Introduction to Law Lecture 2 Notes What is law?

Law cant be defined to a pin point but however it can be what ever we want it to be. Legal positivism Is the thesis that the existence and content of law depends on social facts and not on its merits T pes of law! "ommon law "riminal #amil National "ivil "orporate International Legislative "onstitutional Torte $ laws %nvironmental Intellectual Trade &aritime law Labor 'ositive law Native 'rocedural $an(ing and insurance

What is taxonom ? classification ! When it comes to Law its "haracteri)ing law into groups "lassif ing law "lassif ing legal problems into categories Tell our stor and explain our problem *client+ &a(e sense of the problem *law er+ Law er will research that certain problem

, #-.&/LI0& Is Taxonom Neutral

1es it is because it helps us to "ategori)ing things into classification can have some problems /ppl ing same fact and pattern 2elps ma(e sense of how to approach a problem

Legal s stem! Legal 0 stems /re "omprised -f Legal Institutions 'rocedures .ules T pes of law! 0ubstantive Law The part of the law that creates3 defines3 and regulates the rights3 duties3 and powers of parties 'rocedural Law The rules that prescribe the steps for having a right or dut 4udiciall enforced3 as opposed to the law that defines the specific rights or duties themselves The rules of how the law will operate 2ow our rights3 duties will be enforced

'ublic Law 0tructures government .elationship between individual and government /reas of Law covered! "onstitutional Law3 /dministrative Law3 "riminal Law Note! The wa that law relates to the problem involved .ights and law of obligations The wa the apparatus of the government /ction considered to be harmful to the societ .ules for relationships involving individuals /reas of Law covered! Torts3 "ontract3 'ropert 3 Wills3 %states3 #amil Law

'rivate Law

Note! /bout the disputes that the have towards each other Tortes ,, 2arm to someone else5 propert 'ropert 6 owing the product of our mind and ideas "ivil Law

 "ivil or 'rivate .ights Note! 'rivate matter is a civil law "riminal Law -ffences against communit 0tatutor Law legislation *also called 0tatutes+ Notes! /n thing passed b the gov #ederal laws can be passed b provincial laws and vice versa in some cases %ach gov has the power to pass their own rules "ommon Law "ase law precedent Note! "ase law given a lot of importance - "ase law n precedent is a wa to ma(e law 6 draw general principles Notes Lecture 7 0ource of law 0omething that provides authorit for legislation n for 4udicial decisions8 point of origin for law or legal anal sis "onsists of ! criminal code 8 constitution 8 charter rights and freedoms 2.L./. 2 meaning of the term source of law Non,legal! the law is a historical Legal! the law is considered a law within the given legal s stem Transplantation 5 .eception 9The moving of a rule or s stem of law from one countr to another: .eception ! / countr accepting those rules or s stem of law Instances of transplantation "olonialism 6 whereb imperial laws are imported and enacted in areas being coloni)ed ;lobali)ation 6 international norms of law "omparative law ,, the 0./. law would loo( at the "anadian constitution as a method of ma(ing their law Informal reception 6 operate according to general rules *lead person runs the colon to their wishes+ #ormal reception 6 all the rules of that date from the %ngland are now operational in the colon

0ource of Law "ommon Law , evolve through decisions of 4udges 6 rules put into place through cases "ustom Writs5%<uit 6 =>?@ A 2/$%B0 "-.'B0 8 C%.0B0 8 %D/&'L% -# %EBIT18 &-.T;/;% F 0hift to 0tatute "ivil Law - %volved from .oman Law - Written "ode - "ode Napoleon =?>G - 'recedent less stressed - law not as important as previous law li(e the common law International Law 1. Dualism v. Monism 2. Treaties: ratification and incorporation binding as soon the state signs the treaty, becomes law right away - president cant sign the treaty til ma ority of senate agrees - in !anada we have to pass a law to incorporate it - each of the provinces have to pass the law or the federal gov in order to be binded udges have a huge role in this ". !ustom: !ivil #aw$ %tatue must conform rules have developed over time cu& it has been practiced over time '' customary international must be binding with our laws Lecture H "onstitution What is "onstitution ! /n established law or custom The act of establishing3 ma(ing3 or setting up "onstitution of "anada The charter is part of the constitution act of =G>2 =>I? constitution act "anada shall in principle have the same constitutional principles as BJ Bnwritten principles "onstitution $ases 7 bases /. .ule of Law $. 'arliamentar 0overeignt and .esponsible ;overnment ". Kudicial Independence

 .ules of Law ! Nobod is above the law leaders cant use immunit Notes Law act as a limit on government Nobod is above the law -nl wa to protect people from the gov. is to give them individual rights .ule of reason Lo whats better for the ma4orit over the minorit Law has no emotion Law is rigid There is no form of biasness .ules are there to prevent arbitrar power 'arliamentar 0overeignt M responsible government ! 0overeignt ! / designated authorit that excurses a political control that we call the state 0tate has absolute control of a treat and has the right %ver one must be treated e<uall before the law8 no favors should be given What is 'arliamentar sovereignt ? 'arliament can do what ever it wants ma(e or unma(e laws '& and cabinets We have the right to contest and fight law 4udicial review '& and cabinets have to respond to the parliament for an decisions responsible gov Kudicial Independence 2ave to exercises the power of the Kudges ma(e sure that the parliament does not use the rule of power

#ive fundamental principles underl ing constitution! #ederalism 6, There is a division between level of ;ov Lemocrac ,,, The idea that individuals have rights to contribute in the ;ov "onstitutionalism 6, Is the limit b the constitutional limits .ule of Law ,,, 'ower of government is bound b law n constitution 'rotection of &inorities ,,, 'arliament is responsible to us #ederalism! "onstitution /ct3 =>I? 0.G= ,,,, #ederal power 0.G2 ,,,,, 'rovincial power '-;; ,,,,, 'eace -rder M ;ood ;overnment %ach level of government gets its own power from the constitution The separation of each level is due so that each government should have its own exclusive power 2owever if an problem is unclear 3 it is alwa s under the decision of the #ederal power

The "harter "onstitution /ct =G>2 In order to amend the constitution u had to go to the Eueen Notwithstanding clause 0 ?,=@ can pass the legislation for @ rs *can violate the constitution+ 0. = /n right on the charter can be limited .ights arent absolute Lecture @ Lawma(ing process 7 T pes of Lawma(ing! Legislative /dministrative Kudicial /. Legislative 0ix 0tages in the legislative process! Instigation and publici)ing , 0omebod somewhere needs somebod to have an interest in the bill? Information gathering #ormulation , Ta(es place in the gov 6 what is the problem and then needs to be formulated Interests,aggregation &obili)ation , Lebate that legislation &odification , "an be modified3 replaced3 or can die because theres no support for legislation N 'roposal from the ministr /n thing that has to do with O has to go through the 2ouse of "ommons through a minister Leader of the cabinet has to approve the bill that was proposed to him5her The ll read it to the parliamentar record $ill read in depth *committeeP+ /pproved at second reading then goes to 7 Need the signature of the gov. general 0pecific date3 gov. general signing3 or someda in the future *ma(ing it law+ 'rivate committee doesnt have to go through

N Need to thin( about constitutional and societal ideas $. /dministrative Law ma(ing The government bring in experts to examine certain laws that the cant pass due to the fact that the dont ac<uire the full (nowledge Thus there are multiple stages of bodies to ta(e a loo( at these issues ii. /dministrative /d4udication - &ore flexible - No precedent - %nforcement of legislative

 The enforce a legislation3 other forms of law ma(ing 6 loo( at issues that werent paid attention to The respond to minister who loo(s over it $odies cant operate outside the powers giving to them 6 individuals can challenge that action for being outside those Kudicial reviews 6 4udges can review reasoning b fairness ,, 'rocedures closer to court the less li(el it is to sa no ,, 2ow the interpret the law ". Kudicial Lawma(ing this where the Kudges ma(e law the prime minister appoints 4udges the doctrine of stare decisis ! to stand b what has been decided #ollowing a precedent 6 follow the decisions in which the facts of those law were applied the 4udges cant ma(e as much laws as the thin( the can In =G>2 6 4udges can review laws if it is constitutional 2 arguments should 4udges ma(e law? Interpret aw or review if a law is constitutional if this is the case 4udges have more power

Influence on Law There are six influences! /. Interest groups $. 'ublic opinion ". 0cholarship L. 0ocial movements %. &edia Interest ;roups! - Law responds to specific interest conflict views of societ - Not all groups are e<uall successful - There people are advocates and involved %x. "ancer research - These people are usuall wealth people who have the abilit to persuade the public and the citi)ens - This occurs because the have the time 3 mone and people5 energ - Lobb ist! professional paid people who advocate for their clients on an issue 'ublic -pinion - We matter because politicians need our votes - / politician can see a poll and act upon that - ;roup as societ have an influence 0cholarship - The wa the courts use academic info to help influence the polic 0ocial movement - "ollective behavior - 'romotes change - 'ublic influence - 'rotest

N /ll these have an influence on legislation &edia - 'rovide information and act as opinion planners - "hose what is important then put it on the news

Lecture I What is 'arliamentar 0overeignt ? , /C Lice 'arliament has QPthe right to ma(e or unma(e an law what so ever . . . and . . . no person or bod is recogni)ed b the Law of %ngland as having the right to override Internal "hallenges - #ederalism "annot ma(e laws in areas of the provincial ruling federal government %x %ducation - The federal gov. cant 4ust ma(e n unma(e a law - The levels of gov have to agree upon the areas that the overlap - Livision of powers within the gov 6 s.G= and s.G2 - -r in other words the government is sovereign but not absolute 8 the cant ma(e or unma(e laws because there are rules and limits - "harter of .ights M freedom is uses as a limitation for the government not to infringe the rights of the people - lin(ed to unwritten constitutional principals of ! N.ule of law better to be ruled b law and not people N.esponsible government parliament is responsible to ever one including each other NKudicial independence the 4udges who have to be independent from the parliament to insure that the 4udges can in act upon the parliament n can determine when a gov has acted outside of its powers %xternal "hallenges - International laws / set of rules generall regarded and accepted as binding in relations between states and nations - "/LL%L L/W0 -# N/TI-N0 - usuall effects states and nations - T pes of international laws Treaties and "ustoms 8 basicall how the interact with each other - This helps the countries get along since the dont (now each other - "ountries are exclusive representatives of all the people5 citi)ens - %ver countr is sovereign in its own territor and e<ual to all states Lualism - International law and municipal laws are distinct laws - International laws is automaticall incorporated into national laws - Thus it is a limitation to sovereignt - Treaties ! need to be transformed into "anadian laws - 2owever customs arent since its not what ou want to do but rather what ever one - else is doing &onism - International law and national law are a single legal s stem

- International law is automaticall incorporated into domestic law ;lobali)ation 0et of inter lin(ed process - We dont all sta in our state bubble $oo(s3 T.C3 &ovies - Interdependence We cant produce or create ever thing we need *e.g.+ food 5 clothing. Technolog - Bse of technolog A but we are re<uired to ma(e decisions on the spotF - We dont share interest ver <uic(l use of technolog there are global phenomenon*e.g.+ 1ouTube sensations "ourts "riminal trials! - 'erson vs. "rown - Wrong against societ behavior that is loo(ed down upon in societ - /im! Leterrence - 0etting penalt high enough to ma(e sure other dont do it "hanging the behavior offenders have done "ivil Trials! - 'erson vs. 'erson - Lispute against individuals - /im! "ompensation A usuall mone F for the one that has been wronged o most hearings are done in 'rovincial "ourts o "ivil and criminal trials are heard in the same courts "ourts and Kuries 'rovincial courts 6 onl hear about cases on under the provincial law ;o to provincial courts for review and then be appealed for higher /n error in law or that the 4udge made a mista(e 6 when appealing for ouRre trail no re,visiting of the evidence 4ust the law ers getting together and debating panel of 2= 4udges need the ma4orit of them "an appeal to the supreme court after this %xample of court structure! "ourt of appeal 6 present a brief "ourt of -ntario 6 #amil court and small claims court -ntario court of 4ustice 6 'rovincial matters 0upreme "ourt of "anada ,, establish the constitution act of =>I? Leave to /ppeal /ppeal as of .ight .eferences 'owers! - /ppeal - .eference - Kudicial .eview #unction of courts! - Lispute resolution /d4udication8 hearing a dispute Athe get no sa in which dispute5issue the hearF - 'ublic The are free

 The are independent and impartial ,,,, N- 0%"%.%"1 T pes of disputes! =. private ! 2 individual * companies are people in this case + 2. 'ublic ! court vs. person 7. 'ublic! Lefendant A where the public can use the ;overnment F H. 'ublic interests A groups or class action suitsF where one person represents others 'articipation in the courts process *including 4uries! - 'arties - Law ers - Kudges - Kuries - 'arties ! usuall depends on what (ind of dispute it is - 'laintiff AcomplainantF M Lefendant - "rown and defendant - /ppellant A who starts the appealF M respondent T pes of Law ers! - 'ublic interest law ers 6 Wor( for the government - 'articular interest law ers 6 wor( for a specific compan - "riminal defense law ers 6 Ta(e people to defend - 92ired ;uns: 6 wor( for individuals 5 companies5 an one Kudges! - set in a higher stage - we give 4udges a high and prestige position as dispute resolve - high salaries A so the cant be bribedF - 4ob securit A tenureF Kur ! - =2 to I members of societ - limits 8 used to determine what the facts are - since ever one has their own version of what happens "riminal "ases! - 4uries are used in all charter cases - are optional 6 in less serious offences "ivil "ases - varies b provinces - Less fre<uent N /n one who is between => M I@ can be a 4ur 0entencing! - 'enalties 6 usuall time in 4ail in criminal cases - ;iven b 4udge - Letermined b "riminal "ode The people! - Lissent to disagree with something Lissent M social control $ coercive social control ,,, Bse of force $ power of appointment ,, ;ov is able to control through taxing $ power over benefits ,, ;ive the citi)ens what the want =. "oercive 0ocial "ontrol

- 9"heapest and most immediatel available means of social control: 2. 'ower of appointment - $ureaucrac - $udgeting 7. 'ower of $enefits - 9$read and "ircuses: - ;iving people benefit 6 less li(el to challenge the government "iti)enship - .ights and obligations of being a citi)en Lefined as a status Individual rights $irth3 accusation3 or inheritance Not having a citi)enship can impact our rights / status giving to ou because oure born in a certain area "iti)enship as access to Kustice! =. .ight to Cote 2. .ight to 'articipate in Kudicial 'rocesses 7. .ight to Kudicial 'rotection H. .ight to .ights? *i.e. to dissent+ Legal 'rofession - #ull time occupation No other 4ob - Training school Bniversit affiliation - Local profession Law 0ociet - Licensing - #ormal codes of ethics /ccess to the Legal 'rofession! 2 'arts! /. .egulation of law ers Law school 8 one must have a law degree - 'urpose of law school thin(ing li(e a law er8 0ociali)ing8 problem solving - %xample! Law 0ociet of Bpper "anada 'rofessional training =. /rticling 5 2. %xams /rticle S Training for =Tmths under the supervision of a law er n then u have to write 2 exams solicitor * public law+ and a barrister* private law+ * u actuall crossed the bar+ 6 goes to the court Law societ rules M regulation ! "omplaints ! Liscipline hearing $. .egulation of access to the profession b non,law ers , %xample! 'aralegals 'ersons who engage in substantive legal wor( under the supervision of a law er 1ou have to be part of the Law societ .egulate b the law societ 'aralegal give advice Need licence Insurance o law er The T pes of Legal 'ractice! /. 'rivate 'ractice $. ;overnment ". 'rivate %mplo ment L. Kudiciar

'rivate 'ractice! - Wor( for themselves - Ta(e their own clients - 0ole - .ural areas - "riminal law area of wor( - Large firm can handle an claim or issue .oles! - "ounselling - Negotiating - Lraft - Litigation - Investigation - .esearch ;overnment! - /dvise - .esearch - Lrafting - "ounsel 'rivate %mplo ment! - %mplo ment of compan - In house counsel Kudiciar - "onstitution /ct3 0. GI /. To be a 4udge Law er for =T ears $. &ust be part of the Kudiciar ". Kudicial /dvisor "ommittee! Cet candidates Kudges! /. $ias of 4udicial independence $. &eaning of 4udicial independence ". &eaning of Kudge $ias of 4udicial independence - Kudges of superior courts can be removed if the dont have good behaviour - 0alar shall be fixed and provided b the parliament - Kudges in the supreme court have to re,tire U age G@ Constitution Act, 1867 - Kudges have the right to review an decision made b the government , /ble to critici)e the government 0. GG ou are in until ?@ or until ou are charged with misconduct 0. =TT Negotiation of salaries - #ederal 0tatute Kudges /ct 0. 7 6 who can be selected? 0. > 6 4udges must re tire U ?@ &eaning of 4udicial independence /. Independence in /d4udication $. $ias in /d4udication - are able to ma(e laws - .eview an law or bill made b the ;ov. Independence of /d4udication - No out side interests when it comes to the decision

- .estricted freedom of speech down side ! we never (now what the are thin(ing What does it mean to the bias preconceptions ! alread having an idea of the decision before evidence is presented &eaning of Kudge - &ust be part of the 4udiciar - =T ears of law er 2ow are 4udges monitored? /. "anadian Kudicial "ouncil - Lisputes about 4udges - Initiated b complaint - .eview 6 Kudicial "onduct "ommittee - 'anel of five 4udges - In<uir committee - Lismissal

"oncepts!
2.L./. 2art 2 meanings of the term source of law 1. Non-legal: The law is a historical fact 2. Legal: The law is considered a law within the given legal system .eception! occurred in !!er "anada in #. 1$%1 .ule of Law /v Lice T&'(( )(#N*N+,: The su!remacy of law as o!!osed to ar-itrary !ower. (/uality -efore the law. 0undamental rights are !rotected as individual rights 'arliamentar 0overeignt 1arliament has 2the right to ma3e or unma3e any law whatever . . . and . . . no !erson or -ody is recogni4ed -y the Law of (ngland as having the right to override or set aside the legislation of 1arliament The rule of law is -etter than that of any individual.5 6 /ristotle .eference .e 0ecession of Euebec A=GG>F 2 0."... 0ive fundamental !rinci!les underlying constitution: 0ederalism 6emocracy "onstitutionalism 'ule of Law 1rotection of )inorities Kohn Lefen ba(er! "onstitution of 1%78 9ill of the rights The Loctrine of Stare Decisis: :To stand -y what has -een decided; .oncarelli v. Luplessis3 A=G@GF 0."... =2= #dministrative law < !ower of the gov to interfere =udicial law ma3ing 1rocedural law "onstitutional law

.eference .e #irearms /ct *"an.+ firearms legislation The phrase 9bread and circuses: originated in the wor( of Kuvenal Traditional definition T2 &arshall "iti4enshi! as a status 2/ /rthur :>ill the Law ,ociety of #l-erta "ele-rate its 9icentenary?; - )ultidisci!linary !ractices /. Lode( )icro (thics @ )acro ethics $ Las(in The courts have -een inde!endent of the decisions theyre ma3ing Kudge .osalie /bella The court has all the rights to review decisions of the !arliament R. v. S. (R.D.) A=GG?F 7 0."... H>H 'easona-le a!!rehension of -ias