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.
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.
What is Substantive law?
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.
What is Procedural law?
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
What is Public law?
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.
What is Private law?
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
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.
Now have a look at the descriptions of these three areas of Private law.
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
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 stare decisis, which is Latin for “to stand by things decided.”
The list below outlines the advantages of using judicial precedent:
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.
Note: 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.
Note: The 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.
The following table summarizes the differences between civil court and criminal court.
| Criteria | Civil court | Criminal court |
|---|---|---|
| What amount of certainty is required to decide a case? | "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. |
| What are the names of the major participants? | Plaintiff and defendant | R. (representing the Crown), the accused |
| What types of cases does it deal with? | Any civil matters: contract, family, tort | Criminal matters, generally under the Criminal Code of Canada |
| Who makes the final decision? | 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.
Working from the bottom to the top in the graphic, let’s look at each level of court.
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!
