Sources of Canadian Law PDF

Sources of Canadian Law Primary Sources of Canadian Law -​ The parts of the legal system that have the longest historical development are known as PRIMARY SOURCES OF LAW Religion -​ THe core of these laws, called the Ten Commandments forbade the people among other things to com...

Sources of Canadian Law Primary Sources of Canadian Law -​ The parts of the legal system that have the longest historical development are known as PRIMARY SOURCES OF LAW Religion -​ THe core of these laws, called the Ten Commandments forbade the people among other things to commit murder and theft. Historical Influences -​ Our laws reflect British and French laws, both were influenced by the Greek and Roman laws, Greek influence -​ Greeks gave us juries -​ First European people to practice democratic ideals in their political and legal system 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 British Influences -​ (Trial By Jury) -​ Britain has had a greater influence on the government and laws of Canada than any other country ___________________________________ -​ 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 -​ 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  -​ A way of doing something that has been accepted for so long taht it amounts to an unwritten rule Influence of social and political philosophy -​ 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 -​ 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 Parts of the Constitution -​ BNA Act also known as the Constitution act of 1867 -​ Through this act, Canada was created in 1867 -​ 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 -​ 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 —-----------^] Statute Law  -​ Any law passed by the federal or provincial governments -​ 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 -​ 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 Balancing of rights is the laws job. The law has to balance every individual and the needs of society. (we have free speech but can’t say hateful things without being put in jail) ICC and International law (positives and challenges The ICC (international criminal court) tries criminals in most countries should they commit a horrible crime. Positives: Nearly global jurisdiction, meaning if you do a war crime you will be held accountable Challenges: US, China, and Russia don’t participate in this. Voluntary. Can only act if the country of the person of interest does not have the ability to prosecute them. They need that countries permission. Oakes Test 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 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 -​ that limitation must be legal  -​ Law must be clear and accessible to citizens so that they know what’s allowed and what’s not 2.​ Pressing and substantial -​ must prove that the goal of the law is substantial. (Purpose of law is important to society) 3.​ Proportionality -​ whether the government in the course of achieving its legislative objectives, has chosen proportional or relative ways to achieve those objectives. -​ Step constrains 3 steps A.​ Rational connection -​ The limitation of the right must be rationally connected to the objective of law in question. 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. 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. Natural law: Based on morals and what is right vs what is wrong St. Thomas Aquinas, Plato, Aristotle, Socrates Positive law: You should be doing these things because it is a law period, there is no morality or anything like that John Locke (BOTH), Thomas Hobbes, John Austin, Trial Procedure Criminal Trial Process Trial system in Canada -​ Trial procedures in Canada are based on the ADVERSAL system - two opposing sides; the crown and defence -​ There are many key players in a trial 1.​ Judge - appointed by the fed government -​ Have complete control of court room 2.​ Crown - represents the state and society  -​ Has the burden of proof. Onus is on the crown to prove that the accused is guilty beyond a reasonable doubt -​ Defence - represents the accused -​ Ensures that the accused legal rights are protected and that a proper legal defence is provided Court Clerk -​ Read out the charge against the accused, swears in the witness, handles evidence and paperwork Sheriff -​ A crown appointed official who acts as a part of the justice systemOther court officials Method Of trial -​ There are 3 courts that hear criminal Trials in ontario -​ Ontario court of Justice. Court of INFERIOR JURISDICTION (judges appointed by provincial government) -​ Ontario Superior court of justice. Court of SUPERIOR JURISDICTION (judges appointed by the federal government) What is extradition -​ Extradition is the formal procedure that begins when one country asks another country to return somebody that has been accused of a crime in the requesting country Actus Reus -​ Latin for guilty act -​ Physical component -​ The act or commission that has been identified by Parliament as sufficiently harmful to warrant state intervention -​ Actus reus has to be committed voluntarily, must be committed by a conscious operating mind -​ -​ People are not held criminally responsible for actions they cannot control Mens Rea -​ This act will not make a person guilt unless the mind is also guilty -​ Latin for “guilty mind” -​ Mental component -​ Moral guilt  -​ A person must be found to have had the necessary “state of mind” or mens rea for the offence before they can be found guilty -​ principles of justification -​ Private harm principle - prevention of harm to individuals -​ Public harm principle - prevention of damage and impairment to public institutions -​ Offence principle - prevention of an offence to others -​ Legal paternalism - prevention of harm to the self -​ Helmets, seat belts -​ Legal moralism - prevention of immorality and punishment of sin -​ Sex work 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) Amending Formula (to change a constitution) 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 Canadian Human rights act - The act states that all Canadians have the right to equality, fair treatment, life free from discrimination, the CHRA prohibits discrimination Ratio Decidendi - the reason for the judges decision Habeas Corpus - The right to a trial in a reasonable amount of time ICJ - international court of justice - Tries to solve disputes between UN member states Rationalism - people can become aware of natural laws through reason Hague conventions - set of rules that define how war should be fought Clarity bill - set out the conditions that were required if they wanted to leave canada again for quebec people. BIll101 - Language bill in quebec, made french the dominant language Different International treaties. Cusma - Strengthen economic ties between north american countries United nations charter - governs human rights, helps solves disputes Chemical weapons convention - countries that adopted this agreed not to use chemical weapons NATO - made during the cold war as an alliance to defend against the soviets Conflict resolution cycle - conflict avoidance, informal discussion, negotiation, arbitration, adjudication, violence Rule of law - each person is treated equally under the law What is a crime - whatever the government calls a crime Wilful blindness - Not wanting to know if what you are doing is a crime Utilitarianism - Believing that laws are based off of how useful it actually is CIvil disobedience - protesting against a law Bona Fide - Good faith, keeping your word Double criminality - the crime must be committed in both countries to extradite someone Culpability - criminally responsible for something Requisite intention - The Mens Rea that the crown is required to establish in order to convict an accused of an offence Affirmative defences - offences where you don’t need to prove mens rea Geneva conventions - convention that tells how to deal with sick, wounded, people who aren’t fighting in war Royal proclamation of 1763 - recognized indians as “political units” Custom and conventions - custom (doing something for long to the point it comes) convention (done for so long it becomes an unwritten rule) Equity programs - LEEP, Federal contractors program, provincial contractors program Ambit of the offence - scope of the legal legislation Racial profiling - assumign something because of someones race or skin