1. CANADIAN LAW

2. Canada’s Legal System The Judicial Branch
“During times of universal deceit, telling the truth becomes a revolutionary act.”
-George Orwell-

4. Provincial Courts
Provincial Courts – judges are provincially appointed with jurisdiction to hear, for example, less serious Criminal Code offences, support and custody applications in family law, youth court issues and small claims cases
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

5. The Provincial Court System
APPEAL COURT OF BC
(Hears appeals from lower courts)
SUPREME COURT OF BC
(deals with indictable [serious] offences such as murder, robbery and civil cases involving large sums of money)
PROVINCIAL COURT
(deals with summary [less serious] offences)
Includes criminal, family, and youth matters, small claims, traffic and municipal by-laws

6. The Provincial Court System
Summary offences are tried by a judge or justice of the peace
Indictable offences are tried by a judge or judge and jury
Judges are free from government influence or interference
Decisions can be appealed if an error of law has occurred during the trial; lower courts appeal to higher courts
The appeal court can deny the request, agree with or reverse the original decision, or order a new trial

7. Federal Courts
Supreme Court of Canada – nine federally appointed justices with jurisdiction to hear all criminal, civil and constitutional cases
Federal Court of Canada – trial and appeal divisions with jurisdiction to hear, for example, cases on patents, copyright, trademark, aeronautics, maritime law, inter provincial and federal-provincial disputes
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

8. Federal Courts 2 Tax Court of Canada
Court Martial Appeal Court of Canada – military
Court of Canadian Citizenship
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9. The Supreme Court of Canada

10. The Supreme Court
The Supreme Court is the highest court in the country: decides on constitutional issues and is the final court of appeal for civil and criminal cases
Beverly McLachlin is the Chief Justice
There are 9 Supreme Court judges who are appointed by the GG on advice of the PM
3 must come from Quebec
3 from Ontario
1 from the Maritimes
2 from the West

11. The Supreme Court
The Supreme Court is important to Canadians because it upholds the rights listed in the Charter and sets precedents
Rulings by the Supreme Court are final unless Parliament passes a constitutional amendment
Rulings include a judgment and in some cases provide a way to right the wrong
Previous rulings on abortion, cruise missile testing, Aboriginal rights, same-sex marriage

12. CANADIAN CHARTER OF RIGHTS AND FREEDOMS
FUNDAMENTAL FREEDOMS
An example of some of the freedoms granted by the Charter are in s. 2:
Freedom of conscience and religion
Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication
Freedom of peaceful assembly
Freedom of association
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13. Some discussion topics:
Religious Rights vs. Public Safety
Human Rights Violations

14. Example of Religious Rights Case in Canada: This is an actual case known as Pandori v. Peel Board of Education

18. Explanation of the case and the resolution/outcome…

21. DIVISIONS/CLASSIFICATIONS IN LAW
The Law
International
Law
Domestic
Law
Substantive
Law
Procedural
Law
Public
Law
Private
Law
Taxation
Law
Criminal
Law
Contracts
Torts
Property
Company
Law
Administrative
Law
Constitutional
Law
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22. SOURCES OF CANADIAN LAW
Constitutional Convention-
supreme law of the country (BNA Act and Charter) enforced by the judiciary
created by (and subject only to amendment by) Parliament
Royal Prerogative –
historical rights and privileges of the Crown
the right to conduct foreign affairs and to declare war
Statute Law-
legislation that is passed by parliament or legislatures (and is within their constitutional powers)
All provinces follow british Civil Law except Quebec (French/Napoleonic Code)
Common Law –
rules that are formulated in judgments
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23. Canada’s Legal Traditions
Our 2 types of law are based on English common law and statutory law
Common law = rules based on past decisions and court rulings (precedent)
Statutory law = law passed by any of the 3 levels of government
Quebec is unique: their civil laws are based on the Napoleonic Code, a single book of laws

24. CANADIAN LAW
The legal system is made up of 6 main legal principles and the Charter of Rights and Freedoms:
Presumption of Innocence
Burden of Proof
Habeus Corpus
Right to a Fair and Speedy Trial
Equality before the Law
British Common Law
Charter of Right and Freedoms

25. 1 PRINCIPLES OF LAW Presumption of Innocence
anyone charged with a crime is presumed (implied to be) innocent ;
It is the responsibility of the Crown (represents the government or society) to prove the defendant guilty (person charged with the crime);
Innocence is presumed through the whole process unless they admit guilt or are proven guilty by the Crown;

26. 2 PRINCIPLES OF LAW Burden of Proof
the Crown is responsible for providing proof “beyond a reasonable doubt;”
If there is some doubt as to the guilt of the accused/defendant, they can be released or retried;
If there is not enough proof there can be a hung jury (the decision of the jury is not unanimous);
Police issuing warrants also have to follow this process through the arrest procedure;

27. 3 PRINCIPLES OF LAW Habeus Corpus Latin that means “to have the body;”
It means that the accused has the right not to be detained or imprisoned unlawfully;
If the Crown cannot show the reason for detention, the person has to be released;
The police can detain an accused, but unless there is adequate evidence to determine further investigation, the Crown cannot proceed;

28. 4 PRINCIPLES OF LAW Right to a Fair and Speedy Trial
Fairness is ensured through an impartial jury of one’s peers;
Knowledgeable and unbiased judge;
Strict rules governing evidence, appeals, etc;
An individual cannot stay in jail for months or years without the judicial process starting;

29. 5 PRINCIPLES OF LAW Equality before the Law
All people will be judged by the evidence and only the evidence;
“justice is blind”
This aspect also relates to the rule of law – no one is above the law;

30. 6 PRINCIPLES OF LAW British Common Law
With the exception of Quebec Civil Law, the Canadian legal system follows traditions of British Law;
Jury by one’s peers, double jeopardy, protection from self-incrimination, use of precedent;

31. PRINCIPLES OF LAW
What cases can you think of where double jeopardy applies?
Why is this an important feature for criminal law?

32. 2. Criminal law DIVISIONS OF LAW
There are two main branches of Canadian Law:
1. Civil law
2. Criminal law

33. CIVIL LAW

34. CIVIL LAW This involves a legal dispute between citizens;
It does not usually involve criminal activity;
These cases rarely involve a jury;
Court awards damages (money) to the plaintiff (person making the complaint);
The person who has to pay restitution cannot be sent to jail at the judgment;
The burden of proof is not as strictas ciminal cases

35. CIVIL LAW CONTRACT LAW – LAW OF TORTS – FAMILY LAW –
Contractual obligations
LAW OF TORTS –
Wrongdoings done to people, company, etc….
Negligence or Act of Omission/failure to Act
Suffer injury or loss
FAMILY LAW –
Divorce, custody of children, alimony, child support

36. CIVIL BURDEN OF PROOF
In civil cases, it is not as necessary to focus on the burden of proof;
Instead, there is the preponderance of evidence or the balance of probabilities;
This implies that a reasonable person has to be able to connect the evidence given to determine the outcome of action or inaction;

37. OTHER CIVIL LAW CATEGORIES
There are three subdivisions to civil law:
Contract Law
legally binding contracts
Purchases, services, accommodations, employment
Law of Torts wrongs committed by one’s person’s act or their failure to act;
Commission
Omission
Family Law relationship among family members
Marriages, divorce, custody, child support, alimony

38. CIVIL LAW Conflict Resolution: Negotiation Mediation Arbitration
People work out their differences through discussion;
Mediation
A third party (objective) helps to work out a decision;
Arbitration
A resolution is determined by a objective third party (usually a judge) and has to be accepted by the parties involved;

39. Civil Court Procedure 5 Stages: Pleadings Discoveries
Pre trial or mediation
Trial
Appeal
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40. Pleadings
Plaintiff files statement of claim and has it personally served on defendant
Defendant responds with statement of defence
Defendant may also counterclaim against defendant, crossclaim against co-defendant, and bring third party claim against someone not a party to the lawsuit
Plaintiff responds with reply or statement of defence to the counterclaim
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

41. Discoveries
Purpose is to identify all facts, issues and evidence prior to trial
Each party examines the other under oath.
A certified reporter records the questions and answers and prepares a transcript of them.
Each party must list all documents relevant to the case and the names of witnesses who will be called.
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

42. Pretrial or Mediation
Purpose is to settle before trial or reduce the number of issues at trial
If a pretrial occurs, that judge is disqualified from proceeding at the actual trial.
In some provinces or territories, mediation is mandatory.
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

43. Trial Plaintiff makes opening statement and presents case.
Plaintiff’s witnesses are examined in chief, and cross-examined by defendant
Defendant presents defence in chief, and plaintiff cross-examines.
Plaintiff must prove case on a balance of probabilities.
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44. TRIAL Jury Selection Judge’s Charge – instructions to jury
Arraignment – charges read
Crown presents Case
perjury – lying under oath
Rules of evidence - no hearsay; charged doesn’t have to talk
Defence presents Case
Alibis, forensic, ballistic
Closing Statements
Judge’s Charge – instructions to jury
Jury Sequestering and Deliberation
Jury put in room and decide decision (‘hung jury’ = re-trial)
Verdict
Appeal Verdict
Crown or Charge may appeal
Sentencing: decided by judge
Hear about convicted past, etc…

45. Appeals Appeals of civil cases are not granted automatically.
Appeals are usually limited to cases where there was an error of law, not of fact.
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

46. Offers to Settle, Costs and Enforcement
Parties are encouraged to settle out of court before trial.
A party who refuses a reasonable offer may be punished by the court and required to pay the court costs of the other litigant.
Garnishment of wages and seizure and sale of the losing litigant’s assets by a sheriff may assist the winning litigant to realize upon a court’s judgment.
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

47. CRIMINAL LAW
Refers to any act that is committed against any other member of society This type of action is considered to be against all members of society

48. Criminal Procedure
Purpose is to protect against acts that threaten the security of a person or the state
Types of offences: summary conviction (minor), indictable (serious), and hybrid (the Crown chooses whether to proceed summarily or by indictment)
The Crown must prove its case beyond a reasonable doubt.
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

49. Evidence
Rules of procedure require that evidence gathered in a manner that infringes or denies rights guaranteed under the Canadian Charter of Rights and Freedoms is inadmissible.
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

50. CRIMINAL LAW Indictable Offences Much more serious offences;
Accused usually have a preliminary hearing at which they can decide what kind of trial there will be (judge only or judge and jury);
Examples:
Drug trafficking
Murder,
Sexual Assault
Extortion

51. CRIMINAL LAW Summary Offences Minor or less serious offences;
The maximum sentence is $2000 or 6 months in jail;
Examples:
Shoplifting
Vagrancy
Petty theft

52. CRIMINAL LAW Hybrid Offences
Offences that can be treated as either indictable or summary;
Decision for this is made by the Crown;
Usually based on record of offender and seriousness of the crime;
Example:
Drunk driving
Assault
Theft under $5000

53. Criminal Court Procedure
First step is arraignment
If plea is “not guilty,” the case proceeds to trial. Depending on the charge, the accused may choose trial by jury or by judge alone.
Crown calls prosecution’s witnesses and examines in chief.
Defence may cross-examine.
If Crown does not meet the burden of proof, the presumption of innocence applies.
Copyright © 2007 by Nelson, a division of Thomson Canada Limited

54. YOUNG OFFENDERS ACT

55. Crime and Youth
In the 19th century, youths convicted of crime were given adult sentences
In the 20th century, there was a movement to treat youths differently from adults and away from punishment towards rehabilitation and reintegration into society
The philosophy is that youth should not be burdened for the rest of their lives for mistakes made in the past

56. Rights of a Young Offender
Youths between the ages of 12 and 17
Youth charged or convicted of a crime and those involved in the court proceedings cannot be named
Criminal record is destroyed at 18, except for those convicted of serious crimes
Cases are dealt with by Youth Court and heard by a judge alone

57. Young Offenders Act 1984
The Young Offenders Act applied to youth aged years who had committed offences under the Criminal Code
Jail sentences were more lenient, with a maximum jail term of 3 years
The name of the youth could not be published
Changes were made: – courts could name a dangerous offender; 1992 – maximum sentence was 5 years for murder

58. YOUTH CRIMINAL JUSTICE ACT 2000

59. Youth Criminal Justice Act 2000
Distinguished between violent and non-violent crimes
Harsher measures for violent offenders
Improved efforts for rehabilitation and alternatives to jail time (restorative justice)

60. Rights of a Young Offender
If a youth is convicted, the sentence is called a disposition
Absolute discharge / Conditional discharge
Fine up to $1,000
Up to 240 hr of community service to pay for the crime
Probation up to 2 years
Open or secure custody for up to 5 years
Youths as young as 14 can be transferred to adult court and face adult sentences for serious crimes
A pattern of serious crimes will also result in adult sentences

61. 2010-“Sebastien’s Law”
The ages of 14 and 18 may be sentenced as adults (but provinces have the right to alter the age limit)
Specifically murder, attempted murder, manslaughter, and aggravated sexual assault, or the repeating of a serious violent offence.
The adult sentences imposed in these circumstances would obviously be much harsher than those available for imposition by the youth court:
first degree murder, for example, carries a maximum 10-year sentence, including a maximum custody period of six years