SOCIAL STUDIES 11 CANADA S LEGAL SYSTEM CH. 11

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1 SOCIAL STUDIES 11 CANADA S LEGAL SYSTEM CH. 11 MRS. KAUSHAL 1 The Rule of Law 1. Basic principle is that no one is above the law and everyone is subject to it. This means that we are governed by a fixed set of laws that apply to all people equally, regardless of their position in society. 2. Great symbol is the Magna Carta, signed by King John of England in 1215, under pressure from the British barons to limit his powers. The Magna Carta guaranteed many rights for British citizens, including trial by jury and habeas corpus (the right to be brought before a court soon after arrest and released if the judge finds there is no legal charge). 3. The Constitution of Canada is the supreme law of Canada. It prevents governments from abusing their authority. 4. The Charter of Rights and Freedoms takes precedence over any laws passed by any government in Canada. It protects the fundamental freedoms of Canadians and guarantees their democratic, mobility, legal, equality, and language rights. The Main Categories of Law 1. Civil Law a. Deals with relationships between individuals or groups b. Usually involves disputes over contracts, property, or personal relationships. c. Property can be physical (possessions), intellectual (ideas), or creative (artwork). d. Examples of civil suits neighbours disagreeing over property damage, accident victims seeking compensation for injuries, or child custody in a divorce case e. The person who claims to have suffered harm, loss, or injury to self or property is called the plaintiff. He or she sues the alleged wrongdoer, called the defendant.

2 2. Criminal Law a. Deals with matters that affect society as a whole b. Criminal acts are considered to be committed against the state, not just against individual victims. c. Contained in the Criminal Code of Canada, passed in 1892 d. Criminal cases are carried out in the name of the Crown (R or Regina, the Latin word for queen). e. Lawyers representing the Crown are called the prosecution; those representing the accused person are called the defence. f. Anyone charged with a criminal offence is presumed innocent until proven guilty. The prosecution must prove guilt; the defence does not need to establish innocence. g. The prosecution must show that the accused intended to commit a criminal act. This is called mens rea, or the guilty mind. 3. Canada s Legal Tradition a. The Common Law i. Is used in all provinces and territories except for Quebec ii. Was based on the decisions of judges in the British royal courts. iii. A unique feature is that it is flexible and adaptable to changing circumstances. iv. In Quebec, civil law is based on the French Code Napoleon. The origin of Quebec s civil code is Roman Law (the Justinian Code). b. Statutory Law i. Term used for all the legislation passed by the three levels of government federal, provincial, and municipal. The Charter of Rights and Freedoms 1. Legal Rights of the Individual a. Canadians have their legal rights guaranteed by sections 7 to 14. b. These rights cannot be taken away without a proper legal process. 2. The Rights of Law Enforcers a. Prisoners have the right to know the reason for their arrest and to have a judge decide if they are being held legally. b. They also have the right to contact a lawyer, and the right to a speedy trial. 2

3 3 The Court System 1. Provincial Courts a. Provincial supreme courts handle more serious cases, called indictable offences, while less serious summary offences are handled by lower courts. b. Trials in the lower courts are generally heard by a judge or by a justice of the peace. Justices of the peace are civil servants who are given some limited powers to hear and judge specific cases such as traffic offences. c. In the Supreme Court of British Columbia, the accused is tried by either a judge or a judge and jury. d. In British Columbia, the provincial cabinet, on the recommendations of the attorney general, appoints judges of the Provincial Court. e. Judges of the Supreme Court of British Columbia and the Court of Appeal are appointed by the federal Cabinet, on advice from the minister of justice. f. To ensure that they can give unbiased judgments, our laws ensure that judges are free from government interference or influence. g. Judges can be removed from the bench only by votes in both the House of Commons and the Senate. The Supreme Court of Canada a. Reviews cases which have already appeared before a lower court or courts, and it makes final, binding decisions. b. Decides on constitutional issues and acts as the final court of appeal for some criminal cases. c. The governor general, on the advice of the prime minister, appoints the nine members of the Supreme Court. d. Three of the nine justices must be from Quebec. Traditionally, three others come from Ontario, one from the Maritimes, and the remaining two from the western provinces. The prime minister chooses one of these to act as chief justice. Beverly McLachlin, appointed to the post in 2000, is the first woman to hold that position. e. No one can alter the decisions of the Supreme Court, unless Parliament passes a constitutional amendment. Seven provinces, totaling at least 50% of the population of all provinces, must approve such an amendment. f. Has the ability to select its cases, and therefore concentrates primarily on issues of national importance.

4 g. Most noteworthy judgments since 1982: i. Decisions to strike down a government abortion law ii. Uphold cruise missile testing iii. Condemn unfair treatment on the basis of pregnancy iv. Affirm Aboriginal rights v. Grant survivor benefits to same-sex couples 4 h. Has a number of options: i. Can indicate that the law no longer applies to anyone, or that it doesn t apply in the case in question ii. May provide for a way to right the wrong. E.g. in the case of a person denied access because of a disability, it will instruct that the access must be provided. i. Some of the decisions it has brought down have required that laws actually be rewritten, without benefit of bills, debates, or the input of elected representatives. Canada s Penal System a. Options for Sentencing 1. complete discharge 2. pay a fine 3. restitution to the victim 4. community service 5. probation (period of time in which the offender is subject to conditions imposed by the court, but remains free from imprisonment. 6. time in prison i. Maximum sentence is life in prison 25 years without parole, the right to early release for good behavior. ii. Prisoners serving sentences of under 2 years go to provincial prisons; those with longer sentences serve them in federal institutions. iii. Prisons may be minimum-, medium-, or maximum-security institutions, according to the level of threat the inmates pose to society and other inmates. iv. Our corrections system is based in part on the principle of rehabilitation, the belief that offenders can be brought back into society as useful citizens, by providing educational and vocational programs.

5 b. Restorative Justice 1. Canada has one of the highest rate of imprisonment, or incarceration, in the Western world. In 1998, the incarceration rate in Canada was 129 per 100,000 people. It costs about $65,000 a year to keep an inmate in custody, and a little more than $10,000to supervise him or her on release. 2. Restorative Justice is being used as an alternative for first-time offenders or for people who commit less serious crimes. 3. Rather than focusing on punishment, restorative justice tries to repair the damage that has been done. Victims, offenders, and other people in the community work together to find ways for the offender to make amends directly to the victim. 4. This alternative to incarceration is not for everyone. Both the accused and the victim must be willing participants. Youth and the Law a. Background 1. The incarceration rate for young offenders in Canada is even higher than in the U.S. approximately one-third of juvenile offenders are sentenced to time in custody. 2. A lack of community support networks does not allow for alternative sentences. 3. Before the twentieth century in Canada, youths received no special treatment when they broke the law. Both boys and girls were sentenced to prison terms, and sentences were often harsh. b. The Young Offenders Act, Defines a young person as someone between the ages of 12 and 17. Anyone under 12 cannot be charged with an offence, and anyone over 17 must be tried as an adult. 2. The maximum period a young person can be kept in custody is five years (as amended to the act in 1992). 3. Only under special circumstances can a young offender be named in public. All records are destroyed when a youth is acquitted of a crime. 4. In youth court, a judge alone hears the case and decides on a sentence, which is called a disposition. A disposition can vary from a jail term, to a fine, to community service. 5

6 c. Youth Criminal Justice Act, Introduced because many people felt that the Young Offenders Act was too lenient towards young people and no longer served as a deterrent to crime. 2. Adult sentencing for serious crimes was now extended to 14 and 15- year- olds. 3. Allowed for harsher penalties, but also introduced new legislation which encouraged community-based sentences when appropriate (restorative justice), and new treatment programs for high-risk youth (those with psychological, mental, or emotional disturbances). Information Technologies and the Law a. Copyright Laws and the Internet 1. New music recording technologies have led to civil suits in the U.S. against companies that sell file-trading applications and provide services that allow the downloading and trading of digital music files. 2. On the other hand, some musicians believe that the legal uses of the new technology offer musicians a way of making their music available to a huge audience at virtually no cost, and without the need for an agent or the backing of a record label. 3. Many more established artists have used the same technology to increase sales of their albums, by allowing fans to download previews and buy them on-line. b. Technology-Assisted Crime 1. Web-sites offer gambling, pornography, fraudulent schemes, and information from hate groups. 2. Despite precautions, large computer systems can be attacked by deliberately planted computer viruses self-replicating programs designed to destroy data or infect Amateur programmers, called hackers, can break into computer systems illegally and steal information without ever leaving their homes. 4. The Canadian Centre for Information Technology Security (CCITS) is a joint initiative of the University of British Columbia and the Police Academy at the Justice Institute of British Columbia. Its goal is to help police deal effectively with technology-assisted crime and threats to information security. 6

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