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Chapter 1 Its Purpose and History

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Introduction Canada is a democracy, which means that its

citizens elect law makers who makes laws that suit the majority of Canadians

the law is constantly changing to reflect changing values and beliefs

What is legal in one country is not necessarily legal in another

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What is Law and Why do We Have It? without rules to govern relations between people, disorder

and conflict would rise whenever people form groups, they need to make some

rules rules and laws are necessary to keep peace and order

because people do not agree with each other all the time

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Rules or Laws? rules of a game or an organization apply only to

participants in the game or members of the organization

a law, applies to all members of society at all times

a law is a legal rule made by the government-a law must be obeyed by everyone who chooses to live in that society-if a member breaks the law, he or she is punished

if Canadians do not agree with a law in this country, they can join lobby groups or pressure groups and lobby or pressure the government to change the laws

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Why do We Have Laws? laws usually create clear understanding about expected

behaviour are necessary for people to live together peacefully in

society as the number of laws increase, people will have less

freedom as society grows, it needs more laws to control and limit

the behaviour of its citizens to enforce laws, a society introduces punishments penalties will depend on the values and customs of each

society

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The Function of Law: What Laws Do for Us

to settle disputes establish rules of conduct -laws exist to reduce or

eliminate these conflicts and to create a safer place to live protecting rights and freedoms -laws serve no purpose if

they cannot be enforced (to enforce the laws we have the police and the courts)

protecting people

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The Divisions of LawTwo basic types

1 Substantive Law is divided into public and private law consists of all laws that list the rights and

obligations (duties) of each person in society (rights-something you are entitled to; obligation-something you must do)

2 Procedural Law outlines the steps involved in protecting

the rights given under substantive law

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Public and private law

A Public Law-controls the relationship between governments and the people who live in society

1 Criminal Law-define acts called "crimes" and are considered offences against society (e.g., assault)

-set penalties for those who break the law -main purposes of criminal law are to punish

offenders and to protect society and its members

-society is represented by a CROWN ATTORNEY who tries to prove the charges against the accused person (the DEFENDANT) beyond a reasonable doubt

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2 Constitutional Law

-laws that set out the structure of the federal, provincial, and territorial governments and the division of powers among them

-the Gov’t of Canada does not have unlimited power

3 Administrative Law

-laws that controls the relationship between citizens and government agencies

-Administrative Agencies make laws called regulations

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Private (Civil) Law outlines the legal relationship between private citizens,

and between citizens and organizations (e.g., companies) there is no Crown attorney involved in civil actions or

cases the PLAINTIFF the person who starts the action or

lawsuit is suing the DEFENDANT in civil cases, the plaintiff has to prove that the defendant

is at fault and caused damaged the same incident can result in both a criminal and a civil

action

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Private laws1 Family law--deals with the relationship between

individuals living together as spouses or partners, and between parents and children

2 Contract Law-outlines the requirements for legally binding agreements

3 Tort Law-deals with wrongs, other than a breach of contract, that one person commits against another person-negligence is the major cause of action in tort law

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4 Property Law -is anything that has a cash value -set of legal rules that controls the use, enjoyment, and rental of property

5 Labour Law -governs the relationships between employers and employees (often called employment law)

6 Human Rights Law-protects from certain types of discrimination by individuals or companies

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The Early History of Law in early society, local customs and beliefs

were the law customs were traditionally accepted and

were usually based on common sense

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The Code of Hammurabi about 3800 years ago took nearly 300 laws and recorded them in a way that

could be understood by his citizens a code is simply a written collection of a country's laws process of preparing a code is called CODIFICATION judges could look at the written law rather than deciding

for themselves what punishment to pass code followed the principle that the strong should not

injure the weak RETRIBUTION was important because it was believed

that for every crime there should be a deserved punishment: "An eye for an eye, a tooth for a tooth."

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Moses and Mosaic Law set out five books of the Old Testament based on the Ten Commandments that

Moses received on Mount Sinai punishment within Mosaic law were sever

(stoning) Mosaic law required the offender to repay

the victim for goods stolen (restitution)

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Roman Law the basis of law for Western Europe, except England created a profession devoted to the study of legal matters beginning of law as we know it today, and the role of lawyers emperor Justinian (527-564 C.E) codified 1000 years of Roman laws

and produced what is known as the Justinian Code. it was a collection of past laws, opinions from leading Roman legal

experts and new laws enacted by Justinian law emphasised EQUITY -the idea that law should be fair and just,

and that all people are equal under the law regardless of their wealth and power

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Napoleonic Code 1804, after the French Revolution, Emperor

Napoleon Bonaparte revised French law which had been based on Roman law and the Justinian Code

this new set of civil laws was called the Napoleonic Code or the French Civil law

in Quebec, civil law is still based on the Napoleonic Code

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The Development of Canadian Law based upon the laws of France and England French law was codified and written down English law was not codified or written

down until quite late in England's history

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Feudalism and Common Law 1066 William, Duke of Normandy introduced a

system of government from Europe called FEUDALISM (king owns all land-divides it up among lords and nobles (vassal-servants) in return they promise the king loyalty and military service--they in turn had vassal who farmed the land and in turn gave part to the lords

this is the basis for our modern property laws

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king appointed judges to hold hearings over disputes between lords and vassals

judges met to discuss cases and share experiences

as judges developed regular punishments for specific crimes, these legal decisions became the basis of English common law, so called because it was common to the whole of England

common law is based on the rule of precedent

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Precedent is something that has been done that can later serve as an

example or rule for how other things should be done. came about when a case and its decision became common

knowledge in the English legal community if dissatisfied could appeal to the monarch, who had the

authority to overrule judges' decisions precedent introduced a degree of certainty into the law however following precedent too closely can cause a

problem if the precedent is not recent

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Case Law

common law is often called case law recorded case is given a title or CITATION it is distinct from the statute law made by

governments, and it serves as a major part of Canadian law today

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Rule of Law the Magna Carta recognized the principle of the rule of

law all rulers had to obey the rule no ruler could restrict the freedoms of the people without

reason, and the people's legal rights could not be changed without their consent

-the Magna Carta guaranteed the right of HABEAS CORPUS (any person who was imprisoned without an explanation was entitled to appear before the courts within a reasonable time)

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Parliament and Statute Law

job of Parliament was to help make laws for the country

Parliament replaces the King in 1689, Parliament passed the BILL OF

RIGHTS guaranteeing free speech, free election, and freedom of assembly

this event came to be known as the "Glorious Revolution"

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Statute Law important functions of Parliament is to pass laws

or STATUTES common law and case law could not provide

answers to every legal situation so Parliament began to fill the gap

many common-law decisions made by the courts were codified by Parliament and became statute law

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The Development of Canada's Constitution the powers of government to make law, and the

levels of government responsible for making law are described in the CONSTITUTION

first constitution was the British North America Act (BNA act) which came into effect July 1, 1867

Canada was not a fully independent country because Britain still controlled Canada's foreign affairs

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in 1931, the STATUTE OF WESTMINSTER gave Canada control over its foreign affairs

in 1949, the Supreme Court of Canada became Canada's highest court of appeal, replacing the Judicial Committee of the Privy Council of Britain

the BNA act could only be changed or amended by the British Parliament

eg., in 1940 Canadian Federal gov’t wanted to include unemployment insurance in the BNA Act but could not—Britain had to make the change

the Constitution Act 1982 included the amending formula and a new Canadian Charter of Rights and Freedoms

amending formula or clause requires the consent of (1) the Canadian Parliament and (2) two-thirds of the provinces with 50 percent of the population to approve any change--this made Canada an independent country

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The Division of Powers the Constitution Act, 1867, lists the powers of the federal,

provincial, and territorial governments outlines which government has jurisdiction or authority to

make laws in specific areas (a law is intra vires if it is within the jurisdiction of the gov’t passing the law & ultra vires if not

federal powers are outlined in section 91 provincial powers are outlined in section 92 the federal has the residual power in areas not listed as

provincial section 93 gives the provinces control over education

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A Third level of Government

province has given some of their power to a third level, the local municipality

bylaws are made and passed by municipalities

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Lawmakers government (federal and provincial-

statutes; municipality-bylaws) administrative agencies (regulations) courts

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How Laws are made in Canada

a law that the government has proposed is called a BILL

once a bill is passed it becomes an act or statute law

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How Federal Laws are Passed Parliament makes our federal law made up of three parts: House of Commons, the

Senate, and the governor general House of Commons representatives are elected each member (MP) represents a riding the political party that has the largest number of

members elected to the House forms the government

the other parties are called opposition parties

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308 MPs in the House of Commons the leader of the party that has the largest number

of elected members is the prime minister Cabinet ministers are the heads of government

departments that employ thousands of civil servants

Cabinet ministers introduce bills into the House of Common

once approved, it is sent to the Senate and if approved there it is sent to the governor general who signs it into law (royal assent)

see page 21—Passage of a Bill into law at the federal level

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How Provincial Laws are Passed similar to Federal however it does not have a senate once bill passed through 3 readings in the

provincial legislative assembly it goes to the lieutenant-governor for a signature (royal assent)

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How Municipal Bylaws are Passed

an elected council led by a mayor or reeve votes on municipal bylaw

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Canada and International Law globalisation is the transformation of the world into a

global community globalisation has had legal consequences as well as social

and economic ones international law governs relationships between states "state" refers to a group of people that (1) is recognized as

an independent country and (2) has territory ruled by a sovereign (independent) government that can enter into relations with other states.

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International law is based on three types of law: A) Customary Law -states establish practices

that they follow consistently and which they assume are obligatory

it is not written down in formal codes but is found in the written judgments

customary laws recognizes the following principles

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Sovereignty a nations absolute right to govern itself there is no sovereign world government sovereign states have equal status,

regardless of their military or economic power

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Recognition new states gain recognition as sovereign

nations by being recognized by other countries

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Consent states are bound by new international laws

only after they freely give their consent

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Good Faith show good faith in the way they interpret

and use international laws

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Freedom of the Seas states cannot claim ownership of the high

seas expected to use the high seas, the airspace

above the high seas, and the seabed with due regard for the interests of other states

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International Responsibility

a state that does not meet an international obligation has committed a wrongful act

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Self-Defense recognize that states have the right to

defend themselves against the hostile acts of other states

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Humanitarianism is respect for the interests of humankind

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B) Treaty Law written agreements, freely entered into by states bilateral treaties are treaties made between two

states multilateral treaties involve three or more states

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Five steps in the Treaty-Making Process

1) Negotiate2) Formally sign the treaty3) Ratify4) Let the treaty “come into force”5) Implement and enforce the treaty

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Special classes of International Treaties -charters (treaties that establish

international organizations)-conventions (treaties that are negotiated by many countries to which all countries of the world may become partners)-protocols (treaties that add to earlier treaties on the same topic)

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Kyoto Agreement the Kyoto agreement looks at greenhouse

emissions in Canada, the Alberta government indicated that

it would move to block Canada's ratification of the protocol

Alberta is Canada's main producer of oil and natural gas

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Treaties Treaties are the main method for addressing

international problems and conflicts range of matters

a) territories-defining its territory and its international bordersb) diplomatic law and Immunity -(diplomats may not suffer the same penalties for breaking the law as average citizens)c) the protection of Nationals Abroadthe protection of life, liberty and property of people travelling to other nations d) extradition and asylum-to bring them back home or to provide a safe place

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e)international trade-e.g., NAFT North American Free Trade Agreementf) arms control-e.g., the treaties banning the testing of nuclear weapons

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C) Resolutions considered "soft law" because they do not have

the force of customary law or treaties not considered binding can be adopted fairly quickly form the basis for later negotiations on treaties

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The Role of International Organization The United Nations

-established on October 24, 1945-to preserve peace through international cooperation and collective security and to promoting respect for human rights-role in developing international law-does not have sovereign authority-it passes resolutions

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The UN General Assembly all UN members are represented in the assembly 2/3's majority makes decisions on major matters

such as international peace and security and the admission of new members

can't demand action by member states

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The UN Security Council responsible for maintaining international peace and

security member states are obligated to carry out the Council's

decisions consist of 15 members, 5 which are permanent (China,

France, Great Britain, Russian Federation, and the United States)

permanent members can have veto power over all decisions of the Council

Un Charter also permits the Security Council to impose sanctions against states threatening or breaking the peace

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The International Court of Justice (World Court) judicial arm of the United Nations only member states can bring cases before the

international court of justice basis its decisions on international law their decisions are not binding

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A Permanent International Criminal Court

in 1945 four nations established the International Military Tribunal in Nuremberg, Germany

created a permanent international criminal court

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Three classes of international crimes1) crimes against peace (planning or waging a war in

violation of treaties or agreements)2) war crimes (violations of the customs of war, e.g.,

murder, slave labour, murder or ill-treatment of prisoners of war, killing of hostages, plunder of public or private property)

3) crimes against humanity (murder, extermination, enslavement, deportation, or persecution on political, racial or religious grounds

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support for a permanent international court grew during the 1990’s because

1. ethnic cleansing in the former Yugoslavia (widespread killing and mistreatment of civilians)

2. genocide in Rwanda shocked people around the world