Chapter 1

Law: Its Purpose and History

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What is Law?
Laws are essentially a set of rules, but
there are 3 main characteristics that
make laws different from simple rules:
1. Laws are a set90of rules established and
enforced by government.
2. Laws are mandatory.
3. Laws involve consequences.

Functions of Law
Laws
i)
ii)
iii)
iv)
v)

Establish rules of conduct

Provide a system of enforcement
Protect rights 90
and freedoms
Protect society
Resolve Disputes

Divisions of Law
In Canada, the law is divided into two basic
types: substantive and procedural.
Substantive Law: laws that outline a
person's rights and
responsibilities; further
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divided into Public and Private Law.
Procedural Law: legal processes that
protect and enforce our rights.

Public Law
There are 3 types of public law:
1. Criminal Law: outlines offences
against society and their punishments.
90 Law: outlines the
2. Constitutional
structure and powers of governments.
3. Administrative Law: outlines the
relationship between citizens and
government agencies.

Private Law
Also known as Civil Law; there are 5 types:
1.

2.
3.
4.
5.

Tort Law: a person is held responsible for

damage caused to another; "tort" is Latin for
"a wrong".
Family Law: deals
with the various
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relationships of family life (e.g. marriage)
Contract Law: outlines requirements for
legally binding agreements.
Property Law: outlines relationship between
individuals and property.
Labour Law: outlines relationship between
employers and employees.

Early History of Law

In ancient societies, local customs and
beliefs made up the law.
Customs were not written down and
instead were passed on by word of
mouth.
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As populations increased, laws became
more complex and codification became
necessary.
Codification: a written collection of laws.

Evolution of Law
Code of Hammurabi, c. 1750 BCE:
One of the earliest records of written law.
King Hammurabi of Babylon codified nearly 300 laws
in columns of stone.

Mosaic Law, c. 1240 BCE:

Based on the Ten Commandments.
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Bible states that Moses received these laws from God
on two stone tablets.

Justinian Code, c. 550 CE

Byzantine Emperor Justinian codified 1000 years of
Roman laws.
First legal code that emphasized equality under the
law.

Evolution of Law contd

Magna Carta, 1215:
English noblemen forced King John to sign
this document that established the rule of
law - that all people, including the king, had to
obey the same laws; no one was above the
law.
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Napoleonic Code, 1804:

A new set of civil laws for French people.
Became the model for most of Europe.
Also referred to as the French Civil Code.

Feudalism
In 1066, King William of England
introduced a feudal system.
Under this system, the king owned all of
the land and divided most of it among his
lords or noblemen.
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The Lords had their
own servants, or
vassals.
If a vassal broke the law, their Lord could
punish them however they saw fit.
Punishments were inconsistent and
unfair.

Common Law
King William appointed judges to travel
throughout England and decide cases.
Cases with similar facts were decided in
the same way.
If a judge issued90a verdict in a new case,
that decision became the standard for
similar future cases - precedent.
The system of law based on past legal
decisions is known as common law or
case law.

Rule of Law
This legal principle was recognized in the
signing of the Magna Carta of 1215.
The rule of law states that the law
applies equally to all persons.
The Magna Carta
90 also introduced the writ
of habeas corpus a document that is
used to determine whether or not
someone is being legally detained.

Rights & Revolutions

In the 18th century, two significant
revolutions took place that contributed to
the development of human rights.
1) American Revolution, 1775
U.S. broke away90from British rule and
issued the Declaration of Independence
in 1776.
In 1791, the U.S. Bill of Rights was added
to the American Constitution, which is still
their basis of civil rights and freedoms.

Rights & Revolutions contd

2) French Revolution, 1789
Influenced by the ideas of liberty and
equality in the American Revolution, the
French rose up against their king to end
feudalism.
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A National Assembly was set up with
members who were elected by citizens.
The concept of "nation-states" came out
of these revolutions.

Universal Declaration of Rights

During World War II, numerous human
rights atrocities were committed.
In 1945, shortly after the war ended, the
United Nations (UN) was formed.
UN Commission90on Human Rights
produced a list of human rights and
freedoms for all people in the Universal
Declaration of Human Rights (UDHR).

UDHR - Excerpts
Some of the rights in the Universal
Declaration of Human Rights:
All human beings are born free and equal in
dignity and rights.
Everyone has the right to life, liberty, and
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security of the person.
No one shall be subjected to arbitrary arrest,
detention, or exile.
Everyone has the right to freedom of thought,
conscience, and religion.
Everyone has the right to freedom of opinion
and expression.

Canadian Bill of Rights

In 1960, Prime Minister John
Diefenbaker's government passed the
Canadian Bill of Rights.
Similar to the UDHR, the Bill of Rights
codified many civil
rights and freedoms
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that had been established over many
years under common law in Canada.
For the first time, Canadians had a list of
rights and freedoms to refer to.

Bill of Rights - Excerpts

Some of the rights in the Bill of Rights:
Freedom of religion, speech, assembly and
association, and the press.
The right not to be arbitrarily detained, imprisoned, or
exiled.
The right not to receive cruel and unusual treatment or
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punishment.
The right to be informed promptly of the reason for
arrest.
The right to be presumed innocent until proven guilty.
The right to a fair hearing.
The right to equality before the law and its protection.

Constitutional Protection
Bill of Rights had two main limitations:

1.
2.

It only applied to federal matters.

It could be changed at any time by
Parliament since it was a statute.

In 1982, Prime Minister Pierre Trudeau

introduced the90Canadian Charter of
Rights and Freedoms into the
Constitution.
Because the Charter was a part of our
constitution, it applied to every level of
government and could only be changed
if an amending formula was followed.

Canada's Constitution - History

Canada become an independent country from
Britain on July 1, 1867.
Our first constitution was the British North
America (BNA) Act, 1867.
Britain still controlled our foreign affairs and we
needed their permission to change the
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constitution.
The Statute of Westminster, 1931, gave Canada
control of its own foreign affairs.
In 1982, Trudeau and the premiers (except for
Quebec) "patriated" the constitution and
introduced the Charter. This gave Canada
complete control of our affairs as a nation.

Division of Powers
The Constitution Act, 1867, explains the
specific powers that our levels of
government have as well as what they
are responsible for.
Our levels of government
are federal,
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provincial, and municipal (which falls
under provincial in the constitution).
Sections 91 and 92 of the Constitution
Act provide each level of government with
jurisdiction - power and authority to
make laws and pass regulations.

Section 91 Federal Powers

Peace, order, and good government
Criminal law
Unemployment insurance
Banking, currency, and coinage
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Federal penitentiaries
Marriage and divorce
Postal services
Aboriginal peoples and lands

Section 92 Provincial Powers

Property and civil rights
Marriage ceremonies
Police forces and provincial courts
Highways and roads
Provincial jails 90
Hospitals

Federal Laws

Federal bills, or laws, are passed by

Parliament, which consists of 3 parts:
1.
2.
3.

House of Commons
Senate
Governor General (Queen's representative)

Each Member90of Parliament (MP) is

elected to represent 1 of 308 ridings or
electoral districts in Canada.
The political party that wins the most
seats forms the government and
passes laws.

Federal Branches

There are 3 federal branches of government

that pass laws, interpret them, and ensure
they are carried out:
1. Executive

2.

Legislative

3.

Governor General
Prime Minister90
Cabinet
Civil Service
House of Commons
Senate

Judiciary

Judges

How a Bill Becomes Law

Overview of how a bill is passed into law:
First Reading
Bill is introduced

Second Reading
Bill is debated in House of Commons
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Committee Stage

Bill is studied, revised, or changed

Third Reading
Further debate on the amended bill
Vote in the House of Commons

Senate (similar process: 3 readings, vote)

Royal Assent (governor general signs bill into law)

Provincial & Municipal Laws

Provincial
The process to pass provincial laws is similar to
federal laws.
Differences: no Senate; Queen's
representative at the provincial level is the
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lieutenant-governor who signs bills into law.

Municipal
Municipal laws are called bylaws.
Elected councils (mayor and city councillors)
debate and vote on bylaws. If the vote passes,
the bylaw is enacted.