01 – The Canadian Legal System

Questão	Responda
Law is a	“body of rules made by government that can be enforced by the courts or by other government agencies.”
Procedural laws determine	how the substantive law will be enforced, or how legal objectives may be achieved.
It is important to divide the law into two main categories:	substantive law and procedural law. Substantive law is the body of law that governs a society; it establishes the rights of and limitations on individual behaviour. The law relating to contractual relationships is an example of substantive law.
Law can also be divided according to whether it is	private law or public law. Private law involves the rules that govern our personal, social and business relations. Public law governs the relations between governments or between the government and individuals. Constitutional law is an example of public law
The civil law system is based on a	a Civil Code with origins in the Napoleonic Code, which comprises legal rules that judges apply to the cases at hand. Judges are limited to determining whether a law has been followed based on what is set out in the code.
In a common law system	, judges make decisions based on the theory of precedent; that is, they look at how a similar case has been decided previously to make a decision about the current case at hand. This led to the Latin maxim stare decisis, which means “let the previous decision stand.”
Statute law	which is law made by the legislative branch of government. Legislation starts off as a bill, and if a bill is enacted, it is then called a statute.
In Canada, there are two main or important constitutional acts:	the Constitution Act, 1867 — formerly known as the British North America Act — and the Constitution Act, 1982, which includes the Canadian Charter of Rights and Freedoms.
The Constitution Act, 1867 set up the	fundamental structures of the state, executive, and judicial branches of government, and it provided the division of legislative powers between the federal and provincial governments.
In 1982, the	Charter of Rights and Freedoms was entrenched in the Canadian Constitution with the enactment of the Constitution Act, 1982. The Charter of Rights and Freedoms (often referred to simply as the Charter)
Ultra vires	(beyond ones jurisdiction or power) An example of this occurred in British Columbia when a provincial loitering bylaw was ruled ultra vires (beyond one’s jurisdiction or power) of the provincial government because it was an attempt to control prostitution, which is a federal matter.
The principle of paramountcy requires that	where there is overlap, the federal legislation will be operative (take precedence), and the provincial legislation will go into abeyance (be suspended) and no longer be applicable, as it would be impossible to obey both governments if the legislation conflicted.
the Canadian Bill of Rights and the Charter address protecting individuals rights from abuses by	government, various federal and provincial statues have been enacted with the aim of protecting an individual’s rights from abuse by other members of the public. Initially was designed to stop discrimination against identifiable minority groups in specific areas such as hotels and restaurants.
Canada Human Rights Act (CHRC) – These statutes aim at ensuring that	individuals will have access to employment without facing barriers created through discrimination. Access to facilities and services customarily available to the public, as well as to accommodation. These acts prohibit discrimination relating to gender, religion, ethnic origin, race, age, disabilities and various other prohibited grounds. Sexual orientation and pardoned criminal conviction.
The Charter is entrenched, which means	the legislation cannot be repealed or amended by an ordinary act of Parliament or ordinary legislation
The main provisions of the Charter that most citizens are concerned with are as follows:	o Fundamental Freedoms —section 2 o Democratic Rights — sections 3, 4, and 5 o Mobility Rights —section 6 o Legal Rights — sections 7 -14 o Equality Rights — section 15 o Language Rights — sections 16-22
In a criminal action,	the state (called the Crown in Canada) initiates the proceedings against the accused in the name of the Queen. A crime is a public offence — a wrong against the public — and the public or society is represented by the Crown.
In a civil action	the wrong that has occurred is usually between two private parties: a plaintiff, who initiates an action, and the defendant, who must respond
In both a criminal action and a civil action, the party that initiates the proceedings has the	burden of proof; that is, the Crown in a criminal action and the plaintiff in a civil action have the burden of proving that their allegations are correct
There are different standards of proof	in criminal and civil actions. In Criminal, the Crown must prove the guilt of the accused beyond a reasonable doubt. In Civil, the plaintiff must prove the liability of the defendant on the balance of probabilities.
Using courts	Image: using_courts (image/jpg)
Enforcement of judgement	Image: using_courts2 (image/jpg)
GENERAL DAMAGES	are based on estimates, such as when the court awards compensation for pain and suffering or for future lost wages
SPECIAL DAMAGES	are calculated to reimburse the litigant for expenses or costs incurred before the trial
PUNITIVE or EXEMPLARY DAMAGES	are intended not to compensate the victim but rather to punish the wrongdoer for outrageous or extreme behaviour.
Negotiation	occurs when the disputing parties meet, either on their own or through representatives, to try to resolve a dispute. Any resolution made is not binding, and to be successful, the disputing parties must want to resolve the issues and be willing to provide all required information. Where the parties are hostile toward each other, negotiations are usually not successful. • Negotiation requires cooperation and compromise • Representatives may conduct negotiation • Relationship may be enhanced
In mediation	a neutral third party, called the mediator, assists the parties in negotiating an agreement to resolve their differences. Mediators are very active in aiding the parties to explore the issues disputed and devise possible solutions. Mediators have no authority to impose a solution on the parties, and in mediation the parties are free to craft any solution they believe will further their interests • Neutral 3rd party facilitates communication • Mediator does not make decision • Mediator finds common ground • Successful mediation requires balance of power and willingness to act in good faith
In arbitration	the parties select an arbitrator who makes a binding decision based on the evidence presented; again, this is usually someone with expertise. • Arbitration involves 3rd party decision maker • Arbitrators are chosen by parties • Arbitrators may be experts in the field • Procedure must be fair • Decision cannot be appealed but process may be reviewed by court • 3rd party makes decision that is binding • Arbitration is private
Advantages and disadvantages of ADR alternative dispute resolution (ADR)	• ADR leaves control in the hands of the parties • Less delay with ADR • Less distraction with ADR • Less expense with ADR • Risk of adverse judgement reduced • Good relationship can be retained with ADR • ADR provides more flexibility • ADR can resolve conflicts between business operating internationally Disadvantages • ADR cannot ensure full disclosure • ADR does little to overcaome a power imbalance • ADR cannot ensure consistent outcomes • ADR agreements not enforceable or appealable

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