Part A-II
An Introduction to
Introduction to Canadian Law
and Legal Institutions
9/13/09
Intro_B
1
An Introduction to
Introduction to Canadian Law and Legal
Institutions



This material (Intro_B) (Part A-II) replaces much
of the material in Chapter 3 of the text
This is the Canadian version of much of the
Chapter 3 material
You should still read Chapter 3
9/13/09
Intro_B
2
Objectives
An overview of the structure of our system of laws.

the organization of the specific bodies of law,
such as ‘property law’, ‘contract law’, ‘torts’ or
‘criminal law’, within the overall structure of our
legal system

the origins of law

the role of political institutions and the judiciary

legal terminology we will use throughout the
course
9/13/09
Intro_B
3
What is Law?
In very general terms:
“The Law is a social structure that establishes the
relationship of individual society members to
each other and to society as a whole”
In more practical terms:
There are ‘areas’ of law each dealing with a defined
set of issues but each forming a part of a broader
integrated system of laws and procedures that
make up the Canadian legal system.
9/13/09
Intro_B
4
The structure of the Law
1.1
Positive Law – ‘law actually and specifically
enacted or adopted by proper authority for
the government of an organized society’
1.2
Other law - all other notions of binding law
(natural law, morality, orthodox religious
beliefs, ‘law of the jungle’, etc.)
9/13/09
Intro_B
5
Positive Law
2.1
International Law - concerned with the
legal relations between nations,
international bodies and the relations of
individuals across national boundaries
2.2
Domestic Law - positive law which governs
the affairs of all persons within a sovereign
nation.
9/13/09
Intro_B
6
Positive Domestic Law
3.a Substantive Law - general and specific legal
principles, as set out in various sources of which
create, define and regulate the rights and duties
of individuals, governments, and other parties.
3.b Procedural/Adjectival Law - the law of
civil procedure (rules of court), jurisdictional
law, criminal law procedure, law of evidence.
9/13/09
Intro_B
7
3.1 Public Law - concerned with the organization
of the state and the relations between the state
and the people and other legal entities which
compose the state.
3.2 Private Law - defines, regulates, enforces
and administers relationships among individuals,
corporations, and associations within the state.
9/13/09
Intro_B
8
Public Law
Public Law is sometimes described as that area of
the law in which ‘public’ interest as opposed to
‘private’ interest dominates.
Public Law includes:
- Constitutional Law
- Administrative Law
- Criminal Law
- Taxation Law
9/13/09
Intro_B
9
Private Law
- that area of the law in which ‘private’ interest as
opposed to ‘public’ interest dominates.
- concerned with resolving private disputes
- can have a significant ‘public’ impact beyond the
interest of the particular private parties involved
(persons, corporations, other legal entities)
- Except for Criminal matters, most of the cases
dealt with in Canadian courts deal with Private
Law.
9/13/09
Intro_B
10
Three main areas of Private Law:
Property Law - concerned with legally recognized
rights associated with the ownership of real and
personal property.
Contract Law - concerned with binding agreements
between private parties, entered into voluntarily
for mutual consideration.
Torts Law - concerned with the unintentional
violation of the private rights of others and the
negligent abrogation of legal responsibilities
owning to others.
9/13/09
Intro_B
11
Other specific areas of Private Law
Law of Wills and Trusts
Family Law
Real Estate Law
Commercial Law
Environmental Law
Corporate Law
Patents and Trademark Law (really part of
Property Law)
Agency and Employment Law (labour law)
Environmental law
etc., etc.
Despite the above classification, the Law is to a
large extent a ‘seamless web’. The various areas
of the Law overlap.
9/13/09
Intro_B
12
Two Great Traditions
in Western Law
COMMON LAW: A body of law which has its origins
in the customs and traditions of society and
evolves through judicial decisions.
Common Law as opposed to ‘enacted law’
Common law is traditional law, unenacted law or
judge made law.
9/13/09
Intro_B
13
CIVIL LAW: is based on ancient Roman law, French custom
and legislation as it existed in Napoleonic times.
Codified in 1804 the Napoleonic Code - basis for civil law
codes enacted in most of continental Europe, Scotland, and
many former French colonies, including Quebec, Louisiana
Under a civil law system, an accepted set of principles is set
out in an enacted civil code (covering matters of property,
contracts, torts, etc.).
Judges make decisions based on how the facts in a given case
fit the principles set out in the civil code
9/13/09
Intro_B
14
Under the common law tradition:
- legislatures or rulers do not set out explicit principles
(enacted laws) governing property, contracts, torts, etc.
- judges or juries hear the facts of a given case and make
their decision based on ‘precedent
- common law ‘precedents’ evolve over time as judges make
new decisions (Judge made law).
- the encroachment of enacted law (consumer protection laws,
environmental laws, truth in advertising laws, labour laws,
no-fault insurance, etc.)
9/13/09
Intro_B
15
Canada follows both legal traditions
- ‘civil law’ in Quebec
- ‘common law’ in other provinces
In modern times, this distinction applies mostly to
Private Law matters (Property, Contracts, Torts,
etc.). Criminal, Constitutional, Administrative and
Taxation law follow civil law principles (they are
enacted law) in all jurisdictions
9/13/09
Intro_B
16
The Sources of Law
How laws arise
There are various sources for our laws and there is
a hierarchy of laws
Laws of England and other Civil and Common law
jurisdictions
Canadian law (enacted and judge made)
9/13/09
Intro_B
17
Constitution: sets out the distribution of powers
Statute law / primary legislation: Parliament and
Legislatures enact statutes (or codes)
- This is enacted law which takes precedent over
common law
Subordinate legislation; (bylaws, ordinances,
orders-in-council, regulations) enacted by groups
to which Parliament or a provincial legislature has
delegated authority
9/13/09
Intro_B
18
Judges cannot overturn enacted law BUT!
- Courts must determine whether a law was validly
enacted
- Courts must also interpret the wording of the law.
(words are elusive)
9/13/09
Intro_B
19
Charter of Rights and Freedoms: sets out the rights of the
individual in relation to the state
English tradition - enacted law is intended to limit the power
of courts. Parliament is supreme over the courts.
Runnymeade (Magna Carta 1215)
American tradition – (1791) Bill of Rights (rights of individual
citizens) limits power of all government over citizens. In the
American tradition the Supreme Court is supreme over the
President and Congress VERY RADICAL
Canadian tradition - Charter of Rights and Freedoms (1982)
The Charter of Rights and Freedoms is similar to the Bill of
Rights, however the ‘not withstanding clause’ establishes
Parliament and the legislatures as supreme.
9/13/09
Intro_B
20
Judicial decisions / case law:
Judges make decisions of law based on the facts of
a given case.
Lower courts are bound by the decisions of higher
courts
Stare decisis (like cases must be decided alike so that all courts are bound by their own previous
decisions)
A given decision of a given court can establish
precedent, which in effect creates new case law.
9/13/09
Intro_B
21
Enacted law versus judge made law
Elected officials make laws and regulations – elected officials can
be removed from office.
Judges are appointed, citizens have little say in who becomes a
judge, citizens cannot remove a judge from office.
Judges are needed to apply the enacted law, but why should
they be allowed to ‘make new law’?
Courts cannot avoid an issue. A judge must issue a
judgement. Politicians can avoid issues
Courts provide a counter balance to politicians and help
correct some of the deficiencies of a democratic system
9/13/09
Intro_B
22
Scholarly writings
At times academic work is used as a basis for
judicial decisions
Only truly becomes law after it has been accepted
by the courts or used as the basis for enacted law
Here is the point at which scholars can play their
most direct role in influencing the law
9/13/09
Intro_B
23
Federal and Provincial courts in Canada
Supreme Court of Canada
Federal Court of Canada
- Trial Division
- Appeal Division
Other Federal Courts (Courts Martial, Tax Court, CRTC,
NEB, Tariff Board - Administrative Tribunals),
Provincial Superior Courts
- Trial Division
- Appeal Division
Other Provincial Courts (Small Claims Court, Family
Court, Juvenile Court, Administrative Tribunals).
9/13/09
Intro_B
24
The nature of a legal dispute
Private Legal Disputes
A legal dispute results when one party claims that some other
party (to the dispute) has ‘harmed’ them
Parties - private persons, corporations (including such
corporations as municipalities) or governments acting as
individual legal entities
Harm - physical, emotional, pecuniary or non-pecuniary
Injured party believes that it has cause of action - a valid legal
claim against the party that injured it
9/13/09
Intro_B
25
The party that believes it has a cause of action files a
complaint
This complaining party is referred to as the plaintiff.
The party who is alleged to have caused the injury is the
defendant and must answer the complaint
The answer - a brief statement as to whether or not the
defendant will make a defence - why it believes that it did
not cause the harm
Settlement discussions / mediation / arbitration?
Most disputes get settled at this stage
9/13/09
Intro_B
26
If not resolved, then there are three possible outcomes at this
point
-
-
-
a judge might decided, based on the complaint and answer,
that there is sufficient reason to proceed to trial
a judge might decide to dismiss the complaint by summary
judgement (in favour of the defendant)
a judge might decide to rule in favour of the plaintiff by
summary judgement
9/13/09
Intro_B
27
At trial a ‘jury’ is empanelled to hear the evidence and
determine the facts or, a judge might try the case without a
jury.
The ‘finder of fact’ will hear the evidence presented by both
parties to the dispute and decide who wins
The standard used to decided the case (preponderance-of-theevidence - at least 51% believable - balance of probabilities)
Different standard is used in criminal proceedings (beyond a
reasonable doubt or clear and convincing – 99% certain)
The standard of proof in legal disputes between private parties
is much weaker than it is for criminal trials. (O.J. Simpson /
Michael Jackson / executives at many corporations)
9/13/09
Intro_B
28
The jury returns a verdict, the judge enters a judgement on
the verdict - if the trial is by judge alone, then the judge
acts as the finder of fact and applies the law
Either party, the winner or the loser, may appeal the
judgement
An appeal cannot be based on the finding of fact but only on
the claimed improper application of the law or improper
procedures
The appellate court accepts the facts as developed at the
original trial - other interested parties might also request
standing and offer opinions
9/13/09
Intro_B
29