Contents Table of Cases ix Table of Statutes xiii Acknowledgements xv Introduction xvi How to Use This Book xvi How to Get the Most from This Course 2 Researching Legal Concepts 2 Making Notes 2 Studying for Tests and Exams 2 Skills for Understanding Law 3 Learning About Statutes 3 Studying Cases 3 Analyzing a Case 4 Analyzing an Issue 6 How Much Do You Know About Canadian Law? 7 Unit 1: Our Legal Heritage 9 Chapter 1: Law and Society 10 Law in Our Lives 11 Rules Versus Laws 12 Why Study Law? 12 What Is Law? 13 The Need for Law 14 Law and Morality 16 Law and Justice 17 Historical Roots of Law 20 The Code of Hammurabi 21 Mosaic Law 23 Greek Law 24 Roman Law 26 Justinian s Code 27 France and the Napoleonic Code 27 Influences on Canadian Law 28 Early British Law 28 The Feudal System 30 Common Law 31 Legal Reforms 32 Aboriginal Law 33 Reflecting on Our Historical Roots 34 Issue: Does Canada have too many laws? 36 Looking Back 38 Law and Morality: Ethics Exercise 40 Chapter 2: Classifying Law 41 Sources of Law in Canada 42 Common Law 42 Statute Law 43 Constitutional Law 45 Categories of Law 46 International Law 46 Domestic Law 48 Substantive Law and Procedural Law 50 Public Law 50 Private Law 53 Looking Back 58 Issue: Teens and the Legal Driving Age 62 Chapter 3: Government and Statute Law 64 Canada s Constitution 65 British North America Act, 1867 66 A Federal System 66 Division of Powers 67 Statute of Westminster 69 Problems with the BNA Act 71 iii
Patriating the Constitution 72 Constitutional Conflict 73 Government and Law-making 75 The Executive Branch 76 The Legislative Branch 76 The Judiciary 77 Passing a Law 78 The Role of Individuals and Interest Groups 80 Issue: DNA: Revolutionary Crime-fighting Tool or Invasion of Privacy? 84 Looking Back 86 Law in the Extreme: Can virtual-reality avatars be subject to real-life laws? 90 Unit 2: Rights, Freedoms, and Responsibilities 91 Chapter 4: Canadian Charter of Rights and Freedoms 92 Recognizing Rights and Freedoms 93 Historical Documents 93 Evolution of Rights in Canada 94 Canadian Bill of Rights 94 Entrenching Rights and Freedoms 96 Jurisdiction and Enforcement 97 Jurisdiction 97 Enforcement 97 Limitations to Rights and Freedoms 100 Fundamental Freedoms 102 Freedom of Conscience and Religion 102 Law in the Extreme: Copyright Infringement or Freedom from Business Control 103 Freedom of Thought and Expression 104 Freedom of Peaceful Assembly and Association 104 Democratic and Mobility Rights 107 Democratic Rights 108 Mobility Rights 109 Legal and Equality Rights 110 Legal Rights 110 Equality Rights 116 Language and General Rights 118 Language Rights 118 General Rights 119 The Supreme Court and the Charter 120 Looking Back 122 Issue: How private is your garbage? 126 Chapter 5: Human Rights 128 Human Rights Legislation 130 International Human Rights Protection 131 Issue: Foreign Nationals in Canada: Who Stays, Who Goes? 132 Canadian Human Rights Act 134 Provincial Human Rights Codes 136 Administering Human Rights Legislation 138 Filing a Complaint 138 Dismissing a Complaint 141 Mediation and Investigation 141 Hearing a Case 142 Remedies 142 Grounds of Discrimination 144 Meeting Special Needs 144 Goods and Services 146 Accommodation and Facilities 146 Employment 147 Looking Back 153 Unit 3: Criminal Law 157 Chapter 6: The Nature of Crime 158 Defining Crime and Criminal Offences 159 Criminal Law 160 Law in the Extreme: Shooting Up Legally 161 The Criminal Code 162 History of the Criminal Code 163 Provincial Jurisdiction 163 The Elements of a Crime 164 Actus Reus 164 Mens Rea 166 iv
Involvement in a Crime 173 The Perpetrator 173 Aiding 174 Abetting 174 Counselling 175 Accessory After the Fact 175 Party to Common Intention 175 Incomplete Crimes 176 Issue: Should the legal system restrict the rights of parents to teach their children what they think is right? 178 Looking Back 180 Chapter 7: Investigation and Arrest 184 Levels of Police in Canada 185 Federal Police 185 Provincial Police 186 Municipal Police 187 Aboriginal Police 188 Starting a Police Investigation 190 Arriving at the Crime Scene 190 Protecting and Preserving the Crime Scene 190 Officers Roles at a Crime Scene 191 Identifying and Collecting Physical Evidence 193 Tools 193 Impressions 194 Body Elements and DNA 196 Procedures for Labelling Evidence 198 Arrest and Detention 200 Questioning the Accused 200 Arrest and Detention Procedures 201 Searches 204 Procedures After Arrest 208 Pretrial Release 209 Bail 209 Habeas Corpus 211 Issue: Should there be a moratorium on police use of TASERs? 212 Looking Back 214 Chapter 8: Criminal Offences 219 Levels of Offences 220 Summary Conviction Offences 220 Indictable Offences 220 Hybrid Offences 222 Offences Against the Person 224 Homicide 225 Issue: Gun Control in Canada 228 Assault 231 Sexual Assault 231 Suicide 232 Motor Vehicle Offences 234 Offences Against Property 237 Theft 237 Robbery 238 Breaking and Entering 239 Other Criminal Code Offences 239 Mischief 239 Fraud 241 Prostitution 241 Gambling 242 Drug Offences 244 Possession 244 Trafficking 246 Money Laundering 246 Looking Back 249 Chapter 9: The Criminal Court System 253 The Criminal Court Structure 254 The Provincial Court System 255 The Federal Court System 258 The Participants 260 The Judge 261 The Defence 262 The Prosecution 262 Other Court Personnel 262 The Witnesses 263 The Jury 263 The Role of the Jury 264 Qualifications 264 Jury Selection 264 v
The Criminal Trial Process 267 The Crown s Opening Statement 267 Examination of Witnesses 267 The Defence Responds 268 The Rules of Evidence 268 Types of Evidence 270 Summary of the Case 274 Charge to the Jury 275 The Verdict 276 Appeals 276 Issue: Has the jury system outlived its usefulness and practicality? 278 Looking Back 280 Chapter 10: Defences for the Accused 285 Mental States 286 Mental Disorder 288 Automatism 290 Intoxication 291 Justifications 293 Self-Defence 293 Battered Woman Syndrome 294 Defence of a Dwelling 296 Necessity 296 Compulsion or Duress 296 Provocation 299 Aboriginal or Treaty Rights 299 Issue: Racial Profiling 302 Other Defences 304 Mistakes of Law and Fact 304 Double Jeopardy 305 Alibi 305 Entrapment 305 Looking Back 307 Chapter 11: Sentencing and the Correctional System 311 Goals of Sentencing 312 Protection of the Public 312 Retribution 313 Deterrence 313 Rehabilitation 313 Restitution 313 Denunciation 315 Sentencing Procedures 316 Perspectives to Consider 316 The Sentencing Hearing 317 Types of Traditional Sentences 319 Discharges 319 Probation 320 Suspended Sentence 320 Intermittent Sentence 322 Conditional Sentence 322 Electronic Monitoring 322 Binding Over, Deportation, and Fines 323 Suspension of Privileges 324 Plea Bargaining 325 Incarceration 326 Issue: Mandatory Minimum Sentences of Imprisonment 328 Restorative Justice Programs 330 Victim-Offender Mediation 331 Family Group Conferencing 332 Victim-Offender Panels 333 Aboriginal Sentencing Circles 333 The Correctional System 336 The Provincial Correctional System 337 The Federal Correctional System 337 Paroles and Pardons 339 Parole Decisions 339 Conditional Release 341 Pardons 343 Looking Back 344 Chapter 12: Criminal Law and Young People 349 Youth and Crime 350 Legislative Reform and Young People 353 Young Offenders Act 354 Law in the Extreme: Treating Adolescents as Adults 355 Youth Criminal Justice Act 356 Incapacity of Children 358 vi
Legal Rights of Young People 361 Searches 361 Rights Regarding Evidence 363 Publication of Identities 363 Youth Criminal Justice System 366 Community-based Measures 366 Youth Justice Court 369 Sentencing Options 370 Youth Sentences 370 Adult Sentences 374 Records 374 Issue: The Problem of Bullying 376 Looking Back 378 Unit 4: Civil Law and Dispute Resolution 383 Chapter 13: Understanding Civil Procedures 384 Private Law Procedures 385 Parties Involved in Civil Actions 386 Civil Action 388 Class Action Lawsuits 393 Civil Courts 394 Civil Remedies 396 General Damages 396 Special Damages 399 Punitive Damages 399 Nominal Damages 399 Specific Performance 400 Injunctions 401 Enforcing a Judgement 402 Alternative Sources of Compensation 402 Alternative Dispute Resolution 406 Negotiation 406 Mediation 406 Arbitration 407 Advantages and Disadvantages of ADR 408 Looking Back 409 Issue: Justice for all? Should access to legal representation be a right? 412 Chapter 14: Negligence and Unintentional Torts 415 Negligence 416 Stage One: Duty of Care 417 Stage 2: Standard of Care 419 Stage 3: Causation 423 Special Types of Liability 425 Product Liability 426 Occupiers Liability 426 Vicarious Liability 427 Hosts 428 Automobile Negligence 429 Strict Liability 429 Defences Due to Negligence 430 Contributory Negligence 430 Voluntary Assumption of Risk 431 Other Defences 431 Statute of Limitations 432 Looking Back 435 Issue: Who really benefits from class action lawsuits? 438 Chapter 15: Intentional Torts 441 Intentional Torts 442 Intentional Torts and Criminal Acts 443 Intentional Interference with the Person 444 Assault 444 Battery 445 Sexual Abuse 445 Medical Battery 445 False Imprisonment 447 Malicious Prosecution 448 Nervous Shock and Mental Suffering 448 Invasion of Privacy 449 Intentional Interference with Property 450 Trespass to Land 450 Nuisance 451 Trespass to Chattels 452 Defences to Intentional Interference 453 Defences to Interference with the Person 454 Defences to Interference with Property 455 vii
Defamation of Character 456 Slander 457 Libel 457 Defences to Defamation 458 Issue: Have we traded privacy for technology? 460 Looking Back 463 Chapter 16: Marriage: A Changing Tradition 467 Entering Marriage 468 Essential Requirements for Marriage 468 Formal Requirements for Marriage 474 Aboriginal Customs 475 Families Today 477 Cohabitation 478 Issue: Does marriage matter? 480 Redefining Marriage 483 Ending a Marriage 484 Divorce 485 Marriage Breakdown 486 Looking Back 489 Chapter 17: Family Matters 493 Issues in Ending a Marriage 494 Child Custody 494 Access 495 Child Support 497 Other Family Issues 499 Protection of Children 499 Adoption 501 Spousal Support 503 Self-sufficiency 503 Enforcing Support Payments 505 Family Assets 507 Equal Division of Property 507 Unequal Division of Property 510 Division of Property in a Common-law Relationship 510 Division of Property on Death 511 Division of Property on Reserve Lands 511 Looking Back 513 Law in the Extreme: Reproductive Technology and the Future of the Family 517 Issue: Should children conceived by sperm donation have the right to seek out biological fathers? 518 Chapter 18: Contract Law 520 Classifying Contracts 521 Oral Contracts and Written Contracts 522 Implied Contracts and Express Contracts 522 Contracts Under Seal 523 Elements of a Contract 523 Offer 524 Acceptance 527 Consideration 529 Invalidating Factors 534 Incapacity to Contract 534 Illegality 536 Contrary to Public Policy 536 Mistake 537 Misrepresentation 538 Duress 539 Undue Influence 539 Unconscionability 541 Carrying Out the Contract 542 Discharging a Contract 542 The Sale of Goods 545 Title and Risk 546 Manufacturer s Warranties 549 Implied Conditions and Warranties 549 Remedies for Breach of Sale of Goods 550 Protection for Consumers 551 Federal Consumer Law 552 Provincial Consumer Law 552 Property Situated on a Reserve 553 Looking Back 554 Issue: Identity Theft 556 Canadian Charter of Rights and Freedoms 559 Glossary 564 Index 580 Credits 591 viii