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PSYC39H3 Lecture Notes - Canada Act 1982, Lower Canada, Pierre Trudeau

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David Nussbaum

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PSYC39 Lecture 2: The Canadian Justice System PY
Date: Sept 17, 2011
Slide 2:
Source of Some of Today’s Lecture
Canada’s System of Justice
Slide 3: Elements of Legal Systems Common to US & Canada
Legislators: Make the Laws
Police: Enforce the Law
Three Functional Levels of the Judiciary (=judges, jury etc;):
Lower Courts: Adjudicate or try individual cases to see whether “Citizen Blogs” actually broke the law (to
see if individuals have actually broke the law)
Court of First Instant: as soon as you’re accused of committing a crime this is the type of court
you would go to (to do bail, finding a law/finding of fact hearings)
Define what the law is and see if it applies in this case
Appellate (Appeal) Courts: Decide whether a lower court judge erred in applying the law
In extreme cases, they CAN deal with erroneous facts that were included
But it’s mostly to see if a law was inappropriately applied
Supreme Court: Interprets the Law and decides whether any particular law is unconstitutional
Highest court in Canada
Usually deals w/ cases of national importance
It has to be something to do with the issuing of law, where the outcome of that particular case
will impact all the citizens of Canada
Can also be used when diff provinces apply the law differently and you need a cohesive rule as
to how the whole country needs to establish the law and put that law into practice
The Public: Obey the laws and elects lawmakers (i.e., the Canadian Parliament)
But if you don’t, that’s why we have the criminal justice system to enforce the law onto us
Slide 4: Philosophy of Canadian Law: 1
Laws are meant to control or change our behaviour and, unlike rules of morality, they are enforced by the
courts. If someone breaks a law - whether s/he likes/agrees w/ that law or not s/he may have to pay a fine,
pay for the damage, or go to jail or prison.
Slide 5: Philosophy of Canadian Law: 2
Law provides a way to resolve disputes peacefully.
The Canadian legal system balances respect for individual rights with the overlying necessity that Canadian
society operates in an orderly manner.
Good of the law vs. the good of the individual
This is a bit diff from US, where our balance of these 2 priorities is diff
In Canada, we have higher priority on the society; US places higher priority on the individual
Orderly society is a higher priority in Canada than in the US and individual freedom has higher priority in the USA
than in Canada.

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PSYC39 Lecture 2: The Canadian Justice System PY
Date: Sept 17, 2011
An essential principle is that the same law applies to everybody, including the police, governments and public
officials, who must carry out their public duties according to the law.
Nobody is above the law; we all have to abide by the laws
Slide 6: Philosophy of Canadian Law: 3
In Canada, laws not only govern our conduct; they are also intended to carry out social policies.
This can include things like laws to provide benefits for workers for when they’re injured on the job
(insurance); healthcare; loans to students
This makes our Supreme Court extremely powerful because they can strike down laws they interpret to be
against our Charter of Rights (unconstitutional) and thus affords them the opportunity to engage in social
Slide 7: Philosophy of Canadian Law: 4
Laws are also aimed at ensuring fairness. Canadian laws ensure that stronger groups and individuals do not use
their powerful positions to take unfair advantage of weaker groups or people.
Makes sure that stronger groups and the individuals in those groups don’t use their power to undue
influence over those of lower power
Slide 8: Common Law
Aside from written law and statutes, we also have common law
The common law is dictated by precedence
Precedence: when judges make a ruling in a case, that sets a standard for all cases to come which are
very similar to that case
So, when a judge has to make a ruling in any kind of situation, they have 2 look at previous cases that
might apply to that situation
Ex) lawsuit: individual suing major corporation for injury; judge would have to look to see if there’s
previous cases in which an individual sued a corporation for that type of injury and how it’s been ruled
in the past; and that would dictate depending on how the circumstances match and how they would
proceed in that case
Common law is unique b/c it’s based on this decision-making process that is not based on some sort of written
statute; it’s constantly changing and updated by past decisions
Flexible and adaptable to changing circumstances; a decision can be made to change the precedence if it
no longer applies in current context
The common law developed in Great Britain after the Norman Conquest, and was based on the decisions of
judges in the royal courts. It evolved into a system of rules based on “precedent.” Judges’ decision that are to be
legally enforced become precedents: rules that will guide judges in making subsequent decisions in similar cases.
The common law is unique because it cannot be found in any code or body of legislation, but exists only in
past decisions. At the same time, common law is flexible and adaptable to changing circumstances.
Common Law is very de-centralized!
b/c there’s no one thing that determines what the common law is; it’s specifically dictated by each
individual case that appears in court

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PSYC39 Lecture 2: The Canadian Justice System PY
Date: Sept 17, 2011
Slide 9: Parliament
Canada’s “legislature” or “parliament,” makes new laws and change old ones.
These are WRITTEN laws (not common law; but rather, the statutes, legislations etc;)
Ex) the criminal code = statute
Canada is a federation (a union of several provinces with a central government)
Canada has both a federal parliament in Ottawa to make laws for all of Canada and legislatures in all provinces
and territories to deal with local matters.
Legislatures in each prov/terr to make prov-specific laws
Ex) criminal code is country-wide and federal whereas civil law is province-specific
Rules that we have as part of civil law in Ontario may not necessarily be the same thing in other
Laws enacted at either level are called “statutes,” “legislation,” or “acts.”
When Parliament or a provincial or territorial legislature passes a statute, that statute takes the place of
common law or precedents dealing with the same subject.
The statute takes place of all the common-law that pre-dated it; statue over-rules common law
In Quebec as well, much legislation has been passed to deal with specific problems not covered by the Civil
Slide 11: Judiciary
Judges develop common law, such as the laws of contracts, thru referring to and setting precedents. They also
interpret and apply the statues
Known as ‘making new law
Slide 12: Canadian Constitution
A country’s constitution, among other things, defines the powers and limits of powers that can be exercise by
the different levels and branches of government.
Canada, in contrast, became a country by act of the Parliament of Great Britain. Consequently, the closes thing
to a constitutional document would be the British North American Act of 1867 (the BNA Act, now known as the
Constitution Act, 1867), by which the British colonies of Upper and Lower Canada, Nova Scotia and New
Brunswick were united in a confederation called the Dominion of Canada. (PEI, although a member of the team
that shaped Confederation, didn’t join until later.)
Although there’s no single constitution in Canadian law, the Constitution Act a part of the Canada Act of 1982
finally ‘patriated’ or brought home the Great Britain Canada’s constitution as created by the BNA Act. The
Constitution Act declares the constitution of Canada to be the supreme law of Canada and includes some 30 acts
and orders that are part of it. It reaffirms Canada’s dual legal system by stating provinces o exclusive jurisdiction
over property and civil rights. It also includes Aboriginal rights, those related to the historical occupancy and use
of the land by Aboriginal ppl, treaty rights, agreements btn the Crown and particular groups of Aboriginal ppl
Our constitution provides for the jurisdiction (the judges etc;)
o Give impartial judgements
o Constitution only provides for federal appointed judges; provincial judges appointed to provincial laws
One major difference btn Canada and US:
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