Unit 1 / Chapter 1 REVIEW CHAPTER 1 / UNIT 1 Overview - review2 Chapter 1 Introduction What is law and why do we have it? The division of law Early history

Unit 1 / Chapter 1

REVIEW

CHAPTER 1 / UNIT 1 Overview - review 2

Chapter 1 Introduction What is law and why do we have it? The division of law Early history of law Development of Canadian Law How laws are made in Canada Canada and International Law


Chaos Lawless ness Lack of security Lack of peace Violence Unfairness

Where would we be without laws?


Introduction1.1

Every country has a history and culture that have shaped it’s laws and punishments.

What is legal in one country is not always legal in another.

You can learn a lot about a country from it’s laws.

Canada is a democracy. It’s citizens elect law makers who make laws that suit

the majority of Canadians

Laws are always changing


What is law and why do we have it? 1.2

Hockey with no rules Football with no rules Court houses with no rules Driving with no rules Why have rules?

Peace Able to get on with other people Understand your place in society!


Rules vs. Laws! Rules (micro)

You have rules of a game. These rules only apply to that game and to those people during the game.

You join a school. You have rules to follow Each school is different Uniforms!!!!!

Law (Macro) Apply to members of society all of the time. Made by the government

Any one that lives in that society must adhere to the law. Speed limits Drugs


The function of laws

Settle disputes peacefully and fairly Establishing rules of conduct Laws that we use every day to have a safe

environment. Speed limit Age to drive

Protecting rights and freedoms Must be able to be enforced


Protecting people Labor conditions Working hours and salaries

Must work to a contract

The function of laws - continued


1. Substantive law Substantive laws are the actual laws that people

must follow, and there are penalties for breaking these laws.

It lists the rights and obligations of each person in society.

Divided into Public and Private law Public law controls the relationship between

government and the people who live in society. E.g : Criminal Constitutional and administrative law

Private Law deals with individuals E.g : Family, tort, contractual property and labor law

2 types of law


Divisions of Law 1.3CANADIAN LAW

Substantive Law(Statute and Case Law)

Procedural Law

Public Law Private (Civil) Law

CriminalLaw

ConstitutionalLaw

Administrative Law

FamilyLaw

ContractLaw

TortLaw

Property Law

LabourLaw


2 Types of Law Continued

2. Procedural law This is all the rules of the law


Substantive Law - Publici) Criminal Law

Set of rules passed by government Offences against society

Murder, rape, kidnapping, assault etc…

Punishments are found in the criminal code When a crime has been committed then the

accused and society are represented by lawyers Society is represented by the crown


Substantive Law - Publicii) Constitutional law

Power is divided among the 3 levels of government

Federal Provincial Local

All in the constitution act 1982


Substantive Law - Public iii) Administrative law

Relationship between citizens and government agencies

E.g.: liquor control boards and consumption licenses at the bar.


Substantive Law Private/ Civil law

Relationships between private citizens and organizations and or other private citizens.

Plaintiff Person who wants to go to court

DefendantPerson who is being sued.

It is possible for the same incident to have both criminal and civil action

e.g.:Plane crashes1. Private plane, not well looked after {Civil}2. Intoxicated. Criminal


Made up of :

Family Law Relationships, child support etc…

Contractual Law Legal binding of partnership etc…

Tort Law Wrongs, breach of contracts etc…

Property Law Anything of cash value

Labor Law Work ethics or labor disputes etc…


Early history of Law1.4

Years ago, society was much smaller. Therefore all the rules were word of mouth Now days, there are to many people, thus rules need to be

written down. Therefore the famous rule book was made:

The code of Hammurabi Moses and Mosaic law Roman law


Code of Hammurabi

Hammurabi was a famous king who ruled Babylonia (Iraq) 3800 years ago.

He took about 300 laws and just wrote them down so that his people could understand them.

He had them calved in pillars of stone One of them was unearthed in 1901 by a tappiologets. It was based on the premise of retribution.

Eye for an eye was the way to go. Death penalty had to have panel of Judges Other offences were simply matched to what ever

punishment was deemed fit for the crime.


Mosaic Law

Centuries after Hammurabi died, Moses gave laws to the Hebrew people

Many were similar to Hammurabi Set out in the first 5 books of the old testament


Mosaic Law

Came in the form of the 10 commandments on mount Sinai

Forbid things like

Killing. Adultery bearing false witness

Punishments were severe

Adultery = stoning to death


Moses and Mosaic Law Centuries after Hammurabi

Laws given to Moses – make up the first five books of the Old Testament (613 laws or ‘mitzvot’) – including the ‘Ten Commandments”

Holds a central position in both the Jewish and Christian faiths

Punishmens of Mosaic law were severe

Student Activity: (Handout) Compare and contrast Code of Hammurabi and Mosaic Law


Roman Law

Began in early Rome and was the basis of western European law except, for England.

As the Roman empire grew, so too did the number of laws, thus a whole profession devoted to the study of legal matters was created.

This marked the beginning of the role of the modern day lawyer.


Roman Law Began by early

Romans – became the basis of law for Western Europe (except England)

As the Roman Empire grew so did the complexity and number of its laws

New profession devoted to the

study of legal matters developed - Law

Roman Empire (100CE – 500CE)

Byzantine emperor Justinian (527-564CE) codified 1000 years of Roman law to create the “Justinian Code”

Laws emphasized equality – that the law should be fair and just, and that all people are equal under the law, regardless of their wealth or power


Napoleonic Code Napoleon Bonaparte - 1804 French Civil Code Established civil law (French law based in both Roman law and the Justinian Code)

Emphasized equality and justice

Napoleon conquered much of Europe during the early 1800

Napoleonic Code therefore became the model for many European countries

Today is the basis of law in many modern democratic countries including Canada (Quebec


Development of Canadian Law1.5

Based on laws of France and England, the countries that colonized Canada

Differences between them French law was codified and written down and English was not

until quite late


Feudalism and Common Law 1066 C.E. William, Duke of

Normandy invades and conquers England

William becomes King of England

Introduces feudalism a system of government

where all the land belongs to the king and is divided up among his lords / nobles in return for loyalty and military service


Feudalism and Common Law

1066- William the Conqueror introduces feudalism to England King owned all the land, divided it between his lords and nobles,

who became the kings vassal’s and promised him loyalty and military service

lords then had vassals who farmed and gave part of their produce to King and Church

basis for modern property law each lord ran his own judicial system over his vassals until

William appointed judges who travelled (assizes) and held trials on controversial or disputed cases; they met regularly in London, and by the 13th century, the law and it’s punishments had been somewhat regulated

basis for modern common law


Law within the Feudal System Common Law Lords (Nobles land) Manor / Estate

Lord ran estate as he saw fit also the judge Within the manor courts there was much injustice People could appeal their case to the king where it would be heard in

an assizes (country court / kings court)

By the 13th century some judges were appointed to travel throughout England - Assizes (country courts)

They developed regular punishments for specific crimes – forming the basis of English common-law

This new system was more ‘just’ therefore earning new respect

This common-law system was introduced to North America by colonists


Common Law and Precedent

Rule of Precedent (When something 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

Result – All judges who heard cases with similar facts would give similar decisions

Established standards for judging offences Originally relied on judges’ memory – unwritten law Now all judgments are recorded and published – Case Law Introduces a degree of certainty into the law


There are a few terms we need to know Precedent Case Law Rule of law Parliament and statute law


Precedent

To set a precedent is to do something that in time to come will be the new rule for how things should be done!

Hence when similar cases are managed there would be similar consequences etc…

Lawyers use this in the hope of swaying the judge to reach a similar decision !


Case Law

Each recorded case is given a title or citation Provides basic information on the case

Who is involved in the case Is case public or private (civil law) Year court decision was reached Which court heard the case Name of court reporter

Intended to be easily retrievable in a law library

Student Activity: Textbook page 15-16, In partners, read both cases and complete the discussion questions


Case Law – citation format Elements of a Criminal Citation

Elements of a Civil Citation

R. v. Bates (2000), 35 C.R. (5th) 327 Ont. C.A.)

Regina or Rex (Latin for “queen” and “king”) represents society

verses (latin for against)

defendant (accused)

Year of decision

Vol. #

Name of reporter where case is reported (e.g. Criminal Reports

series Page #

Jurisdiction (federal, provincial or territory) and court (e.g. Ontario Court of Appeals

Langille et al.

v. McGrath

(2000) 233 N.B.R. (2nd) 29 (N.B.Q.B)

Plaintiff and others (Latin et alia for “and others”)

verses (latin for against)

defendant (accused)

Year of decision

Vol. #

Name of reporter where case is reported (e.g. New Brunswick Reports)

series

Page #

Jurisdiction (federal, provincial or territory) and court (e.g. N.B. Court of Queen’s Bench)

Make note of the case citations for both cases presented on page 16 of text book


The Rule of Law King John (1199-1216)

considered himself above the law Abused the power of his position

(Nobility, clergy and freemen) forced King John to sign the Magna Carta (Great Charter) in 1215

Magna Carta recognizes the principle of the rule of law

King John and all other rulers to follow are subject to the law

Equality before the law Habeas corpus – all have the right

to appear before a court within a reasonable time – released or tried by own peers


Magna Carta 1215 CEExamples: no free man could be imprisoned “except by

the lawful judgment of his peers and by the law of the land”

No Forcing widows to remarry

No forcing villagers to build bridges over rivers

No forcing knights to pay money to excuse themselves from guarding castles

No confiscating the horses or carts of freemen

No helping themselves to firewood that did not belong to them


Rule of Law continued

Canadians are governed by the rule of law Every dispute must be settled by peaceful means,

either by discussion and negotiation or by due process in the courts

Not allowed to settle disputes with violence Government officials are not permitted to change or

make up the rules without consulting anyone else

Our society believes that the concept of “might” is not right


Parliament and Statute Law

50 years after the signing of the Magna Carta, in 1265, a group of nobles revolted against the king – demanding reform to the English legal process

Wanted less power for the king and more power for themselves

Resulted in representatives from all parts of England being brought together to form the first parliament

Over the next 400 years, Parliament struggled for power with the monarchs of Britain


Parliament and Statute Law

Parliament eventually replaced the king More people in power rather than one person

Statute law Means to pass laws Remember as society changes so to do the laws governing it


BNA Act - 1867

British North American Act – 1867

Outlined the powers of the Canadian government to make laws and establish the levels of government for making law (federal / provincial)


Development of Canadian Constitution

BNA Act - 1867(British North American Act) – British Statute•Dominion of Canada formed•British Privy Council – Canada’s highest court•Little control of our affairs (foreign)

Statute of Westminster – 1931•British Statute – Giving Canada control over its foreign affairs

Supreme Court of Canada – 1949•Established and becomes Canada’s highest court

Constitution Act 19821. Canada given an amending formula – ability to change our own constitution = complete independence from Britain2. Canadian Charter of Rights and Freedoms

Our road to independence

Defined areas of federal and provincial jurisdiction (federal more powerful) – only 2

Federal and provincial governments were suspicious of eachother


Bringing Home the Constitution - 1982 Canada could not change the BNA Act,

1867 since it lacked an amending formula – (being a British Statute)

The BNA Act, 1867 was renamed the Constitution Act, 1867. That in addition to the amending formula and the Canadian Charter of Rights and Freedoms makes up the Constitution Act, 1982.

Pierre Trudeau re-patriated (brought home) the Constitution without support of all provinces all except Quebec agreed in 1982


The Constitution

A written document that sets down all the important rules for how

a country operates


The Canadian Charter of Rights and Freedoms Guarantees rights to

all Canadians (since 1982)

Citizens can make a case that their rights are being denied

Rights vs. privileges Driving is a privilege,

earned, and can be revoked


Amending Formula TodayAmendment Who must agree

Changing the roles of the Queen, GG, L-GChanging the use of English or French

nationallyChanging the Supreme CourtChanging the amending formula

The federal government and all ten provinces

Changing the borders between provincesChanging the use, provincially, of English or French

The federal government and the affected provinces

Changing the Senate or the H of C The federal government

All other changes The federal government and seven of the ten provinces representing at least 50% of the population


Federal PowersConstitution Act – 1867 (Section 91) POGG

Gave federal government power to enact laws that were needed to maintain POGG

2 main powers: any genuinely new power not set out in the BNA act veto provincial powers in national emergency

Criminal Law Unemployment insurance Banking, currency, and coinage Federal penitentiaries Marriage and divorce Postal services Aboriginal peoples and their land


Provincial Powers(Section 92) – Constitution Act - 1867 Property and civil rights Marriage ceremonies Police forces and provincial courts Highways and roads Provincial jails hospitals


Municipalities

not outlined in the Constitution Act, 1982 Creations of the province – subject to provincial law/rule

Sewage and garbage disposal Roads, sidewalks, snow removal Street lighting, parks Libraries, public transportation, pools and arenas

Local police and firefighting



Government Bills / Statutes – Federal The process through which an idea becomes a law

An Idea•Awareness that something needs to change

•May begin withAny MP

•Draft up a new Policy which is Checked by Lawyers

•This is a bill

First Reading Second Reading

•Bill is readTo the HouseOf Commons

•No discussion

•No debate

•No Vote

•MPs may question and debate new bill

•Vote

CommitteeReport Stage

•Studied clause by clause by a standing committee of MPs from all parties

•Public and expert input

•Vote and make changes

Third Reading

•More discussion and debate in the House of commons

VOTEIn H of C

Senate

•Federal level only

•Follows same process (3 readings) - vote

•Any changes – sent back to the H of C

Royal Assent

•Signed by the GG or Queen – turns bill into an ‘act’ which turns it into law



Government Bills - Provincial Cartoon clip

Similar process to federal process

Occurs in the Provincial Legislative Assembly (Ontario – Queen’s Park)

Involves MPPs (3 readings)

Does not involve the Senate (0 readings)

Must be signed by the Crown (Lieutenant-governor)


Government Bills / Bylaws - Municipal

Similar process to that of a federal bill

Occurs at a City Hall

City councilors (Elected City Council)

Signed by the mayor


Canada and International Law


Globalization The transformation of the world into a global

community Trade alliances Electronics / technology


Globalization

Legal consequences:1. Interactions among nations have become more complex

2. Resulted in more disagreements

International law governs relationships between states.

States must agree to follow rules of international law when they form relationships with each other.


What is a State?

A group of people1. Is recognized as an independent country2. Has territory ruled by a sovereign (independent

government) that can enter into relationship with other states

Canada is one of 195 sovereign states in the world today 192 members of the UN U.S. State Department recognized 194 States

(exception – Taiwan)


International Law – 3 Types

1. Customary Law practices states follow consistently which they assume are

obligatory Not actual written codes but found in the written

judgments in international law cases

2. Treaty Law Binding agreements , freely entered into by states

3. Resolutions “soft law” (lack the force f customary or treaty law) Purpose – can be adopted quickly


Customary Law- Principles

Sovereignty a nation’s absolute power to govern itself Control over its territory to the exclusion of other states

Recognition Sovereign nations must be recognized by other states

Consent States are bound by new international laws only after they

freely give consentGood Faith

States expected to conduct their affairs with reasonableness and common sense – in how they interpret and use international law


Customary Law- Principles cont.

Freedom of the Seas States cannot claim ownership of any portion of the high seas –

and airspace above the high seasInternational Responsibility

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

It may face criminal penaltiesSelf-Defence

A threat of use of force against other states is unlawful (UN). International law recognizes a that states have the right to defend themselves against hostile act

Humanitarianism Respect for the interests of humankind – famine or disaster

relief


Treaty Law

Binding agreements , freely entered into by states 5 step process – see page 24 (textbook)

Charter 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


Treaty Law continued

Treaties – main method of dealing with international problems and conflict

1. Territory – ban further seizure of territory

2. Diplomatic Law and Immunity – states carry on their relations through diplomats and envoys – privileges

3. Protection of Nationals Abroad – Foreign nationals are entitled to protection of life, liberty and property. International law recognizes a state’s right to seize and nationalize property in national interest


Treaty Law continued

4. Extradition and Asylum- extradition treaties let nations bring home people who are trying to escape justice

5. International Trade – international trade agreements (NAFTA

6. Arms Control – banning the testing of nuclear weapons,


Resolutions

“soft law” (lack the force f customary or treaty law) Purpose – can be adopted quickly Can form the basis for later treaty negotiation


International Organizations

Developing and applying international law Resolving disputes between states

United Nations (1945)1. Not the world government

2. Does not have sovereign authority to make laws

3. Passes resolutions

4. 192 nation members


UN

General Assembly Each nation gets 1

vote 2/3 majority makes

a decision on major matters

Cannot demand actions but its resolutions carry strong moral authority


UN

Security Council Responsible for maintain peace and security 15 members, 5 of which are permanent

members (china, U.S., France, Great Britain and Russia)

Have Veto power


International Law

Based on principles, rather then on exact wordings

Takes into account the generally accepted practices of judicial systems around the world

Deals only with disputes between countries, not individuals

An individual cannot bring a complaint against a country


The International Court of Justice

Established by the UN in 1945 in The Hague, Netherlands

15 judges, elected by the General Assembly and the Security Council

To maintain peace and security, and to develop friendly relations among nations.

Settles cases involving international borders, diplomatic relations, the right of the country to handle international affairs as it deems fit


Documents

Unit 1 / Chapter 1 REVIEW CHAPTER 1 / UNIT 1 Overview - review2 Chapter 1 Introduction What is law and why do we have it? The division of law Early history