This document provides an overview of the Canadian legal system, including the sources and classification of laws. It discusses how common law developed through precedent and statutes are developed through legislative processes. It also summarizes the Canadian constitution and Charter of Rights, noting that rights are subject to reasonable limits and can be overridden by governments.

1. Part 1 – Introduction to the
Law
Chapter 1 – The
Law and the
Legal System
Prepared by Douglas Peterson,
University of Alberta
© 2012 McGraw-Hill Ryerson Limited 1-1

2. Chapter 1 –
The Law and the Legal System
 Learning the Law
 The Legal Environment of Business
 The Nature of Law
 Rights versus Privileges
 The Role of Law
 Development of Law
 Sources of Law
 Constitution and the Charter of Rights
 Classification of Laws
© 2012 McGraw-Hill Ryerson Limited 1-2

3. Learning the Law
 Business Law is important to Business Persons
 A knowledge of legal issues is essential to the
making of proper risk management decisions
 Learning the history of law helps us to better
understand the law in its present day context
 We need to understand the types of basic legal
issues that affect business planning/operations
 We also need to be aware of developments in
law that may impact our specific type of
business
© 2012 McGraw-Hill Ryerson Limited 1-3

4. Legal Environment of Business
 Business law
Divided into a number of general areas
○ Tort law – injuries to another's person, property
or reputation
○ Contract law – day-to-day operations of a business
○ Business Organizations
 Partnership, sole proprietorship, corporation
○ Land Law
○ Intellectual Property
○ Environmental Law
© 2012 McGraw-Hill Ryerson Limited 1-4

5. Nature of Law
 Reflects the society we live in
 Historical influences
 Definitions
A set of rules that enable people to
live together and respect each others
rights
Rules of civil conduct
© 2012 McGraw-Hill Ryerson Limited 1-5

6. Rights versus Privileges
 Distinguish between a right and a privilege
 Right – are things we can do with impunity
 Others have a duty not to interfere with our rights i.e.
Freedom of Speech
 Privilege – We earn a privilege under certain
circumstances and if improperly exercised it
can be taken away by the State i.e. Driver’s
Licence
 Rights can become privileges
Due to social pressure or the state’s desire for funds
© 2012 McGraw-Hill Ryerson Limited 1-6

7. Role of Law
 Law – body of rules of conduct that are
obligatory
 Sanctions imposed if a rule is violated
 Social Control – using laws to shape
society
© 2012 McGraw-Hill Ryerson Limited 1-7

8. Role of Law
 Three Functions of the Law
1. Settling Disputes
2. Establishment of Rules – to bring
order and minimize conflict
3. Protection – of one’s self,
possessions, ideas.
© 2012 McGraw-Hill Ryerson Limited 1-8

9. Development of the Law
 Within the Family and within the Tribe
word of mouth from generation to generation
Early form of precedent
 Within the City-State
Formation of governments to deal with disputes
Balance between common good and individual
freedom
Roman Empire, Western Europe, Middle East
© 2012 McGraw-Hill Ryerson Limited 1-9

10. Common Law
 Customary Law
Religious laws
Community based
 Pre-Norman England
Roman law followed by Germanic
influence to the Norman conquest in
1066
© 2012 McGraw-Hill Ryerson Limited 1-10

11. Common Law – Rise of the Courts
 Norman England
Power consolidated with the King and the
King’s justices
Central judiciary established under King
Henry II
○ Beginning of the precedent system of
common law
○ Written records began to be kept
© 2012 McGraw-Hill Ryerson Limited 1-11

12. Sources of Law
 Common Law
 Law as found in the recorded judgments of
the courts know as “case law”
 “Statutes” are laws based by a properly
constituted legislative body/government
 Judicial interpretation and application of
“statute law” creates case law
© 2012 McGraw-Hill Ryerson Limited 1-12

13. Sources of Law
 Stare Decisis – Latin Phrase- “to let a decision
stand” applies if decision:
1. From the judges own court – Persuasive
2. Form a court of equal rank – Persuasive
3. From a court of higher rank - Binding
 This is a basic Judicial Principle that Judges in
lower courts must follow higher court
direction when dealing with similar facts and
issues
© 2012 McGraw-Hill Ryerson Limited 1-13

14. Common Law
 Creates certainty and predictability
 Predictable yet flexible
More flexible than a civil code
Can adapt to social changes such as
same sex marriage
Requires familiarity with ongoing
evolution of statute and case law
© 2012 McGraw-Hill Ryerson Limited 1-14

15. Sources of Law
 Canon Law – church law
Original jurisdiction over religion, family,
marriage, morals, estates
Influence today (Sunday shopping laws,
Ecclesiastical Courts)
 Merchant Law
Customs or rules established by merchants to
resolve disputes
Example today would be the sales of goods
legislation
© 2012 McGraw-Hill Ryerson Limited 1-15

16. Sources of Law
 Equity
 Rules originally based on decisions of the King
rather than on the law
 Fairness, equality, justice
 Overcomes the harshness and rigidity of the
common law
 Takes precedence over common law when
equity and common law conflict
 Over time decisions of the King became
principles of equity and eventually equity and
common law merged
© 2012 McGraw-Hill Ryerson Limited 1-16

17. Statute Law
 Statute
Latin word “statutum” meaning “it is
decided”
Laws made by governments
Result of legislative process
Debated, voted upon and passed through
a strict process established to protect
democratic principles
© 2012 McGraw-Hill Ryerson Limited 1-17

18. Statute
 Process –Slightly different Federally and
Provincially
1. Bill – proposed law presented to a legislative body
2. Motion – decision to read a bill the first time
3. Royal Assent – granted by the Governor General or
Lieutenant Governor after required readings
- Required in order to become law
1. Proclaimed – when a law becomes effective
 Revised Statutes – updated or amended to
reflect changes in society
○ Updates of current laws are now done online
© 2012 McGraw-Hill Ryerson Limited 1-18

19. Quebec’s Civil Code
 Influence of the French Civil Code system
A body of written law that sets out private
rights of the citizens of the state
Historical from Prussia and codified by
Napoleon in the 1800’s
Recent code is from 1994.
© 2012 McGraw-Hill Ryerson Limited 1-19

20. Codification of Common Law
 Codification of the common law into statutes
Bills of Exchange Act; Partnership Act; Sale
of Goods Act
Took place during late 1800’s
Advantage over common law is certainty
Still requires judges interpretation
© 2012 McGraw-Hill Ryerson Limited 1-20

21. Administrative Law
 A body of rules governing the application of
statutes to activities regulated by
administrative tribunals or boards
 Regulations – procedural rules made under a
statute
 Administrative Tribunals – agencies created
by legislation to regulate activities or do
specific things
 Power is delegated from Legislative body to
Tribunal or Board
 Decisions may be subject to judicial review
© 2012 McGraw-Hill Ryerson Limited 1-21

22. Constitutional Foundations
 Constitution -
 Basis upon which a state is organized, and the powers of
government defined
The supreme law - Rules for making Laws
2 Major Parts
○ Canadian Charter of Rights and Freedoms
○ Amending Formula
1867 B.N.A. Act and 1982 Canada Act
Legislative bodies that do not follow constitutional rules
risk having their laws declared unenforceable or ultra
vires
© 2012 McGraw-Hill Ryerson Limited 1-22

23. Constitution
 Division of Powers
 Section 91: Federal powers
 Section 92: Provincial powers
 Governments are limited to making laws
within their area of power
 Residual power
 given to the federal government; all matters
not expressly given to the provinces belongs
to the federal government
© 2012 McGraw-Hill Ryerson Limited 1-23

24. Charter of Rights
 Sets out basic rights and freedoms of all
Canadians that governments are to respect
 Entrenched in the Constitution – difficult to
change
 Section 1 (Reasonable Restrictions)
The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it,
subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free
and democratic society.
© 2012 McGraw-Hill Ryerson Limited 1-24

25. Charter of Rights
 Notwithstanding Clause (s.33)
Permits the government to pass legislation
that conflicts with or overrides charter rights
by way of a “notwithstanding clause”
Some sections of the Charter cannot be
overridden
Sunset clause – s.33 laws passed under this
section last for a five year period, unless
renewed
© 2012 McGraw-Hill Ryerson Limited 1-25

26. Fundamental Freedoms
 S.2
Freedom of conscience and religion
Freedom of thought and expression
Freedom of the press
Freedom of peaceful assembly
Freedom of association
© 2012 McGraw-Hill Ryerson Limited 1-26

27. Other Rights
 Mobility
 Permits free movement within Canada
 Personal Liberty
 Enjoy life without interference of the State
 Life, liberty and security of the person
 Right to be free from unreasonable search
and seizure
 Free from arbitrary detention or
imprisonment
© 2012 McGraw-Hill Ryerson Limited 1-27

28. Other Rights
 Right to Due Process
Informed of rights on arrest
Right to a lawyer
Only arrested for committing an offence
Innocent until proven guilty
Right to fair trials, reasonable bail
© 2012 McGraw-Hill Ryerson Limited 1-28

29. Other Rights
 Equality Rights
 Every individual is equal before the law
 Note language of charter language: person,
citizen, individual
 No discrimination based on race, creed, colour,
religion, sex, age, national or ethnic origin or any
mental or physical disability
 Affirmative action is allowed for disadvantaged
groups
© 2012 McGraw-Hill Ryerson Limited 1-29

30. Other Rights
 Language Rights
2 official languages of English and French
Government (federal) to provide services in
both official languages
Rights of education to be made available in
preferred official language
© 2012 McGraw-Hill Ryerson Limited 1-30

31. Enforcement of Rights
Apply to the courts to challenge legislation that
offends Charter rights
Charter only applies to governments not to
private groups or individuals
Private matters are dealt with through
Provincial human rights legislation
“Read Into” the recent trend of courts to read
into the Charter words or provisions that the
legislative bodies did not
Reference Cases – example is the Same Sex
Marriage case
© 2012 McGraw-Hill Ryerson Limited 1-31

32. Classification of Laws
 Substantive Law
 All laws that set out the rights and duties of
individuals
 Procedural Law
 Procedures taken to enforce a substantive law
 Substantive Right
 An individual right enforceable at law
 Public Law
 Relates to relationship between governments and
persons
 Private Law
 Relates to relationship between individuals
© 2012 McGraw-Hill Ryerson Limited 1-32

33. SUMMARY
 Law is the means by which state maintains
social control
 Courts used as vehicle of enforcement
 Common law and statute law exist today
Rule of Precedent “stare decisis” allows for judicial
interpretation of laws and a hierarchy of courts
 Charter Rights
S.1 rights are not absolute
S.33 can be overridden with notwithstanding clause
 Substantive rights and law are enforced or
applied through procedural law processes
© 2012 McGraw-Hill Ryerson Limited 1-33