Legal Foundations

Legal Foundations

1. What is Law?

   • Legal system represents society's values and beliefs
   • Purpose of Law
     • Helps to avoid and settle disputes
     • Clearly states rights and obligations of citizens and government
       • Charter of Rights and Freedoms
       • Criminal Code of Canada
     • Provides remedies (solutions, compensation)
     • Sets up government structure
     • Maintains order and provides protection
       • Laws enforced by police in order to deter unacceptable behaviour by society
     • Directs how to make laws
       • Constitutional law outlines legal procedure for creating laws and passing them
   • Rules vs. Law
     • Breaking rules can have consequences
     • Aren't enforced by police or court
     • Can opt out of rules
     • Can't opt or change laws
     • If you break a law and are caught, you get a punishment
     • Rules aren't laws, but laws are rules
   • A rule of conduct enacted by government for society to follow and obey
     • Regulate our social, political, and economic activities
     • Can differ between nations, provinces, and cities
     • Examples
       • The Divorce Act (F)
       • Criminal Code of Canada (F)
       • Education Act (P)
       • Municipal By-Laws
   • Need of Law
     • Creates predictability and structure for a safe and peaceful society
     • Protects the rights of individual citizens, especially against government
   • Rule of Law
     • Three-part principle of justice
       • Individuals recognize laws are necessary to have order
       • Laws apply equal to everyone
       • No one can exercise unrestricted power to take away rights except in accordance of law
   • Law and Morality
     • Laws can be purely practical and logical
       • Always Controversy
     • Others reflect values of the majority of society
   • What is Justice?
     • Answer changes over time
     • Is equality always required for justice?
     • Characteristics of Justice
       • Treat like cases alike and different cases differently
       • A law can't be used if it discriminate using irrelevant characteristics
       • Law should be impartial, regardless of person's position or financial status
       • Laws must be just have some relationship to society's values and beliefs

2. Stakeholders of Law

   • What is a stakeholder?
     • A person, group, or organization with an interest or concern for something
     • Concerned with how a legal principle, law, law-marker, legal decision, etc. affects them
   • Who are stakeholders?
     • Individuals
       • Specific people who have been or can be affected by the law
       • Significance of legal topic can vary depend on the situation
       • Ex. Right to lawyer is significant if you are arrested or detained
     • Groups
       • Any sector involving more than one individual
       • May include a sector of population, an organization or corporation, or a lobby group
         • Ex. parents, youth, Ontario School Boards, Google, Police, MADD, Autsim Society of Canada
     • Legal system
       • Substantive
         • Are the laws as they are written and interpreted
           • Ex. Criminal Code, Employment Act
       • Procedural
         • How the law is enforced and parties involved in enforcing
           • Ex. Judge, police officer, bail hearings
     • Government
       • Branches of government
         • Legislative
           • Ex. Parliament, provincial Legislature
         • Executive
           • Ministry of Environment, Police, Boards of Education, Ministry of Labour, Etc..
         • Judiciary
           • Ex. Provincial Court Judges, Parties of a Court Trial, Supreme Court of Canada

3. Divisions of Law

   • Substantive Law
   • Procedural Law
     • Private/Civil Law
       • Family Law
       • Contract Law
       • Tort Law
       • Property Law
       • Labour Law
     • Public Law
       • Criminal Law
       • Constitutional Law
       • Administrative Law

4. The History of Canadian Law

   • Codification of Laws
     • Writing down the laws
   • Code of Hammurabi 1750 BCE
     • One of earliest records of written law
     • King Hammurabi codified nearly 300 laws on stone
     • Placed in city centre
     • Organized under headings
       • Family
       • Criminal
       • Labour
       • Property
       • Trade
       • Business
     • Laws based off "eye of an eye"; no distintion for accidents and deliberate acts
   • Mosaic Law 1240 BCE
     • Based off Ten Commandments
       • Bible says Moses received the laws from God on two stone tablets
     • More concerned about punishing deliberate acts than accidental
     • Restitution was important
   • Greek Law 400 BCE
     • First form of democracy
     • Had jury system
       • Citizens (men) are expected to be part of important decision making to run country
       • 6000+ members
   • Roman Law 450 BCE - 100 AD
     • Two basic principles:
       • Law must be recorded
       • Justice wasn't just left to judge
     • Law of the Twelve Tablets
       • Promoted public prosecution
       • Created system of victim compensation
       • Protected lower class from abuse
       • Allowed anyone accused of a crime to seek legal advice
     • Considered foundation for modern law
   • Early British Law 410 AD
     • Turned to God to determine innocent or guilty
       • Trial by ordeal
       • Trial by combat
       • Trial by combat
     • Used today in Canadian court rooms
   • Justinian Code 500 AD
     • Codified 1000 years of Roman Law
     • First part emphasized equality under law
     • Became one of main legal systems to govern Western civilizations
   • Feudal System and Common Law 1066 AD
     • King owned all of land and divided it among lords and nobles
       • Became king's vassals and promised loyalty and military services
         • Lords had own vassals
     • Lots of injustice
     • Appointed judges to travel through England
       • Judges met and discussed cases and shared experiences
       • Treated similar cases like each other; case law
       • Cases got citations
       • Legal decisions and punishments became basis for Common Law
         • Relied on case law or precedent
   • Magna Carta 1215 AD
     • Established rule of law
       • Everyone is equal under the law
     • Included habeas corpus; law to see if someone is being legally detained
   • Napoleonic Code 1804 AD
     • Set of civil laws
     • Model for most of Europe
     • Sometimes referred to French Civil Code

5. Fundamental Legal Principles of Canadian Law

   • Rule of Law
     • States law is applied equally to all people
       • Sign. to Ind.: allows individuals to coexist peacefully
       • Sign. to Groups: protects groups, and allows them to have a voice
       • Sign. to gov.: provides accountability and restricts power
       • Sign. to legal system: makes sure system is run smoothly and fairly
   • Parliamentary Supremacy
     • States parliament has supreme power on making laws
       • Sign. to ind.: citizens control which laws are passed by voting
       • Sign. to groups: have a voice in gov.
       • Sign. to gov.: Provides power to create, pass, and revise laws
       • Sign. to legal system: holds judge responsible for interpreting and applying laws
   • Presumption of Innocence
     • States state must establish they are guilty before determining punishment
       • Sign. to ind.: Makes sure no one is found guilty without a proper hearing
       • Sign. to group: Can't be punished without due process of law
       • Sign. of gov.: Holds gov. accountable and provides checks and balances for gov. before punishment
       • Sign. of legal system: ensures integrity, no dictatorship-like punishments, and decreases likely-hood of wrongful convictions
   • Equality Before Law
     • States individuals are to be treated equally or similarly in the eyes of law
       • Sign. to ind.: ensures fairness and no discrimination
       • Sign. to groups: ensures fairness and similar treatment of similar situations
       • Sign. of gov.: forces gov. to look at similar cases, and to decrease bias
       • Sign. of legal system: provides consistency, predictability, and provides a system of checks and balances in legal decision-making
   • Right of Habeas Corpus
     • States an accused and detained person appears in front of the court at a reasonable time, the validity is determined, and if not valid, detained is released
       • Sign. to ind.: Ensures no one is held detained without legal justification, provides security of "unknown" and due process of law
       • Sign. to groups: same as individual
       • Sign. to gov.: Prevents abuse of power, forces gov. to conduct thorough investigations
       • Sign. to legal system: prevents trials and punishments without cause, decrease likelyhood of wrongful convictions
   • Rule of Precedent
     • An action or decision of a higher court that sets an example to the rest of the courts
       • Sign. to ind.: ensures consistency and fairness
       • Sign. to groups: same as ind.
       • Sign. to gov.: may change admin and enforcement of law
       • Sign. to legal systems: court is obligated to consider previous decisions, provide an avenue for ind. to appeal, forces lawyers to demonstrate to judges how a previous decision relates to client's case

6. Spanking Case

   • CYCFL applied to court asking for a declaration that S. 43 was unconstitutional because it legalizes the use of corporal punishment against children for correction
     • Said it violated s. 7, 11, 15(1) of the Charter
   • Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
   • Some groups got the intervener status
     • In support of change was Ontario Association of Children's Aid Societies
     • In opposition of change was Canadian Teachers' Federation and Coalition for Family Autonomy
   • Case was heard December 6th-10th 1999, but no ruling was made until July 5th, 2000
     • Judge ruled that s. 43 was consistent and didn't violate the Charter
       • Dismissed the application
       • Supported that the federal Parliament examine the use of reasonable force to come up with more clearly defined guidelines
   • In January 2001, CFCYL appealed the judge's decision
     • On January 15th, 2002, the Court of Appeal upheld the lower court's decision stating the purpose of s. 43 was to use corrective force