Copyright © 2008 Pearson Education Canada2-1 Chapter 2: Introduction to the Legal System

Copyright © 2008 Pearson Education Canada 2-1

Chapter 2:Chapter 2:

Introduction to Introduction to the Legal the Legal SystemSystem


What Is Law?What Is Law?

Difficult to come up with a definition for lawDifficult to come up with a definition for law Definition is affected by:Definition is affected by:

• HistoryHistory• TheoryTheory• Legal System in PlaceLegal System in Place• Social RealitiesSocial Realities


Philosophical Basis of LawPhilosophical Basis of Law

Natural Law TheoryNatural Law Theory What God Says It IsWhat God Says It Is Based on MoralsBased on Morals

Legal PositivismLegal Positivism What the Ruler Says It IsWhat the Ruler Says It Is No Moral BasisNo Moral Basis

Legal RealismLegal Realism What the Court Says It IsWhat the Court Says It Is Social Moral ValuesSocial Moral Values


Definition of LawDefinition of Law

Law is the body of rules that Law is the body of rules that can be enforced by the can be enforced by the courts or other government courts or other government agenciesagencies


Categories of LawsCategories of Laws

Substantive LawSubstantive Law The rules that govern behaviour and set limits The rules that govern behaviour and set limits

on conducton conduct Procedural LawProcedural Law

How rights and obligations are enforcedHow rights and obligations are enforced


Categories of Laws/2Categories of Laws/2

Public LawPublic Law Regulates our relationship with governmentRegulates our relationship with government

Private LawPrivate Law Regulates personal, social and business Regulates personal, social and business

relationshipsrelationships


Civil Law Legal SystemCivil Law Legal System

Roman Law - JustinianRoman Law - Justinian CodifiedCodified Modified by NapoleonModified by Napoleon Used in Europe and most developing Used in Europe and most developing

countriescountries Quebec’s legal system is based on the Quebec’s legal system is based on the

French Civil CodeFrench Civil Code


Common Law Legal SystemCommon Law Legal System

Great Britain and Commonwealth Great Britain and Commonwealth Judge-made LawJudge-made Law

Developed in the CourtsDeveloped in the Courts Based on precedent or Based on precedent or stare decisisstare decisis

• judges are bound by previous decisions of higher judges are bound by previous decisions of higher courtscourts


Sources of LawSources of Law

Common LawCommon Law the precedent-making decisions of the courts the precedent-making decisions of the courts

of Great Britainof Great Britain Law of EquityLaw of Equity

decisions made by Court of Chancerydecisions made by Court of Chancery StatutesStatutes


Statute LawStatute Law

Statute Law Statute Law Legislation overrides common law or Legislation overrides common law or judge-made law judge-made law

Often summarizes or modifies common Often summarizes or modifies common law. For example:law. For example:

• Criminal Code Criminal Code • Trespass Act Trespass Act

Includes government regulationsIncludes government regulations


The Law in CanadaThe Law in Canada

Constitution Act, 1867 – Division of Constitution Act, 1867 – Division of PowersPowers

Statute of Westminster (1931)Statute of Westminster (1931) Constitution Act (1982) Constitution Act (1982) The Canadian Charter of Rights and The Canadian Charter of Rights and

FreedomsFreedoms


ConventionsConventions

Canada inherited certain conventions or Canada inherited certain conventions or traditions from Britaintraditions from Britain

For example:For example: Democratic parliamentary systemDemocratic parliamentary system Rule of LawRule of Law Principles established in the Principles established in the Magna CartaMagna Carta and and

the the English Bill of RightsEnglish Bill of Rights


Constitution Act (1867)Constitution Act (1867)

Formerly known as British North America Formerly known as British North America ActAct

Sections 91 and 92 divide powers Sections 91 and 92 divide powers between federal and provincial between federal and provincial governmentsgovernments

Structure of the judicial systemStructure of the judicial system


Question for DiscussionQuestion for Discussion

Canada’s constitutional structure is Canada’s constitutional structure is essentially different from Britain’s because essentially different from Britain’s because it consists of the federal government and it consists of the federal government and ten provincial governments each with ten provincial governments each with power to act in their own jurisdiction. power to act in their own jurisdiction. What impact does this have on businesses What impact does this have on businesses operating within and between provinces?operating within and between provinces?


Constitution Act (1982)Constitution Act (1982)

Lists government enactments having Lists government enactments having constitutional statusconstitutional status

Ends ties with British GovernmentEnds ties with British Government Establishes amending formula for Establishes amending formula for

constitutional changeconstitutional change Charter of Rights and FreedomsCharter of Rights and Freedoms


Human Rights LegislationHuman Rights Legislation

Traditionally common law and custom Traditionally common law and custom protected human rights and individual protected human rights and individual freedomsfreedoms

Legislation now protects individuals Legislation now protects individuals against human rights violations in social against human rights violations in social and private relationshipsand private relationships

Canadian Bill of Rights attempted to Canadian Bill of Rights attempted to protect individuals from abuses by protect individuals from abuses by governmentgovernment


Charter of Rights and FreedomsCharter of Rights and Freedoms

Entrenches individual rightsEntrenches individual rights Protects individuals from infringement on Protects individuals from infringement on

their rights by governments or their agentstheir rights by governments or their agents


Charter of Rights and Freedoms/2Charter of Rights and Freedoms/2

Limitations on Charter rightsLimitations on Charter rights Section 1 - interference with right must Section 1 - interference with right must

be justifiable in a free and democratic be justifiable in a free and democratic societysociety

Section 33 - legislatures can pass acts Section 33 - legislatures can pass acts that infringe on rights “notwithstanding” that infringe on rights “notwithstanding” the Charter but legislation must be the Charter but legislation must be reviewed every 5 yearsreviewed every 5 years


Personal FreedomsPersonal Freedoms

Democratic RightsDemocratic Rights Mobility RightsMobility Rights Legal RightsLegal Rights Equality RightsEquality Rights Language RightsLanguage Rights


Human Rights LegislationHuman Rights Legislation

Canadian Human Rights Act – federal Canadian Human Rights Act – federal legislationlegislation

Provincial human rights acts – protect Provincial human rights acts – protect private relationshipsprivate relationships

Must comply with CharterMust comply with Charter Tribunals hear complaintsTribunals hear complaints


Question for DiscussionQuestion for Discussion

Consider the principle of supremacy of Consider the principle of supremacy of Parliament and the limitations placed on Parliament and the limitations placed on Parliament by the Charter of Rights and Parliament by the Charter of Rights and Freedoms.Freedoms.

Is it appropriate for the Courts to have the Is it appropriate for the Courts to have the power to declare some legislation invalid?power to declare some legislation invalid?

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Copyright © 2008 Pearson Education Canada2-1 Chapter 2: Introduction to the Legal System