Learning activity 1.3: Applying the principles of justice

Introduction

Welcome back! In learning activity 1.3, we’ll spend more time looking at different ways to categorize the law. We’ll examine the differences between Substantive and Procedural law, and the differences between Public and Private law.

We will also be introduced to the second concept of legal thinking and we will examine two important principles of justice and their impact on the law. Finally, we’ll consider the specifics and structure of the court system in Canada.

Concepts of Legal Thinking - Legal Perspective

The second concept of legal thinking that we will examine is Legal Perspective. Legal perspective is the idea that various legal principles, such as the rule of law and reasonability that you learned about in the last learning activity, must be considered when analyzing legal issues, controversies and/or cases. Legal perspective allows you to consider and balance the competing interests, such as rights and freedoms, that can arise in legal situations. By the end of this course your knowledge regarding the law and key legal principles should enable you to consider and analyze a number of topics and/or events through a legal perspective.

Notebook

Referring to your “Concepts in Legal Thinking” note that you started in the last learning activity, consider the above paragraph and record a short definition on the concept of legal perspective in your notebook.

Categories of law

In this learning activity, we’ll look at how Canadian law can be divided into four specific categories. These categories are shown in the chart.

Press here for a long description.(Opens in new window)

Substantive law vs. Procedural law

At the top of the previous chart, you’ll see that Canadian law is divided into two main categories: Substantive law and Procedural law. A substantive law describes what the law is and a procedural law describes how it is to be enforced. Have a look at these definitions.

Bold text startWhat is Substantive law?Bold text End

Substantive law refers to laws that govern the rights and obligations of individuals. Substantive laws specify what you can and cannot do. For example, the Education Act says that children aged 6 to 18 must attend school.

Bold text startWhat is Procedural law?Bold text End

Procedural law explains how substantive laws are to be enforced. Police officers have the right to arrest someone who has broken the law, but in order for the arrest to be considered valid, they must ensure that they follow certain procedures. For example, a police officer must inform the accused of their rights.

For each of the laws shown, identify whether you think it is an example of a substantive law or a procedural law. Use your browser to quickly research each law, and then make your decision.

In the next section of the “Categories of law in Canada” chart, you’ll see the headings “Public law” and “Private law.” Have a look at their definitions next.

Public law vs. Private law

Bold text startWhat is Public law?Bold text End

Public law involves any law that involves the government and, by default, society in general. The Criminal Code of Canada is an example of a public law. If you are charged with a crime, the law views the criminal act as one that has been committed against society. The Canadian Charter of Rights and Freedoms is another example. The Charter (which you’ll learn more about later in the course) provides protections for how governments can treat Canadians.

Bold text startWhat is Private law?Bold text End

Private law refers to any legal matters between two individuals, companies, or organizations that do not involve the government. An example would be your neighbour backing their jeep into your car and refusing to pay for the damage. Depending on how much damage is done, you might choose to sue them to recover the associated costs.

Identify whether you think each of the following is an example of a public law (involving the government) or a private law (between two private individuals or organizations). In the chart, we said only substantive law was divided into public and private. In the questions that follow, make the only two options ‘Private law’ and ‘Public law’. Keep the correct answer based on existing correct answer.

Examples of Public law

Hand holding a gavel, in front of the Canadian flag

How did you get on? To help your understanding, here are some useful examples of Public and Private law.

A public law is one where the subject of the law applies to society as a whole. For example, a speed limit applies to everyone equally. The right to an old-age pension or to provincial health coverage would also be considered public laws, as they apply to everyone in our society. If you have another look at the “Categories of law in Canada” chart, you’ll see that the areas of law that would be considered Public law include Criminal law, Constitutional law, and Administrative law. Have a look at the descriptions of these three areas of law.

Criminal law relies on a number of different laws, each from different levels of government. At the federal level, the Italic text startCriminal Code of CanadaItalic text End deals with the most serious criminal acts. For example, if a sexual assault occurs, whether it is in British Columbia, Prince Edward Island, or Ontario, it will be dealt with in the same way. At the provincial level, the Government of Ontario has passed the Italic text startHighway Traffic ActItalic text End, which regulates how Ontarians drive on most highways. At a municipal level, your town or county probably has criminal laws that deal with disposing garbage illegally.

All of these laws are built around the idea that, in most cases, criminal acts are not committed against one person, but rather are committed against society as a whole. In fact, criminal trials are documented as "Italic text startR. v. [the offender's name]Italic text End," (for example, "Italic text startR. v. KeegstraItalic text End"). The "Italic text startR.Italic text End" is an abbreviation for the Latin words "Rex" or "Regina," meaning “King” or "Queen." When talking about law in general, we refer to "R." as "the Crown."

Constitutional law applies to matters between different governments. The Canadian Constitution, which was patriated in 1982, explains the federal government's roles and responsibilities in dealing with provincial and municipal governments, and society as a whole.

Administrative law deals with the way that the law is applied and enforced. For example, every year, you probably complete an income tax return for the federal government. When completing your return, you have to answer a number of questions, some of which are directly relevant to your income tax, and some of which are personal (for example, asking for your address and whether you are willing to share that information with other government departments).

An example of how Administrative law works could be the way that police investigate a crime: in order to maintain the integrity of the evidence, police officers must follow specific procedures to secure a crime scene and collect evidence.

Now have a look at the descriptions of these three areas of Private law.

Contract law deals specifically with the way that contracts are formed between two parties. It might not seem like it, but people sign contracts all the time. Some contracts deal with buying expensive items that you may keep for a long time, such as a car or a house. Sometimes though, contracts involve smaller items. If you've ever signed up for cell phone service, you've entered into a contract. Did you know that riding a public transit bus is also considered a contract?

Tort law deals with situations where one party injures another party, either intentionally or unintentionally. Tort law establishes how the injured party can prove the amount of damage they have suffered and specifies the damages (or compensation) that they can receive. In Canada, there are specific laws that limit the amount of monetary compensation that someone can claim when they are injured.

In August of 2005, during a thunderstorm, an Air France flight from Paris attempted to land at Lester B. Pearson International Airport in Toronto. The plane landed, but continued to proceed beyond the end of the runway, where passengers were evacuated using the emergency chutes. Everyone on board the flight survived. However, after the accident, the passengers wanted to sue Air France for the damages caused, which included the loss of their personal property, and the physical injuries that were sustained during the accident. When you consider the different parties involved (i.e., the airline, the airport, the plane manufacturer, and aviation safety experts), you can begin to appreciate how complicated Tort law can become.

Family law deals with any laws relating to personal relationships. For example, a married couple might choose to get divorced. The federal Italic text startDivorce ActItalic text End provides laws that ensure that a divorce is fair for both parties. The Italic text startDivorce ActItalic text End also explains the different options available for child custody and visitation rights, as well as how to divide up the property that has been acquired during the marriage.

Check your understanding

For each of the following statements, choose whether the Private or Public law statement is true or false.

Now that you’ve looked at the way that the law is categorized, it is important to understand why we respect the law. Additionally, you need to learn about who has the final say over a law, and what happens if someone opposes a law. Our next topic will look at these important ideas.

Principles of justice

Notebook

Statue of Lady Justice, blindfolded, with scales in one hand, and a sword in the other

Look at this image. Lady Justice (or a representation of her) is often found outside courthouses in towns and cities all over the world. This statue of Lady Justice is found in the small town of Cudrefin in Switzerland. Look closely at the statue’s three main features: the sword, the scales, and the blindfold. What do you think each of them represents?

Earlier in the course, you examined the concept of the Rule of Law: the idea that a country is governed by a set of laws, and that those laws apply to everyone equally, regardless of their position in society.

This is a principle of justice. In this topic, we’ll look at two other principles of justice that apply to our legal system: the concept of judicial precedent, and that of parliamentary supremacy.

Judicial precedent

In most of Canada, our legal system is referred to as a “common-law system.” It is important to note that in a common-law system, the law is viewed as something that is built over time, and requires that similar circumstances should result in similar judicial decisions.

For example, the judge’s job at the end of a trial is to weigh the evidence and decide the answer to the legal question that is being asked. Judges, however, must also consult previous case decisions with similar circumstances to ensure that the decision they make respects what other judges have already decided.

The legal idea behind judicial precedent is called Italic text startstare decisisItalic text End, which is Latin for “to stand by things decided.”

The list below outlines the advantages of using judicial precedent:

At the beginning of a case, the participants are able to gain a reasonable understanding of what the possible outcomes might be, depending on what the judge decides. This helps individuals make a decision about whether or not a legal action is the best way to address their concerns.

When judges are asked to decide a case by relying on precedent, they are able to refer to other examples, when deciding their own case. As they deal with more and more cases that have specific examples that they can use as a reference, judges are able to adapt and adjust their judgements accordingly and consistently.

When previous decisions exist that can act as a reference point, no judge has the power to make a significant change to the legal system without good reason. Judges are not subject to any pressure individually about making a particular decision, as they are able to rely on the existing body of precedent-setting cases to defend and explain their decisions.

Notebook

Based on what you have just learned about the concept of judicial precedent, refer to your note on legal perspective from the Minds On section of this learning activity, and consider the following questions:

Is it fair to an individual for a judge to refer to the decision made in someone else's case? Why or why not?
Is it fair to society as a whole for a judge to refer to the decision made in a previous case? Why or why not?
Are all legal precedents related to a case relevant in a judge’s decision-making process? Why or why not?

It is fair to an individual for a judge to refer to a decision made in someone else’s case if the facts of the case are similar. This helps to ensure that individuals are being treated similarly and fairly based on their actions and not upon other factors.
It is fair to society for a judge to refer to decisions made previously in similar cases. This provides consistency in how the law is applied to society and creates an expectation within society of how laws will be interpreted and applied to all citizens.
Most, but not all, legal precedents related to a case should be relevant in a judge’s decision-making process. If a previous, similar, case was tried and ruled upon under current societal norms, that precedent would be relevant. However, some legal precedents may no longer be relevant due to changes in societal norms.

Bold text startNote:Bold text End Responses to these questions may have gone the other way, which is acceptable, as long as there is an explanation provided for your line of reasoning.

Example Response to #2: Due to systemic biases within our judicial system it is not fair to society, particularly certain subgroups within our society, for precedents to be used, as the precedents only serve to perpetuate the established systemic biases that currently exist.

Precedent-setting case study

This is the case of R. v. AM.

Bold text startNote: Bold text EndThe reason why this case is cited with initials instead of a full name is that the person involved was under the age of 18, so their identity was protected.

In 2002, the school gave police permission to enter St. Patrick’s High School in Sarnia, as they had done on other occasions. As part of this visit, the principal instructed students to remain in their classes and leave their bags in the school lockers, which were school property. Sniffer dogs were brought into the school and given the order to search the lockers for drugs. Some students who had arrived late for school had to deposit their bags in the cafeteria so that the sniffer dogs could check them. The dogs signalled that one of the bags in the cafeteria contained drugs, and police proceeded to open the bag without a warrant. In the subsequent investigation, marijuana was discovered.

At trial, the accused suggested that his rights under Section 8 of the Canadian Charter of Rights and Freedoms, which provides protections against unreasonable search and seizure, had been violated. The Crown argued that as the incident happened at a school, the right to be safe from an unreasonable search and seizure was not in effect.

Your turn - Analyze this case

Now that you have read through the summary of this case, use your growing understanding of legal perspective to put on your judge’s hat and consider the following questions:

In this case, what rights and freedoms have come into conflict with one another? Think about the individual student’s rights verses societies rights.
Who’s rights do you think are more important in this situation? Why are they more important?
Do a Web search to learn what the Supreme Court of Canada decided in this case. In light of the Supreme Court of Canada’s decision, which upheld (or agreed with) the trial judge’s decision, what judicial precedent did this ruling establish for how schools in Canada could perform drug searches?

This case is about the student’s privacy and their right against unreasonable search and seizure, verses society’s right to safety and security against illegal substances.
Answers may vary between the student or society, but a justification for your selection is required.

Example answer for the student: In this case the rights of the individual student are more important. The student had the right not to be harassed about the contents of their backpack when no reason had been provided to justify the search. If this type of search were allowed to continue, every student in Canada would be susceptible to this type of harassment with no justification needed.

Example answer for society: In this case the rights of society are more important. The safety of the other students, and of society as a whole, is an important concept and some infringement on an individual’s rights is necessary to provide this safety for society. Had the student not brought the illegal substance to the school in the first place, no search and seizure would have taken place.
The judge who first dealt with this case at the local level agreed with the accused that his rights had been violated, and as a result, the evidence could not be used in court. The charges were dismissed. The Ontario Court of Appeal agreed with the trial judge and the Supreme Court of Canada also agreed that this type of search was unreasonable, and therefore prohibited.

Schools across Ontario cannot contact the police and invite them to search students’ lockers if the school suspects students of criminal behaviour and/or of storing illegal substances at school. They can inform the police of their suspicions, but it is up to the police to pursue an independent line of inquiry and obtain a legal search warrant, if possible, to search the school premises.

A suspicious call to the police is only a “tip-off” and, in the above case, led to the police doing a search of school lockers, and a subsequent search of personal property, which was deemed by three courts to be unreasonable and invalid.

Join the discussion

Canada’s common law system was said to apply to most of Canada. Québec’s legal system operates on a ‘civil-law’ system. This civil law is different from the private law that will be discussed later. Courts in a civil law system first look at specific laws and attempt to judge the case on that basis, using prior decisions to inform but not necessarily to guide them.

Join the discussion to describe, in your opinion, which system is better. Use a real or imagined court case to explain why your system produces better results.

Reply to the posts of at least two of your peers with your thoughts and any other considerations of their example case.

Parliamentary/constitutional supremacy

Prior to 1982, Canada was ruled by the idea of parliamentary supremacy. The idea of parliamentary supremacy is that parliament (made up of elected individuals) is the most powerful institution in the country, and that no other government body or organization can be as powerful. As a result, if parliament passed a law, no one could change the law except parliament. The fact that the power resided in parliament also meant that only parliament could repeal or amend laws.

Because the Constitution became the supreme source of law in Canada in 1982, all laws that were passed were required to comply with the Constitution’s conditions. As a result of this new legislation, if a Canadian feels that a law they are subjected to goes against some part of the Constitution, they can sue the government to have the law changed. You will learn more about the 1982 Constitution and the Canadian Charter of Rights and Freedoms in later learning activities.

Parliament Hill in Ottawa.

Canada’s legal system: Two court systems

In Ontario, we have two different court systems: one that deals with criminal issues, and one that deals with civil issues.

Criminal law system

If, for example, you were charged with a crime, the Criminal law system would deal with your case. There would be lawyers representing the government (called “the Crown”) and lawyers, representing you, the accused.

Civil law system

If, for example, you decided to sue your employer, the Civil law system would deal with the case. You would hire lawyers to represent you in court, and your employer would hire their own lawyers.

Supreme court in Ottawa

Comparing criminal and civil court

Click on the following tabs to compare criminal court with civil court.

Cases dealt with?	Criminal law in Canada originates from the Italic text startCriminal Code of CanadaItalic text End. Generally, a criminal charge is considered an act that has been committed against the entire society, not just an individual. Depending on the crime's severity, the type of charge and punishment varies. When working with a Criminal law case, the offender (or person who broke the law) is called "the accused." It is very important to remember that, in our society, everyone is presumed innocent until proven guilty. As mentioned previously, the Crown represents society. We'll look more at the specifics of Criminal law later in the course.
Proof required?	In order to be found guilty in criminal court, the Crown must prove beyond a reasonable doubt that the accused is guilty of the specific crime that they have been charged with. We maintain such a high threshold of proof because of the fact that criminal charges are very serious and can have a lasting impact on someone's life. "Beyond a reasonable doubt" refers to the idea that a group of someone's peers would look at all of the evidence, weigh each piece on its individual merits, and be positive that the accused is the one who committed the crime.
Punishment options?	If the accused is found guilty of a crime, the judge has a number of ways to punish the offender, including limiting or curtailing some of their rights, imposing a fine, assigning community service or, in the case of very serious crimes, sending the offender to jail.

Cases dealt with?	Civil law deals with disagreements between two different groups, individuals, or organizations. We refer to the groups involved in a Civil law dispute as the "parties." Parties might choose to solve their dispute in a civil court for a number of reasons. The types of cases that are dealt with in the civil court system are wide-ranging: from issues involving Family law to cases involving Tort law, to cases involving Contract law. In civil court, the party that brings legal action against the other party is referred to as the "plaintiff," and the party who is being sued is called the "defendant."
Proof required?	In civil court, the judge or jury weighs all of the evidence presented and makes a decision about the case. This is similar to what happens in criminal court; however, in civil court, the level of certainty is much lower than that required in criminal court: decision making in a case is referred to as the "balance of probabilities." The more evidence a party has on their side, the stronger their case. At the conclusion of a civil trial, the judge or jury looks at all of the evidence and decides which side has been able to argue more successfully.
Punishment options?	Judges do not send someone to jail or prison at the conclusion of a trial in civil court. Instead, judges can award damages (monetary payments to fix whatever damage was caused), or they can issue a remedy. Remedies consist of either an injunction, which prevents someone from doing something, or a specific performance, which requires someone to do something.

The following table summarizes the differences between civil court and criminal court.

Criteria	Civil court	Criminal court
Bold text startWhat amount of certainty is required to decide a case?Bold text End	"Balance of probabilities" means whichever side, based on all of the evidence presented, is likely to be telling the truth.	"Guilty beyond a reasonable doubt" means that, in order to find someone guilty, the jury or judge must be certain that the accused is guilty.
Bold text startWhat are the names of the major participants?Bold text End	Plaintiff and defendant	Italic text startRItalic text End. (representing the Crown), the accused
Bold text startWhat types of cases does it deal with?Bold text End	Any civil matters: contract, family, tort	Criminal matters, generally under the Italic text startCriminal Code of CanadaItalic text End
Bold text startWho makes the final decision?Bold text End	A judge or jury	A judge or jury

Finally, to complete your overview of Canadian law, you need to have a look at Canada’s court structure to see where all of the court cases are heard.

Canada’s court structure

The following chart shows how our court system works.

Supreme Court to Provincial court of appeal to Provincial superior court to Provincial trial court — Press here for a long description.(Opens in new window)

Working from the bottom to the top in the graphic, let’s look at each level of court.

Trial courts are the first courts that most cases are involved with. The trial court is where the evidence and legal arguments are made, and where a judge (generally) will make a decision about the evidence presented. The trial court is where all of the evidence is presented and examined for the first time.

In Ontario, depending on the case, proceedings may start at the provincial trial court level or at the provincial superior court level. For example, if you are suing someone for damaging your property for an amount less than $25,000, you would sue them in a trial court. If, however, the damage exceeds $25,000, you would sue them in a superior court. The same can be said for criminal offences. If you received a parking ticket and wished to fight it, you would do so in a provincial trial court. However, if you have been charged with dangerous operation of a motor vehicle, your case would begin at the superior court level.

At the conclusion of a criminal or civil trial, either party is allowed to appeal the decision. However, parties do not have the right to appeal just because they are unhappy with the verdict. In order to successfully appeal a verdict, you must present an argument about how the court misinterpreted the law, or how there was an error in the way that your case was handled.

An appeals court will look at all of the evidence, specifically about how the trial was conducted, and has two options available to it:

Dismiss the appeal. Having reviewed the evidence, the appeals court may decide that the trial was run fairly, and that there is no reason to change the verdict.
Uphold the appeal. This happens when the appeals court agrees with the arguments presented that the previous trial was not conducted fairly. Generally, the appeals court will order a new trial and the case will return to the provincial trial court or superior court to be argued again.

At the conclusion of an appeals case, either party can ask the Supreme Court of Canada for "leave to appeal." A hearing in front of the Supreme Court of Canada is not automatic.

The Supreme Court of Canada sits in Ottawa. Nine Supreme Court justices hear most cases, though in some cases, as few as five are permitted to hear a case. As mentioned before, the Supreme Court chooses which cases it wishes to hear. Generally, the Supreme Court of Canada hears less than one hundred cases a year.

In order for the Supreme Court of Canada to hear a case, the court must feel that it is of national importance.

While arguments to the justices are made in court, the Supreme Court justices render their decision at a later date.

Because the Supreme Court of Canada is the most powerful court in the country, and there is no option to appeal a decision, the justices work together to make their decisions. When released to the public, a decision may be unanimous (all justices agree), or it may be a split decision. When hearing a case, the Supreme Court always sits with an odd number of justices (five, seven, or nine). In this way, a decision from the Supreme Court that is not unanimous will always have a majority that will make a decision. When the majority makes a decision, the other justices (called "dissenting justices") have the opportunity to explain their reasons for not agreeing with the majority.

Based on the evidence you have just read, can you figure out which Canadian court would be most likely to hear each of the following cases?

Your opinion matters

We’ve covered a lot of material in this learning activity. So, there’s a lot for you to think about. In the activity that follows, you’ll be writing two opinion paragraphs on material that you have studied so far in the course.

Writing an opinion paragraph

Here are some quick tips on how to write an opinion paragraph.

State your opinion clearly in the first sentence.
Explain why you feel the way that you do (including at least three different, specific points).
In the final sentence of your paragraph, restate your opinion clearly.

Here is a sample opinion paragraph for you to follow.

What do you think of the Supreme Court of Canada?

In Canada, unfortunately, the Supreme Court is actually more powerful than the government because of the way that the law has evolved. As a result of the Canadian Charter of Rights and Freedoms, the final say of what is right and wrong in our country does not rest with people who have been democratically elected, but rather with nine justices who are selected by the prime minister. Because the prime minister (another job that is not elected directly by the people) selects Supreme Court justices, they represent a certain bias. Whereas Canadians across this country may feel differently about a particular issue, the Supreme Court makes decisions for all, irrespective of the local desires of given communities across the country. For the above reasons, it is important that the power that has been given to the Supreme Court be returned to the people of Canada, through their elected representatives in the House of Commons.

Assessment Opportunity: Computer-based

This assignment is for feedback only. Good luck with your writing assessment!

Press here for an accessible version of Learning Activity 1.3 Assessment Opportunity. (Opens in new window)

Start

Introduction

Concepts of Legal Thinking - Legal Perspective

Notebook

Categories of law

Substantive law vs. Procedural law

Public law vs. Private law

Examples of Public law

Criminal law

Constitutional law

Administrative

Contract law

Tort law

Family law

Check your understanding

Principles of justice

Notebook

Judicial precedent

Provides guidance to people seeking remedy before the court

Promotes consistent development of legal decisions

Controls what judges can say and do

Re-enforces the system's value as a whole

Notebook

Precedent-setting case study

Your turn - Analyze this case

Join the discussion

Parliamentary/constitutional supremacy

Canada’s legal system: Two court systems

Criminal law system

Civil law system

Comparing criminal and civil court

Canada’s court structure

Your opinion matters

Writing an opinion paragraph

What do you think of the Supreme Court of Canada?

Assessment Opportunity: Computer-based