Chapter 1 is introductory in nature, and provides a general background concerning the nature of law, how laws developed, the general need for some rules to govern the behaviour of individuals, and the establishment of the various fundamental rights and duties of persons in society.
In class discussion, special emphasis should be placed upon both the sources of law and the classification of laws in order that students may have a clear idea of what they are and where they may be found. Many students fail to realize that the common law and equity represent a large body of law, and the scope and application of these sources of law should be emphasized in class discussion of the chapter. The text description of the development of the law and the rise of the courts is intended to be read as a historical introduction to give students an appreciation of where our laws came from, and how they were developed. In the context of the courts and the law, the doctrine of stare decisis should be noted, and its purpose and application discussed with emphasis on the need for "predictability" in the application of the law to cases that come before the courts. It would be worthwhile to note as well that some judges of the Supreme Court of Canada have expressed the view that they, as judges of the highest court in the land, do not consider themselves bound by the doctrine, but would only change a common law rule where it had become inappropriate in a modern social setting. (This point is not set out in the text).
Chapter 1 also provides a general outline of the nature of a constitution and its function in a democratic society. Reference is made to the "constitution" of the United Kingdom and the constitution of the United States as a basis for discussion of, and comparison with, the Canadian Constitution. The role of the courts as the chief interpreter of the constitution is also noted, and should be emphasized in any class discussion of the enforcement of rights under the Charter. On this point, the doctrine of judicial review should be explained to illustrate how the rights of both governments and individuals set out in the constitution may be enforced. As an approach to teaching this part of the chapter, a systematic examination of the fundamental rights and freedoms may be made with the class requested to provide a fact situation related to a freedom or right, and then have the class speculate as to how the Charter might be interpreted by the court as it relates to the matter. With each fundamental right or freedom it is important to emphasize that the freedom or right must be viewed in the light of s.1 which makes the right "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society," and not absolute. The "notwithstanding" clause (s. 33) which permits legislatures or parliament to override the Charter rights should be noted as well. On this point, reference may be made to the Judicial Decision at the end of the Chapter (The Attorney-General of Quebec v. La Chassure Brown's Inc., et al. 2 S.C.R. 712) which held Quebec's Bill 101 unconstitutional with respect to public signs. Students should note that the province of Quebec used s. 33 to override this decision of the Supreme Court of Canada, and passed Bill 178 to require "French only" signs on all Quebec businesses. Students should also examine RJR-MacDonald Inc. and Imperial Tobacco Ltd. v. Canada (1995) 187 N.R.1 at the end of the Chapter for an additional example of the views of the Supreme Court on the Government of Canada's attempts to virtually ban advertising on tobacco products.
The organization of the Charter itself provides an orderly approach to discussion of the nature of the rights and freedoms granted under it, as well as the method of enforcement. With respect to the latter, it is readily apparent that most of the rights and freedoms are those which the framers of the constitution felt should be enshrined to protect them from encroachment or interference by governments. The issue of whether the Charter rights may be invoked against the actions of individuals as well as governments (or persons acting on their behalf) is not clear at the present time. Most Charter rights clearly concern matters between the individual and a government body, but in a few judicial decisions related to Charter Rights and Freedoms some judges have suggested that the Charter might be raised in individual disputes as well. The result has been some confusion as to the application of the Charter beyond disputes between individuals and governments, and it may be some time before this is finally clarified by the Supreme Court of Canada. In the meantime, it is perhaps safe to say that
governments must not interfere with the rights and freedoms of individuals protected under the Charter except as permitted therein. If they should do so, the individual has the right to bring the alleged infringement before the courts to have the interference ruled upon as to its validity.
A final point to note and to emphasize in class is that the constitution includes more than the Charter of Rights and Freedoms. It also includes the original British North America Act of 1867 (as amended over the years) which establishes the structure of our government, and the legislative powers and jurisdiction of the provincial governments and Parliament. Consequently, it is a lengthy and complex document which sets out not only the rights and freedoms of the individual, but how Canada as a democratic society governs itself. On this point it should be emphasized that legislative bodies may not exceed the powers granted to them under the constitution, as the exercise of jurisdiction when none exists renders such an act ultra vires and a nullity.
Statute law is defined on p. 14 of the text, and the process associated with this type of law-making is described very briefly. Students should be informed that this process is legislative as distinct from judicial. The recording and organization of these statutes in the form of revised statutes of a province (or federal government) should also be discussed in order that students are made aware of where these laws may be found. Discussion may then lead into the topic of civil codes, and students may be asked to discuss the pros and cons of a civil code system vs. the common law/equity system. (See Discussion Question answer 11 for material on this point).
Chapter 1 also introduces Canada's new constitution as a source of law and to explain the division of law‑making powers between the Federal and Provincial governments. The Charter of Rights and Freedoms may be used as a springboard for a discussion of ‘rights’ and the limitations that may be placed on them. At the time of this writing, many constitutional questions are before the courts, and in this regard, fundamental rights and the application of the Charter to many laws should be a topical issue. For the next few years these new developments might be matters that should be discussed in class.
The purpose of this chapter is to introduce the law and a legal system, and to show how each developed from earliest times to the present. While much of the chapter is designed to provide a historical background, it also deals with the role of law in society, and some of the common "social engineering" uses of legislation which have been introduced in recent years.
From the point of view of learning about the law, the chapter contains a description of the various sources of the law, and the methods of classification. The importance of this part of the chapter should be underscored, as it provides the basis for an understanding of the particular rules and principles covered in the remainder of the text. It also represents an important first step in the examination of the law, in that it sets out the system for classification.
Page 18 of the text describes the classification system. It is essential that the difference between substantive law and procedural law be understood. As well, students should learn the various sub‑classes of substantive law. In this regard, the nature of public law as a type of substantive law should be clearly understood. Public laws are laws which relate to the relationship between the individual and the government (or its agencies), and as such, are usually laws which are enforced by the Crown. They are generally prohibitive or regulatory in nature (e.g.: the criminal law, or provincial liquor control laws), and are enforced by the Crown if they are violated by an individual. They are quite different from private laws which normally establish the rights and duties of individuals in their dealings with each other, and which must be enforced by the party whose rights have been violated.
The chapter outlines the sources of law, and provides a general explanation of the common law (including equity) as a source. The nature of this body of law should also be carefully examined, as the law described in a large part of the text is of this type. In particular, the law of tort in Chapters 4-5, the law of contract in Chapters 6‑14, the law of agency in Chapter 15, the law of bailment in Chapter 21, and a number of other areas of the law are essentially part of the "common law".
Chapter 1 also introduces the first of many legal terms and definitions which must not only be memorized, but understood. The various definitions of the term "law" may be found on pages 4-5 long with definitions of "rights" and "privileges" on pages 4-5. On pages 14-16, "common law", "equity", the doctrine of stare decisis, "statute", and "civil code" are explained, and the material concerning these terms should be carefully reviewed, as the terms are frequently used throughout the balance of the text. The various terms used to describe the different classifications of the law on page 18 of the text should also be noted.
The Discussion Questions at the end of the chapter should provide a sufficient test of student knowledge of the essential material, and are reproduced here with draft answers and the appropriate page references for answer review.
DISCUSSION QUESTIONS 1. Why is the word "law" so difficult to define in a precise manner?
Law is difficult to define because it is applied in a number of different ways: to rules, principles, or statements. The term is also used in many other fields. Example: In the field of science there are "Laws of Physics."
2. What is the difference between a "right" and a "privilege"?
A right is an act that may be done with impunity and with the support and recognition of the state. The state recognizes a right as something which neither it nor others may deny. A privilege is something which the state allows or permits under specific circumstances at the pleasure of the state. 3. Why are "rights" and "duties" often considered together when one thinks of laws?
Because "rights" often permit a person to do something that interferes with others, laws generally include obligations or duties on the person possessing a right to exercise the right in a particular way to minimize interference with others. Laws may also include duties on those affected by the exercise of a right to permit the right to be exercised.
4. Could a society exist without laws? If not, why not?
A complex society certainly could not exist without laws, as some means of regulating the activities of people would be necessary to maintain order. Even in a primitive society, rules regulating fairness in vengeance matters were necessary.
5. "Advanced civilizations are generally characterized by having a great many laws or statutes to control the activities of the citizenry." Comment on the validity of this statement.
A valid observation. Advanced civilizations are characterized by persons engaged in activities which involve a great deal of social contact and interaction. Historically, they have also involved many people living in close proximity to each other (in cities). Each type of social interaction usually requires some legislative control, hence, the more interaction, the more laws that are required.
The common law system is a system where the laws are not codified, but may be found in the recorded judgements of the courts. Courts maintain a degree of consistency in the law by following the doctrine of Stare Decisis (precedent). 7. Why is the doctrine of stare decisis an important part of the common law system? Answer:
The doctrine of Stare Decisis is the theory of precedent. Judges are expected to apply previous decisions to similar cases which come before them in order to maintain a degree of consistency in the law. By following this doctrine, the law is not only consistent, but others can predict how the law may be applied in similar. 8. How does the common law differ from the principles of equity? From statute law?
Common law and equity have different roots. The common law was the product of the common law courts. The principles of equity were originally principles or rules which the King applied in settling disputes which did not fall within the jurisdiction of the common law courts. Later, the King's Court (Chancery) used the same and other principles in order to provide fair and just results. At present, the courts may apply both common law and equity, but where conflict exists, equity prevails.
Equity differs from statute law in the sense that statute laws are written or codified laws, whereas the principles of equity are found in the recorded judgements of the courts.
9. How does a legislature establish a new law? Explain the procedure.
The usual process is as follows:
1. A bill (essentially a proposed law) is presented to a legislative body (Parliament or provincial legislature).
2. A motion is made (and passed) to have the bill 'read' a first time.
3. The bill is then printed and circulated to the members to study.
4. The bill is later brought forward for debate (second reading) in principle.
5. If the bill passes the second reading stage, it is sent to a Committee for study and amendment on a clause by clause basis.
6. Once passed by the Committee, the bill is reported in final form by the Chair of the Committee for a third reading.
7. The bill is then debated for a final time by way of a motion to have the bill read a third time. If passed by a majority vote, the bill at the federal level goes to the Senate where a
similar process is followed.
Once a bill has been passed by the House of Commons and Senate (or a provincial
legislature) it goes to the Governor-General (or Lieutenant-Governor, if provincial) for
royal assent. The bill becomes a law on receipt of royal assent, and effective as a law when
proclaimed in force.
10. Define substantive law, and explain how it differs from procedural law.
Substantive law ‑ law which sets out the rights and duties of individuals and corporations.
Procedural law ‑ law which set out the procedure whereby substantive laws are enforced.
11. Describe the difference between the common law and the civil code of the Province of Quebec. What are the relative merits of each system?
Common law consists of the recorded judgement of the courts.
The civil code is a written body of law.
Merits of civil code: ‑ laws are written down and may be consulted to determine what the law is. The law can be changed by statute amendment and kept up to date by the legislature if change is warranted. Common law merits: ‑ flexible, as judges may change it through
interpretation, or by distinguishing the case at hand from the precedent. Adaptable to changing social attitudes.
12. "The supremacy of the state was reached when it managed to exercise a sufficient degree of control over the individual to compel him or her to use the state judicial system rather than vengeance to settle differences with others." Why was it necessary for the state to require this of the individual?
When the state lacked the power to control its citizens, individuals used their own means to resolve disputes, as it was the only method whereby a person could obtain redress. Vengeance, however, often disrupted the entire community, and affected others not involved in the dispute. Once the state had the power to compel citizens to obey its decrees, it could substitute orderly procedures for settlement which caused less disruption to the community than vengeance.
13. How does a "regulation" made under a statute differ from other "laws"?
A regulation under a statute is a rule that is made to enable an administrative tribunal to carry out duties assigned to it under a statute. Regulations govern the activities of administrative agencies or boards, and are often administered by them. Regulations are subordinate to statutes, but in application, have much the same effect on persons who engage in activities subject to the regulations.
14. Identify the following laws as "public" or "private." Highway Traffic Act; Criminal Code; Sale of Goods Act; Liquor Control Act; Income Tax Act; Immigration Act; Customs and Excise Act.
Answer: Highway Traffic Act ‑ public
Criminal Code - public
Sale of Goods Act ‑ private
Liquor Control Act ‑ public
Income Tax Act ‑ public
Immigration Act ‑ public
Customs and Excise Act ‑ public
15. Explain how the enforcement of a public law differs from the enforcement of rights under private law.
Public laws are enforced by the Crown against the individual. Private law rights are enforced by individuals against other individuals.
16. The Canadian Charter of Rights and Freedoms has been described as being "supreme" law, or law which is "entrenched." Why, or in what sense is this the case?
The Charter is "supreme law" in the sense that it overrides all other federal and provincial laws, and all such laws must not conflict with it, except as permitted. It is "entrenched" in the sense that it is difficult to change.
17. On what basis are Charter fundamental rights and freedoms open to restriction by Parliament or the provincial legislatures?
Fundamental rights and freedoms may be restricted under s. 1 if the restriction can be shown to "be demonstrably justified in a free and democratic society." Rights and freedoms may be "temporarily" overridden by the "notwithstanding" clause (s. 33) as well.
18. Does the Canadian Charter of Rights and Freedoms permit the Supreme Court of Canada to override the will of Parliament or a provincial legislature? If so, in what way?
The Supreme Court of Canada, as chief interpreter of the legislation, may override the will of Parliament or a provincial legislature where the law violates the Charter. It may not override if the law is passed pursuant to the s. 33 "notwithstanding" clause.
19. If changing social attitudes or values dictate a change in the Canadian Charter of Rights and Freedoms, how would this be accomplished?
The Charter of rights and freedoms may only be changed by agreement of Parliament and 2/3rds of the provinces, provided that the provinces represent at least 50% of the population of all of the provinces.
20. What impact does the Canadian Charter of Rights and Freedoms have on rights and freedoms not mentioned specifically in the Charter? Could these "other rights and freedoms" be curtailed or extinguished by governments?
The Charter recognizes the existence of other rights and permits them to continue except where they conflict with Charter rights and freedoms. Rights outside the Charter do not have Charter protection, and may be abolished or encroached upon by governments.
21. In what way does the Constitution Act, 1982 affect the legislative jurisdiction of the Parliament of Canada and the provincial legislatures? How are questions of jurisdiction decided?
The Constitution Act, 1982 includes the British North America Act, 1867, as amended, which sets out the legislative powers of the provinces and the Parliament of Canada. If legislation passed by either a province or the federal government is alleged to have exceeded the legislative authority granted to it under the Constitution, the Supreme Court of Canada has the power to decide if the body has the authority to pass such legislation, and would decide if the law was ultra vires.
Chapter 2 represents a continuation of the material contained in the previous chapter, but focuses upon the administration of the law. The text material includes the structure of the courts in Canada, and as a class exercise, it might be useful to carry simple criminal and civil actions (based upon easily understood incidents) through the various steps and appeals to their final resolution at the highest appeal levels. In this fashion, the text material may be re‑ enforced, and the various limitations on appeal, etc., noted in the process.
The distinction between criminal and civil proceedings should be emphasized, as experience has indicated that students frequently fail to realize that an incident which gives rise to both civil and criminal proceedings (such as a "criminal negligence" incident) would follow two separate legal paths, one dealing with the criminal act, and the second, dealing with the civil aspect.
Some time should be given to the procedure by which judgements of lower courts may be appealed. The conditions under which a judgement may be appealed should be stressed (error of law, rejection of important evidence in reaching a decision, etc.) and the appeal routes examined for both civil and criminal cases. These are depicted on the charts which follow, but it should be noted that a number of provinces are in the process of revising their court system, and the names of the courts and the appeal routes may change as well.
Since alternate dispute resolution (ADR) is considered by many business firms as a more efficient system of resolving disputes, the topic should be opened for class discussion as an alternative to the court system. Discussion should note the particular advantages of ADR over the court system (speed of resolution, lower costs, etc.) but it should also be noted that certain kinds of disputes still lend themselves to the courts for settlement.
"In a free and democratic society, the courts perform the important role of guardians of the rights and freedoms of the individual. While important, this is far from being the only part they play in society." How do the courts perform this important role? What other functions do they have in society?
Courts guard the rights and freedoms of the individual by acting as the medium through which rights and duties are determined and enforced. They also act as a "check" on government action which might improperly encroach on the rights and freedoms of individuals protected by the Charter. Finally, they preserve peace and order by providing an obligatory process for dispute resolution (replacing vengeance).
2. Discuss the importance of an independent judiciary.
(a) not open to manipulation by political action.
(b) free to resolve differences between individuals without fear of the consequences.
(c) able to determine differences between governments without concern that the powers of the court will be attacked.
(d) permanent body to administer the law is vital in order to maintain continuity and confidence in the system.
"independence" generally equated to "fairness".
3. What is a court of original jurisdiction? How does it differ from a court of appeal?
A court of original jurisdiction (sometimes referred to a court of first instance) is a court where a case is heard for the first time. A court of appeal is a court which reviews the decision of the court of original jurisdiction to make certain that the judgement was fairly and properly made.
4. Explain the differences between a Small Claims Court and a Magistrate's Court.
A small Claims Court deals with civil disputes between individuals where the monetary amount is small (limit varies from province to province, $3 000 - $6 000, but less than $10 000).
Magistrate's Court is a court which enforces by-laws, provincial statutes and the Criminal Code (except for the more serious offences). It does not deal with civil disputes.
5. On what basis is it possible to justify the right of the court to declare unconstitutional legislation enacted by a legislature?
The right may be justified because the court represents an independent, permanent body that is made up of persons with the expertise to interpret the constitution and to oversee its application. No political body is able to do so in an unbiased or fair manner.
6. How does a criminal case differ from a civil action?
‑ Crown brings the charge against the accused. A two‑step process in many cases: (1) preliminary hearing, (2) full hearing.
‑ Crown obliged to prove the particular offence was committed by the accused, and that the offence is one which is set out in the criminal code.
‑ Crown must prove act, identity, and intent to commit the offence (subject to certain exceptions).
‑ must prove its case beyond any reasonable doubt in order to obtain a conviction.
‑ the party who alleges a violation of his or her rights brings the action.
‑ onus of proof of facts alleged rests on the plaintiff.
‑ case is outlined through "pleadings".
‑ plaintiff not subject to the higher standard of proof of criminal courts.
7. In criminal proceedings, what obligation rests on the Crown in order to obtain a conviction?
Crown must normally prove beyond any reasonable doubt that the accused committed the particular offence, intended to commit it, and was the person who committed it.
8. What is the purpose of "pleadings" in a civil case?
The purpose of pleadings in a civil action is to set out the facts of the case and the issues in dispute in sufficient detail to enable each party to know the matters in dispute and prepare their respective cases for the trial. They avoid surprise at trial, and minimize the time required by the courts to dispose of the case.
9. How does "direct" evidence differ from "opinion" evidence? How do these types of evidence differ from "hearsay" evidence?
"Direct" evidence is given by ordinary witnesses who testify as to what they heard, saw, or did. "Opinion" evidence is evidence given by experts who have special knowledge about the subject matter of the evidence, and who express an opinion about the matter based upon their specialized knowledge or expertise.
Hearsay evidence is neither direct or expert evidence, but evidence given by a third party who was informed by someone else (usually a person who would normally be an ordinary witness) of the facts. Hearsay evidence is usually not admissible in a court of law.
10. Describe the role performed by legal counsel in the administration of justice.
Legal counsel are learned in the law, and advise others of their legal rights and duties. They also carry out on behalf of their clients the job of processing an action through the courts, or negotiating legal matters on their behalf.
11. Distinguish between a "barrister" and a "solicitor".
A barrister is a lawyer who handles litigation matters on behalf of clients. A "court‑room" lawyer.
A solicitor advises clients of their legal rights and duties, and normally prepares contracts, deeds, wills, and other legal documents for clients.
12. On what basis might an appeal be allowed from a judgement of a court of original jurisdiction?
An appeal may be allowed where the judge improperly applied the law, (improperly instructed the jury as to the law) or made an error in rendering a decision.
13. Where a judgement is reviewed by a Court of Appeal, what type of decision might the court make?
A Court of Appeal may (1) reverse the decision, if the trial judge erred. (2) affirm the decision of the trial judge, or (3) send the matter back to the lower court for a new trial.
14. If a provincial government should pass a law which prohibits any person from expressing any criticism of any elected government official on penalty of imprisonment, how might the law itself be challenged?
A person accused may ask the court to review the law in the light of the Charter of Rights and Freedoms or the jurisdiction of the province to make such a law. The court will then determine if the law is enforceable.
How does arbitration differ from a court action?
An arbitration is conducted much like a court action, but in a much less formal setting. While the rules of evidence and procedure are usually followed, the process generally does not require pleadings or discovery. The parties are usually responsible for the selection of the arbitrator, and the arbitrator’s fees. The hearing does not involve ‘court costs’.
Explain the nature of mediation, and how it is used in the resolution of disputes.
Mediation is an attempt to resolve a dispute between parties prior to formal court or arbitration proceedings by a third party through a discussion process. A mediator has no authority to impose a dispute by suggesting ways in which the parties may reach agreement on a solution to their problem.
17. Why is arbitration sometimes a more attractive means of settling contract disputes between business persons?
Arbitration is a confidential process as well as a relatively low cost and efficient process for resolving disputes. Often business people do not wish to destroy a business relationship if a dispute arises, and arbitration will often allow them to obtain an answer or solution to their problem that will allow them to continue to do business with each other.
CHAPTER 3 ADMINISTRATIVE LAW
GOVERNMENT REGULATION OF BUSINESS AND THE PROFESSIONS
Regulatory Control of Professions and Skilled Service Providers