Introduction to the Canadian Legal System

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Chapter 2
Introduction To The Canadian Legal System

What is Law?
* Law is the body of rules made by government that can be enforced by the courts or by other government agencies * Definition of law is affected by history, theory, legal system in place, and social realities

Natural Law Theory
* Law is based on prevalent moral code
* Influenced by religious belief, reason, and logic

Legal Positivism
* Law is determined by those with the authority to do so
* Legislatures have declared law

Legal Realism
* Law is determined by what rules the courts are willing and able to enforce * Law allows judges to factor in current social and economic realities when they make their decisions

Government Agencies Also Enforce The Law
* Labour relations boards
* Workers Compensation Board
* Municipal Boards
* Human Rights Commissions

Substantive Law
* The rules that govern behavior and set limits on conduct * Public and Private Law

Procedural Law
* How the substantive laws will be enforced
* The rules governing arrest, investigations, pretrial, and court processes in both criminal and civil cases

Public Law
* Regulates our relationship with government
* Constitutional: how country is governed
* Criminal: laws protecting society
* Administrative: regulations created by government agencies (labour relations, CRTC, municipal) * Tax Law
Private or Civil Law
* Regulates personal, social, and business relationships
* Torts: intentional negligence, other business torts * Property: personal property, real property, intellectual property * Contracts: sales of goods act, employment, negotiable instruments corporations, mortgages

Civil Law Legal System (Civil Code)
* A list of rules stated as broad principles of law that judges apply to cases * Used in Europe and most developing countries
* Quebec’s legal system is based on the French Civil Code (most recent came into effect in 1994) * Code determines the principle to be applied

Common Law Legal System
* Judge made law
* A system of justice developed by judges, in which judges were required to follow each others decision * Based on precedent or “stare decisis”
* Judges are bound by previous decisions of higher courts in the same jurisdiction, based on similar facts * May distinguish cases on the facts
* Used in Great Britain and Commonwealth including most of Canada (except Quebec)

Common Law Sources

1. Common Law
* The precedent making decisions of the courts
* Customs and traditions are a major source of common law * Common Law borrows from:
* Roman Civil Law: concept of property and possessions * Cannon or Church law: contribute law in relation to family and estates * Law Merchants: trading between merchants, guilds (unions) and other nations

2. Law of Equity
* Decisions made by court of Chancery
* Based originally on fairness and justice
* Developed to counter rigid common law
* Courts later merged, but not bodies of law

3. Statutes
* Laws created by legislative bodies
* Federal: criminal code, immigration, and refugee protection act * Provincial: Workers Compensation Act, Traffic Safety Act, Municipal Act * Legislation overrides common law and law of equity

* Often summarizes or modifies common law
* Includes government regulations

British North American Act: 1867
* BNA act created Canada and assigned different powers between federal and provincial governments * Canada inherited certain conventions or traditions from Britain * Rule of law
* Principles established in Magna Carta
* Parliamentary supremacy

Sections 91 and 92 divide powers between Federal and Provincial Governments

Federal Government under Section 91
* Currency and banking
* International trade
*...
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