Because the king ultimately claimed all the land, he considered himself above the law. This was tolerated until 1215, when King John was forced by the nobles to sign the Magna Carta.
This contract subjected the king to the rule of law, as well as provided for new judicial solutions. Which, for example, prevented people from being unlawfully detained without trial (known as Habeas Corpus )
The signing of the Magna Carta is considered to be one of the great turning points in English legal history. The King subjected himself to the rule of law (forced into it perhaps) Rule of law became supreme Trial by jury of peers established No taxes without approval of parliament Habeas corpus no imprisonment without trial
Even with the Magna Carta, the final power rested only with the king. Henry III asked nobles to advise him, but when that proved ineffective, a Parliament was formed. Over time, parliament moved power from the high nobles and under its own control. It gained the power to enact legislation and create Statutes, or laws enacted by legislatures.
This served two purposes: 1. Identified and clarified Common law 2. Gave a way to amend and change Common law.
In time, Statute law came to replace common law in areas of Criminal Law Business and Commercial Law
The statute took precedence over common law, and as a result, if the stature applied directly, the common law was overruled and disregarded. Some statutes have special constitutional status if they lay out the very groundwork by which a nation governs itself.
Canada passed the Constitutional Act in 1982 which contains the Charter of Rights and Freedoms. It changed the way law is made and applied in Canada.
The Constitutional Act in 1982 contained: 1. The Canadian Charter of Rights and Freedoms 2. The Amending Formula (the method of changing the constitution)
Some important developments as a result: Strong legal protection for the individual; Has made the Canadian legal system unique from Britain, and more like the USA.
The power of the Canadian Government was reduced and fenced off by the Charter. The power of the supreme court was vastly increased. Concrete new protections: very strict rules on the police use of wiretaps and surveillance; use of force in an arrest greatly limited; high speed chases restricted; personal searches only with just cause.
The term Civil Law is sometimes used to mean law that does not apply to criminal offences. Here, however, we use it to refer to codified law in the Roman Tradition. In Canada, only Quebec uses Civil Law. It was inherited from France, who got it from Napoleon, who based his on the Roman law.
The notion of Civil Law then, is based on a Written Code. It gathers in one place all the rules and principles that govern relationships among individuals in a particular area. Civil Law, in theory, speaks to every conceivable situation and legal issue.
How does the use of Civil Law differ from Common Law? 3144 paragraphs used by the lawyers in their prosecutions and defenses. Judges only have to interpret the law to see which fits. Lawyers occasionally use decided cases to persuade a judge on his/her reading on the law, but don t have to.
How is law applied at school? Is it based on a completed Civil Code as in Quebec? Is it based on Stare Decis, and past case decisions informing future ones? Is it essentially a Monarchy with a single authority making the rules, or is it more like a Parliament? What system do we have, and what system change should we have if any? And... What are the challenges?
What system of law do we have here? How does it work? Flowchart it. - Who makes the laws? - Who enforces? - Are they written / unwritten? - Is there an appeal process? - Can they be changed? How? - Does it mirror Canadian law? - What are its problems and weaknesses? - How can it be fixed or made better? Try not to fixate on one particular rule, but on the system in general. - What are some challenges with your solutions? Can they be overcome? The wrench
Administration does not want a more complex system The secretaries do not want more work or interruptions Class time must not be disrupted or shortened The board wants to keep oversight and overall control Each teacher wants some autonomy but also general uniformity Some believe in the protection mandate, while others follow preparation The Wrench...
For convenience, law has been traditionally divided into different categories. It is important to remember that these categories are for convenience and clarity. Rarely does a law fall neatly into only one category. Suppose a person hires a builder to renovate house. Later, the house collapses due to faulty construction. The builder can be sued for negligence, but can also be sued for breach of contract. If people are in the house and injured or killed when it collapses, there may be wrongful death charges as well.
International Law National Law Public Law Private Law
National vs International Law International Law are laws of the world; set up by the United Nations; primarily for relations between various nations. Usually does not concern internal government.
Compare and contrast the term "national law" with international law. National = the laws of a country or nation state as made by the government and courts of that country Applies only within the bounds of that country. International = made by representatives of many nations, and applies to all nations of the world (in theory).
Compare and contrast the term "national law" with international law. What are some examples of International Laws? Are they kept?
Public Law Regulates the relationships between governments and people, including corporations. This area of law is governed by the Canadian Charter. Designed to protect citizens from their governments, and give fair rulings to all.
Private Law Sometimes called civil law, it consists of all areas of law that deal with relationships between individuals. in all matters that are not criminal in nature. Designed to help citizens enforce their personal rights, and give just rulings between parties.
Constitutional Law The fundamental body of law of a nation, both written and unwritten is called its constitutional law These are the basic legal rules as to how the nation should be run Main parts for Canada: THE ROYAL PROCLAMATION 1763 THE CONSTITUTION ACT OF 1867 THE STATUTE OF WESTMINSTER, - 1931 THE BILL OF RIGHTS - 1960 THE CONSTITUTION ACT OF 1982 (THE CHARTER AND THE AMENDING FORMULA)
THE ROYAL PROCLAMATION 1763 King George of England froze the common law. Unless changed by a stature, the common law of 1763 was to be used in all of England and the colonies. George III also confirmed the Crown s exclusive ownership of land. This has never been repealed or revoked, although it has been challenged in Canada by Aboriginal communities
THE CONSTITUTION ACT OF 1867 (Formerly BNA Act) With this Act, Canada became a country instead of a British Colony. The Act established the framework for the political and legal operation of the new country. This Act is especially important since it divided Canadian legal powers between the federal and provincial governments.
THE STATUTE OF WESTMINSTER, 1931 This statute relieved former colonies, including Canada, from the obligation to apply British legislation. THE BILL OF RIGHTS 1960 This Canadian statute is quasi-constitutional in that other laws that violate the Bill are, in principle, invalid. The Bill has been interpreted very narrowly by the courts. Thus, it is rarely used to invalidate laws.
THE CONSTITUTION ACT OF 1982 (THE CHARTER AND THE AMENDING FORMULA) This Act repatriated (turned over to Canada) the Canadian Constitution by asking the British parliament to pass a law saying that the Constitution was Canada s to control. It changed our state s name from Dominion of Canada to Canada, and enacted, as a constitutional document, the Canadian Charter of Rights and Freedoms.
Canadian Charter of Rights and Freedoms Unlike the ill-fated Bill of Rights, the Charter became the supreme law of the land in 1982. Courts have zealously held that any law that violates the charter is of no force or effect. The Charter helps to safeguard individual rights.
Administrative law Law that regulates relations between people and government agencies; (Business licenses, permits, WCB regulations, etc.)
Criminal law List of all the prohibitions and behaviours that are harmful to individuals and the state.
Tax law Both federal and provincial governments have extensive powers of varied taxation; provinces have power of direct taxes sales tax.
Aboriginal law Area of law that deals with the special relationship between the Canadian Government and the first nations; unique rights of first nations peoples.
Environmental law Special body of law designed to prohibit pollution and protect the environment. Can apply to individuals and corporations alike.
Tort law Civil law that allows injured persons to sue for financial compensation for the injury to person or property (non-criminal).
Contract law The law of making and implementing enforceable promises. (usually regarding money and/or services rendered)
Property law Law that relates to the buying, selling, renting, or leasing of real estate (land and/or buildings for corporate or private)
Family Law Law that governs relations between spouses, parents, and children. Includes child care, support, marriage, common law, etc.
Commercial Law Law that regulates the structure and financing of businesses. Covers things like mergers and takeovers as well. (also called Corporate Law)
Employment law Labour law that regulates the conduct of employers and employees (both unionized and nonunionized workers), such as hours of work, pay, etc. Work Safety. Yeah, it s important
Over the past 50 years, Canada has seen massive changes in its form, values, and technologies. Law needs to keep up. What are some of the things (and their potential issues) that requires a change in Canadian law? Make a list of broad categories first, then we ll work within those to determine some of the specifics. Which laws, do you think, should be changed? Which should stay as they are?
When creating a new law, three stages are required: Consensus Formulation Implementation
CONSENSUS General agreement among people in support of something; e.g. a proposed law. As support grows, MPs begin to back it, and it can pass the voting process. Often changes to laws come through lobby groups and special interest groups.
They: Contact legislators and work with them in some way to influence the legislator to accept their viewpoints with respect to the wording of a particular law. Do advertising, petition, letter writing, public forum, and other means to get their message to the public and gain support for it.
Formulating a Law 1. Legislative drafters begin the process of setting out the legal language the exact wording and meaning of the law. 2. Draft version is circulated among political parties and interest groups. 3. After drafting, it goes through the parliamentary or legislative process. It may be amended and reworded several times. 4. Open debate and discussion is held publicly.
Formulating a Law The Final Draft 1. Goes through the whole legislative process in the House of Commons (First, Second, Committee, Third Readings) and the Senate. 2. Signed by Governor General and given Royal Assent. 3. Published officially as a law of the country.
IMPLEMENTATION 1. Copies must be sent to all police forces and prosecutors 2. Special classes must be held on enforcement and prosecution of the new law 3. Forms and law books have to be changed (eg. Canadian Criminal Code)
In legal cases, a term that appears often is the term Ultra Vires. In Latin, it literally means Beyond the Powers In Law, it refers to someone or something acting beyond the jurisdiction or powers granted to them by law or by the Constitution.
CASE STUDY Sue Rodriguez Currently, it is a criminal act to help someone commit suicide. Sue Rodriguez was suffering from an incurable terminal illness amyotrophic lateral sclerosis, better known as Lou Gehrig s disease. She wrote articles in the newspaper and made TV appearances arguing that the law against assisted suicide was wrong. She lobbied both the provincial government of BC, where she lived, and the Canadian federal government to change the law. She then began a case in the courts to have the law declared unconstitutional. Her efforts failed in her lifetime. After her death, the Senate set up a committee to hold hearings as to whether the law should be changed, and Parliament committed itself to consider legalizing suicide for terminally ill individuals.
CASE STUDY Sue Rodriguez What, precisely, did Sue Rodriguez want?. - She wanted it legal to commit suicide with assistance. - She wanted a doctor to help her commit suicide. - She wanted the law changed, so other people could do the same. - She wanted to ensure people assisting suicide could not be charged with a criminal offense. Do you think she was right? Make a list of arguments that would support her standpoint, and ones that wouldn t...
CASE STUDY Sue Rodriguez Arguments in favour of assisted suicide (a few possibilities) - It s her life; she should be allowed to decide what to do with it. - She s dying anyway; why wait and make her suffer longer? - It costs less. If she dies earlier, the medical system saves money - It s merciful. It will end any physical or mental suffering.
CASE STUDY Sue Rodriguez Arguments not in favour of assisted suicide (a few possibilities) - It s not her life to take. God gave her life; she should respect the idea she had no control over her birth. - To allow an assisted suicide will endanger the lives of all those who are handicapped and in need of assistance. - Assisted suicide devalues the dignity of human life - Human life is worth living; we cannot allow those who are physically and mentally ill to choose to die. They may not be capable of good judgment. - Doctors have not shown themselves to be worthy of trust in this matter; look at the abortion track record. - Pain control for almost all patients is now medically possible; they don t need to suffer.
The Euthanasia Debate Bill C-384 Video Clip on the right to die (10 min)
The title of a legal case is known as a citation. A sample citation is below, with each element explained. R. v. Morgentaler (1985) 22 C.C.C. (3d) 353 Rex or Regina (Latin King or Queen Versus (Latin, Against ) Name of the accused. Year the decision was given Volume Number Title of the report case is listed in Edition Page
First unit done.