1 law: its purpose and history

11

The Lady Justice is a familiar image, especially around courthouses and courtrooms. This statue is located outside of the Supreme Court of Canada building in Ottawa. It is an interpretation of the more traditional version of a blindfolded Lady Justice carrying a sword and scales.

Selected Key Terms

bill

case law

citation

civil law

Code of Hammurabi

common law

defendant

lobby

plaintiff

precedent

private law

procedural law

public law

rule of law

statute

substantive law

What You Should Know

What is law?•

Why do societies have laws?•

What are the historical roots • of Canadian law?

Who is responsible for • making law in Canada?

How have our rights • developed in Canada?

Chapter at a Glance

1.1 Introduction

1.2 What Is Law, and WhyDo We Have It?

1.3 Divisions of Law

1.4 The Development of Canadian Law

1.5 How Rights Have Developed in Canada

1.6 The Development of Canada’s Constitution

1.7 How Laws Are Made

Law: Its Purpose and History

44 Unit 1 An Introduction to Law NEL

Did You Know?Often, the fi ctionalized versions of the law on TV tend to distort and sensationalize real law. The media contribute to this hype by giving extensive coverage to crime in newspapers, on the radio, and on television.

1.1 IntroductionLaws affect your lives each day. In fact, we all seem to be fascinated with laws. Every day we hear about local, national, and international events that involve law. On television or in newspapers, we follow cases where suspected criminals are charged with outrageous crimes. We might even read or watch video footage about the most recent crimes on Internet news websites. We are fascinated by stories of criminal activity but are shocked when it happens in our own neighbourhoods. People talk about legal issues and trials and want to know what happens in the courts. Many books, television shows, movies, and documentaries all have legal themes — just think of the number of CSI and Law and Order shows on television. But, do we really understand the justice system? How are laws developed in Canada? How does the legal system work?

Because laws affect every aspect of your lives, it is important for you to understand the law. Knowing your rights and responsibilities makes you a more informed citizen. In our Canadian democracy, citizens elect politicians. They make the laws. By voting, you help select the people who will represent your needs and values during the lawmaking process.

In this chapter, you will learn what law is and the various divisions of law. You will also examine the early history of law and the developments that have occurred to shape Canadian law as it is today.

The number of television crime dramas, such as Canadian-producedCSI: NY, show how fascinated our society is with the legal system.

NEL Chapter 1 Law: Its Purpose and History 55

1.2 What Is Law, and WhyDo We Have It?

Laws refl ect the values and beliefs of a society. As society’s values change, so do its laws. For example, you no longer have to wear a bathing suit that covers you from your neck to your ankles when you sunbathe on a public beach, as was the case a century or so ago. We have traffi c laws about how fast you can drive, drug laws on possession and traffi cking of illegal substances, criminal laws related to stealing, and environmental laws that punish us for polluting, to name just a few. Even the development of new technology has resulted in the creation of laws. For example, we now have criminal laws that punish people if they try to steal your credit card information or your whole identity. But what exactly is a law?

Laws versus RulesWhen people get together in groups, whether at school, at work, at home, or in a social situation, some rules are needed to keep order. Imagine playing sports without rules! You may be familiar with the consequences of not following these rules. However, when you break these rules, even if you suffer consequences for doing so, they are not as serious as the consequences you will experience if you break the law. For example, shoplifting from your favourite store could result in you being charged with theft and having a

criminal record. So, when does a rule become a law? True, we do talk about the “laws” of physics or economics. But, when

we talk about a law, it refers to a rule that is enforced by the government. A law is intended to be obeyed by everyone living within that society. As a society, we have banned some activities because of their consequences for other citizens. Laws strike a balance between individual freedom and the needs of society. If a member of society breaks the law by stealing from another person, he or she is punished. As an individual, you are free to do whatever you want, with one exception: You must not do those things the law forbids or prohibits. The characteristics of laws are summarized in the illustration on the next page.

Laws change in response to changes in society. Cyberbullying is the use of electronic communications technologies, such as your e-mail or cellphone, to intentionally and repeatedly harass or threatenothers. Such acts could result in your suspension or expulsion from school, and the use of threats might even end up with you being charged with the serious crime of “uttering threats.”

NEL66 Unit 1 An Introduction to Law

You and the LawEvery day, laws and rules impact your lives. Can you think of any laws or rules that affected you on your way to school today? Explain.

lobby attempt to infl uence government to benefi t a particular group or organization

Although most people willingly accept laws about highway speed limits or restrictions on certain drugs, some people do not. If Canadians do not agree with one of the country’s laws, they can join pressure groups and lobbythe government to change the law. Lobby groups try to raise public aware-ness about changing laws to refl ect their opinions and needs. For example, victims’ rights groups have pushed for stronger gun control laws. Lobby groups may also challenge laws by going to court or by organizing peaceful demonstrations. Canada is a free country, so people can oppose the laws in a number of ways, but only up to a certain point. If protesters break the law, they can be arrested.

Why Do We Have Laws?Society needs laws to limit the behaviour of its citizens. To enforce those laws, society has created punishments for breaking criminal law. Society tries to develop fi tting penalties depending on the severity of the offence. Sometimes penalties change. For example, a society concerned with street racing may increase penalties to include long-term suspensions of drivers’ licences. It may permanently take licences away from those caught racing.

Laws not only try to protect us from harm, but they also provide a system for settling disputes. For example, suppose you paid money to a bicycle repair shop to fi x your mountain bike, but then found out that the store did not fi x your bike. What could you do? You could go to a small claims court to try to get your money back (those under 18 would need the help of a responsible adult to do so). As a guide to help you better understand why we have laws in Canada, see the illustration on the next page describing the functions of law.

These three characteristics are what make laws different from rules.

What Is Law?1. Laws are a set of rules established and enforced

by the government.

2. Laws are mandatory.

3. Laws involve a detailed system of consequences.


Did You Know?Another function of law is to bring order to social relations. Contract, family, and other aspects of civil law establish practices and make it easier to predict how others will act. For example, if you loan someone money, under the law, he or she must pay you back.

Five Functions of Law

1. Establish Rulesof Conduct

2. Provide a System of Enforcement

3. Protect Rights and Freedoms

4. Protect Society 5. Resolve Disputes

1. Establish Rules of Conduct: Laws try to outline guidelines for individ-uals living with others in society to reduce confl icts between them. For example, in order for you to get your driver’s licence, you must pass a written test and a road test to demonstrate that you know traffi c safety rules. Imagine what would happen if there were no rules for our roads. The resulting chaos would be a danger to everyone.

2. Provide a System of Enforcement: For laws to have any meaning, they must be enforced. Police and the courts oversee the operation of laws. For example, if you break a law such as speeding in your car, police may charge you, and then you will have to answer for your actions in a court.

3. Protect Rights and Freedoms: In our free and democratic society, laws protect our rights and freedoms. Laws help encourage the values of tolerance and respect. In Canada, we have basic freedoms such as freedom of expression or of peaceful assembly. These rights cannot be limited unless there is a solid legal reason for doing so. For example, your freedom of expression does not allow you to harass or verbally disrespect someone in your school. You will learn more about your rights and freedoms in Chapter 2.

4. Protect Society: Criminal laws are designed to protect people from harm. Our society defi nes what we consider wrong and sets out punish-ments for those who break the law. For example, we have criminal laws that prevent you from carrying an unlicensed handgun or beating up your neighbour. Civil laws also protect individuals from being harmed or taken advantage of. For example, we have labour and occupational safety laws that protect you from harm when you are working.

5. Resolve Disputes: An important function of law is to settle confl icts. Disputes can be settled through negotiation or through the court system. Laws help to create order and ensure that disagreements are solved fairly. For example, if you went on someone’s property without the owner’s permission, you could be sued for trespass.

Why we have laws in Canada


substantive law the laws that outline your rights and obligations in society

procedural law the legal processes involved in protecting our rights 1.3 Divisions of Law

Law can be divided into two basic types:

substantive law•

procedural law•

Substantive andProcedural LawSubstantive law consists of rules that outline your rights and obligations in society. Substantive laws in the Criminal Code outline the activities or actions that are considered crimes in our society. For example, it is a crime to beat up another person. The Criminal Code describes the various types of assault. The offence of aggravated assault is defi ned as an action that “wounds, maims, disfi gures or endangers the life” of another person.

Procedural law outlines the steps involved in protecting our rights. For example, there are formal legal processes that the police must follow to obtain a legal search warrant. There are formal procedures they must perform to conduct a proper alcohol or drug spot check on a suspected impaired driver.

Public Law and Private LawSubstantive law is divided into the areas of public law and private law, also known as civil law. Public law controls the relationships between governments and the people who live in society. It represents laws that apply to all individuals. The main types of public law are criminal, constitutional, and administrative law.

The Criminal Code lists the activities that are considered crimes in Canada.

What is law?1.

Distinguish between laws and rules.2.

Summarize the five functions of law.3.

What factors might cause laws to change?4.

Justify the importance of law enforcement in society.5.

Review Your Understanding


Digital rights not available.

PUBLIC LAW: Controls the relationship between the government and the people. It represents laws that apply to all individuals.

Criminal Law: Outlines offences against society and prescribes punishments. Crimes include murder, kidnapping, sexual assault, break and enter, and theft. Criminal acts and their punishments are detailed in the Criminal Code of Canada. For example, murder carries a maximum penalty of life imprisonment. Criminal laws about drugs are found in the Controlled Drugs and Substances Act. Criminal laws for youths are found in the Youth Criminal Justice Act. Criminal law is discussed in greater detail in Unit 2.

Constitutional Law: Outlines the structure and powers of the federal and provincial governments. The Constitution is the supreme law in Canada. Rights in the Charter of Rights and Freedoms are part of constitutional law. For example, if a law violates equality rights that are guaranteed in our Constitution, the law could be declared invalid. In legal terms, this is known as “struck down as unconstitutional.” The Charter of Rights and Freedoms is discussed in greater detail near the end of this chapter in the section Constitutional Protection of Civil Rights and in Chapter 2.

Administrative Law: Outlines the relationship between citizens and government boards and agencies. It is a set of rules for procedural fairness when taking a complaint to a government board or agency. In other words, it is a way to make sure that legal hearings and reviews are fair for all parties. For example, if people feel that they are discriminated against, they can file a complaint with a human rights commission. Other boards and agencies involve licensing activities. Liquor control boards manage the consumption and sale of alcoholic beverages. They also grant liquor licences. Administrative agencies help people resolve disputes without the cost and delay of going to court. For example, disputes between landlords and tenants can be resolved at tribunals.

Did You Know?The average cost for a three-day civil trial in Canada in 2007 was$60 700.

Public law controls the relationships between governments and society.

Private law outlines the legal relationship between private citizens, and between citizens and organizations. Its main purpose is to manage the behaviour of persons and organizations in confl ict with each other. It also manages payment of damages to those who have been wronged. Private (civil) law can be further subdivided into tort, family, contract, property, and labour and employment law. Refer to the illustration below to discover the divisions of Canadian law.

Divisions of Public Law and Private Law

criminal law the body of public law that defi nes crimes and punishments

constitutional law outlines the structure and powers of the federal and provincial governments and addresses all issues concerning the Charter

administrative law outlines the relationship between citizens and government bodies

public law controls the relationships between individuals and the state


PRIVATE LAW: (also known as civil law): Outlines the rights and responsibilities of private individuals and organizations.In a private (civil) law case, the person who starts the lawsuit is called the plaintiff, and the person who is being sued is called the defendant. The plaintiff sues because he or she believes that the defendant has caused him or her harm, loss, or injury.

Tort Law: Holds a person or organization responsible for the damage they cause to another person. Torts are wrongs that one person commits against another. For example, a dental surgeon does not live up to the profession's standard of care during an operation. The patient can sue for malpractice or negligence (carelessness). Tort law is discussed in greater detail in Unit 3.

Family Law: Regulates aspects of family life. It deals with the relationship between persons living together as spouses or partners, and among parents, grandparents, and children. Family law may deal with separation and divorce, division of property, and child custody. It may also deal with unpaid support payments to spouses and children. Family law is discussed in greater detail in Unit 4.

Contract Law: Outlines the requirements for legally binding agreements.For example, a contract may be for something as simple as buying a DVD— you offer to pay for it and the store accepts your money. But contracts may also involve complex agreements between companies and governments.If someone does not fulfill the terms of the contract, this is known in legal terms as a breach of contract. That means that the legal agreement is broken. The injured party can take legal action in the courts and sue for damages. Contract law is discussed in greater detail in Chapter 15.

Property Law: Outlines the relationship between individuals and property. For example, property laws may cover the use, enjoyment, sale, and lease of property. So, when you finish school and decide to rent your first apartment some day, you will be asked to sign a lease agreement. Property law is discussed in greater detail in Chapter 16.

Labour and Employment Law: Governs the relationship between employers and employees. For example, labour laws may control the actions of unions and management during a strike. Employment laws deal with issues such as minimum wage, pay equity, working conditions, and workers’ compensation. They also deal with disputes between workers and employers when there is no union. For example, if an employer pays below the legal minimum wage,you can challenge this using employment standards laws. Labour and employment laws are discussed in greater detail in Chapter 16.

ONSTRIKE

ONSTRIKE

private law outlines the relationship between private individuals and organizations

civil law the private law governing the relationships between individuals

plaintiff the person suingin a civil action

defendant in civil law, the person who is being sued; in criminal law, the person charged with an offence

tort law the area of law dealing with damages caused by a person or organization

family law the area oflaw that regulates aspectsof family life

contract law outlines the requirements for legally binding agreements and remedies if the agreement is breached

property law outlines the rights and responsibilities of owning, acquiring, and maintaining property

labour and employment law labour law governs the relationships between employers and unions; employment law governs the relationship between employers and employees

Private law outlines the legal relationship between citizens, and between citizens and organizations.


Explain the difference between substantive and procedural law.1. Explain the difference between public and private law.2. Identify the type of law that regulates government boards and agencies.3. What type of law protects your rights and freedoms in Canadian 4. society?

What areas of law are considered part of private (civil) law?5.


1.4 The Development ofCanadian LawCanadian law is based upon the laws of France and England, the countries that colonized Canada. However, there are important differences between the legal systems of the two countries. Early on, French law was codifi ed and written down. English law, on the other hand, was known as customary law, as it was based on custom or what had been done in the past. It was not codifi ed or written down until quite late in England’s history. Over hundreds of years, the English Parliament has passed laws codifying many customs and court deci-sions. However, much of English law has still not been written down.

Code of Hammurabi: One of the earliest records of written law. King Hammurabi of Babylon (now Iraq) had nearly 300 laws carved in columns of stone.

c. 1750 BCE

Mosaic Law: The laws Moses gave to the Hebrew people. The Bible tells the story of Moses getting these laws from God engraved on two stone tablets (the Ten Commandments).

c. 1240 BCE

Justinian Code: The Byzantine emperor Justinian codifi ed 1000 years of Roman laws in the Justinian Code. It was a collection of past Roman laws, opinions from legal experts, and new laws enacted by Justinian, and it emphasized equality under the law.

c. 550 CE

The Evolution of Law


Modern Canadian law is infl uenced by the Aboriginal peoples. When the British and French came to Canada, the Aboriginal peoples had their own systems of government and legal systems. These included the ideas of elected leaders, government by consensus, and concepts of equality and equality before the law. They can all be found in the Constitution of the Iroquois Nations (also known as the Great Binding Law).

The Early History of LawThe laws of ancient civilizations greatly infl uenced modern Canadian law. In early societies, local customs and beliefs were the law. It was not necessary to write the customs down because everyone was aware of them. They were passed on by word of mouth to future generations. As societies grew, the laws became more complex. It became too diffi cult for many citizens to know and understand these laws. So, it became necessary for existing laws to be written down in a permanent form. The timeline below across pages 12 and 13 shows some of the most important early records of law. Many of the laws referred to in the timeline are called “codes.” A code is a written collection of a country’s laws, arranged so that they can be used and understood. This process of preparing a code is called codifi cation. The Code of Hammurabi, for example, was organized under headings such as family, criminal, labour, property, and so on. Babylonian judges could match a person’s offence and punishment by looking at the written law rather than deciding for themselves what punishment to pass.

Magna Carta: A famous document that the English nobility forcedKing John to sign in 1215. The Magna Carta recognized the principle of the rule of law, which is the idea that all people — rulers and commoners alike — have to follow the same laws.

Napoleonic Code: Also called the French Civil Code, the Napoleonic Code was a revised set of civillaws for all French people. Because Napoleon conquered much of Europe around this time, this new set of laws became the legal model for many European countries.

1215 1804

It is important to remember that law is constantly evolving. Each of these records of law had an impact on laws written hundreds or even thousands of years later. For example, the Napoleonic Code was based heavily on the Justinian Code, and civil law in Québec is based on the Napoleonic Code.

Did You Know?Under the Code of Hammurabi, if a man destroyed the eye of another man, the victim was entitled to destroy his assailant’s eye. This is the origin of the expression, “An eye for an eye, atooth for a tooth.”

codifi cation the process of assembling a system of laws into a body of statutes

Code of Hammurabi one of the earliest known sets of written laws, recorded by King Hammurabi of Babylon in 1750 BCE


ActivityTo learn more about the Code of Hammurabi,

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Both the Code of Hammurabi and Mosaic law illustrate systems that followed the concept of retribution. For every crime there should be a deserved punishment. In early law, most crimes had harsh punishments. For example, under the Code of Hammurabi, the penalty for receiving stolen goods was death. Under Mosaic law, hitting your mother or father was punishable by death.

Mosaic law also introduced the concept of restitution. This is paying back the victim for the harm done by an offender. If you were found guilty of theft, you were required to repay the victim for the goods stolen. In recent years, restitution has become a more common punishment in Canadian law and is discussed further in Chapter 9.

The Feudal System and Common Law In 1066, William, Duke of Normandy (in what is now France), invaded and conquered England. As the king of England, William introduced a system of government from Europe called the feudal system. The king owned all the land and divided much of it among his lords and nobles. In return, the lords became the king’s vassals (servants) and promised him loyalty and military service. These lords had vassals of their own who farmed the lands and gave part of their produce to the lords and the Church. Some of them also served in the armies of the lords.

In this historic illustration, vassals receive their lord’s orders before going to the fi elds to farm.

retribution a deserved punishment for a wrong

restitution the act of making good, restoring, or compensating a person for a wrong that was done to him or her

feudal system a political, social, and economic system prevalent in Europe between the ninth and fi fteenth centuries


A lord’s land was called his manor, or estate, and he ran it as he saw fi t. For example, a lord acted as the judge in any trial of a vassal accused of breaking the law. Injustice often resulted. One lord might fi nd a vassal guilty of theft and order repayment plus compen-sation for trouble to the victim. Another might sentence the vassal to death for the same crime. To eliminate these inconsistencies, the king appointed a number of judges who travelled throughout England and held hearings on controversial or disputed cases. These judges met regularly in London to discuss cases and share experiences. By the thirteenth century, the laws and punishments were more similar for both criminal and civil cases. When similar legal issues arose, judges began to decide similar cases in the same way, which were recorded and became known as case law.

As judges developed standard punishments for spe-cifi c crimes, these legal decisions became the basis of English common law, so called because it was common to the whole of England. Common law relied on case law or precedent cases. As the legal system became more just, it earned new respect. This common law system was introduced to North America by the colo-nists who fi rst travelled here.

Common law is based upon the important principle of the rule of precedent. A precedent is something that has been done before. For example, a ruling in one case can later determine how future cases are handled. The rule of precedent is part of the English law that has been passed down to Canada. A case and its decision became common knowledge in the English legal community. Then, all judges who heard cases with similar facts would give similar decisions. By treating similar cases alike, English judges established the same standard of judging offences throughout the country. At fi rst, these case decisions existed only in the judges’ memories. They were known as “unwritten law.” This system was considered an improvement over the feudal system. In it, a lord had the right to judge cases however he chose. People who were dissatisfi ed with court decisions could appeal to the monarch, who had the authority to overrule judges’ decisions. Today, the legal system still has an appeal process of applying to a higher court to review a decision of a lower court. Each province has a court of appeal. The highest court is the Supreme Court of Canada.

Common LawThe common law system developed in England. It relied on case law and was common for all people.

When a legal case was hard to decide, the judge would sometimes order a new trial to be “determined” by God. Trial by combat was one way to choose the winner. The victor was assumed innocent, and the loser, guilty.

case law recorded written decisions of judges; also known as common law

common law a system of law based on past legal decisions; also known as case law

precedent a legal decision that serves as an example and authority in subsequent similar cases

appeal referring a case to a higher court to reconsider the lower court’s decision


ActivityTo learn how to access written Canadian court decisions on the Internet,

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PrecedentOur Canadian legal system relies heavily on precedent, ensuring that similar facts result in similar decisions.

Did You Know?Today, the term “commonlaw” relates to law basedon judges’ decisions,precedent, and reportedcase law. It is distinctfrom the law passed bygovernments, and itserves as a major part ofCanadian law today.

Precedent

Today, lawyers and judges still refer to earlier decisions on cases that are identical or similar to the one they are dealing with as precedents. These earlier cases are considered examples that should be followed. They infl uence and guide judges when they reach a verdict and pass sentence.

The rule of precedent introduces some certainty into the law. It means that everyone, including the accused, can examine similar cases and arguments and expect a similar result. Today, trial lawyers spend much time submit-ting precedents, hoping to persuade the judge to reach a similar decision. Many older cases in this text are landmark judgments that set precedents that are still followed by the courts today. Of course, following earlier cases too closely can cause a problem if the precedent is not recent. Henry VIII of England issued a law that cats should be allowed to roam at will. He did so because of the huge numbers of rodents in England at the time. This law is not a suitable precedent for modern apartment building rules.

Case Law CitationAs the number of judges and court cases increased in Canada, it became necessary to record the decisions. Many court case decisions are recorded and published. You can fi nd them in paper and electronic form. Thus, common law is often called case law. You can retrieve these cases from sources such as Canadian Criminal Cases (C.C.C.), Reports of Family Law (R.F.L.), or Supreme Court Reports (S.C.R.). You can also use case reporting websites, such as CanLII, the Canadian Legal Information Institute.

Each recorded case is given a title, or citation. The citation lists basic information: who is involved in the case, whether the case is public or private (civil) law, and the year the court decision was reached. It also identifi es which court heard the case and the name of the published book (the law reporting series of books) in which the court decision appears. This information makes it easy to locate the case in a law library.

Most high school students cannot access a law library. Therefore, this textbook uses neutral citations. These specify the case name, the year of the decision, the court hearing the case, and a court-assigned number for an Internet case-reporting website. You can fi nd the citations online at an Internet case-reporting website, or by visiting the Nelson Social Studies website.

Did You Know?Sometimes the rule of precedent is known as stare decisis, a Latin phrase that means “to stand by earlier decisions.”

citation the reference for a legal case


These charts show the elements of a citation for a neutral online citation andfor a citation in a case-reporting series of books. In this text, most cases use a neutral citation followed by a reference to the Nelson Social Studies website.

Elements of a Citation

NEUTRAL (Online) CITATIONCriminal Law Citation: R. v. Ferguson, 2008 SCC 6 (CanLII)

R. v. Ferguson, 2008 SCC 6 CanLII

Regina or Rex (Latin for “queen” or “king”) represents society

versus (Latin for “against”)

defendant (accused)

year ofdecision

Supreme Court of Canada; the court hearing the case

number assigned by the court

Canadian LegalInformation Institute, which provides accessto full case decisionson the Internet

CASE-REPORTING SERIES CITATIONCriminal Citation: R. v. Bates (2000), 35 C.R. (5th) 327 (Ont. C.A.)

R. v. Bates (2000), 35 C.R. (5th ) 327 (Ont. C.A.)

Regina or Rex (Latin for “queen” or “king”) represents society


defendant (accused)

year of decision

volume number

name of reporter where case is reported (e.g., Criminal Reports)

series pagenumber

jurisdiction (federal, province, or territory) and court (e.g., Ontario Court of Appeal)

Civil Citation: Langille et al. v. McGrath (2000), 233 N.B.R. (2d) 29 (N.B.Q.B.)

Langille et al. v. McGrath (2000), 233 N.B.R. (2d) 29 (N.B.Q.B.)

plaintiff and others (Latin et alia for “and others”)


defendant year of decision

volume number

name of reporterwhere caseis reported(e.g., New Brunswick Reports)

series page number

jurisdiction (federal, province, or territory) and court (e.g., New Brunswick Court of Queen’s Bench)

Civil Law Citation: Cowles v. Balac, 2006 CanLII 34916 (ON C.A.)

Cowles v. Balac, 2006 CanLII 34916 (ON C.A.)

plaintiff(person suing)


defendant (person being sued)

year ofdecision

Canadian Legal Information Institute, which provides access to full case decisions on the Internet

number assigned bythe legalinformation service

Ontario Court of Appeal


Case

Grant v. Dempsey, 2001 NSSC 20 (CanLII)

For more information,

Case

R. v. Kerr, 2004 SCC 44 (CanLII)

For more information,

On October 14, 1995, the 18-year-old plaintiff, Adrian Grant, was lying in the middle of a street in Middleton, Nova Scotia, severely intoxicated, wearing dark clothing. At 1:30 a.m., he was run over and seri-ously injured by a van operated by Garth Dempsey. Dempsey had been working late and was driving home at the legal speed. It was a dark, dry night with no streetlights in the area. Dempsey had just put his lights low before meeting an oncoming vehicle. He did not have time to put his high-beam lights on before he saw an object right in front of him. Dempsey thought it was a duffl e bag or a garbage bag on the road. When he realized he had run over a person he called 911.

Evidence at trial indicated that Adrian Grant had a blood-alcohol level about two and one-half times the legal limit for driving and he had no recollection of how he came to be lying on the road. Adrian Grant sued for personal injuries.

For DiscussionExplain the components of the case citation.1. What type of law is involved in this case?2. Was Grant responsible for his own injuries? 3. Explain.

Was Dempsey’s driving at fault? Explain.4.

The accused, Jason Kerr, was serving time for armed robbery in a maximum security prison in Edmonton, Alberta, where Joseph Garon, a fellow inmate, made death threats against him. Garon had been a member of a criminal gang that controlled inmates inside the prison through intimidation and assaults. After Garon threatened to “smash his head in,” Kerr was worried that Garon might carry out the threat, and so he con-cealed two weapons in his pants. When Kerr went to the dining area, Garon approached him holding out a homemade knife. A fi ght resulted where both Kerr and Garon stabbed each other multiple times. Garon was killed by a stab wound to the head. Kerr was charged with second degree murder and possession of a dangerous weapon.

Kerr was acquitted at trial on the basis that the murder was self-defence and he had the weapons for defence. The Crown appealed to the Alberta Court

of Appeal on January 30, 2003. The Court of Appeal upheld the trial decision of self-defence but convicted Kerr on the weapons charge. Kerr appealed to the Supreme Court of Canada. In a 6–1 judgment released June 23, 2004, the Supreme Court allowed the appeal and acquitted Kerr on the weapons charge.

For DiscussionExplain the components of the case citation.1. What type of law is involved in this case?2. Do you think the accused planned the 3. attack? Explain.

What factors do you think the trial judge 4. and court of appeal judges took into consideration in acquitting the accused on the charge of second-degree murder?

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The Rule of Law and the Magna CartaWhen King John ruled England (1199–1216), there was an important devel-opment in English law. The king thought he was above the law and abused the power of his position. Eventually, the English nobility forced King John to sign the Magna Carta, the “Great Charter,” in 1215. This famous document recognized the principle of the rule of law. This principle required that all rulers obey the law. In addition, no ruler could restrict the freedoms of the people without reason. The people’s legal rights could not be changed without their consent. The Magna Carta also guaranteed the right of habeas corpus. This meant that any person who was imprisoned was entitled to appear before the courts within a reasonable time. The accused could be released if held unlawfully, or tried by peers (equals) if charged with an offence. The right of habeas corpus is guaranteed in today’s Charter, section 10(c).

King John receives the Magna Carta. The Magna Carta recognized the principle of the rule of law.

rule of law the fundamental principle that the law applies equally to all persons

habeas corpus a document that requires a person to be brought to court to determine if he or she is being legally detained


Canadians are governed by the rule of law. Government offi cials cannot make up or change the rules without consulting anyone else. The rule of law exists because our society believes that there should be equality under the law and that decisions should not be made arbitrarily (without reason or justifi cation).

Parliament and Statute LawAlthough King John and his successors had to obey the law, they still struggled for power with the English nobles. Around 1265, a group of nobles revolted against King Henry III to make him reform the English legal process. These nobles wanted to reduce the king’s power and acquire more power for themselves. As a result, representatives were called together from all parts of England, forming the fi rst Parliament. The job of Parliament was to help make laws for the country. Over the next four centuries, Parliament struggled for power with the monarchs of Great Britain.

One of the most important functions of Parliament is to pass laws, known as statutes. As British society changed, common law and case law could not address every legal situation. Parliament fi lled the gaps and made new laws to deal with new situations. In addition, many common law decisions made by the courts were codifi ed by Parliament and became statute law. One important outcome of recording laws and court decisions was that it allowed the public to read the laws and know what they said.

Did You Know?In December 2007, arare 710-year-old copyof the Magna Cartafetched $21.3 millionat Sotheby’s auctionhouse in New York.

The Magna Carta wasfi rst issued in 1215 and reissued throughout the thirteenth century by England’s rulers. This photo shows the 1297 version.

statute a law passed by a legislative body


In making a decision in any case, courts must consider both the common law and the statute law. Canadian law is made up of both common law decisions and statute laws passed by government.

1.5 How Rights Have Developed in CanadaCanada is often thought of as one of the best countries in the world in which to live. It ranks near the top of the UN Human Development Index report. The report measures things like standard of living, life expectancy, and literacy. One reason for its rank is that Canada highly values civil rights and freedoms, which limit the power that a government has over its citizens. Canada also respects human rights. These protect people from unfair discrimination by other individuals. Compared to people in many other countries, Canadians can feel secure in almost all areas of their lives. Canadians are free because laws are passed and enforced to protect their rights and freedoms. In fact, many other countries look to Canada as an example of what a free society can be.

Wealth, gender, race, age, beliefs, family status, and so on are not supposed to determine how you are treated in Canada. Today, everyone is considered equal under the law. This belief is a foundation of Canadian society and Canadian law. As a result, Canadians expect their laws to be fair and just for everyone. This situation is quite new. In Chapter 2 you will learn more about the Charter of Rights and Freedoms, and in Chapter 3 you will learn that Canada has not always treated different groups of people equally.

Being equal under the law is a very recent legal concept in human history. If you were born a slave in ancient Babylon in 1700 BCE, you had few legal rights — unless you married someone of a higher class. If you were born a peasant in sixteenth-century France, you would probably die a peasant. For thousands of years, the vast majority of people had few, if any, rights. People had little opportunity to improve their lives. It took many hundreds of years for the concept of human rights and freedoms to take root and spread. Many wars and revolutions had to be fought in order to win these rights. In the next section, a few major events in that struggle will be examined.

The United NationsHuman DevelopmentIndex, 2007–2008

Country HDIRanking

Iceland 1

Norway 2

Australia 3

Canada 4

Ireland 5

Sweden 6

Switzerland 7

Japan 8

Netherlands 9

France 10

Finland 11

United States 12

Canada ranked fourth on the Human Development Index for 2007 to 2008.

Explain the significance of the Code of Hammurabi and Mosaic law.1.

How did the English common law system develop?2.

How is the rule of precedent used in today’s system of law?3.

Why is a case citation useful in law?4.

Explain the significance of statute law as a source of law.5.


civil rights the rights of citizens that limit the power of governments


The Development of HumanRights and FreedomsAs you previously learned in this chapter, the earliest legal codes imposed laws and punishments that most Canadians today would consider cruel. These laws were meant to ensure that these societies would survive. Human rights simply were not an issue. The Magna Carta and later the Bill of Rights helped lay the groundwork for our modern legal system.

These and other events showed that beliefs about rights could lead to changes in governing. By the end of the seventeenth century, many Western legal and moral thinkers believed that human beings had rights to life, lib-erty, and security. Such rights were thought to exist independently of any rights or duties created by a ruler, government, church, or society. Those in power felt threatened by these ideas, which spread quickly in Europe and North America.

Rights and RevolutionsThe American Revolution broke out in 1775. People in 13 colonies were angry over new taxes and lack of representation in Parliament. They fought for independence from Great Britain. The U.S. Declaration of Independence was issued on July 4, 1776. The revolution did not end until 1783. In 1788, the U.S. Constitution was written and became law. Criticized for not

containing a bill of rights, 10 changes were made to the Constitution in 1791. These changes became the U.S. Bill of Rights. They are still the basis of freedom and civil rightsfor Americans.

New ideas spread through-out Europe and North America in the centuries leading up to the American Revolution. Perhaps the most radical idea was that the rules governing people must change if they do not protect citizens’ rights.

In the eighteenth century, a group of French thinkers known as the philosophes wrote books and pamphlets attacking the power of the French king, the nobles, and the Church. They wanted an end to the feudal system and more freedom for the French people. These ideas helped start the American Revolution.

In this historic painting, John Hancock signs the U.S. Declaration of Independence in 1776, during the American Revolution.


France also sent ships and troops to help the Americans. Returning soldiers brought back stories of the successful American Revolution and the ideas of liberty and equality. This fed the growing demands for change in France.

Ultimately, in 1789, just one year after the U.S. Constitution became law, the common people in France rose up against their king. The people were rebelling against the power of the nobles and the Church. The feudal system and the privileges of rulers and Church were abolished during the French Revolution. A National Assembly (similar to the House of Commons) was set up, and its members were elected by the people. The Western idea of a “nation-state,” as we understand it today, came out of these revolutions.

On August 26, 1789, the National Assembly passed the Declaration of the Rights of Man and of the Citizen. It guaranteed all French citizens their basic freedoms and became the basis of future modern democracies.

The Declaration of the Rights of Man and of the Citizen was a document that infl uenced the development of rights and freedoms in other democracies.

Did You Know?Article 1 of the Declaration of the Rights of Man and ofthe Citizen states: Men are born and remain free and equal in rights.


The Universal Declaration of Human Rights was the fi rst time nations from around the world had signed a formal agreement on specifi c rights and freedoms for all human beings. For billions of people — perhaps the majority of people — the guarantees contained in the Declaration are unfulfi lled. More than 60 years after it was passed, however, the Declaration remains a standard that many countries have tried to live up to and put into effect.

Did You Know?A New Brunswick native, John Humphrey, is the person who wrote the fi rst draft of the Universal Declaration of Human Rights, a document that changed the world.

The Universal Declaration of Human RightsWorld War II was the most destructive war in history and one that truly spanned the globe. Many groups of people were rounded up and sent to camps, where millions of prisoners were killed, including more than 6 million Jews. There were also at least 5 million non-Jewish victims, including Gypsies, political enemies, gays, and disabled people. People around the world were horrifi ed when the camps were discovered near the end of the war.

In 1945, world leaders formed the United Nations. One of the United Nations’ fi rst steps was to try to guarantee all people certain rights and freedoms. The UN Commission on Human Rights was set up to produce a list of human rights and freedoms for people all over the world. The Universal Declaration of Human Rights was adopted by the United Nations on December 10, 1948.

The Universal Declaration of Human RightsSome of the rights guaranteed under the Universal Declarationof Human Rights:

• All human beings are born free and equal in dignity and rights.

• Everyone is entitled to all the rights set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language,religion, political or other opinion, national or social origin,property, birth, or other status.

• Everyone has the right to life, liberty, and security of person.

• No one shall be held in slavery or servitude.

• No one shall be subjected to torture or to cruel, inhuman, ordegrading treatment or punishment.

• All are equal before the law and are entitled without anydiscrimination to equal protection of the law.

• No one shall be subjected to arbitrary arrest, detention, or exile.

• Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial.

• Everyone has the right to freedom of movement.

• Everyone has the right to freedom of thought, conscience,and religion.

• Everyone has the right to freedom of opinion and expression.

• Everyone has the right to freedom of peaceful assembly andassociation.

• Everyone, without any discrimination, has the right to equal payfor equal work.


As you have learned, much of Canadian law is based on English common law. Common law is unwritten and based on customs and earlier court decisions. As a result, for many years, Canadians had legal rights that were not written down but simply understood to exist. One example of this was the right to be charged and tried in a court of law if accused of a crime. After the rights abuses of World War II, many Canadians came to believe that legal rights had to be written down.

In 1945, John Diefenbaker, a young Member of Parliament (MP), led a movement to have these rights made into law.He was defeated by MPswho thought that Canada’s tradition of common law was good enough. Diefenbaker later became leader of the Pro- gressive Conservative Party. In federal election campaigns in 1957 and 1958, he prom-ised a bill of rights for all Canadians.

As prime minister, Diefenbaker kept his promise. Parliament passed the Canadian Bill of Rights on August 10, 1960. This federal legislation was not revolutionary. It merely set down in legislation the civil rights and freedoms that Canadians had already enjoyed under common law. It also reminded Canadians of the importance of individual rights.

For DiscussionWhy was the 1. Canadian Bill of Rights an important step in the development of civil liberties in Canada?

A fundamental principle identified in the 2. Canadian Bill of Rights is “the right to be presumed innocent until proven guilty.”Why is this principle important to ourjustice system?

Compare the rights identified in the3. Canadian Bill of Rights with the rights provided in the Universal Declaration of Human Rights in the figure on page 24.What similarities are there?

Which right do you think was most important 4. under the Canadian Bill of Rights? Why?

Looking Back

John Diefenbaker and the Canadian Bill of Rights

John Diefenbaker holds the Canadian Bill of Rights.

The Canadian Bill of RightsRights guaranteed under the Canadian Bill of Rights include the following:

• the right to life, liberty, and security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law

• the right to equality before the law andits protection

• 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 punishment

• the right to be informed promptly of the reason for arrest

• the right to retain and instruct counsel without delay

• the right to obtain a writ of habeas corpus to determine the validity of detention

• the right not to give evidence if denied counsel, and protection against self-incrimination

• the right to a fair hearing

• the right to be presumed innocent until proven guilty

• the right to reasonable bail

• the right to an interpreter in any legal proceedings

The Canadian Bill of Rights gave Canadians human rights and fundamental freedoms without discrimination by reason of race, national origin, colour, religion, or sex.


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Constitutional Protection of Civil RightsThe Canadian Bill of Rights did not stop demands for stronger protection of rights and was criticized for several reasons. As a federal statute (law), it applied only to federal matters, and Parliament could change it at any time. Not only that, it did little to protect equality rights.

In the mid-1960s, the new leader of the Liberal Party, Pierre Elliott Trudeau, captured Canadians’ imaginations. He spoke of a “just society.” He promised greater social justice and stronger guarantees of individual rights. Trudeau was prime minister for most of the time between 1968 and 1984. He was largely responsible for the Constitution Act, 1982.

Many Canadians consider the Canadian Charter of Rights and Freedomsto be the most important part of the Constitution Act, 1982. It lists the civil rights and freedoms of all Canadians. It guarantees them at every level of government. The Charter is not ordinary statute law, it is constitutional law. Parliament cannot vote to change or abolish it. In order to change constitutional law, the federal government and at least two-thirds of the provinces with 50 percent of the population must agree. This is called the amending formula. The rights and freedoms listed in the Charter are part of the Constitution. The entire Charter can be found in Appendix A, pages 598–601.

Section 24 of the Charter details the enforcement of guaranteed rights and freedoms. It states that anyone whose Charter rights or freedoms are violated may go to court to seek a remedy. For example, police must carry out fair and reasonable investigations when searching for evidence. If they improperly search for drugs and violate your Charter rights, you can apply to the court to have the drug evidence thrown out. The court may decide to exclude the evidence, especially if allowing it makes the trial unfair.

Pierre Elliott Trudeau was victorious at the 1968 Liberal leadership convention. On April 20, 1968, he was sworn in as the next prime minister of Canada.

Explain the difference between civil rights and human rights.1.

What impact did the U.S. 2. Bill of Rights have on the development of rights laws?

Explain the significance of the Declaration of the Rights of Man and3. of the Citizen.

What factors contributed to the passing of the Universal Declaration 4. of Human Rights? Why is this document significant today?

Explain the amending formula necessary to change Canada’s 5. Constitution.


amending formula the procedure to change (amend) Canada’s Constitution


Did You Know?The BNA Act was renamed the Constitution Act, 1867. The main part of the Constitution Act, 1982, is the Constitution Act, 1867. Other key elements of the Constitution Act, 1982, include the Canadian Charter of Rights and Freedoms and the amending formula forthe Constitution.

1.6 The Development of Canada’s ConstitutionThe powers and levels of government that make law are described in the Canadian Constitution. The British Parliament passed our fi rst constitution, the British North America Act (BNA Act). It came into effect on July 1, 1867 and the Dominion of Canada was born. Four provinces made up the country: Ontario, Québec, New Brunswick, and Nova Scotia. Canada was not fully independent — Britain still controlled Canada’s foreign affairs. For example, Canada could not make its own treaties with other countries. When Britain declared war, Canada was automatically at war. Canada’s highest court was in Britain, the Judicial Committee of the Privy Council (JCPC). It could over-rule decisions made by the Canadian courts.

Gradually, Canada assumed more control over its own affairs. In 1931, British Parliament passed the Statute of Westminster, giving Canada control over its foreign affairs. When World War II broke out in 1939, Canada declared war on Germany independent of Britain. Then, in 1949, the Supreme Court of Canada became Canada’s highest court of appeal. However, one link to Britain prevented Canada from being truly indepen-dent. The BNA Act was a British statute and only the British Parliament could change (amend) it. Canada had to ask Britain about any changes it wanted to make. For example, in 1940, the Canadian federal government wanted to include unemployment insurance in the BNA Act as one of its powers. The British Parliament had to pass the amendment.

In the twentieth century, Britain was willing to give Canada its own constitution and allow it to be independent. However, the fed-eral and provincial governments were suspicious of each other and unwilling to risk losing any powers. They could not agree on a for-mula to amend the Constitution, if change became necessary.

The Constitution was transferredto Canada from Britain on April 17, 1982, and Canada fi nally became an independent country. This process was called patriation. The Queen, shown here with Prime Minister Pierre Elliott Trudeau, signed the Constitution Act, 1982, in Ottawa.

patriation the process of bringing legislation back under the legal authority of the country to which it applies


Federal and Provincial Government PowersFederal Government Powers(Section 91)

Provincial Government Powers(Section 92)

• peace, order, and good government• criminal law• unemployment insurance• banking, currency, and coinage• federal penitentiaries• marriage and divorce• postal services• Aboriginal peoples and their lands

• property and civil rights• marriage ceremonies• police forces and provincial

courts• highways and roads• provincial jails• hospitals

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Division of PowersThe Constitution Act, 1867, lists federal, provincial, and territorial govern-ment powers. It outlines which government has jurisdiction, or authority, to make laws in specifi c areas. The federal government’s powers are outlined in section 91. Provincial government powers are outlined in section 92. Section 93 gives the provinces control over education. The chart below gives specifi c examples of some of the federal and provincial government powers.

Federal and provincial government powersas set forth in the Constitution Act, 1867

The Constitution clearly spells out the division of powers. However, there are still many disputes between levels of government. For example, providing health care is a provincial responsibility. But the federal government tries to set national standards that guarantee all Canadians equal access to health care. Some provinces argue that if the federal government wants to set standards for provincial systems, it should provide more money. Sometimes, these disputes end up in court.

Cities and Townships: A Third Level of GovernmentThe Constitution Act, 1867, established only two levels of government. The provinces gave some of their powers to a third level, local municipalities. Municipalities include cities, towns, townships, villages, and counties. The laws that govern the activities of a local community are called bylaws. They are passed by municipal governments and relate to local issues such as emer-gency services, building permits, the use of pesticides on your lawn, and so on.

Explain the significance of the 1. British North America Act.

Why is the Statute of Westminster important in Canadian law?2. Why did it take so long for Canada to get control of its own Constitution?3. Distinguish between sections 91 and 92 of the 4. Constitution Act, 1867, and identify three important powers contained in each section.

What is the third level of government in Canada? What type of laws 5. does it pass?


jurisdiction authority to do something, such as make laws


Examples ofStatute LawFederal Statutes

• Criminal Code of Canada• Controlled Drugs and

Substances Act• Youth Criminal Justice Act• Hazardous Products Act• Anti-terrorism Act• Income Tax Act

Provincial Statutes

• Alberta HighwayTraffi c Act

• Ontario Child and Family Services Act

• British ColumbiaMarriage Act

• Saskatchewan Sale of Goods Act

• Nova Scotia Hospitals Act• New Brunswick Jury Act

Did You Know?The judiciary is an independent part of the government made up of judges who are appointed to hear legal cases in our court system, interpret the laws, and make unbiased legal decisions.

The Three Branches of Government in CanadaBranches Federal Provincial

Executive Governor General (Monarch) Lieutenant-Governor (Monarch)

Prime Minister Premier

Federal Cabinet Cabinet

Civil Service Civil Service

Legislative Parliament Provincial Legislature

Governor General (Monarch) Lieutenant-Governor (Monarch)

House of Commons Elected House

Senate

Judiciary Federal Judiciary Provincial Judiciary

1.7 How Laws Are MadeWhen Canadian governments want to make or change laws, they must con-sider what effect that might have. An unpopular law might cause a Member of Parliament (MP) to be defeated in the next election. Before a law is changed or a new law is created, governments spend time and money researching the effects the law is likely to have. A law that the government has proposed is called a bill. Once a bill is passed, it becomes a statute or an act.

How Federal Laws Are PassedParliament, which makes our federal laws, consists of three parts: the House of Commons, the Senate, and the governor general, who represents Canada’s head of state, Queen Elizabeth II. The House of Commons is the part of Parliament that has the most important role in making laws. Its representa-tives are elected by the citizens of Canada.

Each Member of Parliament (MP) is an elected representative of a riding or electoral district. Canada is divided into 308 ridings. There is an MP for every geographical area. The political party with the most members elected to the House of Commons forms the government. The other parties in the House are called opposition parties. The leader of the governing party is the prime minister. He or she appoints MPs from his or her party to the Cabinet, which is the executive committee that controls government policy. Cabinet ministers are the heads of government departments that employ thousands of civil servants. They see that federal laws are carried out (refer to the chart on page 28 for the list of federal powers).

The federal Parliament and provincial legislatures pass their own statute laws, generally referredto as acts.

The three branches of government — executive, legislative, and judiciary — each plays a role in changing or interpreting the law.

bill a proposed law; a draft form of an act or statute


Passage of a Bill into Law at the Federal Level Who Stage

When a government wants to introduce a new law in Canada, a Cabinet minister introduces a bill into the House of Commons. If the prime min-ister’s party has a majority government (more than half the elected MPs), there is usually no diffi culty getting the bill passed. But, if it does not have a majority, it will have to make deals with the opposition to get the bill passed. Once approved, the bill is sent to the Senate. If approved there, it is sent to the governor general, who signs it into law. When a bill becomes law, all Canadians have to obey it or face the consequences.

Did You Know?The executive is a level of the federal government that carries out the administration of the government’s plans and policies and includes the prime minister, the Cabinet, and the civil service.

House ofCommons

First Reading• Bill introduced by a Cabinet minister or private member• First vote taken

Second Reading• Bill introduced again and debated in general• Second vote taken

Committee Stage• Bill usually sent to a select committee, standing committee, or

committee of the whole House• Bill studied in detail, and changes (amendments) often made;

each section may be voted on separately

Third Reading• Bill briefl y debated• Third vote taken

Senate • Bill goes through three readings and committees, as in the House of Commons

GovernorGeneral

• Signs bill to become a law (royal assent)

The legislative branch of government makes the laws. It consists of the House of Commons and the Senate. Why do you think it is important to have three readings of a bill in the Houseof Commons?

The House of Commons


Digital rights not available.

How Provincial Laws Are PassedProvincial and territorial legislatures pass bills similarly to Parliament. However, they do not have Senates. Once bills pass through three readings,they go to the lieutenant-governor, the Queen’s representative, for signature.

How Municipal Bylaws Are PassedElected councils, led by a mayor or reeve, vote on municipal bylaws. Procedures vary from one municipality to the next. Municipal bylaws may regulate activities such as garbage collection and water services, local police services, and municipal road maintenance.

Why is the House of Commons the most powerful part of Parliament?1. What are the responsibilities of Cabinet ministers?2. Briefly summarize how a bill becomes a law at the federal level.3. What is the responsibility of the governor general with respect to the4. law-making process?

What is the responsibility of a provincial lieutenant-governor? 5.


Governor General Michaëlle Jean represents the Queen in Canadaas head of state.


1 law: its purpose and history

Documents