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Foundations of Canadian Law

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on 21 January 2013

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Transcript of Foundations of Canadian Law

Foundations of Canadian Law What is law? Simply put, laws are rules made by the Government, that all people who live in that society have to follow, or face the consequences. Laws are important, beacuse they provide us with ways to live safely and relatively free to do what we want. Take this example of what might happen if we didn't have laws. As you can see, living in a place with no laws can be be very unpleaseant. Laws provide us with ways to settle disputes safely, they establish rules of conduct, they protect our rights and freedoms and MOST OF ALL they protect us. Law Substantive Law Procedural Law Public Law Private (Civil) Law Tort Law Criminal Law Constitutional Law Administrative Law Labour Law Family Law Property Law Contract Law There are two types of law... Substantive law is the actual law that cannot be borken. It can also be thought of as the substance of law. For example, the law, No Murder, is substantive law. Procedural Law is law that outlines the steps that are to be taken when a substantive law is broken. It is also described as the process of law. For example, if someone were to damage my property, procedural law would outline the steps I could take to receive compensation for the damages. & Under Substantive Law and Procedural Law are... Public Law is law that oversees relations between the government and the people. The three main divisions of Public Law are.... Laws that deal with crimes, outlining what they are and what penalties are to be given when they are broken. Laws that set the structure of the government (federal, provincial and municipal) and the division of powers amongst them. Laws that control the realtions between government agencies and citizens. Laws that deal with wrongs commited by a person against another person. Laws that deal with the relationship between employers and their employees. Laws that deal with the realtions between two people who live togther as partners and between parents and their children. Laws that deal with the use, rental and enjoyment of property. Laws that deal with contracts, the minimum requirement for a contract and the consequences if either party breaks the contarct. Private Law (or Civil Law) is law that deals with the legal relations between people and, or, private organizations. There are five main distributions of Public law. They are... & The Development of Canadian law To know how Canadian law developed, we need to know how law itself started. The Code of Hammurabi The code of Hammurabi is the earliest record of recorded law and was made by the King of Babylon, Hammurabi, in around 1792 - 1750 BCE. About 300 laws were written and so were their punishments. At this time Retribution (punishment for wrong doings) was an important principle. Mosaic Law Mosaic law (also known as the 10 commandments) is law that was given to Moses by God on the mount Sinai. The laws were similar to the code of Hammurabi, but there were only 10 and Restitution (restoration or payment for ones crimes) was the prominent principle in these laws. Roman Law The true legal system began in Rome. As the Roman Empire grew, laws began to be more complex and Lawyers were needed to study legal matters. All Roman laws were codified (putting laws together into one) by the Byzantine Empreor, Justinian (527-564 CE). This became known as Justinian's Code. This is also where the word Justice comes from, because this code empahsizes Equity. After the French Revolution of 1804, Napolean Bonaparte revised french law, which was based on Justinian's code, and it was called the Napoleonic Code, or French Civil Code. Because Napolean conquered much of Europe, this code became law in many places and still remains the basis of law in Quebec. British Law When the Romans left Britain (around 410 CE), the laws began to reflect local traditions and customs. For example, there were three ways to determine if someone was guilty. There was.. As we should all know, Canada was a British colony, and so its laws are heavily based on British laws. Trail By Ordeal The accused would be tortured until they confessed and if they didn't they were not guilty. It was believed that God was the judge and that evil could not prevail against good. Trail By Oath Helping The accused would have their friends swear on the bible that he/she was not guilty. This worked, because most people feared retribution by God, if they lied. This led to the modern day Jury system. Trail By Combat The accused and the accuser would fight, and it was believed that whoever was right, God would guide them and they would win. This led to the modern day Adversarial system (where evidence is presented to the judge and jury). Feudal System A social political and ecomnomic system that was prevelant between the 9th an 15th century. The King would give land and protection to Lords, and they would pass it on until it reached the peasants. The lords ruled the land and created laws for it. This created controversy, because the people were treated poorly. The laws were normally based on customs and traditions. There was no evidence needed and no rights for the accused. People began to rebel, because of this. This led to Common law. Common Law Around 1066, King Henry II decided to do something about the growing problem. He appointed circuit judges that would travel around from villages to towns, and resolve local disputes. The courts were calles assizes. The circuit judges began to record their cases and their decisions. This became known as case law. As you can see from the comic, precedent means something that was done before. So in legal terms, precedent, means to follow the decision that was made before. This led to the principle or "stare decisis", which in Latin means, to stand by the decision. This is what judges do today. Sometimes they use the same decision ruled by another judge, if the circumstances are the same. However they do not have to follow stare decisis. Case law led to Common Law (common decisions for certain crimes) which is based on the rule of precedent. Case law is the recording of informtion dealing with a case. Each case is given a Citation and this citation gives information on who is involved, whether the case is public or private, the year of the decision, the name of the reporter, where the case was held and the location of the citation. How Rights Have Developed In Canada Magna Carta After the reforms of King Henry II, people began to lose faith in the King and his authorithy. They thought that if he didn't create the laws, then maybe God didn't appoint him and if the King wasn't with God, then he was not above the law. This thinking led to a revolt in 1215, and the King at the time, King John, who thought he was above the law, was forced to sign the Magna Carta. This was the first step in establishing individual basic rights. Rule of Law The rule of law was a very important principal and the Magna Carta recognized it. As seen from the comic of the cop trying to bribe the donut man, if you have power or are rich, you can sometimes buy your way out of trouble. The Rule of Law eliminated this, because it put everyone equal over the law, the rich or powerful could not buy their way out. The rule of law also ensured that disputes would be settled peacefully and that governments officials could not change or make rules without consent. Habeas Corpus Habeas Corpus was a part of the magna Carta that was designed to prevent unlawful arrest by ensuring that the accused would be charged within a reasonable amount of time. This way, people did not have to wait in jail for years to be charged and find out that they were innocent. Parliament and Statute LAw I want POWER!! NO! I WANT POWER!!! Parliament The Nobles wanted power and the King wanted power, eventually this led to parliament. The job of parliament was to make laws, as it is today. In 1689, the Glorious Revolution, parliament passed the Bill of Rights that guaranteed free speech, free elections and freedom of assembly. Eventually Parliament became to be seen as a representation of the people, this led to ..... Laws passed by Parliament, were called Statutes. Statute Law is law that fills the gaps that had not or could not have been adressed by common or case law. The Development of Canada's Constitution Canada first became a country on July 1, 1867. Although of course it was still technically a colony. 1867 1982 1931 1898 BNA Act The BNA Act (later renamed the Constitution Act 1867) outlined the powers of the Government to make law (Jurisdiction) and outlined the levels of government responsible for making law. At the creation of the BNA Act, Canada consited of only 4 provinces. Ontario, Quebec, New Brunswick and Nova Scotia. Also, it wasn't fully a free country, it didn't have control over it foreign affairs, so was at war when Britain was at war, and its highest court was the Privy Council in Britain. Alaska Boundary Dispute Statute of Westminster British Parliament passed the statute, granting Canada power over its foreign affairs. 1949 Supreme Court Of Canada Supreme court of Canada became Canada's highest court of appeal. Constitution Act 1982 1981 Amending Formula New Constitution Act that was very similar to Constitution Act 1867, but now has the Amending Formula and the Canadian Charter of Rights and Freedoms. After long negotiations, a formula to change the constitution was made requiring the consent of (1) the Canadian Parliament and (2) two-thirds of the provinces with 50 percent of the population. How Laws are Made Federal Powers Provincial Powers Municipal Powers peace
order
good government
criminal law
unemployment insurance
banking
curency
coingae
federal penitentiaries property rights
civil rights
marriage ceremonies
police forces
provincial courts
highways
roads
provincial jails
hospitals public transit
garbage collection
water
night-time noise
curfew
emergency services
animal control
bylaws Laws are made in Parliament, by the government. Parliament is located in Ottawa, Canada's capital city. The House of Commons houses the elected members of parliament (MP's) and the MP's that form the government can propose laws. A proposed law is called a Bill. At the Federal level, when a bill is proposed, it goes through three readings in the House of Commons, and then again three readings in the Senate, before it is given to the Governor General (Queen's representative) for a signature of approval (the Governor General can refuse). At the Provincial level, it is similar, except it only goes through three readings of the provincial legislature and then to the lieutenat-governor (Queen's representative) for a signature of approval. At the municipal level, the procedure can vary, but generally there is a vote by the elected council. Push the arrows at the bottom right to control the presentation. Enjoy!
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