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Introduction to Canadian Law

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Stephen Sullivan

on 14 September 2016

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Transcript of Introduction to Canadian Law

Introduction to Law
Systems of Law
1) Common Law
2) Civil Law
British Origin
A malleable, continuously changing process, courts and judges form and reform the law.
Case law, precedent set by higher courts takes precedence over decisions made in lower courts or at earlier dates.
Roman origin.
Emphasis on statute (written law) rather than case law.
Judges are restricted in their ability to change/affect law.
Legend
Red: Common Law Brown: hybrid Green: customary law
Blue: Civil Law Orange: Fiqh
Systems of Law (3)
What's Goin' On in Le Quebec?
Private Law is provincial jurisdiction in Canada. So although public law is practiced using the Common Law system, contracts/property law are practiced using the Civil Law system in Quebec.
This decision was made because of loyalty to France and their system of law. Note that nations that practice Common Law were all once "Commonwealth" nations.
Types of Law
Public
Private
Constitutional Law
Administrative Law
Criminal Law
Family Law
Labour Law
Contract Law
Corporate Law
Tort Law
Property Law
Public law is concerned primarily with matters that affect society as a whole. For example, if someone breaks a criminal law, it is regarded as a wrong against society as a whole.
'Private Law,' also referred to as 'Civil Law' (but don't get confused with "Civil Law System"), deals with relationships between individuals. Civil cases settle private disputes over contracts, property, damages etc.
Edwards v. Canada
The Person’s Case
Emily Murphy
Charles Wilson Cross
SECTION 24, BNA Act (1867)
24. The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.
The Famous Five
"Does the word 'Persons' in section 24 of the British North America Act, 1867, include female persons?"
“Silly Canadians, you’ve got it all wrong.”*

*not an actual quote
Lord Sanky
The Living Tree Doctrine
Supreme Court Ruling is overruled by the Judicial Committee of the Imperial Privy Council, October 1929
SCC Ruling 2004, Same Sex Marriage
The constitutional body of law defines the relationship between individuals or entities and the state. Constitution is the supreme law, it determines who has the power to make laws (eg. executive, legislative, judiciary) and how those laws will be enforced/applied.
Criminal law is the body of law that relates to crime. It regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. It includes the punishment of people who violate these laws.
The term “civil law” is used to mean
two quite different things, which can
be a little confusing at first for people
trying to understand the justice system.
Sometimes the term is used in contrast
to “common law” to refer to the legal
system that is based on a civil code, such
as the Justinian Code or the Civil Code of
Quebec. In its other sense, civil law
refers to matters of private law as
opposed to public law, and particularly
criminal law, which is concerned with
harm to society at large. It is usually
clear from the context which type of
civil law is intended.
The two meanings of civil law
R v. Dudley and Stephens
(1884)
Dudley, Stephens, Brooks, and Parker are in a shipwreck, lost at sea.
Dudley and Stephens determine that it is necessary that someone be sacrificed and eaten for the survival of the other men. Brooks disagrees. Lots are drawn. Parker gets eaten. He's the seventeen year old cabin boy and has no wife/kids so this seems fair.
In a ruling that establishes a precedent that resonates throughout common law nations, it is determined that necessity is not a defense for murder.
Precedent in Action!
R v. Latimer (1997)
A farmer in Saskatchewan is convicted of killing his daughter, Tracy Latimer.
His daughter suffered from cerebral palsy, was quadriplegic, could not speak, and had the mental abilities of an infant.
"formed the view that his daughter's life was not worth living." Mr. Latimer thus poisoned his daughter with carbon monoxide.
In its decision, the Supreme Court ruled that murder could not be justified through the defence of necessity
The Necessity Defense in Canada
R v. Perka
In 1979, a group of marijuana traffickers organized a venture to smuggle marijuana into the U.S. aboard the 168-foot motor vessel Samarkanda.
With $7 million in bails of marijuana on board, the ship was intended to rendezvous with smaller vessels off the U.S. coast and avoid breaking laws by being in international waters.
Engine trouble led to an emergency landing in Canada. The group was charged and defendants' lawyers argued a defence of necessity. They did not intend to land in Canada and international law allowed them to land to save their lives.
Dickson J. (R v. Perka) described the rationale for the defence as a recognition that:
"a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience."
However, it must be "strictly controlled and scrupulously limited." and can only be applied in the strictest of situations where true "involuntariness" is found. Three elements are required for a successful defence :
1) the accused must be in imminent peril or danger
2) the accused must have had no reasonable legal alternative to the course of action he or she undertook
3)the harm inflicted by the accused must be proportional to the harm avoided by the accused
The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable.
Test it!
Do you think the judgement in R v. Latimer can be justified by case law? Look at Dickson's criteria for a successful necessity defense again:
1) the accused must be in imminent peril or danger
2) the accused must have had no reasonable legal alternative to the course of action he or she undertook
3)the harm inflicted by the accused must be proportional to the harm avoided by the accused
Administrative Law
The body of law that deals with actions and operations of the government and government agencies. For example: Citizenship and Immigration Canada
Baker v. Canada
Mavis Baker was a Jamaican woman who lived illegally in Canada for 11 years as a domestic worker. During this time she gave birth to four children in Canada.
When the government discovered that she was in Canada illegally she was ordered deported. She applied for permanent residence and the immigration officer rejected her application without giving reasons.
When she discovered that the reason for rejection was that applications for permanent residence must be filed abroad, she applied for judicial review of the decision.
Duty of Fairness
Baker also argued that the duty of fairness owed to her by the Minister included a duty to provide reasons for any decision made. The court looked to English jurisprudence, in which a common law right to reasons in certain circumstances has developed in the case law. The court found that it would be unfair for the Minister not to provide written reasons for refusing an application in a case such as this where the decision has such significance for the individual and where there is a statutory right of review of the decision.
Family Law
Family Law is concerned with the family relationship, marriage, and divorce.
The Divorce Act
The federal act that governs divorce in Canada. Self-sufficiency of both parties following a divorce is one of the objectives of the act.
But in most marriages, one party tends to suffer economic disadvantage from the marriage.
Moge vs. Moge
A couple were separated in 1973 and eventually divorced. Zofia Moge had been a house-wife for the duration of the marriage and experienced many difficulties in finding work once separated. She worked at a hotel as a maid but eventually lost her job. Andrzej Moge paid child and spousal support at the time, but once Zofia lost her job, she applied to have an increase in spousal support. When Zofia found another job, Andrzej submitted an application to have the support cut-off.
The issue before the Supreme Court was whether the court could grant a cancellation of support on the grounds that she had not been able to reach a level of self-sufficiency.
Decision
Justice Dubé, writing for the majority held that the grounds for cancellation was insufficient. Though the Divorce Act has "self-sufficiency" as one of its objectives it does not subject the spouse to a "sink or swim" philosophy.
Legacy
The decision is viewed by some groups as a landmark for women's rights as it is said to protect women with little job experience from becoming destitute when they get a divorce.
Your opinion:
What do you think the decision should be? Why?

United Kingdom
United States
India
Pakistan
Ghana
Australia
South Africa

Common Law Examples
France
Germany
Japan
South Korea
Brazil
Spain
Italy

Civil Law Examples
"not fit for mixed company."
1916
Charles Wilson Cross
"the government.. [must] set up a special court presided over by women, to try other women."
her authority to preside as a judge was challenged by a lawyer on the basis that women were not considered to be "persons" under the British North America Act.
Full transcript