1. Copyright © 2008 Pearson Education Canada2-1 Chapter 2: Introduction to the Legal System

2. Copyright © 2008 Pearson Education Canada2-2 What Is Law?  Difficult to come up with a definition for law  Definition is affected by: History History Theory Theory Legal System in Place Legal System in Place Social Realities Social Realities

3. Copyright © 2008 Pearson Education Canada2-3 Philosophical Basis of Law  Natural Law Theory What God Says It Is What God Says It Is Based on Morals Based on Morals  Legal Positivism What the Ruler Says It Is What the Ruler Says It Is No Moral Basis No Moral Basis  Legal Realism What the Court Says It Is What the Court Says It Is Social Moral Values Social Moral Values

4. Copyright © 2008 Pearson Education Canada2-4 Definition of Law Law is the body of rules that can be enforced by the courts or other government agencies Law is the body of rules that can be enforced by the courts or other government agencies

5. Copyright © 2008 Pearson Education Canada2-5 Categories of Laws  Substantive Law The rules that govern behaviour and set limits on conduct The rules that govern behaviour and set limits on conduct  Procedural Law How rights and obligations are enforced How rights and obligations are enforced

6. Copyright © 2008 Pearson Education Canada2-6 Categories of Laws/2  Public Law Regulates our relationship with government Regulates our relationship with government  Private Law Regulates personal, social and business relationships Regulates personal, social and business relationships

7. Copyright © 2008 Pearson Education Canada2-7 Civil Law Legal System Roman Law - Justinian  Codified  Modified by Napoleon  Used in Europe and most developing countries  Quebec’s legal system is based on the French Civil Code

8. Copyright © 2008 Pearson Education Canada2-8 Common Law Legal System  Great Britain and Commonwealth  Judge-made Law Developed in the Courts Developed in the Courts Based on precedent or stare decisis Based on precedent or stare decisis judges are bound by previous decisions of higher courts judges are bound by previous decisions of higher courts

9. Copyright © 2008 Pearson Education Canada2-9 Sources of Law  Common Law the precedent-making decisions of the courts of Great Britain the precedent-making decisions of the courts of Great Britain  Law of Equity decisions made by Court of Chancery decisions made by Court of Chancery  Statutes

10. Copyright © 2008 Pearson Education Canada2-10 Statute Law  Statute Law Legislation overrides common law or judge-made law  Often summarizes or modifies common law. For example: Criminal Code Criminal Code Trespass Act Trespass Act  Includes government regulations

11. Copyright © 2008 Pearson Education Canada2-11 The Law in Canada  Constitution Act, 1867 – Division of Powers  Statute of Westminster (1931)  Constitution Act (1982)  The Canadian Charter of Rights and Freedoms

12. Copyright © 2008 Pearson Education Canada2-12 Conventions  Canada inherited certain conventions or traditions from Britain  For example: Democratic parliamentary system Democratic parliamentary system Rule of Law Rule of Law Principles established in the Magna Carta and the English Bill of Rights Principles established in the Magna Carta and the English Bill of Rights

13. Copyright © 2008 Pearson Education Canada2-13 Constitution Act (1867)  Formerly known as British North America Act  Sections 91 and 92 divide powers between federal and provincial governments  Structure of the judicial system

14. Copyright © 2008 Pearson Education Canada2-14 Question for Discussion Canada’s constitutional structure is essentially different from Britain’s because it consists of the federal government and ten provincial governments each with power to act in their own jurisdiction. What impact does this have on businesses operating within and between provinces?

15. Copyright © 2008 Pearson Education Canada2-15 Constitution Act (1982)  Lists government enactments having constitutional status  Ends ties with British Government  Establishes amending formula for constitutional change  Charter of Rights and Freedoms

16. Copyright © 2008 Pearson Education Canada2-16 Human Rights Legislation  Traditionally common law and custom protected human rights and individual freedoms  Legislation now protects individuals against human rights violations in social and private relationships  Canadian Bill of Rights attempted to protect individuals from abuses by government

17. Copyright © 2008 Pearson Education Canada2-17 Charter of Rights and Freedoms  Entrenches individual rights  Protects individuals from infringement on their rights by governments or their agents

18. Copyright © 2008 Pearson Education Canada2-18 Charter of Rights and Freedoms/2  Limitations on Charter rights Section 1 - interference with right must be justifiable in a free and democratic society Section 1 - interference with right must be justifiable in a free and democratic society Section 33 - legislatures can pass acts that infringe on rights “notwithstanding” the Charter but legislation must be reviewed every 5 years Section 33 - legislatures can pass acts that infringe on rights “notwithstanding” the Charter but legislation must be reviewed every 5 years

19. Copyright © 2008 Pearson Education Canada2-19 Personal Freedoms  Democratic Rights  Mobility Rights  Legal Rights  Equality Rights  Language Rights

20. Copyright © 2008 Pearson Education Canada2-20 Human Rights Legislation  Canadian Human Rights Act – federal legislation  Provincial human rights acts – protect private relationships  Must comply with Charter  Tribunals hear complaints

21. Copyright © 2008 Pearson Education Canada2-21 Question for Discussion  Consider the principle of supremacy of Parliament and the limitations placed on Parliament by the Charter of Rights and Freedoms.  Is it appropriate for the Courts to have the power to declare some legislation invalid?