Law Notes (1).pdf

Foundation of Law Unit Notes: Law in Our Lives - Canada’s legal system strives to represent principles that Canadians believe in and value. - Each generation influences laws. - Laws reflect the society of that period. - Members of society recognize and accept that laws are...

Foundation of Law Unit Notes: Law in Our Lives - Canada’s legal system strives to represent principles that Canadians believe in and value. - Each generation influences laws. - Laws reflect the society of that period. - Members of society recognize and accept that laws are necessary. - Punishments follow Need for Law - In some societies, law is forced through intimidation, and citizens can be arrested or imprisoned without trial. - Canada→ expects the law to protect the rights of individual citizens. Rule of Law 1. Individuals must accept that the law is necessary to regulate society. 2. The law applies to everyone, including people in power. 3. No one in society has the authority to take away our rights except by following the law. Law and Morality - Some laws serve practical purposes, whereas others reflect moral values. - This relationship between laws and moral codes can be controversial. - In a multicultural, democratic society, tensions may exist between the law and personal/community standards of right or wrong. - For most parts, laws reflect collective community standards. Law and Justice - The concept of justice varied from periods - Ancient Greek society → did not consider inequality and injustice. - In contrast, Canadians would place equality at the very heart of justice. - The law is supposed to be applied equally to all, regardless of position or financial status, ensuring equality in all situations, which may be injustice. Characteristics of Justice - Although changing over time as morals, beliefs, and values, we can agree on the following: - The idea is we should treat cases alike and different cases differently. - A person with Tourette’s system for causing a disturbance - Justice should be impartial; the law should be applied regardless of a person's status/financial - Expect the law itself to be just in that it confirms society's values. Historical Roots of Law - Law has been around since people started interacting with each other. - Early law was based on hunting, property, family, and relationships. - Passed on orally - Population grows→ hunting grows→ law complexes - Written in many languages Roman Law - 2 principles  - Law must be recorded - Can not be judged by judges Justinian Code - Organization of Roman Law by Justinian | Napolenic Code - French Civil Code - French Law Greek Law - One of the first forms of law in Greece Laws of Manu - Between 1280 and 880 BCE - Lawmakers in India recorded The Great Laws of Manu - Compiled oral laws passed over generations Code of Li K'vei - Chinese also had written laws. - Code of Lik’vei written in 350 BCE - Included theft, robbery, prison, and arrest - Written laws were in early civilizations. - Property rights, slavery, treatment of women and children Code of Hammurabi - 1901: French archaeologists in Iran found copies of the earliest known sets of written laws. - King of Babylon, city locations in present Iran - He codified rules and penalties for every aspect of Babylonians. - The code had almost 300 laws governing daily laws. - King encouraged them to follow laws by saying they were from God. - Laws reflected a patriarchal society in which the wealthy were more protected. - Slavery was legal, and women and children were the property of men. - Clear of hierarchy: god, king, male nobles, their wives and children, poor and slaves - Many laws of Hammurabi were based on retribution. - Because of hierarchy, those who committed crimes were often unpunished. Laws from Hammurabi - Anyone committing a robbery shall be put to death. - If water floods neighbours' crops, he must pay for neighbours' losses. - If a man has a sick wife and he wants to marry again, he can but must care for the sick wife. - Some of the penalties were cruel. - Many were reasonable and just. - Concept of restitution - Payment made to the victim by the offender Influences on Canadian Law - Aspects of Moasiac, Greek, Roman, and French Law - British law included Canadian law. - The past is still in Canadian courtrooms. - Photos of Canadian head of state (King Charles)  - Judges, lawyers, and parties involved sit separately. - Robes - Justice in SCC → Santa Claus robes - Tradition in Canada is rooted in a colony of Great Britain. Early British Law Trial by Ordeal - Requires torture to determine guilt or innocence - Only used when a sentence for guilt would be the death penalty. Trial by Oath Helping - Requires friends of the accused to swear on the bible if he/she is innocent. Trial by Combat - Determining guilt or innocence by having parties participate in a duel - The idea that God will support innocent Adversarial System - Some men may be physically weaker than their opponents, but not necessarily intellectually weaker. - The present-day adversarial system of justice is based on the same principles. - Judicial process whereby evidence is presented by two opposing parties to a judge or jury - Both sides battle in court to determine guilt or innocence. - The battle is based on mental ability; lawyers use knowledge and advocacy skills. Common Law - King Henry || → disputes increased, so King gave fairness to the law. - Without a set of rules, circuit judges had to use common sense when sentencing. - Judges often noticed similar cases arose. - Similar cases would be treated the same. - Records were held to get common punishments for similar cases. - Documents are known as case law or common law. - Every time decisions were made, they were precedents or examples for similar cases. Legal Reform - The modern jury system in early British law - 12 jury members - Legal reforms ultimately led to the downfall of monarchs' power. - Henry was succeeded in 1189 by their eldest son Richard, and then later John. - June 1215: Angry barons pressured King John to sign the Magna Carta. - King John ignored the provisions of the Magna Carta, and he was killed in the Civil War that followed. Rules of Law - Also called the Great Charter - First step in establishing individual basic rights - Recognized principle of the rule of law Habeas Corpus - Another component of the Magna Carta, the writ of habeas corpus - A writ or order of habeas corpus requires the arrester to bring the detained to validate the arrest.  - Anyone arrested or detained without explanation must get a court appearance. - If the court determines that someone is being unlawfully imprisoned, they must be released immediately. Aboriginal (First Peoples) Laws - First people in North America had beliefs that acknowledged a creator and had a strong sense of family and leadership. - Haida and Mi’kmaq establish governments, religions, social structures, and legal systems. - Rules governing various Indigenous groups passed from generation to generation in the oral tradition of storytelling and myths - C 1450: 5 Indigenous nations—Mohawk, Onondaga, Seneca, Oneida, and Cayuga—together to form the Iroquois Confederacy - 1720: Tuscarora joined and became known in the six nations. - The Constitution of the Iroquois Confederacy recorded in great binding law - Outlined rights, duties, and responsibilities of the people and included laws covering adoption, emigration, treason, and secession. Sources of Law in Canada: - In Canada, laws originate from three sources. - Canadian Constitution (constitutional law) - Elected government representatives (statute law) - Previous legal decisions (common law) - Constitutional law is at the highest level of the pyramid because laws found in statute and common law conform to the Canadian constitution. - If they do not confirm, they can be challenged in court. - Statute law: made by elected representatives in federal and provincial governments - Local governments make statue laws—bylaws. Common Law - Roots in early unwritten laws of England - More than one meaning - Fact that law is common to all and has general and universal implication - Also sometimes referred to as case law because it derives from decisions made by judges in previous cases. - Constantly changes and evolves - Canadian courts follow a legal principle known in Latin as stare decisis, the rule of precedent, meaning judges rely on visions made by other courts when determining the outcome of similar cases. - In situations where precedent does not apply, the presiding judge may reject previous decisions and create new precedent. - Process called distinguishing a case - Identifying a case as being sufficiently different from previous cases as to warrant a different decision Statute law - Criminal code The Highway Traffic Act and the Youth Criminal Justice Act are examples of many statutes enacted by federal and provincial governments.  - Many laws today are statues of common law decisions that have been formally written into legislation. - Generally override previous common law - When no statute exists to deal with a particular situation, common law will apply. - Each level of government, federal, provincial, and municipal, has the power to enact legislation, but only within its level of political jurisdiction. - Indian bands and indigineous groups with self-governing agreements have authority to enact legislation. Federal Government - Enacts laws within its own jurisdiction set out in s. 91, Constitution Act, 1867. - Includes criminal law, federal penintentiaries (jail), employment insurance, banking and currency, marriage and divorce, and postal services. - Everyone in Canada is subject to laws. Provincial Government - Have authority to make laws within provincial jurisdiction set out in s. 92, Constitution Act, 1867. - Include laws affecting hospitals, police forces, property rights, highways and roads, and provincial jails. Local Governments - Make laws called bylaws. - Regulations dealing with local issues such as how high/low a backyard fence can be, who clears snow from sidewalks, and how often garbage is collected Indigenous Governing Structure - Indian bands established under the federal Indian Act like local governments - Each band has some authority to make bylaws that apply to each band’s reserves. - Bylaws include regulation of road and bridge construction and other public works located on reserves. Another form of indigenous government can be established under a self-governance agreement between an indigenous government and the federal government. - Self-governance aboriginal group weider law-making powers than Indian band - Ex: Niagra’s nations in BC have the power to make laws with respect to marriage, adoption, education, and the provision of social and health services. Constitutional law - Canadian constitution enacted in 1867 (Vritish North America Act) and amended in 1982 (Constitution Act) - Important sets out the responsibilities of each level of government and limits powers of government. - Overrides ALL other laws - If the law violates the constitution, courts may declare the law unconstitutional and strike it down. Canada’s Constitution - In a political sense, a constitution is simply a document that sets out the framework or blueprint for how a country should be governed and what kind of country it should be.  - Established in 1867 as an act of the British Parliament - Historical events caused Canada to change its future. - 1861-1865: bloody civil war raging in the United States - Many Canadians worried that once war over the US would attempt to take over the rest of North America. - Leaders such as John A. Macdonald, George Brown, and George-Etienne Cartier believed it was time for change and supported the idea of a more independent country. - 1864: Group 36 men met in PEI and Quebec to discuss unification. - Suggestion not to break from Great Britain but to adopt a new model that allowed Canadians more political and economic independence while maintaining relationships with Great Britain - New Brunswick Nova Scotia, Quebec, and Ontario agreed for a framework for union. - Proposal taken to Britian for approval - Little debate in England - British North America Act (BNA Act) passed by British Parliament in 1867 - Proclaimed July 1st, 1867 - Act Estb. Dominion of Canada as country: John A. McDonald becomes its first Prime Minister British North America Act, 1867 - The BNA Act still forms a major part of Canada’s Constitution. - The Constitution is not meant to be one for a totally independent country but for a colony. - Canada is unable to make its own laws independently until much later. - Canada could not make international trade agreements without British approval and could not make any amendments to the Constitution without first asking permission from the British Parliament. A Federal System - Framers of the Constitution looked at systems used in other countries. - The US had a written Constitution and Bill of Rights yet engaged in bloody civil war. - John A. Macdonald One of the problems with the American system is that it gave too much power to the central government and too much power to states. - Resulted in power struggle between northern and southern states - The unitary system (one-level system of governance) of Great Britain, where power is centralized in one Parliament led by PM, was another model to consider. - Geographic size of Canada and diversity made this option impractical. - Compensate a federal system with two levels of government: central government and provincial governments. - Each to control its jurisdiction - The central government could overrule provincial law if doing so is in the best interest of Canadians. - The BNA Act states Canada would have a government similar to the United Kingdom. - Canada’s Constitution includes all unwritten conventions of the British parliamentary system, including the monarch as head of state and principal of Rule of Law. Division of Powers - To avoid problems that spurred the American Civil War, the Camadian Constitution assigned jurisdiction regarding matters that affected the whole country.  - Ex. Defence and currency—purview of federaal government - Jurisdiction, s. 91 BNA Act - Provincial powers are more of a local nature and could vary province to province. - Juridiction, s.92 BNA Act - Section 93 - Assigns responsibility for education to provinces - Mainly designed to protect Cathloc minority in Ontario and Protestant minority in Quebec - Have your own separate school system. Municipal Powers - The BNA Act sets out only two levels of government—federal and provincial. - S 92 - Gave provinces authority over municipal services - Provinces delegated responsibility for local matters to the third level of government: - Municipalities and townships Aboriginal Self-Government - Federal; the government has responsibility for Indian affairs, including Inuit affairs. - Indian bands established under the Indian Act may operate like local government and have some authority to make bylaws that apply to each band’s reserve lands. - Some aboriginal groups who have established agreements with federal and provincial governments can make laws. - Ex. Nisga’s Nation in BC and Inuit of Labrador - Powers to make laws with respect to marriage, adoption, education, and the provision of social and health services within assigned territories. Residual Powers - Although framers of the Constitution did their best to assign jurisdiction, it is not possible to consider all issues that may arise. - Ex. John A. Macdonald and the fathers of Confederation could not foresee the development of air travel or telecommunications. - BNA Act: states areas not specifically assigned to provincial jurisdiction fall under federal jurisdiction. - Residual powers are expressed in Section 91. - Also allowed parliament to intervene in activities that normally fall under provincial jurisdiction but have developed importance to affect “peace, order, and good government of Canada.” - If Canada is threatened, the federal government might use this constitutional phrase to justify emergency powers. Doctrine of Ultrea Vires and Intra Vire - BNA Act 1867 is sometimes both levels claim jurisdiction and attempt to make laws. - If there is no clear distinction in the Act, defer to courts. - If the court decides government, either provincial or federal acting within jurisdiction - Legislation, intra vires, “within the power” of government to pass laws - If found acting outside legal authority - Legislation = ultra vires—"beyond the powers of government to pass laws  - Ex. The provincial government decides to pass laws allowing publication of names of youths accused of offences, something prohibited by the Youth Crininal Justice Act. - The federal government may ask SCC to declare provincial law ultra vires. Statue of Westminister - British North America Act amended as status added, deleted, or rephrased - Statue of Westminister passed 1931 - Two important constitutional changes - Gave Canada authority to make its own laws independently of Great Britain. - Granted Canada is independent to make agreements, including trade agreements, with other countries. - Canada is unable, however, to amend its own constitution without the approval of the British Parliament. Problems with the BNA Act - While the Statue of Westminster extended some independence, Canada is still not a sovereign state. - The BNA Act remained in British Act residining in British Parliament. - Probelm for several reasons 1. Each time Canada wanted to change or amend the constitution, it had to ask Britain for permission. 2. Confusion regarding division of powers 3. Some people were concerned that nothing in the constitution guaranteed civil liberties (basic individual rights protected by law, e.g., freedom of speech). - It became important to bring the Constitution back home to Canada. Repatriating the constitution - Back and forth discussion by provincial and federal government - Failed largely because neither side could agree on the terms. - Neither section of government wanted to give up powers listed under the BNA Act. - Pierre Elliott Trudeau, elected pm, is tasked with patriating (bring home) the Constitution. - After negotiations going south with the Trudeau, he threatened to bring it home without their approval. - Premiers said to do so would be unconstitutional. - Trudeau took this to the SCC and kind of won (ish). Supreme Court of Canada Decision - The court said the federal government had legal authority to patriate the Constitution without provincial approval but warned this would be politically unwise and would run contrary to the unwritten principles of the BNA Act. - 1981: one last attempt in Saskatchewan - Provincial premiers in four days of heated debates and bargaining - Aboriginal peoples successfully lobbied to amend the proposed bill to reinstate certain cultural heritage rights. - Quebec is seeking more economic and cultural powers.  - During the night, in the absence of Quebec Premier René Levesque, nine other premiers agreed to compromise the bill. - Levesque was furious and refused to sign the proposed bill. - April 17, 1982, the new constitution is signed. - Queen Elizabeth || and Pirerre Elliott Trudeau in Ottowa - Flags in Quebec flew at half master in the province. in mourning Constitution Act, 1982 - Provisions in the BNA Act did not die with the passing of the new Constitution. - The division of power remains the same as the mandate for the federal government to make laws within jurisdiction for peace, order, and good government of Canada. - The Constitution Act, 1982, did add four key elements: - Principle of eqalization - A clarification of responsibility for natural resources - An amending formula for future changes to the Constitution - It requires approval of Parliament plus 2/3rds of the provinces, totaling 50 percent of the population. - If amendment only affects federal government and indeed only needs its approval to make change - Same for provincial body - A charter guaranteeing individual rights and freedoms - The rights of aboriginal people Constitutional Conflict - Even though the Constitution repatriated, Quebec is not a signatory (did not ratify). - According to the SCC, Quebec is subject to the Constitution, and people are protected by Canada in the Charter of Rights and Freedom. - SCC unanimously Quebec does not have the right to secede unilaterally, either under constitutional or international law. How Bills Become Law - First reading to provide information - MPs may seek input from constituents and conduct research on proposed legislation. - Second Rereading or debate - Each member is allowed to speak once about the contents of the bill. - If significant flaws or objects are found, the bill is usually revised accordingly by the committee. - Third Reading - Comes just before vote in house where introduced in usually HoC (though bill can be introduced by senate). - The purpose is to refresh members’ minds about details of the bill, including changes made by the committee. - Vote - Occurs after third reading - When members vote on a bill, they usually support the party's position. - Exception: controversial issues  - The government may hold free voting according to the conscience or view held by most of their constituents. - Bill passed one house. - Goes through a similar process in other houses, usually Senate - But if the bill is defeated or if parliament adjourns before a vote is taken, the bill “dies” on the floor of the Commons. - The government still intent on passing a piece of legislation has to be reintrouduced in a new parliamentary session, and the process starts over. - Bill passed to Royal Assent - Governer General (Crown’s representative in Canada) - Bill becomes an act and given a statue number and reprinted. - Provincial Level - Legislation follows a similar process - Bill introduced into LA by MLA or MPP - Goes through readings and votes taken - Bill passed by LA - Directly goes to Lieutenant-Governor for royal assent The role of individuals and interest groups - Only governments can enact statute laws - Suggestion to amend may come from many sources - Suggestions sometimes made by individuals, legal experts or lobby groups - Ideas may be generated from government’s legal advisors - Royal comission Lobby groups - Lobby groups (people who try to influence legislators to promote their cause and influence legislation) - MADD and LEAF - Use different methods for making opinions heardand drawing public attention to concerns - Protest marches and rallies, letter writing, petitions and blockades Royal Commissions - Commissions of inquiry also influence changes in law - Appointed by federal government - Role is to conduct impartial investigations of specific national problems - Proper weighing of butter and cheese and use of insanity as legal defence - The Royal Commission on Aboriginal peoples longest and most expensive Royal Commission in Canada’s history - Lasted 5 years - Totaling $60 million