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Chapter 2

PSYC 268 Chapter 2: Chapter 2 - Psych 286 Notes

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PSYC 268
Dayna Gomes

Chapter 2 – The Canadian Legal System: An Overview Legal Systems • Two distinct systems of law: 1. Inquisitorial legal system: - a legal system in which the law is codified (e.g., written down), judges play an active role in the proceedings, experts are called to court, and the lawyer’s role is, in part, to assist the court; it is used in many European countries; based in common law 2. Adversarial legal system:- a legal system in which two sides – the defence representing the accused versus the prosecution (Crown) representing the people – present their position before an impartial judge or jury, who attempt to determine the truth of the case; it is used in North America Division of Power • In 1867, Canada was established under the British North America Act (BNA Act) • In 1982 when the Constitution was repatriated to Canada, the BNA Act was renamed the Constitution Act, 1867 and the Constitution Act, 1982 came into force • In the Constitution Act, 1867, powers to pass laws in Canada were divided o Provinces were given jurisdiction over some areas (local concern) o Federal government was given jurisdiction over other areas (national concern) o If the federal government attempts to pass a law in an area that is the exclusive domain of the provinces, the federal government will be struck down; known as ultra vires • Divisions of power in sections 91 and 92 of the Constitution Act, 1867 Sources of Law • Four sources of law: 1. The Canadian Charter of Rights and Freedoms 2. Legislation (either federal or provincial) 3. Common law 4. Administrative law The Canadian Charter of Rights and Freedoms • The Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms, is the supreme law of Canada and, generally, cannot be overridden by statute law or common law • Few exceptions: o Charter can be overridden when an infringement can be demonstrably justified in a free and democratic society; or o If the notwithstanding clause is invoked • The Charter requires interpretation by the judiciary • Examples  What is an offence? What is a reasonable period of time? Legislation • Much of Canada’s law is written in legislation o Federal or provincial • Most legislation cannot be applied without further interpretation • It is impossible to anticipate and articulate each circumstance that may trigger the legislation or to give explicit directions on how to proceed • Purpose of legislation is to provide guidelines that should be particular enough to allow a judge to apply them reasonably to a set of facts Common Law • Law that derives from previously decided cases • Definitions and applications can be found in previously decided cases Administrative Law • The federal or provincial governments may delegate powers to administrative tribunals to interpret and enforce laws in some areas • Actual laws passed by the body with authority to do so • Example  federal or provincial government • Power to interpret and enforce the laws may be conferred on administrative bodies through legislation • Administrative tribunals are bound by applicable constitutional law, statute law, and common law, just like any other body with authority to compel behaviour and pass sanctions • Administrative tribunals deal with issues such as: o Breeches of human rights o Employment standards o Immigration o Parole o Some mental health issues Canadian Court Structure • Four levels of courts: 1. Provincial courts 2. Provincial superior courts 3. Provincial courts of appeal 4. The supreme court of Canada • Stare decisis:- a term meaning “let the decision stand.” The doctrine of stare decisis states that judges are bound to decide like cases alike o Important because it provides a measure of predictability and certainty in law • Not all court decisions are binding on all other courts Provincial Courts • Trial courts presided over by provincially appointed judges • They hear: o Most criminal cases o Half of the family cases ▪ Neglected/abused children ▪ Adoption ▪ Division of property o Almost all youth cases o Civil cases that involve small amounts of money • No option to be tried by jury • Decisions are not binding on other provincial court judges or any other court Provincial Superior Courts • Trial courts presided over by federally appointed justices • They hear: o Some criminal and civil cases o Applications for divorce o Appeals from provincial courts on matters of small claims o Family cases o Less serious criminal matters ▪ Example  Summary convictions • Accused person may elect trial by judge alone or trial by judge and jury if they may be subject to a prison term of five years of more • Decisions are binding on provincial courts in that province and are persuasive for other superior court judges in the same province as well as for courts in other provinces Provincial Courts of Appeal • They hear civil and criminal appeals • Appeal courts, NOT trial courts o Do NOT hear from witnesses and evidence that was NOT presented at trial cannot be raised on appeal • Courts are presided over by federally appointed justices in groups of three of five justices • Final decision of the court is the judgment of the majority o Unanimous decision NOT needed • Parties who wish to appeal to the provincial court of appeal must apply to do so o Court may agree or decline to hear appeal o Crown may appeal a verdict on a question of law o Defence may appeal the verdict on a: ▪ Question of law – “How tall must a person be to be too tall?” ▪ Fact; or – “How tall is the defendant?” ▪ Mixed law and fact – “Is this man so tall that he has committed an offence?” • Decisions of provincial courts of appeal are binding on superior courts and provincial courts in that province, and they are persuasive on courts in other provinces that have the same law Supreme Court of Canada • Appeals to the Supreme Court of Canada must have been heard in a provincial court of appeal first • Parties who wish to appeal to the Supreme Court of Canada must first apply to do so o Court may agree or decline to hear appeal • Both accused and Crown can appeal to Supreme Court of Canada on question of law • Appeals are heard by a panel of five, seven, or nine justices • Decision of court does NOT have to be unanimous • Majority judgment is binding o Decisions of the Supreme Court of Canada are binding on all inferior courts that are subject to the law under appeal o Some laws are under provincial jurisdiction so only the provinces that have enacted the same law are bound b a decision of the Supreme Court of Canada that addressed the law • The Supreme Court of Canada is NOT bound by its own decisions o The court must be able to reverse its own decisions when appropriate The Court Process • Most cases that proceed in the criminal courts may also proceed in civil courts if personal loss is involved • Several important distinctions between civil and criminal processes: o Purpose of criminal law is to deal with the perpetrator ▪ Police investigates allegations ▪ Crown brings the charge and prosecutes the case ▪ State pays for the prosecution o Purpose of civil law is to restore the injured party to the pre-injury state ▪ Plaintiff investigates ▪ Hires a lawyer to commence the proceedings and to argue the case in court o In BOTH civil and criminal proceedings ▪ Defendant is responsible for the costs of the defence ▪ Burden on the Crown (criminal) or the plaintiff (civil) to prove allegation beyond a reasonable doubt (criminal burden) or on a balance of probabilities (civil burden) • If allegations proved, the defendant: o Will likely have some restrictions on liberty imposed (criminal); or o Be required to pay a monetary award (civil) The Canadian Charter of Rights and Freedoms • Two broad sources of human rights protections in Canada: 1. Human rights codes 2. The Canadian Charter of Rights and Freedoms • Two important criteria are considered when determining which law applies: 1. Identity of the alleged discriminatory ▪ Example  alleged discriminator a government actor who is accused of infringing fundamental rights listed in the Charter, the Canadian Charter of Rights and Freedoms may apply and case will likely be heard in court of law ▪ Example  alleged discrimination involves one of the prohibited grounds listed in human rights act (race, religion, sec, age etc.) case may be heard under federal or provincial human rights acts 2. Nature of the discrimination • Charter is entrenched • Supreme law of Canada • Charter protects us against unconstitutional actions of government actors o Government actors cannot: ▪ Pass legislation that infringes our Charter rights ▪ Behave in a manner that infringes our Charter rights o Charter does NOT protect us against the actions of non- government actors ▪ Example  landlord discrimination • Two ways the Charter rights can be infringed: 1. Law itself may infringe Charter rights; or 2. The way the law was applied may infringe Charter rights • If a law is passed that infringes a Charter right, s. 52 of the Charter allows a court to do one of three things: 1. Strike down the legislation in its entirety ▪ Example  Supreme Court of Canada struck down the constructive murder provision in the Criminal Code as being contrary to ss. 7 and 11(d) of the Charter 2. Court may read down (rewrite/revise) the part of the legislation that is contrary to a Charter right ▪ Involves striking down or striking out ▪ Example  if a law is passed that requires police to have a warrant before entering a private residence except if the police suspect to have a warrant before entering a private residence except if the police suspect pornography has been produced in that location, the courts may strike out the part of the legislation that allows warrantless searches in those circumstances 3. Court may read in elements that brings the legislation in line with the Charter ▪ Example  If a law confers a benefit on single mothers but does NOT confer the same benefit on single fathers, the court may “read into” the legislation that the benefit is provided to all single parents (to strike it down would be a hardship to single mothers) •
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