The Fundamentals and the Nature of Law

This unit explains ________ law is, _______ we have laws, how laws are made and ________________, the

differences between _______________ issues and _______________ issues, how laws affect ______________, and how individuals in society can bring about

___________________ in the law. The unit also gives a background to the Canadian legal system and

introduces important legal terms and concepts.

Law and its Purposes in Society

• Law can be defined as the ______________ that are made and __________________ by

the government to __________________ the conduct of members of our society. • It plays a major role in the manner in which society __________________.

Canadian Law

• Canada's laws are an interesting __________________ of ancient traditions and modern

ideas. • From penalties for __________________ to the __________________ of minors, the legal

system covers every __________________ of our lives and even dictates what happens to our belongings after we die.

• It's a __________________ system, but not a rigid one.

• Our laws continually __________________ in response to our changing social values.

What is a Law?

• You probably have an idea of how to define law. Take a few minutes to write a

definition in your own words

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Why Do We Have Laws?

Think, Pair, Share

1. Make a list of everything you can think of that you can do in society which is in no way affected by law

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2. Discuss and exchange ideas with a Partner pick your three top

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3. Share with the group and discuss. Feel free to challenge other peoples’ responses if

you disagree. Politely point out why your opinion differs Discussion

• There are not many things you can do in society which are not affected by law in

some way. • Example: Breathing

o you might say that the law has nothing to do with breathing, but think about

it: There are laws which determine the quality of the air people breathe and

laws which determine whether an individual has the right to have a

machine turned off which does the breathing for a person who would otherwise die.

• Why we have laws regulating so many areas???

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The Distinction between Laws and Morals

• While many laws are based on public _____________, there is an important _____________ between the two

Right and Wrong

• Where do we get our _______ about right and wrong? o For example, why is it illegal to murder

another person? Or why is it illegal to be

married to two people at the same time? • These actions are illegal in Canada because of our __________________ values. Every

society has actions that people generally believe are correct to do and other actions that are __________________. These social values are shaped by two things:

1. ___________________________ 2. ____________________________

Law, Values, and Beliefs

• An old law in Winnipeg declares that one may be ____________ for kissing a woman on the __________________. That was obviously based on morals of the time.

• You may feel that abortion is __________________. However, in Canada,

__________________ is no longer a crime. o Some people believe that women should have the right to make their own

__________________ on such matters. Over ____________, the law changed. • People's ideas of right and wrong _____________. Thus, there will be times when people

disagree with what should and shouldn't be __________________ by law.

• There will also be times when law _____________ because of society's changing beliefs. Impact of Changing Laws on Society

• Laws change _______________. It would be difficult to keep up with laws which

changed often, and society would likely find it difficult to take laws seriously if they changed __________________.

• However, laws must change

to keep pace with ___________.

Law and Morals

• A majority of the people have

to agree with a law to make it __________________.

• If most people don't believe in

and ________ a particular law, there won't likely be enough

law enforcement ____________ available to that law in society.

o Thus, when __________________ change, laws must change as well. • And these changes have had __________________ effects on the lives of many

Canadians.

Laws Change Society, Society Changes Laws….

• Changing ____________ also have the impact of changing __________________.

o Did you know that a Toronto bylaw (which is still in force, but no longer enforced) stipulates that bathing suits must cover a human from _____________________________________?

o Changing __________________ likely made it impossible to enforce the law. o _______________ of enforcement of the law brought about a change in

__________________ when people became used to seeing people who were not covered from neck to knee.

An Important Example:

• __________________ about drinking and driving brought about changes in laws

concerning drinking and driving.

• The changes in the law have changed the __________________ of many drivers.

Drinking and Driving On July 1, 1999, Criminal Code amendments increased penalties for impaired driving and

related offences. The introduction to Bill C-82 notes that the Parliament of Canada

recognized that impaired driving continued to threaten the lives and health of Canadians.

Stiffer penalties for those who pose the problems are a response to the problem.

The minimum sentences are:

For a first offence, a $1000 fine and a 12-month driving prohibition,

For a second offence, 30 days of jail and a 24-month driving prohibition, and

For a third or subsequent offence, 120 days of jail and a 36-month driving prohibition

The penalty for driving while prohibited has been increased from a maximum of two years in jail to five years.

Drivers convicted of hit-and-run causing bodily harm may be sent to prison for a maximum

of ten years. A driver who fails to stop after an accident knowing another person involved in

the accident has been killed may be sent to jail for life. These drinking and driving laws

have changed dramatically over time. These changes are made to reflect society's views on

punishments for people who choose to drink and then drive. As awareness about the

hazards of drinking and driving has increased, so have the punishments.

Changes to laws associated with Aboriginal people

Many laws pertaining to the status of First Nations people have changed in the second half

of the twentieth century. Some clearly discriminated against Aboriginal people. For

example, Status Indians (the term used by the Federal government to refer to Aboriginal

people who are listed on band registers) were not able to vote until the 1960’s. Prior to the

1960’s, First Nation people had to give up their Indian status in order to obtain the right to

vote or join the military. Those laws were amended to give Status people the right to vote or

join the military without losing their status.

Prior to 1982, with the introduction of the new Canadian constitution, Status women who

married non-status men, gave up their Indian Status. Neither would their children have

status. The piece of legislation that is related to this is called Bill C-31. For both of these

groups, those individuals who lost their status could regain it by applying to the

government. Both of these have been changed to allow First Nations people to keep and

regain their status

1. Why have penalties for drinking and driving become more severe over time?

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2. Why have laws associated with Aboriginal Peoples democratic rights and Status evolved

over time?

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Morality and Law Interview Assignment

Interview at least 2 people who are older than you, perhaps the ages of your parents and grandparents to see what they can tell

you about changes in society's morals. See if they can also tell you about laws which used to exist to encourage people to behave in accordance with these ideas of moral behaviour.

****See attached sheet

Key Terms for Review (these are some of the concepts that you will be tested on)

• Definition of law • The need for laws

• The functions of law • The rule of law • Changes of law to society

• The difference between laws and morals

Classification of Law Public Law & Private Law

Law can be divided into two major areas:

o __________________ o __________________

In order to understand Canada's legal __________________ you will need to understand the difference between these two major areas.

You can imagine how many laws it takes to cover all aspects of our __________________ and __________________ lives.

It's useful to divide law into different __________________, depending on the subject

the law deals with. There are several different ways to do this.

Criminal Law

Criminal law __________________ the

relationship between the __________________ and

__________________ and is one of the main areas of law that falls under the

larger category you read about, __________________ law.

Criminal Law Introduction

The main purpose of criminal law is to maintain __________________ and provide __________________.

When a person commits a __________________, such as assault, the law sees the action as __________________ to all of society – not just to the __________________.

o This is true in both the __________________ Canadian legal system, and traditional __________________ cultures, who view such activities as ones that

have damaged the relationship between the offender, the victims and the whole community.

For this reason, the legal __________________ that goes to court isn't between the

__________________ and the person __________________ of committing the crime, the argument is between the government (called the __________________) and the person

accused of the crime (called the __________________). Criminal Cases

A criminal case begins when a police officer has __________________ to believe that

someone has committed an __________________.

All illegal __________________ or __________________ (sometimes it is illegal not to do

something) are written down in federal __________________, mainly, the Criminal Code of Canada.

o Crimes cover a wide range of __________________ from shoplifting to murder.

__________________ the guilty and trying to __________________ further crime are two other purposes of criminal law.

The Criminal Code of Canada sets out the __________________ for offences. o In other words, the ________________ offender is punished for breaking the law.

This is, however, not the only way to deal with __________________. o There are __________________ ways of looking at Criminal law such as those

found in some __________________ Aboriginal cultures where offenders are dealt with in a more __________________ way.

o This means that the emphasis is not on punishing the offender; rather on

__________________ the offender and re-establishing the __________________ between the offender, the victims and the whole community.

Civil Law

Civil law governs the relationship between __________________ and is also known as

__________________ law.

Within civil law there are more divisions.

o The chief __________________ of civil law are those dealing with contracts,

torts, property and corporations.

Branches of Civil Law 1. __________________ rights - A contract is an

agreement enforceable by law. 2. __________________ - Torts are wrongs done to someone which does not involve a contract.

3. __________________ - This refers to the law explaining one's rights over goods and land.

4. __________________ - this is the law relating to the structure and administration of corporations.

Civil Law Introduction

Civil law is mainly concerned with helping us settle __________________ and

__________________ a person for injury or loss. o It is also known as private law.

Civil law covers a variety of topics from __________________ matters to _______________.

Civil cases are between two __________________, or __________________ and correct

terms for the two parties in civil cases depends on the type of case.

The __________________ for beginning a civil case also varies with the type of case.

In general, you can think of a civil case as beginning when a person has a ________

______________________________ o That is, the courts agree that the subject in question needs a legal resolution.

In some civil cases the judge will make a decision on a matter such as whether or not a ___________ is valid or the best way to divide __________________ in a divorce case.

When one person has been harmed by another, the judge will decide what __________________ should be made to the injured party.

o This is called the __________________.

Review: Civil or Criminal?

Some helpful vocabulary:

o Versus means to be against. In law, the abbreviation v. stands for versus. o Grounds refer to what is necessary to begin the legal action.

Your Task: Use the phrases listed below showing whether they are civil law or

criminal law terms and how they apply to that particular area of law.

How Do I Sort Through This? CIVIL LAW

Who - Individual v. Individual

Purpose - Settle disagreements, Compensate for injury or loss.

Grounds - Cause of Action.

CRIMINAL LAW Who - Crown v. accused

Purpose - Maintain order, Protect Society, Punish the Guilty, Prevent further crime.

Grounds - Suspect an offence has been committed.

Phrase Civil or Criminal?

individual v. individual

settle disagreements

compensate for injury or loss

cause of action

Crown v. accused

maintain order

protect society

punish the guilty

prevent further crime

suspect an offence has been committed

Review: Civil or Criminal?

1. Explain how you can differentiate between a civil matter and a criminal matter.

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2. In this section you learned that when a person is a victim of crime, our legal system reacts as if all of society has been wronged. Explain the reasoning behind this.

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3. Using your knowledge of the differences between criminal and civil law indicate whether the following situations would likely lead to a criminal or civil court procedures:

A. Stuart is caught shoplifting.

B. The cleaners ruin your new leather jacket and refuse to take responsibility.

C. Marion and John decide to separate and want the terms of the separation to be set

out in court.

D. Your neighbour's dog jumped into your convertible and chewed the car seats to the point where you can barely recognize them.

E. Geraldine breaks the terms of her probation order.

F. Sue is crossing the street and falls into an unmarked open manhole.

G. You had your transmission repaired yesterday, but today you noticed the car has the

same problem. You phoned the garage, but they don't seem to want to help you.

H. A husband and wife decide divorce is their only option.

I. Your new condominium leaks and the contractor doesn't want to fix it without charging you more money.

J. You have been waiting for your new credit card, then learn that somebody has stolen it from the mail and has been charging things in your name.

Key Terms for Review (these are some of the concepts that you will be tested on)

Types of laws:

Criminal Law

Constitutional Law

Administrative Law

Family Law

Contract Law

Tort Law

Property Law

Labour Law

Definition of Criminal law

Definition Civil law

The difference between criminal and civil law and understand how to differentiate between the two.

Evolution and Sources of Law Historical Influences

Before the arrival of the _____________ or _____________ to Canada, First Nations

peoples had well-established systems of _____________

The system _____________ to Canada from Europe was _____________ on Aboriginal

peoples and was not _____________ with the systems that Aboriginal peoples already had

Though these systems do not, at this point in time, constitute a major part of the Canadian justice system, they are gaining in _____________ and _____________.

This is not just to reflect the interests of Aboriginal peoples, but because traditional Aboriginal justice is seen to be a viable _____________ to the existing _____________

system. Sources of Canadian Law

In Canada, our law has come to us from two sources:

_____________

_____________

The common law system (based on case law _____________) is used in all the

_____________ and _____________ except Quebec.

The _____________ Civil Code tradition (based on written rules contained in a civil

code) is used in _____________ for civil cases

Criminal law is _____________ throughout Canada

Development of Common Law

Origin of Canadian Law

Modern laws in Canada originate from a variety of historical sources

The two most influential of these are:

o _____________ o _____________

Your task: read through the following passages on the historical sources of Canadian law and answer the questions below

The Roman Civil Code

As the Roman Empire grew and became more sophisticated, its laws had to develop as well to meet the increasing needs of the people. These different laws, made over the years by the

Emperor and his advisory council, were eventually written down into organized texts called the Civil Code. The laws of most of the countries in Continental Europe are based on the Civil Code, and that is why countries such as France, the Netherlands and the Federal

Republic of Germany are called "civil law" countries. In Canada, because the province of Quebec bases much of its law on French traditions, much of its law can be found in the

Quebec Civil Code.

The Common Law (Source of reference: Jennings & Zuber, 4th ed.)

Although the Roman Empire extended into Britain as well as Continental Europe, England did not adopt Roman law. In 1066, many hundreds of years after the decline of the Roman

Empire, the Duke of Normandy invaded England and his victory in the Battle of Hastings made him William I of England or "William the Conqueror." The Anglo-Saxons, who were conquered, had depended upon their own system of communal courts, applying their own

Germanic laws and customs. What the Norman conquerors brought to England was the idea of a strong central government. The local communal courts were replaced by royal courts, where justices from Westminster were sent by the King to hear cases all around the

country. These judges attempted to apply the same rules to all of the cases they heard, usually by selecting the best rules of custom they found from locality to locality, and

applying the same rules to each new case. This was the beginning of what we call "precedent," where the judges follow their own previous decisions and the decisions of fellow judges when deciding a new case. In this way the law became uniform throughout

England, while still never being written down in a code. All of the judges' past decisions, which would be followed in deciding future cases, became the law "common to all of

England, or the common law." While the judges continued to follow precedent and maintained a sense of being bound by past decisions, it was not really until the eighteenth century that the rule of precedent became formalized. Around this time people began to

report the various judicial decisions, so that books filled with cases became the course of the common law. That is still the case today, and in those parts of Canada which take as their base the common law (that is, all provinces except Quebec), it is often necessary to

read reports of judicial decisions going back for hundreds of years in order to determine what the law is.

Other Historical Influences

While the Civil Code of Rome and the English Common Law (or case law) systems have been very influential in making Canadian law what it is today, there have also been influences from other parts of the world. Canadian law has been affected by all of the

following:

Hammurabi (2100 B.C. approx.): Hammurabi was a king of Babylon, and he had codified laws dealing with civil and criminal matters. For example, there were rules

protecting property from trespass, or theft. The code was kept in a public place where a scribe could explain it and answer citizens' questions.

Moses (1400 B.C.): As a lawgiver, Moses was responsible for the ten commandments, a compenduim of religious rules that have, over time, been incorporated, at least in

part, into many legal systems of the modern world (i.e., laws against murder and adultery).

Roman Law: Roman law was codified by the Emperor Justinian (528 A.D.). This was

a single large document and all disputes were resolved by reference to it. It influenced legal scholars well into the Middle Ages.

Napoleon: Napoleon revised the entire law of France through the Napoleonic Code. It used sources from both French and Roman law and was eventually used in other

European countries. In Canada it formed the basis of the Quebec Civil Code, still in existence.

Magna Carta: When King John of England was forced by the barons to sign this

document in 1215, it cemented into the British tradition the principle of the rule of law (i.e., the principle that no one individual, including the king, is above the law), as

well as other principles we abide by today such as the right to trial by jury.

Equity: Jennings and Zuber indicate that as the years passed and the number of

decisions which made up the common law grew, it became obvious that strictly following precedents sometimes produced unfair results. The decisions made one

hundred years earlier often could not be applied fairly to modern cases. The common law became very rigid as judges felt bound to apply rules of precedent, notwithstanding the merits of the case before them.

It was in these situations that the new practice arose of appealing directly to the King when someone felt that the common law did not provide justice. As more and more

people took their cases directly to the King, he gave the task of hearing them to his Chancellor. The Lord Chancellor often was a clergyman and for this reason became the expert on morality, the "keeper of the King's conscience." The Lord Chancellor

would decide these cases based upon their merits, and his conscience. It did not matter what past decisions said in this court, as this court was based

entirely on "equity" or fairness, not on the technical rules of law. In time these hearings before the Chancellor became more formal and a whole new court developed, called the Court of the Chancery or Court of Equity. As you have seen,

this court was not concerned with past decisions at first, but later it began to follow its own precedents. Soon a new branch of law emerged called the law of equity. A person who felt that he or she had a case to take to court, had to choose which

system of law to go to - common law or equity. Each branch of the law was heard in a different court system.

In the nineteenth century the English Parliament passed laws called the Judicature Acts, which merged Equity and the Common Law in both England and Canada. Now there is one court system which dispenses both common law and equity, but because

equity started as the "king's conscience," it is still the case today that if there is a conflict in a case between the principles of common law and equity, equity prevails.

Evolution of Law Review

1. What is the basic difference between the court system of the Anglo Saxons and that of the Normans?

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______________________________________________________________________________________________________________________________________ 2. Which Canadian province bases much of its law on the French civil code?

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3. What was the Roman civil code?

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4. What was the single most important feature of the Magna Carta?

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5. What was the significance of the nineteenth century Judicature Acts?

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6. Precedent and equity offer unique advantages in the conduct of our legal system. Name

two advantages of each.

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7. Precedent and equity exist together in our legal system because each alone is not sufficient to modern needs. Name two disadvantages of each.

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Canadian Law

When ______________ subjects settled a ______________ (like what would become Canada) they brought English ______________ with them.

o Thus, we here in Manitoba acquired English law (with all that that contained such as influences of ______________ law, ______________, and ______________).

Just because something was prohibited in the Code of Hammurabi, or in an English

case of 1820, for example, does not mean that it is still necessarily part of Canadian law.

o It is an important feature of a democracy that laws made by an ______________ government often reflect the ______________ in society over the years.

o This is the case when the law keeps up with technological advancements, but

is also true when ______________ and ______________ of society change.

The law often reflects the ______________, ______________ and ______________ of its

society, so what was an important value or moral belief two hundred years ago would be reflected by the law, as are general values and attitudes ______________.

o Sometimes, however, the law is slow to change

Important Developments in Canadian Law:

British North America Act 1867

This was a ______________ passed by the British Parliament which created the

______________ of ______________, and became Canada's ______________

It recognized that Canada was a ______________ union of ______________ and so

______________ the law-making authority between the provinces and the federal Parliament

According to the BNA Act of 1867, the ______________ governments would have the exclusive ______________ to make laws about things of local importance, such as:

o ______________ o ______________

The ______________ government was given complete ______________ to make laws

about things of national importance, such as: o ______________

o ______________ o ______________

Limits, and Great Britain’s power under the BNA

The federal government may not make any laws dealing with issues within provincial

power, and ______________

No government in Canada, the federal one or any of the provincial ones could make

any law that was ______________ to Canada's ______________

Although ______________ and the provinces were given the power to make their own

laws, the ______________ Parliament kept its power to pass laws applying to Canada as well

Manitoba Act 1870

By this act, "Manitoba's constitution," Manitoba became a ______________ of Canada

All ______________ law as it existed at the time became part of the law of Manitoba,

but any English law ______________ after this date did not, unless it specifically said

so Statute of Westminster 1931

This statute was passed by the ______________ Parliament, saying that the English

Parliament gave up the ______________ it had kept in the BNA Act 1867 to pass laws ______________ to Canada

From this date on Parliament in Westminster could make laws affecting Canada only

if it was specifically ______________ to do so by the Canadian government

1949: The Supreme Court of Canada

Until the year 1949, the final court of ______________ for cases in Canada was in ______________, called the Judicial Committee of the Privy Council

From 1949 on, however, the Supreme Court of Canada became the ______________ court of appeal for ______________

Canada was thus gaining more control of all of its ______________ powers, including law made by ______________, not only ______________

Canada Act 1982

This was the __________ Act to be passed by the English Parliament ______ Canada

It was done at the ______________ of the Canadian government, after the federal

government and the provinces agreed on a way of ______________ and dealing with the ______________

Up until this time the constitution was a ______________ statute (the BNA Act 1867)

The Canada Act 1982 made the Canadian Constitution a ______________ statute; it

______________ it

The BNA Act 1867 was ______________ the Constitution Act 1867 and it was

incorporated into a new Act, called the Constitution Act 1982, passed by the Canadian ______________

This Act, however, ______________ things to the Canadian Constitution which were not there before

The most important of these additions was the _____________________________________

It also formally recognized ______________ people as being Aboriginal

8. What was accomplished by the British North America Act (1867)?

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9. The Statute of Westminister was a significant development in Canadian autonomy. Why?

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___________________________________________________________________ 10. What did it mean, to “patriate” the Canadian constitution?

______________________________________________________________________________________________________________________________________ 11. Why do you believe the Charter of Rights and Freedoms is such an important

component of the Canada Act?

___________________________________________________________________

___________________________________________________________________ ___________________________________________________________________

___________________________________________________________________ 12. What is the overall theme of the evolution of Canadian law since 1867?

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Sources of Canadian Law

Most laws today are _______________ , acts of _______________ or _______________, which are orders in _______________

The Constitution Act of 1867 sets the _______________ of our government and the _______________ of the various branches of government

o It determines which _______________ of government have the _______________ to make and pass particular kinds of laws

We Are Not Alone

The sources of Canadian law today are Canadian, but as you have seen, origins go

back a very long way and have strong roots in _______________

Many _______________ countries around the world _______________ much of their law

from English common law; you simply have to remember all of the countries today that were once British _______________ or settled by the British people

o The United States o Australia

o India o Kenya o New Zealand

o and many more Where can I find Canada’s Laws?

_______________, then, is the "Law of Canada"? Is it all gathered together somewhere

for anyone to read? The answer is _______________ o You must look at many _______________ to find the law of Canada, but many of

these may be in a law library, in many different books

In your text, the main source of Canadian law is Canada's _______________

o The constitution gives _______________ to the federal or provincial government to pass certain kinds of _______________

Different parts of our laws are _______________ in different ways and it's not always

easy to find a copy of a particular law, but it is possible

You have to _______________ exactly what type of law you're looking for

Provincial and Federal Statutes

As you have read, _______________ are acts of _______________ or of _______________

governments that set out our basic laws o The _______________ Code of Canada is a federal statute that describes the

criminal law for all of Canada o The _______________ Highway Traffic Act is an example of a _______________

statute, made by the province of Manitoba to regulate motor vehicle traffic

within the province o The Manitoba _______________ is another example of provincial legislation

Violations of provincial and municipal legislation are _______________ but

not true _______________

Statutes, the Criminal Code and the Motor Vehicle Act and are often available at your

local _______________ or you can purchase your own copies from the government concerned

Municipal Bylaws

Some provincial statutes give power to _______________ to make laws that have only a very _______________ effect

Many cities and towns have the power to enact bylaws dealing with things like: o _______________ of buildings

o _______________ licenses o _______________

o _______________ collection

You can usually read or obtain copies of by-laws at your local municipal office or at

your local library Regulations

More and more frequently, both federal and provincial governments set up administrative _______________ to work out the _______________ of laws

The statutes give the general _______________, but these boards often have the authority to work out the details by making _______________

These regulations can cover very important _______________ about the law and so should be read _______________ with the statute

Regulations may _______________ the statute or set a _______________, but a regulation can never go counter to the statute

Regulations are rarely voted on by Parliament or by provincial legislatures

Administrative agencies make decisions and follow the rule of precedent just as a

court would if it were making these decisions

Case Reports

As we mentioned earlier, case law is the part of law that has developed over the years through the _______________ of _______________ in the court system (precedent)

These decisions are _______________ in case report books which sometimes go back several _______________ years

When a lawyer is hired to _______________ someone, she or he will often begin _______________ to find out what happened in other _______________ cases

You can find copies of case reports in a law library o They are also called _______________

Activity: Law Jurisdiction

You live near an airport where the noise from the aircraft taking off and landing makes it difficult to speak. You and your neighbours wish to have a law passed that

would restrict take-offs and landings to daylight hours. What lawmaking authority should you approach?

Answer

Municipal government

Key Concepts for Review (these are some of the concepts that you will be tested on)

• Evolution of Canadian Law • Common law

• Civil code • Precedent • Case law

• Parliament and statute law • The development of common law • Canada’s constitution (BNA Act, Statute of Westminister, Constitution Act)

• Government jurisdiction (levels of government) • Lawmaking in Canada

Law-making, Lawmakers, Legal Institutions, and Careers in Law Levels of Government and Jurisdictions

_______________ is an area of authority, power, or responsibility

A _______________ is a body of laws which sets out who has the _______________ to make law

o Canada's constitution sets out the jurisdiction of the _______________, _______________ and _______________ governments

o At this time, there is discussion between Aboriginal peoples and the federal governments regarding self-determination for Aboriginal peoples

Among other things, this would give Aboriginal peoples more control over

their justice systems A Tradition of Provincial Differences

When the provinces joined together to create the country of Canada, one part of the

agreement was that each province could keep control over some legal matters o Laws concerning education and driving are provincial laws and therefore vary

from province to province. o Laws concerning violent crime, however, are federal matters and are the same

all across Canada.

Most laws end up being quite similar in all provinces with the exception of Quebec which actually has an entirely different legal system for handling provincial matters

Aboriginal Justice

Aboriginal Peoples are attempting to displace the mainstream legal system from their

communities and replace it with culturally relevant systems of justice o The Aboriginal Justice Implementation Commission (AJIC) made

recommendations for the creation of parallel justice systems within Aboriginal

communities

Some First Nations have implemented their own systems of justice but these vary

within between First Nations. Administrative Lawmakers

Administrative agencies have been set up to assist governments to carry out or

"administer" particular laws o The government sets out the specific powers and duties that an official or

agency will have

o Administrative agencies are often set up to work out the details of how legislation will be put into action

Your Task: Read the following article and answer the question below From Corn flakes to call home, it’s a world of regulations by Margot Gibb-Clark

You get up in the morning and listen to the radio. Content is controlled by the Canadian

Radio-television and Telecommunications Commission. At breakfast, you eat corn flakes and milk. Before reaching the table they have been subject to marketing boards and health regulations, quotas, and control of what pesticides could be used as the cereal grew.

Because of the Packaging and Labeling Act, the box has a bilingual label.

Then you go to work on the bus regulated by the local transit commission. If you are a nurse or an engineer, your profession has certain standards of entry and

behavior, controlled by a professional body. At work, one department is considering unionizing. There are labor-relations standards

controlling the way it can be done. Recruiting cannot proceed on company time. On the other hand, the boss is limited in his attempts to dissuade employees from joining up. He

can’t, for example, hold out promises of better working conditions to those who don’t sign a union card.

Lunchtime. You go out with co-workers to a local restaurant where health conditions are supervised, likely by the city health department.

And you discuss the big, unfair tax bill you think you got. Well, all is not lost – yet. You can appeal to a tax appeal board …

Back home, your lease is up for renewal, and your landlord wants to take over the apartment. Conditions under which he can do so are likely to be controlled by a tenancy

commission.

You make a long distance telephone call to a friend. Bell Canada may have to give you a break on rates because the CRTC told it to. However, Bell is appealing.

You turn out the lights – electricity price is regulated – and go to sleep.

1. To what degree are we affected by regulations created by administrative lawmakers?

Explain.

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___________________________________________________________________ Canadian Court System Structure and Jurisdiction

Courts interpret and make law, but also have other functions

Courts decide how a law should be applied in a specific case

Laws are created by:

o statutes voted on by government o regulations created by administrative agencies

o case law developed by the courts

The Judicial System (court system) High and Low Courts

Canada's courts are organized in levels

Higher courts hear more serious cases and have more power to influence the development of case law

Each province has a court system that has three or four levels, and the highest level court of each province answers to the Supreme Court of Canada

There is also a special group of courts to handle federal matters

Here's how Manitoba fits into this system

Non-Adversarial vs. Adversarial

Two approaches to resolving legal disputes are the adversarial and non-adversarial

Many traditional Aboriginal cultures follow a non-adversarial system

o Since the ultimate goal is not to punish the offender, but to heal and restore victim, the family, community and the offender, the process is quite different than that found in the mainstream Canadian legal system

o These Aboriginal systems follow a more holistic approach

Mainstream Canadian law, whether criminal or civil, follows an adversarial approach

o Under this approach, representatives from both sides of the issue present their case

o A judge, (or judge and jury) decide who is right

Trials

Courts handle two kinds of legal problems:

o Trials o Appeals

In a trial, representatives from both sides of the issue get to present their case

A judge (or sometimes a judge and jury) will decide who is right

In a criminal case, one adversary is the Crown, the other is the accused

In a civil case, both adversaries are individuals and in most civil cases, the individual

who is suing is known as the plaintiff and the individual being sued is the defendant

Appeals

If a person feels that she or he has suffered as a result of poor judgment, either

through dishonesty or error, she or he can request an appeal to a higher court

If an appeal is allowed, a judge or group of judges reviews the lower court's decision

Not all appeals will be heard, as there must be some reasonable grounds to believe

that there was an error in judgment or procedure The Common Law Ladder

You might find it helps to imagine that the levels of courts create a ladder, with each

level a step up the ladder

Here's how a criminal case might go up the ladder

The Court Ladder

There are two important things to know about this ladder and the common law

system: o A decision made by a court at one level is binding (must be considered) by all

other courts at that level and below For example, a decision made by a provincial-level court in Alberta could

only affect a decision made by another provincial-level court (in British

Columbia, for example) o On the other hand, a decision made by the Supreme Court of Canada would

affect every court in the country

o The decision of a court can be overturned (changed) only by an appeal to a court that is higher up the ladder

Jurisdiction

The authority to make laws and legal decisions in a particular area is called jurisdiction

o Ex: municipal, provincial, and federal

When government is acting within its own jurisdiction, it is known as intra vires

(within the scope of power)

When government is acting outside of its jurisdiction, it is known as ultra vires

(beyond the scope of power).

The concept of government being able to do anything as long as it is doing it within

its own jurisdiction is known as parliamentary supremacy

Different courts also have jurisdiction in certain areas

Provincial Court (found throughout the province)

Provincial court (Family Division)

outside Winnipeg, the division hears disputes involving separation of spouses, custody of children, maintenance payments between spouses, child protection cases

that involve child care agencies

in Winnipeg, the Queen's Bench Family Division hears the cases noted above

appeals usually go directly to the Court of Appeal

Family Division hears young offenders' cases (youth court)

youth court appeals go to the court of appeal

Provincial Court (Criminal Division)

this division handles over 90% of the province's criminal cases

handles summary conviction cases (less serious cases), and many indictable cases

appeals of summary conviction matters go to the Court of Queen's Bench

further appeal goes to the Court of Appeal, but on a question of law only

Court of Queen's Bench

sits mainly in Winnipeg but also sits in other larger provincial centres

has both civil and criminal jurisdiction

has some jurisdiction as an appeal court from Provincial Court

has different divisions in Winnipeg:

o Court of Queen's Bench o Court of Queen's Bench (Family Division)

has subdivisions called Queen's Bench Small Claims and Queen's Bench Surrogate

Types of cases heard by the Court of Queen's Bench

Court of Queen's Bench - civil jurisdiction

hears contract and tort cases and other civil matters

is a trial court, usually with a judge sitting alone

juries are possible for defamation, wrongful imprisonment cases

hears cases when money at issue is over $5000.00 (March 1989)

hears divorce cases in areas of Manitoba that have no Queen's Bench Family Division

decisions can be appealed to the Court of Appeal

Court of Queen's Bench -- criminal jurisdiction

Hears trials by judge or trials by judge and jury (Murder, treason, piracy cases must be tried by a judge and jury.)

has some appeal jurisdiction relating to certain cases from Provincial Court or from

Small Claims Court

decisions can be appealed to the Court of Appeal

Court of Queen's Bench -- Family Division (Winnipeg and Eastern Judicial District)

hears all divorce cases

hears any matters dealing with the family - property, financial support, custody and

access to children, children protection cases involving child care agencies

decisions can be appealed to the Court of Appeal

Court of Queen's Bench -- Surrogate Court

civil court, dealing primarily with wills and the estates of dead people

deals with granting probate of a will (proof that a will is genuine) or with the administration of estates left by people with no will

decisions of this court can be appealed to the Court of Appeal

Court of Queen's Bench -- Small Claims

established to give people a quick, inexpensive means of resolving disputes

is less formal and lawyers are seldom necessary

cases are heard by a Clerk of the Queen's Bench

appeals of the clerk's decision can be taken to a judge of the Queen's Bench

decision of the Queen's Bench judge is final unless a question of law is involved in

which case an appeal lies to the Court of Appeal

maximum amount of money that can be at issue in this court is $5000.00 (March

1989); higher claims are heard in the Court of Queen's Bench Court of Queen’s Bench Summary

All of these branches of the Queen's Bench have trial jurisdiction which means that

evidence is heard by the judge

Judges of these courts are appointed by the federal government in Ottawa, and they

can hear all types of cases.

In the Court of Queen's Bench Family Division, however, there are special family

judges appointed who hear the majority of family cases and therefore have developed special expertise and sensitivity to family matters

As you can understand, family matters that go to court may require a special kind of

knowledge and delicate handling, as they are often very emotional

The Manitoba Court of Appeal

sits only in Winnipeg

is the highest court of the province and, with few exceptions, hears only appeals from

the lower courts

new evidence may not usually be brought to this court; it reviews what was said and

done in the court below it

in order to appeal to this court it is often necessary to get permission of the court

(called getting "leave to appeal")

seven judges sit on this court and cases are usually heard by three of them

judgment is based on the decision of the majority of them (i.e., two out of three)

NATIONAL COURTS

Federal Court

deals with matters of taxation, immigration, disputes between the federal and

provincial governments, cases involving trademarks and copyrights, or claims against the government (for example, a claim by someone injured by an army truck)

has two divisions, a Trial Division and an Appeal Division

Appeal Division hears appeals from the Trial Division in cases such as those

mentioned above, as well as appeals from federal boards or commissions (e.g., the Immigration Appeal Board)

appeals from the Appeal Division can be to the Supreme Court of Canada only, when

the question on appeal is of public importance The Supreme Court of Canada

highest and last court in Canada

hears appeals from the courts of appeal of the various provinces and from the Federal Court

has jurisdiction to hear cases referred directly to it by the federal government, and this usually means requests to decide constitutional questions

allows appeals of civil cases only with leave to appeal, and leave can be granted either by the court of appeal in the province or by the Supreme Court itself

allows appeals of criminal cases with leave, unless an appeal is from a provincial court of appeal which set aside an acquittal granted by the trial court, or where

someone was charged with an indictable offence (see Lesson 6) and the Court of Appeal in the province was not unanimous about a question of law

Judges are appointed by the federal government. The court consists of a Chief Justice

and 8 judges, at least 3 of whom must be from Quebec.

Your Task: Which Court?

1. What claims are handled in small claims court?

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1. If someone owed you $13,000.00 and did not pay in the stated time, what court would you go to in order to get the money back?

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2. In what court would an 18 year old accused of murder be tried? A sixteen year old accused of robbery?

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3. The Prime Minister of Canada is assassinated. Why would the trial not be conducted in the Supreme Court of Canada? Where would the trial be held?

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______________________________________________________________________________________________________________________________________ 5. Do you think that having specialized courts (e.g., Queens Bench Family Division) is a

better idea than having general courts? List two advantages of specialized courts and two advantages of generalized courts.

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___________________________________________________________________ ___________________________________________________________________

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Duties and Expectations of Courtroom Participants Lawyers

A lawyer is a person trained in the _______________ of law

A person is not legally _______________ to be _______________ in court by a lawyer – you can speak for _______________

o It is, however, _______________ for the average person to handle any but the most simple legal problems without _______________ advice and most people choose to _______________ a lawyer

This need for trained assistance is _______________ in law

o If you have been _______________ with a serious

criminal offence and cannot _______________ to hire your

own lawyer, Manitoba’s legal aid system offers inexpensive help to people with low

_______________

_______________ large and

small also hire lawyers to handle the legal _______________ of running a business and drawing up _______________

_______________, _______________ contracts, and _______________ agreements are

examples of other _______________ matters that lawyers handle for their clients

A lawyer has two responsibilities: o to _______________ the best _______________ for her or his client

o to _______________ as an officer of the court and follow the _______________ of legal proceedings

Working for the Client

Most lawyers _______________ in one or two areas of law and are familiar with the _______________ and case law that _______________ apply

o However, the lawyer will still need to _______________ to the client's story and then _______________ the best way to present the case

The law has a concept called solicitor-client _______________ which means that the lawyer is not legally bound to _______________ everything the client says

o In fact, a lawyer should not _______________ anything his or her client says without _______________ of the client, otherwise, the lawyer could be disciplined by the Law Society, the organization which _______________ the behaviour of

lawyers

With the basic facts in hand, the lawyer may then study _______________ to find out if

any particular _______________ apply

_______________ also exists in law between husband and wife

o This means husband and wife can't be _______________ to testify against one another (An _______________ is cases involving child abuse)

Privilege also means that individuals may _______________ in court without fear of being sued for _______________ (However, a witness who lies in court may be charged

with _______________ of court or _______________) Barristers, Solicitors, and Counsellors

In Great Britain, a solicitor _______________ the case, but a barrister takes the case to

_______________

We've _______________ the tradition of separating the tasks, but in Canada every

lawyer is considered _______________ a barrister and a solicitor

A lawyer acting in a case is often called a _______________

In a criminal case, the lawyer representing the _______________ is called the _______________ _______________ or sometimes just the Crown

Review: Lawyers

1. If you need a lawyer: a. you must pay for one

b. you may qualify for free or inexpensive legal counsel 2. A lawyer needs to know about:

a. any statutes that might apply b. any precedents that might apply c. both of the above

3. When presenting a case in court, a defence lawyer should:

a. fairly present all sides of the issue b. present only those facts that will help the client's case

4. As an officer of the court, the lawyer: a. decides on whether or not the accused person is guilty

b. must follow all the correct rules of court procedure c. both of the above

5. Everything important a client says to his or her lawyer: a. must be presented in court b. is privileged information

Judges

A judge is a powerful person in our _______________ judiciary system

Once each side in the _______________ has presented its _______________, the judge must make decisions that may _______________ affect the lives of the people involved

o A judge may award a _______________ of hundreds of thousands of dollars to a person who was _______________ in an accident, or decide that a _______________ token will _______________ in this particular case

o A _______________ robber may be _______________ to several years in jail, or allowed to go free on _______________

A judge has the _______________ to make these decisions, but the decisions must take into account our entire _______________ of laws, as well as our _______________ social

ideas of right and wrong Appointment of Judges

In Canada, judges are _______________ to a specific _______________ of court from the

ranks of experienced _______________ o Provincial court judges are appointed by the _______________ government o All other _______________, including the judges of the Manitoba Court of Queens

Bench, and judges of the Manitoba Court of Appeal, are appointed by the _______________ government

o A _______________ of the _______________ is a level below a provincial court judge who performs _______________ functions such as providing the police with arrest or search warrants, or deciding whether an accused person should be

released from custody before a trial begins

Statutory Interpretation

One of the judge's jobs is to _______________ the law

This sometimes involves deciding on whether a person is _______________ or not, and always involves deciding what type of _______________ or _______________ a person

might have to _______________

This part of a judge's job is called _______________ _______________

The following is a hypothetical example of how statutory interpretation works (Notice that it involves more than just reading the statute)

The statute says, "Any person found operating a vehicle, including motorcycles, in the park is guilty of an offence." You ride your bicycle through the park and are charged under this statute. You were

definitely in the park, but did you break the law? Your lawyer will do her or his best to interpret the law in your favour. The judge will listen, then consider all of the following:

Because motorcycle is mentioned specifically, perhaps the statute refers only to motorized vehicles. On the other hand, if the statute was meant to include only motorized vehicles, it

could have said so specifically. The judge may look at previous cases and see how the word vehicle has been interpreted in other statutes. Has there been a lot of trouble recently with

bicycles in the park, and is this the appropriate way to put a stop to it? Have you been apprehended before for riding your bike in the park?

By considering all of these factors, the judge will try to balance the letter of the law (what is actually written in the statute) with the intent of the law (what is in society's best interest). This balancing act is statutory interpretation.

Our social values affect statutory interpretation. If society in general is becoming more or

less tolerant of a particular offence, then a judge will take this into account. This is another way the people of Canada are part of how our laws are made.

Penalties and Remedies

A judge in a _______________ trial will try to find the _______________ that is most

_______________ to both parties

o In a lawsuit, for example, the judge will _______________ whether or not the person _______________ to his or her own problem and the amount of _______________ done before deciding on the remedy

o In a child _______________ case, the judge will consider what's best for the _______________ and the rights of the _______________ before making a decision

o In a _______________ trial, the judge will consider the range of possible

_______________ for the offence as set out in the _______________ She or he will then try to _______________ the best interests of the

_______________ person and the best interests of _______________ Example: A judge might decide that a dangerous person must be sent to

jail for a long time to keep other people safe, while a less dangerous

person might have a better chance to reform if given a shorter sentence

During the Trial

A judge will not _______________ with the work of the lawyers in _______________ each case

A judge does not select or question _______________, decide what _______________ should be presented, or ask for additional _______________

She or he will, however, make certain that only the evidence that is _______________ allowed is _______________ in court, and that all court _______________ are correctly

followed

In a trial with a _______________, the judge must also make certain that the jury

understands the legal _______________ involved

The Integrity of the Judiciary

What this means is that judges must be as _______________ as humanly possible

Decisions must be based on their legal _______________ and _______________

A judge must not be influenced by _______________ from anyone, personal _______________, or the fact that he or she is in a bad mood that day

Because judges are _______________ by federal and provincial governments, judges must be especially careful not to be influenced by the opinions of _______________

There must be no feeling that a judge might lose her or his _______________ if a decision didn't suit a politician

Every case should be judged according to the same _______________, but a judge must feel free to _______________ the law as he or she sees fit

_______________ is set when a judge _______________ a law in a way that has never been done _______________

Review: Judges and Courts

1. Which of the following might a judge consider when sentencing? Be sure to back up your responses

a) definitions of important terms in the statute b) case law that applies

c) number of previous convictions d) age of the accused

e) a letter suggesting a light sentence from a local politician f) a letter from a person willing to give the accused employment

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2. Joan has recently been convicted in the Manitoba Court of Queens Bench for the offence of manslaughter. In her lawyer's opinion, the judge made an error in allowing evidence about Joan's past to be presented in court.

a) What is the lawyer likely to request?

b) What court would consider the request?

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Trial Procedure

Criminal Trials

In criminal law, the _______________ prosecutes someone _______________ of breaking

one of its rules

If the state (whose lawyer is the _______________ Attorney) can bring enough

_______________ to prove its case beyond a reasonable _______________, the accused is

convicted

If the Crown does not present enough evidence to _______________ the judge or jury

beyond a _______________ doubt, the accused is _______________ of the criminal charge against him or her

o Remember also that, at the trial, the accused does not have to say anything

o An accused is _______________ to be _______________; it is up to the prosecution to show otherwise

Indictable and Summary Offences

Within the Criminal Code of Canada or other Federal Statutes the offences are called either _______________ offences or offences punishable by _______________ conviction

o The _______________ serious offences that are indictable offences and the _______________ serious ones are usually summary conviction offences

o Indictable offences have much more serious _______________ available on

_______________ than the summary conviction offences

Hybrid Offences

Some Offences in the Criminal Code may be _______________ indictable or summary

conviction offences

If the accused is charged with one of these, called _______________ offences, it is up to

the Crown Attorney to _______________ how she or he wishes to proceed

Aside from very different punishments, summary conviction and indictable offences

follow different _______________ through the criminal court system

Examples

Indictable: An example is possession of a _______________ for a purpose dangerous to

the public _______________ (indictable, maximum 10 years)

Summary: An example is _______________ at night near a dwelling house. All

provincial statutes that create offences such as The Highway _______________ Act and The _______________ Control Act create summary conviction offences as well

Hybrid: Everyone who commits an assault is guilty of an indictable offence and is liable to _______________ for a term not exceeding five years or an offence

_______________ on summary conviction

Starting a Criminal Prosecution

1. This usually begins with the laying of a _______________ (usually by a police officer), which is done when someone (police officer) swears that he or she has _______________

grounds to believe that, on a particular day, the accused committed a certain _______________

2. If it is a _______________ conviction offence, a _______________ will usually be issued, saying the accused must appear in _______________ on a certain date to answer the charge

3. If it is a more serious offence, the accused is _______________ by police (The arrest can happen _______________ the charge is laid though, e.g., the police find the accused in the

act of breaking into a house) 4. If arrested and kept in _______________, the _______________ will usually appear in

front of a Provincial Judge as soon as possible (usually within 24 hours), and should attempt to get bail at that time. Sometimes, however, the accused is released on

_______________ by the police or by a magistrate before court. 5. When the accused _______________ before the Provincial Judge, the judge will place

the offence with which the accused is charged in one of three _______________: a) Those over which the Provincial Judge has _______________ authority

Less serious crimes, for example, _______________ conviction offences and

some _______________ (e.g., possession of stolen goods, bookmaking) are in the first category

b) Those over which the Provincial Judge has _____ authority

Very _______________ crimes (e.g., treason, first-degree murder, piracy) o They must be tried by a _______________ and _______________

c) Those over which the Provincial Judge has authority with the _______________

of the accused

For all other _______________ offences, the accused has a choice of how he or she wishes to be tried: by Provincial Judge, by judge alone, or by judge and

jury

The _______________ of crimes fall into this third category

Choice

If the accused has an _______________ as to how he or she wishes to be tried, the election is made in Provincial Court

If the accused elects to have a Provincial Judge hear the trial, the _______________ is scheduled for a later date

If the accused elects to have the trial in the Court of Queen's Bench, whether by a judge alone or a judge and jury, a date is set for a Preliminary _______________ (Hearing) to be held in Provincial Court

Preliminary Inquiry

The prosecution will call _______________ and _______________ at the preliminary

inquiry and, having heard the evidence, the Provincial Judge will either

_______________ the accused for trial or _______________ the accused

The evidence at the preliminary inquiry need not prove anything _______________ a

reasonable doubt; it must only show that there is _______________ evidence to try the

accused on the charge

It therefore acts as a type of "screening process" to ensure that persons are not held

for trial on totally _______________ evidence

It is also used as an opportunity for the accused to see the _______________ of the

Crown's case

Trial

Most indictable offences can be tried in any one of three ways, at the election of the accused

o Why would an accused choose to be tried in Provincial Court? o With a jury?

o In Queen's Bench without a jury?

An important consideration for many accused people is _______________; that is, the time necessary to set trial dates

Because of the extra time necessary for a Queen's Bench trial (either with or without a jury), those who wish to have charges _______________ of quickly may choose to be

tried in Provincial Court

On the other hand, a Queen's Bench trial may be chosen if the accused wishes to see the _______________ and _______________ of the Crown's case against him or her at a preliminary inquiry

Juries

What about a jury? There are advantages and disadvantages to the accused of having a jury trial

Possible advantages of a jury Trial:

The decision or _______________ must be _______________. Only one juror needs to have a reasonable _______________ for an accused to be _______________

A jury should be _______________ because it can be challenged by the defence attorney

Jurors, as _______________ of the accused, may have more _______________ for the accused

Defence lawyers may be able to _______________ jurors more easily than judges Possible disadvantages of a jury trial include:

A good _______________ can sway a jury against an accused

A jury may exercise _______________ against defendants based on appearance, nationality, et cetera

Jurors are not legal _______________

Civil Trials

The _______________ for a civil trial _______________ from criminal procedure

o For _______________ disputes people must arrange the case _______________, with their lawyers, instead of having the police, and Crown Attorney

investigate, prepare, and present their _______________

_______________ or _______________ to person and property, and _______________ of

various laws may be the cause Settlements

Civil wrongs are _______________, but only a small number ever reach the ____________

o many disputes are remedied by a _______________ between the parties

Settlement can occur at any time before the judge makes a _______________, avoiding

the time and expense of a _______________ o Settlements are _______________ and _______________ than going to court and in

every case there is a degree of _______________ in predicting what the outcome will be so a party to a settlement can avoid some _______________

o The previous _______________ of the courts form the basis for these settlements,

so past cases provide the principles by which the parties to a settlement can try to _______________ what their claim is worth and predict the possible _______________ of a court action

Going to court is usually a last _______________, settling the issue when the parties cannot

Lawsuits

Once a decision to __________ has been made, the party who has been wronged, the

_______________, prepares a document called a Statement of _______________ (a copy must be provided to the court and the defendant)

o The Statement of Claim should state the _______________ upon which the

plaintiff is relying to show the _______________ (e.g., the contract and what the defendant did to breach it; or the act of negligence by the defendant which hurt

the plaintiff, and the harm that the plaintiff suffered as a result)

If the defendant _______________ with the plaintiffs claim, she or he must prepare and

file with the court a Statement of _______________

o In a Statement of Defense the defendant must _______________ those claims made by the plaintiff with which she or he doesn't agree, and present the

_______________ upon which the defendant will be relying o This must be done within 16 days of receiving the plaintiffs Statement of Claim,

or the defendant may be _______________ to agree with what the plaintiff said, and the court could make a _______________ in the plaintiffs favour

It is also possible that the defendant may have his or her own _______________ to raise

that occurred on the _______________ facts o If so, a _______________ would be filed with their Statement of Defence and both

the plaintiffs and the defendant's claims would be _______________ together at the same trial

Then a reply to Statement of Defence and Defence to Counterclaim would be filed by

the plaintiff in order to _______________ any claims made by the _______________

Pleadings

All of these documents together are called the _______________ and their purpose is to make clear exactly what it is that each side is _______________, and attempting to

_______________

Even after the pleadings are finished and each side _______________ what the other

side is saying, the matter is not yet ready for trial

So that there are not too many _______________ at a trial, each side will also

_______________ evidence which they will rely on to prove their claim Pre-Trial

The pre-trial discovery process allows parties to “_______________” as much about

their opponent's _______________ as they can before a trial o Example: each party may conduct an _______________ for discovery, which is a

questioning under oath of the opposite party in which the questions and answers are recorded and may be typed into a _______________ used at trial

There is also a discovery of _______________, where each side is entitled to examine

any papers in the possession of the other side that may be _______________ to the case

Parties are also entitled to examine _______________ or _______________ of the other

that may be important to the case

Consider the Following:

All of these procedures are designed to provide the fullest disclosure of the facts of a case before trial and they often lead to settlement, which is promoted by our system

Why do you think this policy has been adopted by our system?

______________________________________________________________________________________________________________________________________

______________________________________________________________________________________________________________________________________

Trial

If the _______________ does proceed to trial, a judge, after hearing and seeing all of the evidence and legal _______________, will make a decision

The judge will _______________ the evidence of each side on a _______________ of probabilities

o Each side attempts to tip the scales in their _______________

It is up to the _______________ to prove their case, similar to the Crown in a criminal

case, however, the _______________ on the plaintiff in a civil case is not as great as that on the Crown in a criminal case

The losing party is usually _______________ to pay the ___________ of the winning party

This is not all of their expenses and legal fees, but may be a significant ____ of money

Judgment and Enforcement of Judgment

The decision of the judge is a _______________, and is written down on a

_______________, also called a judgment

The judgment could be an award of a sum of _______________, but in many cases it

could be more specific than that. o It could order a party to perform a _______________ (a judgment for specific

performance), order the party to stop wrongful _______________ (an injunction),

or, in matrimonial cases, a judgment may pronounce a _______________, award _______________ of children, etc.

What Next?

Even after a judgment, the battle may not be over

Judgments are not _______________ automatically, and although most people obey

court judgments, sometimes _______________ may be required to have it enforced

If the judgment is for money and the other _______________ won't pay, there are

proceedings that can assist o _______________ and _______________ of goods belonging to the other party (the

judgment debtor) o Seizure of bank _______________ or _______________

If your judgment _______________ someone to do something or to _______________ doing something, a court to find the disobeying party in _______________ of court send

them to jail Appeals

The results of civil trials may be _______________ as well

Trial Procedure

1. What is the maximum penalty for any summary offence?

___________________________________________________________________

___________________________________________________________________ 2. Give three examples of crimes that must be tried by a judge and jury.

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___________________________________________________________________ 3. What is the purpose of a preliminary inquiry?

___________________________________________________________________

___________________________________________________________________ 4. Present a one-paragraph argument either in favour of or opposed to a jury trial.

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______________________________________________________________________________________________________________________________________ 5. What is meant by the balance of probabilities?

___________________________________________________________________

___________________________________________________________________ 6. On what basis may the defendant in a civil case end up in jail?

______________________________________________________________________________________________________________________________________ 7. What is the purpose of an examination for discovery?

___________________________________________________________________

___________________________________________________________________ 8. An individual is charged with breaking into a dwelling house with intent to steal. This

is an indictable offence. What choice is he or she allowed to make about the trial? What kinds of things would the individual consider in making his choice?

___________________________________________________________________

___________________________________________________________________ ___________________________________________________________________

___________________________________________________________________ Alternatives to Court

Not all disputes need to be solved in _______________ as courts can be _______________, _______________, and _______________ draining

The Mainstream legal system can also often not be _______________ appropriate, and thus _______________

Restorative Model

There is a _______________ justice model based upon traditional Aboriginal legal theory which is an _______________ to the mainstream Canadian legal system

This _______________ was developed following the work of the Manitoba Aboriginal Justice Inquiry (________) which was established in response to two widely publicized

incidents that caused many to feel that the mainstream Canadian legal system was not meeting the _______________ of Manitoba’s Aboriginal community

The two incidents were the trial in November 1987 of two men for the 1971 murder of Helen Betty Osborne in The Pas and the death of Aboriginal leader J. J. Harper

o More to come on these cases later Aboriginal Legal Theory

There are _______________ differences between Aboriginal legal theory and mainstream

Canadian legal theory o Aboriginal legal theory emphasizes _______________, _______________, and

_______________ o Canadian legal theory emphasizes _______________, _______________, and

_______________

Another major difference is in the involvement of _______________ members o _______________ and other community members teach the children its

_______________ and _______________ o When _______________ arise, community members come forward to

_______________ the conflict in keeping with the traditions of the community

How are the Models Different?

The difference results in different views on how best to treat a "_______________ "

In the mainstream Canadian justice system the commission of a crime results in the _______________ of a person as a _______________

In the Aboriginal communities, a wrongdoing is considered to be _______________ resulting from the person's relationship with the _______________ moving towards

_______________ o In this model scope of the justice system includes concern for the

_______________, as well as the _______________ of the offender and the

restoration of _______________ in the community

Why Alternatives?

The mainstream system is adversarial by nature, can be _______________ consuming

and _______________, and can leave individuals feeling _______________ o Victims of crime often feel the offender deserved a stiffer _______________, or, at

times, the victim feels _______________ in the court process

As a result of these shortcomings, alternatives to courts have _______________

o Some couples involved in marriage breakdown choose _______________ to determine what _______________ they can reach

o Labour disputes are often solved by _______________, a process by which union

and employer agree to accept the _______________ of a third party

o And, more recently, groups and individuals have been turning to forms of _______________ justice -- ways of settling disputes in a _______________ manner

How Does It Work?

Research has shown that both the victim and the offender are more likely to be re-integrated into the community in a satisfactory manner after a restorative process.

Examples of these such as “healing circles” or “sentencing circles” have proven to be very effective in some situations. While not all communities use exactly the same procedures, the description that follows will give you a good idea of how a restorative justice program

could work. The process requires that the offence isn't major, the offender is willing to admit to

the wrongful action and take responsibility for it, and the victim is willing to participate in the process. The investigating police officer, the offender, the victim, and people who are willing to support the victim and offender (parents, grandparents, siblings, friends) meet at

a place arranged by the conference facilitator. They sit in a small circle and the facilitator leads them through a process which requires the offender to accept the blame and shame.

The victim has an opportunity to tell the offender the way the wrongdoing has affected him or her. Others in the circle get an opportunity to do the same. Then it's time for apologies to all who have been adversely affected. Next the victim has an opportunity to

suggest ways the offender can make up for the wrong doing. For example, if the offence was vandalism, repairing the damage might be a good start. Once the group has come to an agreement, the facilitator writes up an agreement, which everyone signs.

If you are familiar with sentencing circles, you might have noticed some similarities. Family Group Conferencing originated with the Maori people of New Zealand. Other

indigenous groups have had similar models. 1. What are your first impressions of this model?

______________________________________________________________________________________________________________________________________ 2. What is the ultimate goal of law enforcement and the courts? Explain.

___________________________________________________________________

___________________________________________________________________ ___________________________________________________________________

___________________________________________________________________ 3. Does this model meet that goal? Why or why not?

______________________________________________________________________________________________________________________________________

______________________________________________________________________________________________________________________________________

______________________________________________________________________________________________________________________________________

Sources of Rights and Freedoms The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms guarantees individuals certain

_______________ and _______________ which governments or government agencies may not _______________

o Our rights are what the Canadian Constitution says every person can expect as

_______________ treatment o Our freedoms are what the Constitution says every person shall be

_______________ to do

These are called our _______________ rights, but they _______________ to all

our laws -- not just civil laws Civil Rights

Civil rights ensure that each person is treated _______________ and _______________ by

all levels of law, and are _______________ by the Constitution

This legislation protects you from being _______________ against by any federal or

provincial law of Canada, and if you believe one of the laws of Canada is violating the Charter, you can _______________ the law in court

Human Rights

Human rights laws protect you from being discriminated against by another person or organization on the basis of things such as your _______________ or _______________

o If you believe you have been discriminated against by any _______________ -regulated institution, such as a bank or federal government service, you can

make a _______________ to the Canadian Human Rights Commission o If you feel you have been discriminated against by a _______________ -regulated

institution or organization, such as a store or college, you can make a

complaint to the _______________ Human Rights Council The Importance and Impact of the Charter of Rights and Freedoms

The Charter of Rights and Freedoms affects our _______________ legal system and is

the most powerful _______________ which we have in Canada

All laws protect _______________ of some kind or another

o Example: the law that makes bank robbery a crime protects the interests of the bank and the people who keep their money there

o Example: the law punishing those who would prevent others from voting protects the interests of the voters

Such interests which are given by and protected by the law are called "_____________ "

Rights

Some rights, such as the right of employees to receive ____________ from employers,

are _______________ rights, since they depend upon the particular agreement between employees (or their unions) and employers

Other rights, such as the right to _______________, do not depend upon any private

relationship, they belong to _______________ citizen. o These rights we usually call _______________ rights

Freedoms

A "_______________ " may be discerned from a _______________, by saying it is what we

are free to do unless we are _______________ by law o In other words, we are completely free to do, _______________, and ____________

anything we like unless it is against the law

Some things, however, should not be against the law in a _______________ and

democratic society, and those things are our _______________ freedoms o So, we are free to swing our fist wherever we want to, unless there is a danger

it will hit someone's nose. However, The freedom to swing one's fist is not a

freedom protected in a democratic society and laws can be made prohibiting that behaviour

o We are also free to worship according to the _______________ of our choice.

That is a basic freedom, and laws may not be made _______________ us from

that choice

Canadian Rights

Canada has chosen to _______________, or fix, protection of certain _______________

rights and freedoms right into its constitution, breaking away from its _______________ tradition, and moving in the direction of other countries, most notably the US

o The United Kingdom does not have a _______________ constitution, but the United States does and it also has a _____________________ entrenched in its

constitution, just as Canada has a Charter in its

There are _______________ between the documents protecting rights and freedoms in

the United States and Canada, but there are also _______________ o Both documents _______________ the right to "life, liberty and security of the

person,"

o But the Canadian Charter does not protect the right to "_______________," like the United States' Bill of Rights does

o Neither does the Canadian Charter protect the right to "_______________ " while the United States does

The concept of what are fundamental rights and freedoms is not always a ___________

agreed upon one

Enforcement of Rights and Freedoms

The Charter of Rights and Freedoms is part of our Constitution and all laws in the

country must be _______________ by the _______________ in the Charter o However, the Charter was not created until _______________, and Canada had

laws long before that

What if a law that has been around for over a _______________ goes against the

principles of the Charter? o The law must be _______________ down—_______________ from the statute books

Which laws can _________ and which laws have to ______ is a legal question that's

been keeping the courts busy for several years and will probably keep them busy for several more

What Happens a Law is not Consistent with the Charter?

Lawmakers have been dealing with the problem in two ways:

1. Federal and provincial governments have been reviewing _______________ and _______________ or _______________ statutes that are no longer acceptable

2. Individuals have been _______________ the laws in court Charter Challenges

Challenges in court have given newspapers a lot to write about and Canadians a lot

to _______________ about

In a challenge, a person charged with an offence may _______________ her or his

action by saying that the law itself is _______________ o It's then up to the _______________ Court of Canada to decide whether or not

the law _______________ the Charter o If the law violates the Charter, it must be _______________ or _______________ so

that it conforms to the Charter (follows all the rules)

http://www.google.ca/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCMX14df5v8gCFQvMgAodwUcH-w&url=http://kcvi.limestone.on.ca/Teachers/KGrahamBurra/Downloads/student Canadian Charter of Rights and Freedoms.pptx&psig=AFQjCNFsQQpBFh4XPF4FIp7jkKneI1AGjA&ust=1444842980294377

Notwithstanding Clause and Reasonable Limits Clause

Section 33 of the Charter, called the "___________________" section says that parliament or a provincial legislature may pass laws which _____________ with the

Charter, if they use this _____________ power

The government can include this override power in any _____________ and that statute

will then _____________ "notwithstanding" section 2 or 7 to 15 of the Charter

This must be done _____________ in the statute, however, and the override will be in

effect for _____________ years only, after which it would have to be _____________

Notice only some of the Charter rights may be overridden; ________________ rights,

________________ rights and ________________ rights (sections 16 - 22)

Consider the Following: How do you think the public would respond if the government tried to pass a law that

operated notwithstanding the Charter?

___________________________________________________________________

______________________________________________________________________________________________________________________________________ Would it depend on which rights or freedoms were being overridden? Explain.

___________________________________________________________________

______________________________________________________________________________________________________________________________________ An Example: In 1988 the National Assembly in Quebec passed a law that said that all signs

in the province which were visible from the street must be printed in French only. This law was contrary to the freedom of expression sections of the Charter, and the English minority in Quebec was upset by it. The government used section 33 of the Charter, however, saying

that the law outlawing languages in that province. Do you agree? Why?

___________________________________________________________________

______________________________________________________________________________________________________________________________________ Parliamentary Supremacy

The "notwithstanding clause" in the Charter is in keeping with our tradition of

________________ ________________ in Canada

This means that although courts may ________________, ________________, and even

________________ laws passed by democratically elected members of parliament or the legislatures, ________________, the responsibility for setting out the law of the land rests with ________________, and not the courts

Parliament may make any law it ________________, even with the Charter in place, and according to the rule of law, all people are ________________ to it

Members of Parliament must remember, however, that they must ________________ to the people, at the next ________________ time

Review: The Notwithstanding Clause

1. What is meant by the "Notwithstanding Clause"?

___________________________________________________________________

___________________________________________________________________

2. Many politicians and political commenters feel that the Notwithstanding Clause should

be removed from the charter. Do you agree or disagree?

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

___________________________________________________________________

The Charter and Fundamental Freedoms

Section 2 guarantees important fundamental freedoms:

(a) freedom of ________________ and ________________ (b) freedom of ________________, ________________, ________________, and _____________, including freedom of the press and other media of communication

(c) freedom of peaceful ________________ (d) freedom of ________________

Neither parliament nor provincial legislatures may pass any laws limiting these

freedoms, subject of course to section 1 discussed earlier Section 2. (a) freedom of conscience and religion;

Everyone in Canada may freely ________________ his or her ________________, or may choose to have no religion at all.

Does this section include giving people the right to practise their religion by means which may be contrary to Canadian law otherwise?

o Example: some religious groups claim that indulging in certain illegal drugs is part of their religious ceremony. Should they be prosecuted for possession of or

trafficking in those drugs, or should an exception be made for them, to allow them to practice their religion?

What do you think?

______________________________________________________________________________________________________________________________________

o Example: Until the 1990s, in Manitoba there was a section of The Public

Schools Act that provides for compulsory reading of the Lord's Prayer. It has been challenged as discriminatory against religious minorities. Generally

speaking, people cannot be forced to accept a religion of the government's choice or to pray, attend a religious service or adopt religious beliefs. However, a citizen cannot excuse himself from obeying Canadian law on the basis of

religious beliefs that run counter to the law.

What do you think?

___________________________________________________________________

___________________________________________________________________

Section 2. (b) freedom of thought, belief, opinion and expression, including freedom

of the press and other media of communication;

Many countries in the world who ________________ have this right, and it’s citizens are ________________ for publicizing beliefs ________________ to their government

However, in most ________________ societies, freedom of speech and freedom of the press are very basic ________________.

Once again, however, they are not absolute, and are subject to Section 1 limitations. o Example: In the 1930s, the province of Alberta passed an Act called An Act to

Insure the Publication of Accurate News and Information. This required all newspapers to publish all government statements relating to any policy or activity of the government within 21 days. The Supreme Court of Canada found

that this Act was unconstitutional, or ultra vires, as only the federal government could pass laws that interfered with freedom of the press.

Why would a government want to pass that sort of law?

___________________________________________________________________

___________________________________________________________________

With the Charter as part of Canada's Constitution, however, it is unlikely that either provincial legislatures or Parliament could pass such a law. (Jennings & Zuber, 4th

ed.) Section 2. (c) freedom of peaceful assembly; Section 2. (d) freedom of association

These freedoms together reinforce our right to join ________________ with other people

of common ________________, ________________, and ________________

Again, this is not a freedom in many other countries, where organizing political

________________, trade ________________, or ________________ organizations, or holding peaceful ________________ or ________________, is a punishable ________________

o Why would a government wish to limit this freedom?

______________________________________________________________________________________________________________________________________

In Canada this freedom exists, but like the others, is subject to ________________

Notice as well that freedom of peaceful assembly is ________________, but not freedom

of an ________________ assembly, as defined in the Criminal Code of Canada o Should there be any other limitations on this freedom? For example,

should the Ku Klux Klan be allowed to gather, march, and hold

demonstrations? Why or why not?

___________________________________________________________________

______________________________________________________________________________________________________________________________________

___________________________________________________________________

Review: Fundamental Freedoms

1. What is the basic fundamental difference between Canada's old Bill of Rights and the

new Charter?

___________________________________________________________________

___________________________________________________________________

2. On what basis was the province of Alberta stopped from forcing newspapers to publish government news releases in the 1930s?

______________________________________________________________________________________________________________________________________

3. List and briefly discuss the freedoms guaranteed by Section 2 of the Charter.

______________________________________________________________________________________________________________________________________

4. What principles does the court follow when resolving cases involving freedom of conscience and religion?

______________________________________________________________________________________________________________________________________

Activity: Fundamental Freedoms Read the excerpts from the Indian Act and answer the following question (note that these sections of the Indian Act are quite old and are no longer in effect) Which of the rights currently guaranteed by the Charter (from Sections 1 to 15) are opposed

to those sections of the Indian Act quoted below. To answer this question properly, you will need to read those parts of the Charter and the sections of the Indian Act very carefully

In the Indian Act, 1927 under the heading of "Sale of Barter"

41. No person shall buy or otherwise acquire from any band or irregular band of Indians, or

from any Indian, any grain, root crops, or other produce from upon any reserve in the province of Manitoba, Saskatchewan or Alberta, or the Territories. R.S., c. 81, s. 39.

In the Indian Act, 1927 under the heading of "Legal Rights of Indians"

108.5. No Indian or non-treaty Indian in the province of Manitoba, British Columbia,

Saskatchewan orAlberta, or in the Territories, shall without the written consent of the Indian Agent sell, barter, exchange, or give to any person or Indian other than an Indian of such band, or kill or destroy any animal or the progeny thereof given to him or to the band

under treaty stipulations, or loaned or conditionally given to him or to the band by the Government. R.S., c. 81, s. 105; 1910, c. 28, s. 3; 1914, c. 35, s. 7.

In the Indian Act,1927 under the heading of "Offences and Penalties"

140. 3. Any Indian in the province of Manitoba, Saskatchewan, Alberta or British

Columbia, or in the Territories who participates in any Indian dance outside the bounds of his own reserve, or who participates in any show, exhibition, performance, stampede, or

pageant in aboriginal costume without the consent of the Superintendent General or his authorized agent, and any person who induces or employs any Indian to take part in such dance, show exhibition, performance, stampede, or pageant, or induces any Indian to leave

his reserve or employs any Indian for such purpose, whether the dance, show, exhibition, stampede, or pageant has taken place or not, shall on summary conviction be liable to a penalty not exceeding twenty-five dollars, or to imprisonment for one month, or to both

penalty and imprisonment. R.S., c. 81, s. 149; 1914, c. 35, s. 8; 1918, c. 26;s. 7.

Charter of Rights and Freedoms 9.1.3

(Sections 1 to 23)

Guarantee of Rights and Freedoms

1. 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.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of

communication;

c) freedom of peaceful assembly; and o) freedom of association.

Democratic Rights

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a

legislative assembly and to be qualified for membership therein.

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the

date fixed for the return of the writs of a general election of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by

Parliament and a legislative assembly may be continued by the legislature beyond five years if such

continuation is not opposed by the votes of more than one-third of the members of the House of Commons

or the legislative assembly, as the case may be.

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Mobility Rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. Rights to move and gain

livelihood.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has

the right

a) to move to and take up residence in any province; and

b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to

c) any laws or practices of general application in force in a province other than those that

d) discriminate among persons primarily on the basis of province of present or previous residence; and any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Charter of Rights and Freedoms (Sections 1 to

23)

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the

amelioration in a province of conditions of individuals in that province who are socially or economically

disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

9.1:3

Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof

except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefore;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the

detention is not lawful.

11. Any person charged with an offence has the right

a) to be informed without unreasonable delay of the specific offence;

b) to be tried within a reasonable time;

c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an

independent and impartial tribunal;

e) not to be denied reasonable bail without just cause;

f) except in the case of an offence under military law tried before a military tribunal, to the

benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more

severe punishment;

g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an

offence under Canadian or international law or was criminal according to the general principles of law recognized

by the community of nations;

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for

the offence, not to be tried or punished for it again; and

i) if found guilty of the offence and if the punishment for the offence has been varied between

the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to

incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of

contradictory evidence.

(page 2 of 4)

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of

the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin,

colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of

conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or

ethnic origin, colour, religion, sex, age or mental or physical disability.

Official Landuages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges

as to their use in all institutions of the Parliament and government of Canada.

(2) English and French are the official languages of New Brunswick and have equality of status and equal

rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of

status or use of English and French.

16.1. (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status

and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural

institutions as are necessary for the preservation and promotion of those communities.

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights

and privileges referred to in subsection (1) is affirmed.

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature

of New Brunswick.

18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French

and both language versions are equally authoritative.

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English

and French and both language versions are equally authoritative.

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any

court established by Parliament.

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of

New Brunswick.

. . .

Charter of Rights and Freedoms

(Sections 1 to 23)

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are

conducted or who is deaf has the right to the assistance of an interpreter.

9.1.3

(page 3 of 4)

l

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47"

9 . 1 . 3

Charter of Rights and Freedoms

(Sections 1 to 23)

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from,

any head or central office of an institution of the Parliament or government of Canada in English or French, and has

the same right with respect to any other office of any such institution where

a) there is a significant demand for communications with and services from that office in such language; or

b) due to the nature of the office, it is reasonable that communications with and services from that office be

available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services

from, any office of an institution of the legislature or government of New Brunswick in English or French.

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English

and French languages, or either of them, that exists or is continued by virtue of any other provision of the

Constitution of Canada.

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or

enjoyed either before or after the coming into force of this Charter with respect to any language that is not English

or French.

Minority Language Educational Rights

23. (1) Citizens of Canada

a) whose first language learned and still understood is that of the English or French linguistic minority

population of the province in which they reside, or

b) who have received their primary school instruction in Canada in English or French and reside in a province

where the language in which they received that instruction is the language of the English or French linguistic

minority population of the province, have the right to have their children receive primary and secondary school

instruction in that language in that province.

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or

French in Canada, have the right to have all their children receive primary and secondary school instruction in the same

language.

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary

school instruction in the language of the English or French linguistic minority population of a province

a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant

the provision to them out of public funds of minority language instruction; and

b) includes, where the number of those children so warrants, the right to have them receive that instruction in

minority language educational facilities provided out of public funds.

(page 4 of 4)

The Charter and Legal Rights

A very _____________ protection of our legal rights is set out in section 7 of the Charter

Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of

fundamental justice.

Before you can be deprived of your _____________ (although capital punishment has

been abolished in Canada for all intents and purposes now, it may be brought back by a vote of parliament), your _____________, or your _____________, you must have a

_____________ in accordance with the principles of fundamental justice o Those principles are specifically set out in sections 8 to 14 of the Charter o Note: this section says "_____________ " and not "every citizen". The Supreme

Court of Canada has heard arguments in the Borowski case (1988) that "everyone" includes a _____________. If so, it would mean that abortion could be

a violation of the fetus' right to life, contrary to section 7 of the Charter. The court has decided not to answer this question in the absence of a law regarding abortion. What do you think?

______________________________________________________________________________________________________________________________________ Section 8. Everyone has the right to be secure against unreasonable search and

seizure.

The state has wide powers to _____________ and _____________ under laws such as the

Customs Act, the Income Tax Act and the Narcotic Control Act, as well as under ordinary criminal law

This section _____________ those powers to searches and seizures which are _____________, as determined by the courts

o What do you think? When is it unreasonable for police to stop and search people they suspect of breaking the law?

______________________________________________________________________________________________________________________________________ Section 9. Everyone has the right not be arbitrarily detained or imprisoned

The important word in this section is "_____________ ". You may be _______________ or _______________ (deprived of liberty by arrest, for example) after a trial if you are

found _______________, or if a police officer has _______________ grounds for believing you are _______________ an offence, but you may not be imprisoned or detained arbitrarily, or unreasonably.

o Example: the police have the right to stop you and require you to give a breath sample (i.e., detain you) if they have reasonable grounds for believing you are

driving impaired. That detention would not be arbitrary So do I have to give a breath sample in such a case? Failure to provide

the sample is in itself an offense

Section 10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus, and to be released if the detention is not lawful.

Without these rights the police could _______________ and _______________ you without telling you why and without allowing you to see a _______________

Consequently, a police officer must tell you _______________ why you are being put under arrest or detention for questioning

If the police behave _______________ in arresting or detaining you, you may apply to a court for an order of _______________________ ("have the body")

In such a case, a judge commands that the person be brought before the court and the reasons for _______________ are looked into

You can see problems arising in the _______________ of this section, particularly in

interpreting the words "promptly" (section 10 (a)) and "without delay" (section 10 (b)). o Suppose the police arrest a person on a highway at night, who cannot reach a

lawyer. Can they administer the breathalyzer anyway? Section 11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

Once you are _______________ with an offence, the Charter reinforces certain Common

Law rights that you have

This section says that a person _______________ of an offence has the right to know

exactly what he or she is supposed to have done, so that a proper _______________ can be prepared

What do you suppose the words "without unreasonable delay" mean?

___________________________________________________________________

___________________________________________________________________

Section 11. Any person charged with an offence has the right (b) to be tried within a reasonable time;

This section confirms the interests of both the _______________ and the

_______________ in having trials heard within a _______________ time

An accused with not _______________ by having an unproven charge hanging over her

or his head for too long, and the _______________ interest is protected so that trials are held before witnesses' memories fade, or evidence disappears

How long is "reasonable" however? How long does an accused person have to wait before a trial?

o Judges have ordered charges dismissed and people released under this section because the police and the prosecutors simply took too long to bring the accused to trial, especially where the accused was held in custody during the

delay

Section 11. (c) Any person charged with an offence has the right not to be compelled as a witness in proceedings against that person in respect of the offence;

This is part of what may be called the right to _______________

o A person accused of an offence may not be _______________ to testify at his or her own trial

o You may give _______________ if you want to, but there may be no

__________________ conclusions drawn by the judge or jury if you choose not to

This goes hand in hand with another very basic right, the presumption of

_____________________, which is part of section 11. (d).

Section 11. (d) Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and

impartial tribunal.

You could not imagine being _______________ by the very police officer who __________

you, or tried in _______________, or not tried at all, before being found _______________ of any offence - and these are the rights protected by this section

o Anyone charged with an offence is _______________ to be innocent, unless they are proven guilty

There are some types of case, however, where these rights are not _______________ o Firstly, where it is in the public interest, a judge may order that proceedings be

held in _______________, or that the public may come in and watch but that the press not _______________ any information about the proceedings

o Example: where the protection of the identity of children is involved

Section 11. Any person charged with an offence has the right

(e) not to be denied reasonable bail without just cause.

Even before the Charter came into effect, the Criminal Code contained provisions for

_______________ (the release from custody of someone charged, but not yet convicted of an offence)

"____________________ " for detention until trial is shown by the Crown if it can be established that:

a) there is reason to believe the person will not show up in court for his or her trial

b) if there is a danger to the public interest if the person is released

Do you think these two reasons are "just cause" for keeping someone in custody

before their trial, keeping in mind that they are innocent until proven guilty?

______________________________________________________________________________________________________________________________________ Section 11. Any person charged with an offence has the right

(f) (except in the case of an offence under military law tried before a military tribunal), to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

This section guarantees your right to have a trial by _______________ in serious

criminal matters

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under the Canadian or international law or

was criminal according to the general principles of law recognized by the community of nations;

This section says that you cannot be found _______________ of any offence unless it

was an offence at the _______________ you committed it.

So, if parliament passes a law making something a crime in December, 2015, you

cannot be convicted of breaking this law if you did so in September, 2015, unless Parliament specifically makes the law _______________ or your action was an offence

under ____________________ recognized law (h) if finally acquitted of the offence, not to be tried for it again and, if finally found

guilty and punished for the offence, not to be tried or punished for it again;

This section protects you from being ____________ for something more than __________

Once you have been _______________ (found to be not guilty) or _______________ and

punished, you may not be tried _______________, except, of course, if an appeal court orders a new trial

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the

lesser punishment.

This section simply gives the accused the benefit of the _______________ possible

sentence if a law is passed _______________ the penalty between the time the offence is committed and the person is sentenced

Section 12. Everyone has the right not to be subjected to any cruel and unusual

treatment or punishment.

Section 12 protects you from being subjected to any cruel and unusual _____________

Notice that the wording is "cruel and unusual". Do you think it is possible that the

court can find a punishment to be either cruel or unusual, but not both? If so, would this section come into play?

___________________________________________________________________

___________________________________________________________________

Section 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other

proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Before the Charter, a witness who was asked to give testimony which might _______________ her or him, would object to answering such questions

This provision of the Charter simply means that you will no longer have to object to answering any questions; you will _______________ be protected from them being used

against you later, unless you are charged with perjury, or giving false evidence

The Charter and Equality Rights

Many government practices have been re-evaluated and changed as a result of the Equality Rights section of the Charter

Sections 15 and 28 are the anti-discriminatory clauses

Equality Rights

Section 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour,

religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object

the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion,

sex, age or mental or physical disability.

This section of the Charter makes it clear that every individual in Canada –

regardless of ______________, ______________, ______________ or ______________ origin, ______________, ______________, ______________ or physical or mental ______________ –

is to be considered ______________.

This means that governments must not ______________ on any of these grounds in its

laws or programs.

The courts have held that section 15 also protects equality on the basis of other

characteristics that are not specifically set out in it. For example, this section has been held to ______________ discrimination on the grounds of ______________

orientation.

The Supreme Court of Canada has stated that the purpose of section 15 is to protect

those groups who suffer ______________, ______________ and ______________ disadvantage in society.

Discrimination occurs where, for example, a person, because of a ______________ characteristic, suffers disadvantages or is ______________ opportunities available to

other members of society. At the same time as it protects equality, the Charter also allows for certain laws or

programs that ______________ disadvantaged individuals or groups, sometimes called

“Affirmative Action Programs”. For example, programs aimed at improving employment opportunities for ______________, ______________ peoples, visible ______________, or those with mental or physical ______________ are allowed under section 15(2)

Note…

______________ nor the ______________ legislatures may pass discriminatory ______________, however, it does nothing to stop ______________ from discriminating.

Remember, the Charter does not regulate the ______________ of individuals, merely the type of ______________ which can be made.

For protection against discrimination by individuals, you must look to provincial ______________ ______________ legislation

Balancing the Rights of Society and the Rights of the Individual

What happens when one person uses his or her ____________ and ____________ to _______________ the rights and freedoms of ____________?

The real _______________ concerning the Charter is to figure out how to

_______________ rights and freedoms without losing our ability to _______________ actions that may be _______________ to society

o Example: the lawmakers who wrote the Narcotics Control Act did not set out to

treat anyone unfairly. The high penalties and assumption of guilt were seen as drastic measures that were necessary to deal with a serious threat to society. The Charter says, however, that the possibility of serious crimes is not an

excuse for violations of our civil rights

But what happens when one person uses his or her rights and freedoms to threaten the rights and freedoms of others? The case of R. v. James Keegstra gives us all a lot to think about.

Reasonable Limit or Violation of Rights? (Keegstra Case)

How it all Started…

In 1985 James Keegstra was charged under Section 319(2) of the Criminal Code. This section says it is an offence to willfully promote hatred against any identifiable group. At the time, Keegstra was an Alberta school teacher who: …attributed various evil qualities

to members of the Jewish faith, describing them to his pupils as "treacherous," "subversive," "sadistic," "money-loving," "power hungry," and "child killers." He further

stated that Jewish people seek to destroy Christianity, are responsible for depressions, anarchy, chaos, wars and revolution, and created the Holocaust to gain sympathy (Western Weekly Reports (1991).

James Keegstra did not deny that he had done any of the above. instead, he challenged the law, claiming that it was a violation of Section 2(b) of the Charter of Rights

and Freedoms. This sections of the Charter guarantees: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Keegstra also challenged Section 319(3) of the Criminal Code. This section says that a person cannot be convicted of promoting hatred if she or he establishes that the statement is true. Keegstra claimed this was a violation of Section 11(d) of the Charter which

guarantees: the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal

The First and Second Trials

The first judge to hear the case dismissed Keegstra's challenges and found him guilty of promoting hatred. In a unanimous ruling (all the judges on the panel agreed), the Alberta Court of Appeal overturned the decision. Here are some of the reasons they gave for their

findings: They agreed that Section 319(3)(a) contradicted the right of a person to be presumed

innocent. By asking Keegstra to prove his statements were true, the court was reversing the onus-that is, putting the burden of proof on the accused, not on the Crown. In support of

this finding, the court referred to the section of the Narcotics Control Act that had been struck down for the same reason.

The court concluded that Section 319(2) doesn't clearly enough define what is meant by spreading hatred. Such a broadly-defined law is a violation of the right to freedom of

expression. In the opinion of the Alberta Court of Appeal, there are three categories of statements. A person who repeats a mistake or fact is protected by the Charter. At the other extreme, a person who willfully spreads harmful lies is not protected by the charter.

The court ruled that Keegstra fell somewhere between. He was imprudent-unwise-in not taking reasonable steps to discover if what he said was true or not. There is no law saying that every Canadian must be wise.

The court also found that Section 319(2) failed the proportionality test. In the opinion of the court, it wasn't likely that anyone believed Keegstra, therefore he had not actually

done much harm. The Supreme Court Ruling

In 1990 the Supreme Court of Canada overturned the decision of the Alberta Court of

Appeal. They also added the point that criminal prosecutions do little to stop hate-mongers. Here are the main reasons given for overturning the Alberta Court of Appeal decision.

Under Section 1 of the Charter, the Supreme Court has the right and the

responsibility to set reasonable limits on rights and freedoms, as long as the limits can be justified in a free and democratic society. In the opinion of the court, "substantial harm" can come from hate propaganda, so this is a case where reasonable limits are justified.

The facts of a case are essential when determining the right to free expression. The Supreme Court ruled that Section 2(b) of the Charter should only apply when the party

alleging an infringement demonstrates that the restricted activity supports rather than under-mines the principles and values upon which freedom of expression is based. The court ruled that Keegstra's opinions were not meant to support the democratic rights of

people of the Jewish faith. The court points out that Section 319(2) actually gives quite a bit of freedom of

expression. For example, private conversations are not subject to the law, the person must

be promoting her or his point of view, and the person must be willfully promoting her or his point of view (doing it on purpose).

As for the reverse onus question in Section 391(3)(a), the court ruled that this section is justified by the importance of preventing the harm caused by hate-promoting expression. The ability of the defendant to use the defense of "truth" should be taken as the law's

attempt to give people as much freedom of expression as possible. Following the Supreme Court of Canada's decision, the Keegstra case was sent back

to the Alberta Court of Appeal for determinations on other issues. In 1991, the Court of Appeal quashed the conviction and ordered a new trial. The Court of Appeal said that the trial judge erred in not allowing Keegstra to challenge potential jurors because of significant

pretrial publicity. The new trial began in March 1992 and lasted 4 months. Keegstra was again found

guilty and received a $3000.00 fine. Keegstra appealed to the Court of Appeal which

allowed his appeal and ordered another new trial. Again Keegstra was convicted, and again the case made its way to the Supreme Court of Canada, with both sides appealing on

various issues. The Supreme Court of Canada dismissed Keegstra's appeal and upheld the hate law provisions of the Criminal Code as reasonable limit on free speech. Finally, in 1997 the Alberta Court of Appeal sentenced Keegstra to a $3000.00 fine, a one-year

suspended sentence and 200 hours community service.

Balancing Rights

The "Reasonable Limit or Violation of Rights?" article, found on the previous page, tells you

all about R. v. Keegstra. The following questions will help you check that you understand the facts of the case.

1. How long did it take to get a final decision on the Keegstra case?

___________________________________________________________________

___________________________________________________________________ 2. Was this a criminal trial or a civil trial? In what way was Keegstra promoting his opinions?

______________________________________________________________________________________________________________________________________

3. Which is the best summary of Keegstra's defence?

___________________________________________________________________

___________________________________________________________________

4. What section of the Charter gives the courts the power to limit freedoms?

___________________________________________________________________

___________________________________________________________________

5. Summarize the findings of the Alberta Court of Appeal.

______________________________________________________________________________________________________________________________________

______________________________________________________________________________________________________________________________________

______________________________________________________________________________________________________________________________________ 6. Summarize the findings of the Supreme Court of Canada.

______________________________________________________________________________________________________________________________________

______________________________________________________________________________________________________________________________________ 7. What happened as a result of the Supreme Court decision?

______________________________________________________________________________________________________________________________________

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