.​ Independent Justice System -​ If a country’s people are to respect the law, judges in that country must be able to function independently of the other branches of government -​ Helps the independence of the judiciary for a country's court system to be organized in a hierarchical fashion. Allows for a system of appeals 4.​ Change as a result of individual action -​ Throughout history, there have been examples of individuals who struggled to change unjust laws. 5.​ Challenges laws in court (CCRF, Canadian charter of rights and freedoms) -​ Since the CCRF has been entrenched in our constitution, many people have challenged the constitutionality (being in accordance with our law) of a law in the courts -​ There have been many examples of the courts striking down a law because it was found to violate the rights in the CCRF -​ Charter rights are basic rights, access to your own thoughts, religion, drinking water, ect… essentially basic human rights.) Sources of Canadian Law Primary sources  -​ Religion and historical influences -​ Customs and conventions -​ Social and political philosophy Secondary sources -​ Constitution -​ Court decisions Primary Sources of Canadian Law -​ Canadas legal system is the outcome of a historical development that stretches back thousands of years -​ The systems cumulative values, and principles are based on actions and decisions of the past -​ The parts of the legal system that have the longest historical development are known as PRIMARY SOURCES OF LAW Religion -​ Canadians laws reflect our judeo-Christian religious heritage -​ THe core of these laws, called the Ten Commandments forbade the people among other things to commit murder and theft. -​ These are translated into our criminal code directly sections 235(1), 344 and 132 Historical Influences -​ Our laws reflect British and French laws, both were influenced by the Greek and Roman laws, these were based on such idea as the concept of private property that came from the ancient kingdoms of Mesopotamia Greek influence -​ Greeks gave us juries -​ First European people to practice democratic ideals in their political and legal system -​ They practiced a “limited” democracy. Citizenship was limited to nativeborn men over the age of 18.Women were excluded -​ Voting wasn’t just a right, but a serious responsibility -​ People accused of crimes were tried by juries -​ To avoid bribery, juries were quite popular -​ Two very important principles. -​ Citizen participation, -​ and the trial jury are entrenched into the Canadian Charter of RIghts and Freedoms Roman Influences -​ Gave us law schools -​ Over time, Roman laws became more numerous and their interpretations more complex  -​ At this point, the Romans began to train specialists (lawyers), to advise citizens on what they need to do if they have any issues with the law -​ Canada has adopted these aspects of the Roman Legal System. The use of codes and lawyers British Influences -​ (Trial By Jury) -​ Britain has had a greater influence on the government and laws of Canada than any other country -​ Such fundamental rights as trial by a jury of ones fellow citizens, which Britain adopted from the Greek law, presumption of innocence and the rule of law adopted from Roman law, were all inherited from Britain. These rights are considered so important that they have all been entrenched in the constitution in the CCBF ___________________________________ -​ In medieval England there was no standard way of deciding a persons guilt or innocence. Instead, system of adjudication varied from place to place and were influenced by local custom and superstition-trial by ordeal -​ Faults in this system is obvious. Person who is stronger would win the fight, and many innocent people would suffer -​ In the 11th century, local judges were created to hear problems and come up with solutions. There was no consistency with punishments. So they realized they needed to come together, and come back later to create a consistency with the punishments -​ At some point they began to write down their decisions and the reasons, this become known as case law or common law and precedent Customs and Conventions -​ Other primary sources of Canadian law are customs and conventions -​ Custom -​ A long established way of doing something that over time has acquired the force of law -​ Example: For generations people cross through someones property to get to the beach. The villagers could say that it can still happen because its been going on for so long. The judge would say its okay because its been going on for so long Convention -​ Similar to customs but apply to political practices -​ A way of doing something that has been accepted for so long taht it amounts to an unwritten rule -​ Example: It is not a law, but a practice that is followed Influence of social and political philosophy -​ social movements and political philosophies have also influenced Canadas Laws -​ Public reaction to the Holocaust during WW2 helped create a social movement that eventually created the Canadian human rights act 1977 -​ Events from the Great Depression had a direct impact on provincial and federal legislation in such areas as social security, employment insurance, and workers compensation benefits Secondary Sources of Canadian Law -​ Current laws that enshrine a society's values in written rules and regulations that have been formulated by legislators and judges -​ Consists of laws and reported cases that have been written down by various lawmakers -​ -​ The 3 sources of secondary law can be though of like a pyramid with the most important source at the top -​ TOP (Constitutional law - Statutes or acts - Case or Common Law) BOTTOM Constitutional Law -​ Canadas constitution holds the values and principles that Canadian law has derived from primary sources -​ Constitutional law may be defined as the body of laws that deals with the distribution of government powers and sets out certain important legal principles. The written part of the Canadian constitution actually consists of several documents, most of which have direct links to the legal traditions of Britain ‘ Parts of the Constitution -​ BNA Act also known as the Constitution act of 1867 -​ Through this act, Canada was created in 1867 -​ Canada was supposed to have a constitution similar in principle to that of the UK. This meant Canada inherited many ideas, customs, conventions, values. And principles of law from Britain that were not always written, but were understood from centuries of experience and case law. -​ Two of the most important principles are judicial independence and parliamentary supremacy Principle - Judicial Independence -​ Means that judges work independently of the government that appointed them.  -​ Their decisions reflect their own legal interpretation of the law and not government policy (They do thing their own way) Principle - Parliamentary Supremacy -​ Because we elect people to be in the parliament, we all in Canada have the ability to elect our leaders, it represents the Canadian population and they have the power to make our laws. -​ If we don’t like someone we elect somebody new —-----------^V^V^V^V^V^^V^^^^V^ -​ Over the years, Canadas constitution was amended several times by acts of the British parliament -​ In 1982, the constitution was patriated, which means that Canada now had the right to amend its own constitution -​ The right was entrenched in the Constitution act, 1982, one part of which was the Canadian Charter of rights and Freedoms -​ Besides these documents, the constitution reflects court decisions as well. Statute Law -​ Any law passed by the federal or provincial governments -​ Each level of government has jurisdiction to create laws based on s.91 and s.92 of the BNA Act -​ If the provincial government creates a law outside of their jurisdiction then it can be struck down as Ultra Vires -​ If a statute is within the power of the province, it is considered Intra Vires Statutory Interpretation -​ Judges interpret laws through cases referred to them -​ They have developed a bunch of rules to help them with statutory interpretation -​ STATUTE = LAW -​ Mischief rule, to help them understand a Statute better by focusing on the problem or mischief the statute was intended to correct -​ Internal aids, sections of the statute that define legal terms used in it or a preamble that explains the purpose -​ External aids, Legal dictionaries and scholarly articles Case Law -​ For most court cases, judges have to render a written decision or explanation of their ruling. These decisions form a substantial body of case law -​ The concept STARE DECISIS means that a precedent must be considered when ruling on a case with similar circumstances, the precedent must be followed if it was set by a court higher than the one in which the case was heard  -​ There may be cases in which a precedent does not apply, either because the precedent comes from another province, or the circumstances of the case are different, or because times have changed sto such an extent that the precedent has been outdated. When this happens, judges have the option of DISTINGUISHING THE PRECEDENT, that is, they decided not to follow the precedent and in their decision they outline the reasons why -​ Lawyers and judges prepare for cases by reading through all the relevant case law Categories Of Law The Law International law, domestic law (canadian law) ​ ​ ​ ​ Substantive law, procedural law ​ ​ ​ Public law, Private law Constitutional law, administrative law, Criminal law​ ​ (private) Tort law, contract law, family law, wills and estates, property law, employment law Categories of Law explained Domestic and International law Domestic Law - Laws that are enforceable only within the jurisdiction of one particular sovereign state ​ Example: Laws of Canada, USA, Russia and any country (Domestic law breaks off) Substantive Law - Laws whose objective is to define rights and obligation of members of society. It is the substance of the law. Procedural Law - Outlines steps and procedures which govern how society protects and enforces rights and obligations under substantive law. Procedures that need to be taken. Substantive law is divided in Public and Private law Civil or private law - legal rules that govern peoples private relationship. The only people involved are you and the other person. Examples; Property, contract, Plaintiff vs defendant, Parties - Plaintiff vs defendant Purpose - resolution of disputes Remedy - compensation/restitution International Law - regulations that are agreed upon by various nations within the international community, can’t be forced upon a nation. ​ Example: Universal declaration of Human Rights, trade agreements, war crimes Civil or Private law types Tort Law - deals with wrongs committed against another not governed by criminal law, (someone breaks your laptop) Family Law - deals with relationships between individuals living together Contract law - deals with legally binding agreements between multiple parties Property Law - issues between individuals over land, buying and leasing Employment Law - deals with employment contracts, discrimination in the workplace and private issues Estate Law - Division of property after death; die with or without a will Public Law - laws that govern and regulate the interactions of the government and society -​ Criminal, constitutional and administrative law -​ Parties - Crown V Defendent -​ Purpose - Protection of society -​ Remedy - punishment/retribution Criminal Law - laws made by government that regulate the interactions of the state and its subjects Constitutional Law - laws that set out the structure of federal government and outline division of powers between federal and provincial government. (Canadian bill of rights, canada act) Administrative Law - regulates relationships between citizens, government, and public agencies. (Workplace safety, insurance board, minimum wage, rules for specific jobs) Theories of Laws The philosophy of law Jurists -​ People versed in law -​ Legal philosophies -​ Judges -​ Lawyers Philosophy -​ Not a body of knowledge, but an activity. Seek for the answer yourselves, seeking and understanding yourself We know that we are social creatures that come together, if we want to co exist, we need rules, laws, and objectives. These are the basis of our laws. Or else we will end up in chaos Laws Versus Justice  -​ People view law and justice as one in the same, but is that really the case Law Definition - a set of rules put in place to put order into society Justice Definition - A perspective on how fair a punishment or a trial was Over many centuries, legal scholars and philosophers have formulated various philosophical interpretations and definitions of the meaning and nature of law referred to as Jurisprudence -​ This field covers topics like -​ Definitions of law -​ Reasons for making -​ Obeying laws -​ Characteristics of good law -​ Definition of a crime -​ Distinction between law and justice What is justice -​ Defined in multiple ways -​ Some say, the only standard of justice is the law itself, rule of law determines what is just Ways to define -​ A personal point of view on a particular issues -​ Justice can mean different things to different people, thats the main idea Laws Versus Justice -​ Justice; concept characterized by fair distribution of advantages and burdens, in law, it is the concept of treating like cases alike and different cases differently Purpose of Justice 1.​ The instrument of society -​ We equate civilized with just -​ A civilized society is a just society 2.​ As a test of the law -​ Justice is done only if the criteria upon which law is made is just -​ Do not presume that laws are just -​ Should laws then always be obeyed -​ Substance of law comes into question -​ Is the law consistent with superior standards -​ A law may be legal, but not just 3.​  -​ Justice as a social norm -​ It originates from values, ideals and morals of our society or individuals -​ What is considered good/bad, right/wrong, fair unfair -​ Our sense of justice guides and determines social attitudes Ancient and Medieval Theories of Law -​ Until modern times, most theories of law could be grouped under two headings; Natural Law and Positive law Natural Law -​ Ancient and medieval theories of natural law are based on Divine Law, that a wise and beneficent God created the universe according to eternal and unchangeable laws -​ Example; Parents protecting their offspring -​ The theory recognizes law and morality as deeply connected, if not one and the same, therefore natural law theorists believe that human laws are defined by morality and not by an authority figure like a king or government -​ Any law that is good is moral and any moral law is good -​ Human beings; as a part of nature, universally live according to these ideal laws; universal MORAL order independent of human will -​ People can become aware of natural laws through the use of reason (rationalism) -​ Purpose of law is to promote goodness and justice, essential to humankind -​ Citizens should pursue right and goodness in their personal life and live in harmony with the laws of nature -​ Role of the state is to promote goodness, protect rights, liberty, property of citizens -​ Actions that would stop others from living a good life are considered immoral -​ A law that does not provide justice is not considered a law at all Socrates -​ Socrates was the greatest philosopher of all time, but never wrote a word. -​ All that we know comes down from his student (Plato) and other philosophers -​ He had a gift for rhetoric and debating -​ He based his philosophy on the need to “know yourself” and on living the “examined life” even though the height of wisdom according to Socrates, was to know how thoroughly ignorant we are. -​ Much of his work was dedicated to defining the living the ideals of justice and the good life  -​ Philosophic method; meet people in the streets in Athens and start a discussion about a particular topic, like justice or love -​ Through a process called dialectic. He questions, gets an answer, but then he further questions. He would try to arrive at some agreement about the meaning of the term under discussion and an understanding of how the concept functioned in a persons search for the “good life” -​ In 399 BCE, he was placed on trial by the Athenians for a number of charges relating to his teachings. They felt he was “corrupting the youth” with his ideas -​ Socrates defence as it is portrayed in “The Apology”, is a clear and dramatic account of the theory of natural law; that there is a moral imperative in the law, and it must guide people in right living -​ Even in the face of death, says Socrates, the law demands that each person do what is right and avoid what is wrong. This is where true justices lies, in obeying the law that is based on the eternal principles that govern the universe, that is, in natural law Plato -​ Plato was a student of Socrates, everything we know about Socrates comes from the writings of Plato based on Socrates teachings. Therefore Socrates and Plato have very similar philosophies, it’s hard to separate their views -​ Plato thought that you can get to the good life by being educated -​ Nature is inherently reasonable and good -​ Law is the moral imperative and ideal that humans must ATTEMPT to achieve. The most basic law is to do good and avoid evil. All the rest of natural law flaws from this basic idea -​ He thought that humans were social by nature and that orgnaized society was a natural institution -​ Society or the state did not exist for economic reasons, but to help people get to the good life. That life is led according to the principles of justice Biggest difference between Socrates and Plato is the education -​ Much of Platos longest dialogues called “the Republic” focuses on this question -​ Here, Plato writing in the voice of Socrates says that the workings of natural justice should be evident in two places. In the individual and the state -​ An individual may be considered “just” when all that persons powers-physical, mental and spiritual are working in harmony with eachother, with the lower powers subordinate to the higher powers -​ A person achieves a state of justice through the use of reason  -​ The state is considered just when each class performs its own functions properly and does not interfere with the functions of any other class -​ Since law should reflect a moral quality, Plato argues that it is just to disobey an unjust law that does not produce harmony and justice (civil disobedience) Aristotle -​ Aristotle was a student of Plato -​ In his philosophy, he was strongly influenced by Plato, but disagreed with many things -​ Aristotle agreed that humans are political animals. We resemble bees, ants, and cranes who live within a social organization -​ What sets humans apart is their reason, which allows them to tell the difference between good and bad -​ A part of his philosophy focus on the process of using reason to analyze the natural world from observation which we know is rationalism -​ Plato thought that education was the answer to making people “good” and that anyone who really knew what good was would do good. Aristotle Disagreed -​ He felt that people fall into one of 3 classes 1.​ Those that are born good 2.​ Those that can be made good through education 3.​ The majority of people are ruled by their passion, and education alone will not make them good. Only law can do that -​ Only through fear of punishment most people can be persuaded to follow reason and thus do what is right instead of wrong -​ Since law is so important to the working of the state, citizens should train as legislation, this is the only way they will learn how to regulate the behavour of their fellow citizens and ensure the prosperity of the state -​ Aristotle, like Plato, thought that law has moral purpose -​ It forced people to live according to their reason rather than their passions -​ Reason is a spark of the divine in human beings; by following their reason people fulfill their greatest potential -​ Therefore the laws of the state must have as its highest purpose- to help citizens use their faculty of reason to reach their greatest potential and by doing so to live a good life. St Thomas Aquinas -​ He lived at a time in the middle ages when greek philosophy had just been rediscovered in Europe and was causing a sensation in the universities -​ He adapted Aristotles thoughts to his own purposes as a Christian philosopher -​ His teachings on natural law would have profound influences on the development of legal theory over the centuries -​ Aquinas identified 4 kinds of laws 1.​ Eternal law -​ Body of laws which God created the universe and keeps it working -​ Exists outside time and will never change -​ Impossible for us to have perfect knowledge of eternal law due to being impossible to understand the mind of God 2.​ Natural law -​ Eternal law as it operates in humans and can be known by them -​ We know this law through our faculty of reason -​ Example; parents should care for their children -​ Each person should try and preserve his/her life -​ People should do no harm -​ We should all assist the poor, or anybody that needs 3.​ Divine positive law -​ The part of eternal law thats revealed through scriptures -​ Like the ten commandments 4.​ Human positive law -​ Though it is evident that murder is wrong from natural law, for the sake of an orderly society there has to be a written law against murder im -​ Aquinas agreed with aristotle that human law has a moral purpose but he disagreed with the idea that humans can develop their greatest potential -​ He thought humans were created for a spiritual purpose and they should live in a way that they will be united with God after death -​ Therefore the state is not the ultimate authority. On earth, rather the Roman Catholic Church is, since it has been put in charge of the spiritual needs of the human race -​ The state must be subordinate to the church -​ Aquinas thought that people are bound by conscience to obey a just law. Not an unjust law. People Aren't obligated to obey laws that conflict with divine laws -​ Aquinas defined human law in the following manner -​ The law is a product of human reason (based on natural law) -​ Made for the common good -​ Made by a ruler who cares about the community -​ Published so that everyone knows it -​ Laws that fulfill these requirements are just and work for the good of all citizens. As well, they are in harmony with the final end of human life which is spiritual Legal Positivism / Positive Law How is positive law different than natural law -​ Law and justice are not the same -​ Law=body of rules formulated by the state; opinion of whoever holds power at the time; based on human authority -​ These theories developed during the intellectual movement (17th century) -​ Positive law philosophers tried to analyze human nature and society without relying on religious teachings What is positive law -​ Sharp control to natural law -​ Natural law sees a powerful connection between morality and law, positivists insist that a law doesn’t need to be moral to be a law. The law should be followed because it is the law -​ Laws have no moral purpose other than to ensure the survival of the state, and objections to it was no longer a matter of conscience -​ Law is ALWAYS -​ Decided by formal institutions, governments, officials -​ Systematically written down -​ Enforced by government -​ Law gets authority from the power of government -​ While laws often reflect important moral values, these values are not necessarily natural or universal -​ This is why different countries have different laws about same behaviours (prositution and drug use) -​ In the law, laws are established by governments to maintain social order and secure the best possible life conditions for their citizens -​ People should respect laws and legal institutions because they serve the population by keeping social life predictable, safe and orderly and they are for the good of the state as a whole -​ Therefore the state enforces these laws and it is jsut and fair that the state has the power to impose big consequences if laws are broken Thomas Hobbes (1588-1679) -​ Wrote the famous book leviathan, which put forth a new purpose of law -​ He believed that human beings are naturally evil, and law was necessary to curb the greed, fear and violence that were a part of human nature  -​ All people obey the law at all times because to not follow the law would lead into world chaos -​ The weakness of natural law is that t allows people to find their own meaning of the law, this makes laws ineffectual and legitimizes tyrants -​ He believed that the state of perpetual war where the strong prey on the weak. “In the state of nature, life is solitary, poor, nasty, brutish, and short.” -​ The only way we can live a peaceful life is to hand over our rights to a government, and they will ensure survival of the community John Locke (1632-1704) -​ English philosopher and political theorist -​ Synthesis of natural and positive law -​ Tried to temper the extreme pessimism of Hobbes by including aspects of natural law. He believes that when we are born some natural rights are given to us by God -​ The most fundamental rights are life, liberty, and property -​ Natural law states no person should deny rights to another, therefore, according to Locke, the main goal of the state is to preserve these rights -​ In the state of nature, peoples passions often got the better of their reason and this led to injustice as the strong took whatever they wanted from the weak -​ Therefore, it as to the peoples advantage to form a civil society, where the civilians handed over their rights to the state of authority -​ Locke recommends that if the ruler violates the natural rights of the people, they are justified om rebelling and replacing an unjust government in order to gain rights Jeremy Benthem -​ If humans were left to their own devices, they would try to achieve the maximum pleasure and happiness in their lives -​ He proposed a new way to judge whether a law was good or bad; the law should be evaluated by its utility to society (what it did for society) -​ A truly just law provides the greatest happiness for the greatest number of people. -​ This is known as utilitarianism (test term) John Austin -​ Agreed with Bentham that the purpose of the law was the secure the happiness of the majority, he separated law completely from morality -​ He believed that natural law and individual morality are too subjective to secure the happiness of the majority -​ To judge laws using moral or religious code would mean that each person in society had his or her own interpretations of the law and therefore could obey those laws they judged to be good and disobey those they thought were bad and no society can function -​ (it was a bad thing to be too happy cause then people wouldn’t follow laws)  -​ Positive law on the other hand provided an objective measure judgement-every law set had to be obeyed and there was a concrete consequence based in tradition HLA heart -​ British legal philosopher -​ Father of modern legal positivism -​ Hart argues that law is a system of rules and that all societies have social rules -​ He divided these rules into primary and secondary rules How he organized rules Primary rules -​ What people can and cannot do Secondary rules are divided into 1.​ Rules of adjudication - to resolve legal disputes 2.​ Rules of change - allowing laws to be changed 3.​ Rules of recognition - allowing laws to be identified as valid His goal was to take morality out of law R.M Dworkin -​ Political and legal philosopher -​ Law must have a moral content -​ Legal reasoning is interpretive as we try to make political and moral sense out of difficult situations or cases -​ Law should be a union of widely held, coherent political decisions that show a consistency of moral choices and a shared vision of social justice -​ Law cannot focus on individual wants and desires Modern and Contemporary Theories of Law Legal Realism -​ Considered a subcategory of legal positivism because it holds values that are variable, not universal -​ What is true, moral and fair depends on the perspective of individual -​ Differs from both natural law and legal positivism in that it tries to explain the law through the real actions of individual lawmakers rather than through ideas about nature or government -​ The argument is that in reality, laws are always flexible -​ Judges interpretation of the law based on their experiences, based on their own personal morals. -​ In legal realism, individual bias is gonna be there in some way. Marxism -​ In 1848 settled in England during the time when England was still experiencing the dramatic effects of the Industrial revolution -​ Marx became fascinated with the class struggle he saw -​ This became the basis of his theory, one that was rooted in the inequalities he detected in the new economic system According to Marxism -​ Law is simply class rule. The “ruling class” controls the law. Law is an instrument used for maximizing ruling class interests in society and controlling the working class -​ Laws were just a way of ruling the rich and the poor Feminist Jurisprudence -​ Came out of the womens liberation movement of the 1960s -​ Feminist theory argues that the law has been used as an instrument of oppression -​ They challenge the idea that law is objective and neutral in its application and that everyone is treated equally under it -​ They argue, this isn’t the case for women who have been treated differently than man under the law -​ This treatment takes at least 3 forms according to them 1.​ Historical examples of explicitly discriminatory laws 2.​ The laws historical failure to respond to womens needs as distinct from those of men 3.​ Legal institutions are systematically biased against allowing women to attain positions of power and prestige Concept of Procedural Justice -​ Long Fullers theory is procedural justice. Professor at harvard that taught that law is a special body of procedures that must be carefully analyzed to ensure the citizens of a country are provided with the best legal system possible -​ Fuller judged the quality of a law based on whether the procedures used to administer it actually worked. -​ Fuller determined that a countries laws must have a fairness that makes them workable -​ The law is meant to guide human behaviour in such a way as to create and maintain social order -​ This order is not possible to accomplish if the rules that are administered are not fair Restraint Of Power -​ Philip Selznick taught for many years at stanford university  -​ He believes the country will have the best laws and justices will be achieved only when there is an independent body or branch of government that can challenge, review, and limit the laws made by the ruling power -​ The people that have this power needs to have a restraint or someone to question UNIT 2 The Constitution A blueprint for law What is a constitution A set of principles set by the government, which is the basis of other laws -​ Supreme instrument of legal authority that should reflect the shared economic, social, and political values of a nation's citizens -​ Its purpose is to establish a blueprint of how a country should be run. Outlines how power and authority of a country is exercised Types of Constitutions 1.​ Written -​ Comprehensive statement of the basic principles of government -​ + the rights of people -​ A single document supreme over all laws -​ Has valuable symbol that reinforces the commonly held values in society 2.​ Unwritten -​ Unwritten rules of discretion -​ Traditional values that have constitutional status, but aren’t written down. Much like conventions -​ Customs - things that have been going on for so long that we accept it as part of the law 3.​ Hybrid -​ A constitution that has both written and unwritten documents -​ Canada has hybrid Unwritten + Written constitutions -​ Hybrid constitutions are equally important, therefore need to be respected -​ Should be supported by the citizens and government to be effective Elements of most constitutions 1.​ -​ Principle and objectives of the political, social and economic values hel by the people  2.​ -​ Definitions of main powers of government (legislative, executive, judicial branches) and the responsibilities of those in these positions (powers + limits to power) 3.​ -​ Some definition of division of powers 4.​ -​ Definition of the relationship between government and the people and the rights of citizens Evolution of the Canadian Constitution 1867 BNA act -​ Gave Canada its first written constitutional changes -​ Passed by British parliament; any changes would go through british government until patriated in 1982 -​ Divided power between central (federal) powers and regional (proncial governments) -​ Federal power dealt with issues of national concern \, like defense -​ Provinces had secure power over areas that might have competing interests, like its education -​ Provinces enacted municipal act to give cities authority to provide basic services and levy taxes 1931 - Statute of Westminster -​ Any law written down in place didn’t pass down to British colonies unless they wanted it to. -​ Canada received autonomy and full legal authority -​ British law no longer applied to Canada -​ Independent in terms of foreign policy 1960 - Canadian Bill of Rights -​ Earliest expression of human rights and laws regarding fundamental freedom at the federal level in Canada 1982 - Constitution Act -​ Brought from Enlgand (patriated) Canada independent in all area of law -​ First time a charter of Rights had been included in any Canadian constitutional document -​ Courts were given much greater say in government -​ Defines canada's distribution of legislative powers between federal and provincial spheres  -​ Written. -​ Added an amending formula (way to change constitution in Canada that didn’t require britain 2 aspects of Canada's Constitution 1.​ Distribution of powers Distribution of legislative powers -​ Distributes decision making powers among different levels of government -​ Established at the time of the confederation and is just as valid today as it was then -​ Sections 91, 92, 93 of the act dictate the subject matter that federal and provincial parliaments may legislate Section 91 : Federal -​ Criminal law -​ Regulation of trade and commerce -​ Armed forces and defense -​ Currency, coinage -​ Aboriginals and lan reserves for them -​ Any company with Canada in its name Section 92: Provincial -​ Establishment and maintenance of hospitals -​ Validation of marriages -​ Property and civil rights -​ Administration of justice -​ Provinces have jurisdiction over everything considered local in nature Section 93: Provincial -​ Provincial legislatures have the jurisdiction over the implementation and maintenance of an education system What if there is no general law dealing with the subject matter in question -​ The canadian constitution grants the federal parliament residual powers’ -​ RESIDUAL POWERS - powers that arent specifically granted to any particular level of the government -​ Section 91 states that the federal parliament may “,ake laws for the Peace, Order, and good Government of Canada”. Concerning matters not given exclusively to the provincial government 2.​ Charter of Rights and Freedoms -​ Is there more to this Constitutional Amendments Changing A Constitution -​ Constitution should be open to change to reflect the beliefs and values of the societies they govern -​ Written constitutions normally have rules for bringing a change (method of amendment) -​ Prior to 1082 Canada had no authority to amend its own Constitution without the approval of the British parliament -​ Also change through judicial interpretation -​ Courts have a hard task of interpreting and applying constitutional principles to unusual circumstances in today's changing society -​ Experts argue whether the courts have too much authority to interpret and define the meaning of our constitution Amending Formula (to change a constitution) -​ Formula is contained in Part V of the Constitution act -​ 5 types of requirements for constitutional amendment 1.​ Those needing the supporting of the federal parliament and the house of commons, and at least 2/3 of the provinces representing 50% of the population of all the provinces (7+50 rule) 2.​ Those requiring the unanimous support of the federal Parliament and the legislatures of all 10 provinces Changes to use of official languages, office of queen, increasing number of SUpreme Court justices 3.​ Those requiring the support of only the federal parliament and certain provinces affected by the amendment Change to particular province, change of structure, education, remove publicly funded Catholic Schools 4.​ Those requiring the support of only the federal parliament Changes to only executive government; retirement age of senators;number of seats in the house of commons 5.​ Those requiring the unanimous support of only a province Laws amending the constitution of that province Overall Canadas constitution had 3 sources 1.​ Constitution act 1867 2.​ Constitution act 1982  3.​ Court rulings Why Is the Charter Important -​ The charter governs the relationship between individuals and the government. Ensuring that the government cannot pass laws or enact policies that infringe unfairly upon our rights and freedoms -​ The Charter protects our CIVIL rights whereas human rights leglistlation protects our human rights Application Of The Charter -​ The charter applies to -​ Governmental Actors -​ Entities controlled by the government and those that exercise government functions (police) -​ Governmental Acts -​ Entities implementing government programs and those exercising statutory powers (law societies, provincial human rights commision) -​ Charter also applies to government inaction wherein a government is required to act and fails to do so -​ Legislation -​ Applies to all laws and regulations federal and provincial statues, muncipa; bylaws and other delegated legislation that is authorized by the law (Rules of professional conduct) S-1 Limitations -​ States that your rights are those listed in the charter -​ States that our rights are not absolute -​ If a court finds that a piece of legislation or governments conduct infringes a Charter protected right, it must carry out an analysis to determine whether the infringement is justifiable -​ This determination is made using the oakes test S-2 Fundamental freedoms -​ Fundamental freedoms can be seen as rights so basic and essential to the quality of life that they can only be infringed upon by governments in the most dire of circumstances or when their exercise threatens the fundamental freedoms of others SS. 3-5 Democratic rights -​ These sections set out the right and provisions concerning the Canadian Political process and the exercise of democracy for Canadian citizens Section 6 Mobility Rights  -​ Mobility rights concern the concern the Freedom of Candian citizens to be in and move within Canada -​ This sections applies to Canadian citizens, however the provisions for tgravelling and working in Canada also apply to permanent residents Section 7-14 Legal rights -​ The ways in which persons in Canada are protected in encounters with the justice system -​ Key ideas -​ HABEAS CORPUS is a resource in law in which a person can make a claim that their detention is unlawful and ask to be seen before a judge to determine this -​ DOUBLE KEOPARDY -​ SELF-CRIMINATiON Section 15 Equality Rights -​ In Canada we have the right not to be discriminated against by the government based on a set of grounds that relate to being members of certain communities and social identify groups. Many of these groups were originally included in this section (enumerated grounds) while others have since been added by the courts (analogous) Enumerated Grounds -​ Include race, national, ethnic origin. Colour. Sex, age. And mental or physical disability Analogous Grounds -​ Currently include sexual orientation, marital status, citizenship, and aboriginality Section 16-22 Official Languages -​ These sections guarantee the use of both English and French in federal government institutions Section 23 Minority language rights -​ This provides a right for speakers of either official language to have their children receive primary and secondary instruction in that language. Even if they are a linguistic minority in their community -​ Furthermore, wherever an official linguistic minority community comprises a large enough proportion of students, that community has the right to have that education paid for by public funds Section 24 and 52 - Enforcement of Guaranteed rights and freedoms -​ Section 24 allows parties to bring forward a claim to the courts when they feel their rights are being violated  -​ Section 52 (of the constitution act 1982) states that the constitution of Canada is the supreme law of the land, meaning that “any law that is inconsistent with the provisions of the constitution is to the extent of inconsistency, of no force and effect” Section 33 - Notwithstanding Clause -​ Allows government to create or override the charter rights/ Only section 2, 5, and 7-15 can be changed Section 24(2) -​ When someones rights have been breached by police, the judge excludess the evidence that was gathered as a result of the violation -​ The judge cannot make decisions based on the evidence collected -​ In order to determine whether evidence can be excluded the SCC set out a legal test known as R v Grant Sector one of the charter and Oakes test Section 1 -​ the Canadian charter of rights and freedoms guarantees the rights and freedoms set out in it subject to only such reasonable limits told by law as it can be demonstrated ina justified way in a free and democratic society -​ referred to as the “reasonable limits clause” because it can be used to justify a limitation on a persons charter rights -​ Charter rights ARENT absolute. Because it can be infringed upon -​ section 1 arises in cases where a charter infringement is being argued -​ Often a party is arguing that some action by the government: either a specific provision of a law, a law in its entirety, or a direct action of a government agent has infringed that persons charter rights -​ The party is seeking to limit a charter right must prove that any limitation is justified under section 1 of the charter -​ in order for a charter infringement to be allowed, the government has to prove that it passes the Oakes test -​ The standard of proof is the civil standard - balance of probabilities -​ If government is successful it’s a valid infringement, the law will remain as is. -​ If unsuccessful in the Oakes test, the court has options The case of R vs Oakes -​ David Oakes was charged with possession of drugs with the intent to traffic -​ At the time of trial a person charged was automatically charged with intent to traffic -​ If a person was found guilty of possession of drugs, the person needs to prove that they weren’t trafficking  -​ Oakes challenged this section of the NCA of 11(d) charter rights -​ The SCC found that section 8 of the NCA did violate section 11D. So government needed to see if the infringement was justified under section 1 -​ The court found that the government failed to justify it under section 1, and therefore the section 8 of the NCA was of no force or effect The Oakes test -​ 3 main steps -​ Once a charter infringement has been found, the court will consider each of the 3 main steps in the Oakes test. 1.​ Prescribed by law -​ limitation of charter right must be prescribed by law -​ Means that limitation must be legal, be apart of the law of whatever jurisdiction it’s under -​ Law must be clear and accessible to citizens so that they know what’s allowed and what’s not 2.​ Pressing and substantial -​ government must prove that the goal of the law is substantial. (Purpose of law is important to society) -​ The government does NOT usually have difficulty showing the substantial nature of a law 3.​ Proportionality -​ the concept of proportionality refers to whether the government in the course of achieving its legislative objectives, has chosen proportional or relative ways to achieve those objectives. It must find reasonable ways to achieve implement in its legislation -​ Step constrains 3 steps -​ The analysis occurs in these sub steps. Is a fundamental aspect of the Oakes test A.​ Rational connection -​ The limitation of the right must be rationally connected to the objective of law in question. Cannot be arbitrary or unconnected to the purpose of law B. Minimal Impairment -​ In order for a government action that infringes a Charter rights to be justifiable, the Charter right must be impaired as little as possible. If the government can achieve its legislative objective in a new way that involves less impairment of a right, it must do so -​ Many section 1 arguments by the government fail to satisfy this step -​ For example a law that doers not allow unions to form because the purpose is to protect businesses affected by a strike would likely be found to be an unjustifable  infringement on section 2 freedom of association. If there are less drastic means of achieving the purpose of protecting businesses, then those means should be taken by government when they draft the law C. Proportionate Effect -​ This part of the Oakes test is concerned with the overal benefits and effects of the law in question. Here, courts look out for balancing negative effects of any limitation of a right with a positive effect that the law may have on society as a whole. (asks if the right is proportional to the importance of that laws purpose. -​ This final step applies when a;; other aspects of proportionality are satisfied If a charter infringement is found Is the infringement prescribed by law (yes) Is the purpose of the law pressing and substantial (yes) Is the law rationally connected to its purpose (yes) Does the law minimally impair the infringed right? (yes) Do the positive effects of the law out weigh the negative effects of the infringement (yes) The infringement is justified if it makes it through them all If No to any, the infringement is not justified Remedies -​ If the government is successful in its section 1 argument, the law in question will be upheld and remain in place. However, of the court rules that the Charter breach was snot justified, a remedy (means of rectifying the situation) will be ordered. Some possible remedies can be 1.​ Striking Down -​ Court may declare that a law that infringes the Charter is nullified and is no force of effect 2.​ Partial Invalidity -​ A common alternative to striking down an entire law is to declare onlty the unconstitutional portions of the law invalid. This technique is often used where a provision of the CCC has been found to be unconstitutional -​ The specific provision will be declared invalid rather than striking down the entire criminal code. If the court has ordered the law, in whole or in part, to be struck down, parliament of a provincial legislature may chose to redraft that law so it complies with the charter 3.​ Reading Down -​ Reading down is where the court interprets the legislation in a sufficiently narrow way to bring it in line with the charter  -​ Examples; R.V Butler read down extremely broad terms of obscenity laws in the CCC to avoid infringement of freedom of expression 4.​ Reading In -​ Technique is used when a statute is under inclusive and fails to extend to those who have a legitimate constitutional claim to its protection. In such cases, the court may “read in” those categories of individuals rather than strike down the law entirely -​ Approach was taken in Vriend v Alberta, sexual orientation was read into the human rights leglistaion in ALberta -​ Reading in is a controversial remedy used in courts 5.​ Constitutional exemption -​ A court may order that a particular law is valid but a certain individual is exempt from its application -​ This remedy is rarely applied and used only in exceptional circumstances 6.​ Temporary Suspension of invalidity -​ A court may declare that a statute or a provision within it, is invalid but allow the law to remain in force for a set period of time in order to allow parliament or the legislature to change the law and bring it into compliance with the Charter -​ Canada And Human Rights Protecting our human rights -​ Currently in Canada there are 4 important mechanisms that work together to protect our rights 1.​ CCRF 2.​ Canadian human rights act 3.​ Provincial human rights legislation 4.​ Humans rights commissions -​ The charter provides a list of rights to which Canadian are entitled and outlines the governments responsibility in upholding those rights  -​ Remember there is a vast difference between the Charter and human rights legislation - the charter applies to the actions of “public” laws and bodies, even acts of the federal parliament and provincial legislatures -​ Human rights legislation applies to “private” laws and parties Federal and Provincial human rights legislation -​ The canadian human rights act came into force in 1978, and applies to federal government departments and businesses that fail under federal jurisdiction -​ Examples (Armed forces, canada post, CBC -​ Some private companies must also adhere to the CHRA, Chartered banks, radio, railroads -​ The act states that all Canadians have the right to equality, fair treatment, life free from discrimination, the CHRA prohibits discrimination -​ Each province/territory has its own human rights law. Called a code -​ Each code is slightly different -​ In ontario your private human rights are covered by the Ontario Human Rights Code -​ This code will protect you in areas such as; restaurants, retail, schools, hospitals Human rights commissions and tribunals -​ To implement and administer human rights legislation, the Federal and provincial and Territorial governments have established human rights commissions. Their function is to -​ Investigate complaints concerning human right violations -​ Provide legal procedures to hear complaints -​ Try and find solutions -​ If you are in a wheelchair, and its not wheelchair accessible, you can file a complaints with the canadian human right commission. Whereas if you experience harassment at work you would file a complaint with the Ontario Human Rights commision -​ If a resolution can’t be met, the commission sends the case to the Ontario human rights tribunal for a formal hearing -​ The major distinction between criminal law, civil law and human rights legislation is the different standards of proof -​ In criminal law the Crown has the burden of proof to prove guilt beyond a reasonable doubt, this is a very high and demanding standard -​ In civil law and human rights legislation, we use the balance of probabilities -​ Who is more believable, and did the alleged discrimination more likely occur or not  -​ If the tribunal believes that discrimination has occurred, then the respondent must prove that there was a BONA FIDE (Legitamate genuine reasons) for the discrimination and that to act other would bring UNDUE HARDSHIP (economic viability) -​ Following a judgement, any of the parties involved may appeal the decision and an appeal can end up in the SCC All codes provide Civil remedies, not criminal penalties (compensation) Competing Human Rights -​ Common issue that has occured where on individual feels their rights have been violated but in order to accommodate that person, another individuals persons will be violated Examples Case of a woman with Niqab while testifying against relatives she accused of sexual assault in court (she wouldnt show her face) OHRC established policy on competing human rughts in 2012 to set out a process when dealing with competing rights Code right vs Charter right Charater right vs charter right Code right vs code right What is Employment Inequity -​ Employment inequities arise from deliberate, or as is more often the case, systemic practices - those practices and policies that unintentionally have the effect of excluding persons for reasons that are: -​ Not job related -​ Not related to the safe operation of an enterprise -​ Not related to ability -​ Employment equity programs seeks to reverse this to ensure that we get the best workforce possible Employment Equity -​ Ensuring That employers identify and remove employment barriers and take the right measured to ensure the representation of disadvantaged groups consistent with their ability in the work force What is Employment Equity -​ Created by Judge Rosalie Silberman Abella, commissioner of the Royal commission on Equality in employment  -​ Goal - to describe a distinct canadian process for achieving equality in all aspects of employment -​ Recognizign that “systemic discrimination” was responsible for most of the inequality found in employment, the commission outlined a systemic response and chose the term “employment equity” to describe the process Why DO We Need This -​ Certain groups in society have faced discrimination (past and now) -​ Systemic barriers to employment of disadvantaged groups: -​ Underrepresented in overall workforce -​ Underrepresented in specific industries -​ Underrepresented in upper management -​ Time alone will not correct the problem, so it requires governmental intervention Goal Of Employment Equity -​ Elimated barriers for -​ Women -​ Indigenous peoples -​ Persons with disabilities -​ Members of visible minorities -​ Remedy past discrimination in employment opportunities and prevent future barriers -​ Improve access and distribution throughout all occupations and at all levels for members of the four designated group Federal Programs In Canada -​ Legislated employment equity programs -​ LEEPS mandate is to promote employment equity for the four groups in federally regulated private-sector employers. Crown corporations and other federal organizations that have 100 or more employees and fall under the employment equity act -​ Goal is to ensure that federally regulated employees with a combined workforce of over 760k employees, reflect the composition of the general work force in Canada 2. Federal Contractors Program (FCP) -​ FCP ensures that contractors who do business with the government of Canada seek to achieve and maintain a workforce that is representative of the Canadian workforce, including members of the four designated groups  -​ The program applies to privincially regulated contractors that -​ Have a combined workforce in Canada of 100 or more permanent full time and part time employees -​ Have received an initial federal government goods and services contract valued at 1 million or more 3. Provincial EMployment equity -​ Ontarios pay equity act -​ The pay equity act requires employers to identify and correct gender discrimination that may be present in their competition practices and to adjust the wages of employees in female job classes so that they are at least equal to the wages of employees in male job classes when they are found to be comparable in value based on skill, effort, responsibility and working conditions -​ The pay equity act applies to all ontario public and private sector employers with 10 or more employees