PSYC39 –Psychology and Law: Lecture 2
The Canadian Justice System
September 17, 2012
Elements of Legal Systems Common to US & Canada
Legislators: Make the Laws
Police: Enforce the Law
Three Functional Levels of the Judiciary:
1. Lower Courts: Adjudicate or try individual cases to see whether “Citizen Blogs” actually broke the law
2. Appellate (Appeal) Courts: Decide whether a lower court judge erred in applying the law
3. Supreme Court: Interprets the Law and decides whether any particular law is unconstitutional
The Public: Obey the laws and elects lawmakers (i.e., the Canadian Parliament)
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 that law or not – s/he may have to pay a fine, pay for the
damage, or go to jail or prison.
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.
Orderly society is a higher priority in Canada than in the US and individual freedom has higher priority in the
USA than in Canada.
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.
Philosophy of Canadian Law: 3
In Canada, laws not only govern our conduct; they are also intended to carry out social policies. This
makes our Supreme Court extremely powerful because they can strike down laws they interpret to be against
our Charter of Rights and thus affords them the opportunity to engage in social engineering
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.
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
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
Common Law is very de-centralized!
Canada’s “legislature” or “parliament,” makes new laws and change old ones.
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.
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.
In Quebec as well, much legislation has been passed to deal with specific problems not covered by the Civil
Code. Making laws this way is complicated and slow.
First, government ministers or senior public servants would be asked to examine the problem carefully and
suggest ways in which, under federal jurisdiction, a law could deal with the issue.
Next, they would draft the proposed law. This would then have to be approved by the Cabinet, which is
composed of Members of Parliament or Senators chosen by the Prime Minister.
This version would then be presented to Parliament as a “bill” to be studied and debated by members.
Bills only become laws if they are approved by a majority in both the House of Commons and the Senate and
“assented to” by the Governor General in the name of the Queen, or by the provincial Lieutenant Governor for
provincial legislation. This is entirely ceremonial
Judges develop common law, such as the laws of contracts, through referring to and setting precedents. They
also interpret and apply the statutes.
Known as “making new law”
A country’s constitution, among other things, defines the powers and limits of powers that can be exercised by
the different levels and branches of government.
Canada, in contrast, became a country by an act of the Parliament of Great Britain. Consequently, the closest
thing to a constitutional document would be the British North America 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. (Prince Edward Island,
although a member of the team that shaped Confederation, did not join until later.)
Although there is no single constitution in Canadian law, the Constitution Act – a part of the Canada Act of
1982 – finally “patriated” or brought home from 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 have
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 peoples, treaty rights, agreements between the Crown
and particular groups of Aboriginal people.
The Judiciary within the Canadian Government: 1
The Constitution sets out the basic principles of democratic government in Canada when it defines the powers
of the three branches of government:
The Legislative, and
The Judiciary within the Canadian Government: 2
The Executive power in Canada is vested in the Queen.
In our democratic society, this is only a constitutional convention, as the real executive power rests with the
The Cabinet, at the federal level, consists of the Prime Minister and Ministers who are answerable to Parliament
for government activities.
As well, Ministers are responsible for government departments, such as the Department of Finance and the
Department of Justice. When we say “the government” in a general way, we are usually referring to the
Backbenchers are a bunch of “nobodies” (Pierre Trudeau circa 1975)
The Judiciary within the Canadian Government: 3
The Legislative branch is Parliament, which consists of the House of Commons, the Senate and the Monarch
or her representative, the Governor General.
Most laws in Canada are first examined and discussed by the Cabinet, then presented for debate and approval
by members of the House of Commons and the Senate. Before a bill becomes a law, the Queen or her
representative, the Governor General, must also approve or “assent to” it. This requirement of royal assent does not mean that the Queen is politically powerful; by constitutional convention, the Monarch always follows
the advice of the government.
The political question is: Is the Queen necessary?
The Judiciary within the Canadian Government: 4
Our Constitution also provides for a Judiciary, the judges who preside over cases before the courts.
The role of the judiciary is to interpret and apply the law and the Constitution, and to give impartial judgments
in all cases, whether they involve public law, such as a criminal case, or private (civil) law, such as a dispute
over a contract.
They also contribute to the common law when they interpret previous decisions or set new precedents.
The Constitution provides only for federally appointed judges. Provincial judges are appointed to office under
Note: Major difference between (Non-Supreme Court) judges: All Canadian judges are appointed. American
judges are elected. Similar difference between prosecutors: Chief (& all) Crown Attorneys are appointed,
District Attorneys are elected.
The Judiciary within the Canadian Government: 5
The Department of Justice
The Minister of Justice is responsible for the Department of Justice, which provides legal services such as
drafting laws and providing lawyers for the government and its departments. This department also develops
policies and programs for victims, families, children and youth criminal justice. The Minister of Justice is also
the Attorney General or chief law officer of Canada.
(Also provided information for this lecture!!)
The Canadian Charter of Rights
What Rights does the Charter Protect?
The Charter protects:
o Fundamental freedoms
o Democratic rights
o Mobility rights (to move between Canadian provinces/territories)
o Legal rights
o Equality and Language rights, and
o Aboriginal rights.
Legal Rights 1
Ensures fairness during legal proceedings, particularly in criminal cases. The rights to habeas corpus, or the
right to challenge being detained or held, and to be presumed innocent until proven guilty – always recognized
as part of our law – are now guaranteed in our constitution. This is very different from “Inquisitorial Judicial Systems” operative in numerous European Countries, where
the judiciary takes a role in helping police identify the guilty party and the accused is presumed guilty and the
onus (responsibility) for a finding of not guilty is on the accused.
Legal Rights 2
No one can be deprived of the right to liberty and security of his or her person except through proper legal
procedures. Canadians are protected against unreasonable searches and seizures, and against police using
excessive force, even when a search or seizure is authorized by law. We are also protected against being
detained or arrested arbitrarily. In other words, a police officer must have a reasonable suspicion that we have
committed a crime before holding us in custody.
Legal Rights 3
The Charter also protects us against arbitrary actions by law enforcement agencies. It guarantees our rights to
be told why we are being arrested or detained, to consult a lawyer without delay, to be informed of this right,
and to have a court determine quickly whether the detention is lawful.
Legal Rights 4
Once charged, an accused has the following rights:
To be told promptly of the offence,
To be tried within a reasonable time,
Not to be compelled to testify at one’s own trial,
To be presumed innocent until proven guilty beyond a reasonable doubt in a fair and public hearing by an
independent and impartial tribunal,
Not to be denied reasonable bail without cause, (Flight or Danger)
Not to be subjected to any cruel and unusual punishment,
To be tried by a jury for serious charges (discretionary), and
Not to be tried or punished twice for the same offence (Double Jeopardy)
The federal government has the exclusive authority to:
Appoint and pay the judges of the superior or upper-level courts in the provinces
Establish a general court of appeal and courts for the better administration of the laws of Canada. It has used
this authority to create the Supreme Court of Canada, the Federal Court and the Federal Court of Appeal, as
well as the Tax