Law Week 2 PDF - Canadian Legal Systems, Constitution, and Rights

Week 2 Thursday, January 16, 2025 12:31 PM As discussed in Lecture 1, Canada’s has two Main Legal Systems: The civil law system: A system of codified law (based on Quebec’s historical connection to France) The common law system (judge-made law, some codified laws, statutes, regulations) Th...

Week 2 Thursday, January 16, 2025 12:31 PM As discussed in Lecture 1, Canada’s has two Main Legal Systems: The civil law system: A system of codified law (based on Quebec’s historical connection to France) The common law system (judge-made law, some codified laws, statutes, regulations) The common law system recognizes court decisions with the same force of law as statutes. In addition, there is an emerging system of Indigenous Law - The Cdn. Constitution (Constitution Act, 1867; Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms), - statutes, regulations, policies incorporated by reference in regulations - common law/case law, - Civil Code in Quebec - Indigenous Law, religious Customary law - Municipal by-laws The nature of our Canadian legal system – Establishing Rules of Conduct The Canadian legal system strives to provide a predictable system of rules enforced by courts govt. ministries, administrative tribunals, local regulators, etc. The system achieves this, in part, by prohibiting and regulating certain individual and corpora behaviours Consequently laws and regs use words like “shall” and “may” Not just “what” you can do, but “how” you do it Examples: driving, marrying, divorcing, fishing restricted behaviors: drunk driving, conducting fraudulent economic activities Why are strict rules in place to control when, where, what and how you can fish in Ontario? T conserve fish, and try to ensure that fish populations are not depleted What is the role of the Canadian Constitution A constitution is the supreme law that: 1) establishes the basis upon which all other la are created; 2) defines the powers of govt.; 3) sets out how govt. is organized The Canadian Constitution establishes a unique government structure that incorporat two different legal systems or traditions: the British common law system and the civil la system as found in France. s, ate To aws tes aw What is the role of the Canadian Constitution A constitution is the supreme law that: 1) establishes the basis upon which all other laws are created; 2) defines the powers of govt.; 3) sets out how govt. is organized The Canadian Constitution establishes a unique government structure that incorporates two different legal systems or traditions: the British common law system and the civil law system as found in France. The Canadian Constitution Constitution Act (1982) → repatriated from the UK in 1982; it is a set of formal written documents Sets out fundamental rights and freedoms of citizens Defines law-making powers of the various legislative bodies of the state Two major parts: ○ Canadian Charter of Rights and Freedoms ○ Amending formula + additional changes in powers of government + Constitution Act (1867) The Constitution Act, 1867 (formerly the BNA Act, 1867) is arguably one of the most important laws in Canada It establishes the three Branches of Government: Legislative, Executive and Judicial Branches Legislative: Parliament; Executive: Prime Minister and Cabinet; Judicial: the courts Key Federal Powers Trade and Commerce, Banking and Bankruptcy, Criminal Law, Immigration, Navigation, the Post Office, and Defence Other powers Broad taxation powers under Income Tax Act (Income Tax Act is 3227 pages according to 2021 G&M article; includes the Act, Regulations, CRA guidance, etc.) Shipping Indigenous and Aboriginal issues s. 91(22): Patents of Invention and Discover PROV. GOVERNMENT POWERS etc.) Shipping Indigenous and Aboriginal issues s. 91(22): Patents of Invention and Discover PROV. GOVERNMENT POWERS The provincial governments have many broad powers that provide them with key law-making powers that affect business operations in Canada In particular, provincial jurisdiction related to property and civil rights gives them the lead role in most economic spheres and many areas with major cultural, political and social implications; they also have lead jurisdiction on education, health, and economic development Four key areas: Health, education, taxation and property & civil rights PROVINCIAL GOVT. POWERS – local undertakings, municipal govts Local undertakings except railways, harbours, and other federal jurisdictions and activities identified under section 91 What would these be? Provincial roads, schools, hospitals, water and sewage treatment, etc What about local projects on First Nations or Indigenous lands? Historically governed by the federal Dept. of Indian Affairs which is why Indigenous children were taken to residential schools (some say kidnapped). Today, self- government is increasingly prominent Govt. Powers delegated by Provinces to municipalities Capacity to make by-laws, municipal plans, borrow money, etc. based on enabling laws passed by provinces Local Police and Fire Departments Land Use, Zoning and Building Permits Local roads (not provincial highways) Waste mgt. and recycling Municipal taxation but query the City of Niagara Falls imposing surcharges on visitors for food and hotels to pay for fireworks and other local attractions; arguably they don’t have express power to do this under Municipal Act Examples: City of Toronto Act; Strong Mayor Powers (mayor needs 40% council support to enact budgets, push through development) Law-making Powers in Canada – Concurrent Fed/Prov Powers  Examples: City of Toronto Act; Strong Mayor Powers (mayor needs 40% council support to enact budgets, push through development) Law-making Powers in Canada – Concurrent Fed/Prov Powers concurrent powers refer to areas of governance shared by both the federal and provincial or territorial governments. These shared powers are not always clearly explained in the Constitution Act, 1867, and they include matters such as forestry, taxation, and agriculture, food safety, some aspects of transportation, etc. While both levels of government can make laws related to concurrent powers, federal laws take precedence in the event of a conflict. This power is based on a principle intended to promote Peace, Order and Good Government (POGG) – and national coherence. This arrangement reflects Canada's federal system of government, where responsibilities are divided between the federal government and the provinces/territories, ensuring a balance of power and allowing for flexibility in addressing regional needs while maintaining a unified nation. Requires ongoing consultations and can become controversial when the feds. propose programs that overlap with provincial jurisidiction Amending Formula for the Constitution Act, 1867 and the Constitution Act, 1982 If it were decided to amend the Constitution to make ownership of property a right in the Charter or revise the division of powers, it would be necessary to have the agreement of: at least two-thirds of the provinces (7/10), which together make up at least half of the population of Canada. i.e. You need Ontario (38.5%) or Quebec (23%) based on the 2021 Cdn. Census to amend it. In effect, this ends up as a math problem and you have to look at population levels in each province The Role of Mirror Laws Mirror Laws – federal and provincial laws are developed to mirror and complement each other: Examples: Workplace Hazardous Management Information System (WHMIS), Transportation of Dangerous Goods Act (TDGA), Canadian Environmental Protection Act (CEPA), Fisheries Act, Species at Rick Act (SARA) Mirror Laws – federal and provincial laws are developed to mirror and complement each other: Examples: Workplace Hazardous Management Information System (WHMIS), Transportation of Dangerous Goods Act (TDGA), Canadian Environmental Protection Act (CEPA), Fisheries Act, Species at Rick Act (SARA) Fundamental Freedoms (shaped by U.S. Bill of Rights) Everyone has the following fundamental freedoms: a) Freedom of conscience and religion; b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) Freedom of peaceful assembly; and d) Freedom of association. Mobility and Personal Liberty Mobility rights → Canadian citizens are free to remain in, enter or leave Canada, and to move freely within country Personal liberty → enjoy life without interference by the state Right to life, liberty and security of the person Right to be free from unreasonable search and seizure Free from arbitrary detention or imprisonment (recall reference to Magna Carta in Week 1) Right to Due Process Right to be informed, on arrest or detention, of the reasons for the arrest Right to retain and instruct a lawyer promptly after arrest or detention Arrest must be for committing an alleged offence Right to trial within reasonable time Accused is presumed innocent until proven guilty Right to fair and impartial public hearing Reasonable bail Equality Rights Every individual is equal before the law Right to equal protection and benefit without discrimination on the basis of: Race, creed, colour, religion, sex, age, national or ethnic origin or any mental or physical disability Two official languages in Canada: English and French  Every individual is equal before the law Right to equal protection and benefit without discrimination on the basis of: Race, creed, colour, religion, sex, age, national or ethnic origin or any mental or physical disability Two official languages in Canada: English and French Affirmative Action Programs s. 15(2) of the Charter creates an exception for affirmative action programs. Programs that discriminate against certain groups are legal under the Charter if the purpose is to improve the conditions of a group previously discriminated against Thus it is permissible to advertise jobs targeted at indigenous peoples, visible minorities and women E.g. Trent U job ads sometimes will target members of these disadvantaged group Aboriginal Rights (“Indigenous Rights” was not used in the Constitution in 1982) specific provisions for those Charter rights that intersect with pre-existing Aboriginal rights Section 25: No rights found in Charter may be used to diminish or alter any Aboriginal, treaty, or other rights of freedoms of Indigenous peoples Including rights pertaining to current or future land claims Section 35: Defines “Aboriginal peoples” as being the Indian, Inuit and Métis Enforcement of Charter Rights Charter entrenches specific fundamental or basic rights and freedoms Charter states that persons who believe their rights or freedoms have been violated, can: Apply to a court law for appropriate remedy Charter only applies to governments or private employers seeking to rely on laws that contravene the Charter, and not to individuals Disputes about some private matters usually are dealt with through provincial human rights legislation Protection of Other Special and General Rights and Freedoms  Disputes about some private matters usually are dealt with through provincial human rights legislation Protection of Other Special and General Rights and Freedoms Charter recognizes other rights and freedoms: basic rights and freedoms not specifically entrenched may be infringed upon by governments (e.g. property rights) E.g. can’t generally challenge the expropriation of land using the Charter Charter applies to territories as well as provinces and legislative powers of various bodies not changed by Charter Section 1 of Charter and Section 33 of the Constitution Act, 1982 As noted earlier, section 1 rights and freedoms are guaranteed by the Charter but are not without limits. S. 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15. The Charter override provided by Section 33 has been used 28 times since 1982; it is frequently invoked by the Quebec government and Ontario Premier Ford has used it three times (although he revoked one bill that proposed to use s. 33 in back to work legislation); Why has Quebec used it? Why has Quebec used s. 33 repeatedly? Quebec govt. says they have used it to protect language and culture. E.g. Quebec has used s. 33 to deprive Muslims, especially Muslim women, of the right to wear their customary and religious clothing in workplaces funded by the provincial govt. including schools, universities, the law courts, govt. jobs, etc. Alberta now threatening to use section 33 to prevent federal govt. from spending $$$ on housing and infrastructure because it claims these are prov. powers See article by Allan Hutchison on BB Cannot use section 33 to override voting rights of Canadian citizen Classification of Laws Substantive Law Versus Procedural Law  See article by Allan Hutchison on BB Cannot use section 33 to override voting rights of Canadian citizen Classification of Laws Substantive Law Versus Procedural Law Substantive Law Sets out the rights and obligations of individuals. Charter of Rights and Freedoms, 1982 Private laws such as torts, contracts, property Procedural Law Rules establishing how substantive law will be enforced. E.g. Environmental Bill of Rights, S.O. 1993 Public Law Versus Private Law Public Law Rules governing the relationship between individuals and government at all levels. Private Law Relates to the legal relationships between persons, including corporations (which are persons under the law) Administrative Law In previous slide, you will have noticed that Administrative law is identified as public law It is body of rules governing the application of statutes to activities regulated by administrative tribunals or boards Administrative tribunals - agencies created by legislation to regulate activities or do specific things E.g., Canadian Radio and Telecommunications Commission (CRTC) – reviews fees charged for cellular phone, internet and cable services by Rogers, Bell and Telus; licences TV and radio stations, etc. Usually make their own procedural and hearing rules One of the main goals of admin laws is to achieve fair decisions. E.g. student appeals of grades Power is delegated from Legislative body to a Tribunal or Board; these boards supposedly are made up of subject matter experts (not always) Policy goals: fairness, reduce pressure on the civil courts Tribunals decisions may be subject to judicial review (JR) appeals of grades Power is delegated from Legislative body to a Tribunal or Board; these boards supposedly are made up of subject matter experts (not always) Policy goals: fairness, reduce pressure on the civil courts Tribunals decisions may be subject to judicial review (JR) Advantages an administrative tribunal have over a court E.g. human rights tribunals are made of experts in human rights law, whereas judges tend to hear a variety of different matters and have general knowledge. Administrative tribunals have more flexibility than courts with respect to procedure and evidence, and also with respect to the decisions that they make. Tribunals are not bound by the principle of stare decisis in the same manner as courts, and they may rely on public policy considerations. But usually tribunals will weigh precedents very carefully and they are bound by court decisions e.g. Divisional Court in Ontario (and higher courts, i.e. SCC and Ontario Court of Appeal) makes binding decisions on Ontario tribunals Some Main Functions of Law Law can be subdivided into a number of functions: 1. Settling disputes and allocating liability 2. Establishing rules of conduct 3. Providing protection for individuals and corporate persons against other persons, governments and corporations 4. Statutes can achieve some of the goals in meta-policies – fighting sexual harassment, promoting OHS, reducing carbon emissions that cause climate change by imposing a carbon tax; they rarely achieve all or even most goals Parties in Civil Law cases Civil law cases are disputes between two parties; persons, corporations and organizations A plaintiff sues a defendant Can be self-represented; in family law often people try to represent themselves Supreme Court of Canada decided in the past two years that judges can appoint lawyers to represent parties in complex disputes – e.g. Indigenous laws suits brought against govts. Why? to promote fairness Parties in Criminal Cases  Supreme Court of Canada decided in the past two years that judges can appoint lawyers to represent parties in complex disputes – e.g. Indigenous laws suits brought against govts. Why? to promote fairness Parties in Criminal Cases The parties in criminal law cases are the state (or Crown) and an accused person (recall persons includes corporations, and govt. agencies) Cdn. society represented by government lawyers (Crown Attorneys) and the accused person often will retain a defence lawyer Accused can represent themselves – not wise in serious cases; Legal aid is available to lower-income persons but is becoming harder to obtain due to financial constraints Onus of proof - Who has to prove what to get a result or remedy? Who has the obligation to prove what in criminal law cases? Burden and Onus -The state has to prove beyond a reasonable doubt (BRD) that a particular act (actus reus) has taken place with the requisite state of mind – intent to commit the crime (mens rea). Accused does not have to prove anything; often do not testify in own defence (e.g. Trump trial in Winter 2024) Standard of Proof - How far does Crown have to prove guilt? Criminal - What is BRD standard of proof? 75%? 85%?; what do you think? My view – 95 – 99% certainty Why? To avoid wrongful convictions. Consider the tragic record on wrongful Convictions. Donald Marshall, an Indigenous man in New Brunswick; David Milgard, a young man in Western Canada immortalized in Gord Downie’s song, Wheat Kings In late Dec. 2023, two other NB men were released after 40 years in prison and one of them just died in May 2024 Types of criminal prosecutions 1. Crown must prove full intent (mens rea) to commit the crime and the act took place, E.g. murder, 2ns degree murder, major fraud 2. Strict liability – E.g., prov./federal OHS and environmental offences; Crown must prove the act took place; burden shifts to defense to prove compliance 3. Absolute liability – selling contaminated food (fed. Food and Drugs Act, 2. Strict liability – E.g., prov./federal OHS and environmental offences; Crown must prove the act took place; burden shifts to defense to prove compliance 3. Absolute liability – selling contaminated food (fed. Food and Drugs Act, Health Protection laws, some securities laws). There is no excuse. If you didn’t take every precaution and contravene the law, you will be found guilty and probably fined or jailed Prosecutions of Criminal or Quasi-Criminal ‘Public Welfare’ offences Where the Crown won’t act on an alleged contravention, “private prosecutors” can take on a case (e.g. ENGOs prosecute environmental cases when Crown won’t charge and prosecute a polluter) Private prosecutions are possible but very $$$; why? Need to establish a chain of custody for evidence, retain experts, etc. These are services available to govt. agencies and private corporations who have sufficient funds Onus and Standard of Proof in Civil Law Civil Law The plaintiff must prove their case on the balance of probabilities (50% plus 1%?) Issues: What is most likely to have happened? Does that create liability? How much? Are punitive damages warranted for appalling corporate behaviour? (e.g. insurance companies denying claims to immigrants who have poor language skills How does Burden on Plaintiff in Civil Courts shape litigation? Recall that judges and Juries in Civil Courts must decide: Has the plaintiff proven on a balance of probabilities that the defendant is liable for what took place and specific damages? If the matter does not settle, a judge has to decide what happened and report what happened in a court decision. These court (and tribunal) decisions are published and become permanently available on the public record. This can be embarrassing for businesses. The decision can be appealed all the way to the SCC if permission (i.e. leave to appeal) granted – can take 8-10 years+ Remedies - The result of the court process What the court can do… Criminally Liable vs Civilly Liable – what’s the difference? can be embarrassing for businesses. The decision can be appealed all the way to the SCC if permission (i.e. leave to appeal) granted – can take 8-10 years+ Remedies - The result of the court process What the court can do… Criminally Liable vs Civilly Liable – what’s the difference? Criminal law mainly is about freedom and restricting it – imposing penalties, incarceration in prison, and limitation of movement; fines collected to pay for police and by-law enforcement Civil law is about damages compensable by the payment of money or the delivery of property In some cases, both types of liability – financial and restrictions on freedom - are involved Some examples of laws that apply to businesses Business law is divided into general areas: Tort law - injury to others Contract law - day-to-day operations Business organizations - formation and operation Property law - purchasing or leasing of premises Intellectual and industrial property Environmental law Statutes modify the common law; some examples of the various statutes are provided in this chart in your textbook Knowing Business Law helps Managers Manage Legal Risks Managing Legal Risk – The Process Identify the legal risks. Evaluate the legal risks. Manage the legal risk by devising and implementing a legal risk strategy: Four strategies: 1) risk avoidance, 2) risk transference, 3) risk reduction, and 4) risk retention). Example of Risk retention: not insuring some assets because of cost; Ontario govt. does not insure most car for all perils (i.e. fire, tree falling, etc.) Need to constantly review and revise your legal risk strategy. Example of a law that promotes risk mgt.; Bill 168 was proclaimed as law in  Example of Risk retention: not insuring some assets because of cost; Ontario govt. does not insure most car for all perils (i.e. fire, tree falling, etc.) Need to constantly review and revise your legal risk strategy. Example of a law that promotes risk mgt.; Bill 168 was proclaimed as law in Ontario June 1, 2010. It requires Trent and other employers to: Conduct an annual risk assessment for each workplace Have a workplace violence policy and program in place that addresses: Address Workplace violence, Workplace harassment Domestic violence in the workplace Controls for risks identified in the assessment A means of reporting violence and obtaining immediate assistance An investigative procedure to deal with incidents or complaints Ensure employees are aware of Trent’s policy and program Key Concept – Liability An obligation → to pay → to deliver → to act To be liable is to have an obligation (usually to pay) to another person Usually a form of remedy to a conflict, dispute or situation Sovereignty In many nations, Sovereign rule by Queens or Kings was based on Supreme God-appointed ruler or leader Today sovereign rule implies borders and wide recognition of an autonomous state According to international law, a country is sovereign and shall not be subject to any domination by others, except if it is situated beside Vladimir Putin’s Russia The nature and quality of self-rule varies; for example Indigenous peoples have sought self-govt. powers in Canada since the 1970s Usually, self-rule or sovereign rule is a function of the acceptance of other sovereign states Policy vs Law Policy is the ethical/moral/social reason (goal) behind a law or laws Usually based on values, culture and religion sovereign states Policy vs Law Policy is the ethical/moral/social reason (goal) behind a law or laws Usually based on values, culture and religion Seeks to create a harmonious society Often the policies in the common law are historical in nature Vast differences in culture create significant and important differences in policies and law In Western culture, there is an emphasis on making decisions based on precedents because this is seen as fair to individuals – why do we dislike exceptions? why do we dislike exceptions? we don’t like favouritism and special rules when we do experiments with monkeys and start feeding one group a special treat like cucumbers and bananas and the other group food pellets, that will start fighting amongst the monkeys This suggests that a desire to be treated similarly, whether as children by parents or adults in university courses, is deeply rooted in our biology Policy – it’s the Purpose behind law Policy is the purpose for the law or rules. Usually laws are developed under the rubric of a “meta-policy” or an overarching goal (s) The meta-policies informing Canadian OHS laws include preventing worker injuries and deaths, and reducing costs imposed on individuals, families, the WSIB system, and the health care system Stare decisis – more than just precedent Key concept in the Common Law principle requiring a judge to apply judgment of a previous case when a later case presents similar facts When judges apply the principle of stare decisis in deciding a case before them they are, in effect, applying the doctrine of precedent and substantive law Provides predictability for business and investors, especially in private law spheres of tort, contract and property laws