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Canadian Law
The Human Rights Code in Canada aims to protect individuals from discrimination across five key social areas: employment, housing, services, unions, and vocational associations, and contracts.
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The Code protects people from discrimination in specific situations. Under the Code, you have the right to be free from discrimination in five parts of society – called social areas – based on one or more grounds.
The five social areas are: employment, housing, services, unions and vocational associations and contracts.
Discrimination based on 17 different personal attributes – called grounds – is against the law under the Code. The grounds are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences (in employment).
Your rights under the Code are not violated unless the discrimination occurs in one of the social areas based on one or more of the protected grounds. For example, the Code does not apply if a stranger on the street insults you by making a racist comment, because this did not happen in a specific social area, such as at your job or in a restaurant.[1] The Code will also not apply if you feel you were treated differently in your job due to a personality conflict with your manager, because the treatment is not related to a ground such as your age, sex or race.
To establish discrimination under Ontario’s Human Rights Code, a claimant must show that:
A person discriminates “directly” when the action itself is discriminatory and when the person acts on his or her own behalf. For example, a building manager who refuses to rent an apartment because he prefers to rent to someone of his own ethnic background is discriminating directly.
“Indirect discrimination” is discrimination carried out through another person. For example, a building manager tells her superintendent not to rent to people of a certain ethnic group because their food “smells too much.” The manager can be named in the human rights claim because she used the superintendent indirectly to discriminate against people because of their ethnic origin.
Sometimes a rule or practice unintentionally singles out particular people and results in unequal treatment. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination. The Code also protects against this type of discrimination. For example, an employer has a rule that employees are not allowed to wear hats or head coverings. The rule is not intended to exclude people who wear head coverings for religious reasons, but it may have this effect. Unless an employer can show that a change or exception to the rule would be too costly or create a health and safety danger, the employer should agree to change the rule.
1. Affirmative Action
2. Reasonable and Bona Fide Requirement
3. Undue Hardship
4. Special Interest Organizations and Special Employment
5. Relations
Things you must consider...
Marc Hall
[2] The plaintiff is a Roman Catholic 17-year-old Oshawa high school student currently attending Grade 12 at Monsignor John Pereyma Catholic Secondary School. This has been his school since Grade 9 and, prior to that, he attended a Catholic elementary and junior high school. Mr. Hall has identified himself to his parents, his friends and his school peers as having a homosexual orientation.
[3] The school holds an annual prom, which is an off-site party and dance held for and in honour of the Grade 12 students. It is a significant social event in the lives of those students as it marks the end of their formal education at that school. It is a school event, organized by a committee of students but supervised by school teachers who ensure security. The Grade 12 students this year range in age from 16 to 18 years, and none are married. All students wishing to buy tickets to the prom must submit for school approval the names of those with whom they intend to attend. The school requires this information for the purposes of knowing who is present at the function, of having contact information for those in attendance and of preventing known troublemakers from attending.
[4] About a year ago, Mr. Hall first raised with one of his teachers his wish to bring his boyfriend to the prom this spring. He understood that his teacher would be discussing his request with the school principal. His teacher counselled him that he must follow the Church’s teachings guided by his individual conscience. His teacher did not tell him whether he should or should not bring Mr. Dumond, who has been his boyfriend for about one year, as his date. On February 25, 2002, Principal Powers denied Mr. Hall permission to attend the prom with his boyfriend. The principal reasoned that interaction at a prom between romantic partners is a form of sexual activity and that, if permission were granted to Mr. Hall to attend the prom with his boyfriend as a same-sex couple, this would be seen both as an endorsement and condonation of conduct which is contrary to Catholic church teachings. On April 8, 2002, the School Board refused to reverse the principal’s decision.
[5] The defendant Board exists to provide education in its schools in a manner consistent with the teaching of the Roman Catholic Church. The defendants argue that, charged as they are with the statutory responsibility of managing this Catholic school, their approval of Mr. Hall’s request would have been contrary to their understanding of Catholic beliefs. They also submit that the plaintiff’s motion should be dismissed because their decisions are both protected by s. 93 of the Constitution Act, 1867 and an appropriate exercise of freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms.
Tom Kearsley
Tony Kearsley applied for a position as a firefighter with the City of St. Catharines. He was accepted on condition that he pass a medical examination by a doctor specified by the city. During the medical examination, the doctor discovered that Kearsley had an atrial fibrillation (an irregular heartbeat) and refused to pass him. However, Kearsley consulted medical specialists who advised him that his condition would not affect his ability to perform his job as a firefighter. Kearsley then filed a complaint against the city with the Ontario Human Rights Commission.
At the Commission’s Board of Inquiry hearing, the doctor who had originally examined Kearsley testified that atrial fibrillation led to increased risk for stroke. He further testified that Kearsley’s heart could fail to pump sufficient blood to his organs during the extreme rigours of firefighting.
The Board of Inquiry called a medical expert in atrial fibrillation. The expert testified that the increased risk for stroke in someone Kearsley’s age was inconsequential. The expert further testified that there was no increased risk for heart failure in someone like Kearsley, who was otherwise in good general health. Meanwhile, after being turned down by the St. Catharines fire department, Kearsely had become a firefighter in the City of Hamilton, achieving the rank of first-class firefighter in October 2001.
Decision:
The Board of Inquiry accepted the evidence of the expert in atrial fibrillation over that of the medical doctor who had originally conducted Kearsley’s physical, since the latter was a general practitioner with no particular expertise in this area. The Board of Inquiry further noted that it would have been appropriate for the City of St. Catharines to seek an expert opinion when confronted with a medical condition such as that found in Kearsley. The Board indicated that this was the procedure used in other municipalities. Since the Board found the risk of impairment to be “miniscule” and “insignificant,” it ruled that Kearsley had suffered discrimination.
Remedy for Future Compliance with the Code: A remedy for future compliance with the Code is an action that the respondent can be ordered to take to prevent similar discrimination from happening in the future. For example, the HRTO could order the respondent to change hiring practices, develop new policies, or have all staff receive training on a human rights policy.
Non-Monetary Remedy: The HRTO can order the respondent to do something that will put you in the position you would have been in if the discrimination had not happened. For example, if you lost your job because of the discrimination, the HRTO could order that you get your job back. Or, if your employer refused to meet your particular Code-related needs, the HRTO could order that the employer meet those needs.
Monetary Compensation: The HRTO can make an order that the respondent pay you money damages for: money that you have lost or been forced to spend because of the discrimination, such as lost wages and benefits, increased rent, or moving expenses. [Please note that you have an obligation to minimize the amount lost because of the discrimination, such as by making efforts to find another job if you lost your job.] injury to your dignity, feelings and self-respect as a result of the discrimination. The HRTO can also order the respondent to pay interest on the money that is awarded as damages.
Complaint: The Commission reviews your complaint.
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Response: If accepted, a copy of your complaint is sent to the respondent with a request to reply
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Reply: A copy of the respondent's reply to your complaint is sent to you.
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Assessment for further action
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Early Dismissal: The Commission is unable to proceed with your complaint (+Right to appeal to Chief Commissioner)
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OR
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Conciliation: Attempt is made to work with you and the respondent to settle the complaint (+1, If conciliation is successful, your complaint file is closed.)
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OR
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Investigation: Where Conciliation is not possible/unsuccessful, an investigation into your complaint may take place.
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Report: A report of the investigation is sent to you and the respondent.
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Dismissal: If the evidence does not support your complaint, it will be dismissed (+Right to appeal to the Chief Commissioner.)
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OR
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Merit: If evidence supports your complaints, settlement is attempted.
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Discontinuance: If you reject a reasonable settlement offer, your file will be closed. (+Right to appeal to the Chief Commissioner.)
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OR
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Settlement: If your complaint is settled, your file is closed.
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OR
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No Settlement: If your complaint is not settled, it will be reported to the Chief Commissioner.
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Reported to the Chief Commissioner.
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Panel Hearing: A human rights panel, appointed by the Chief Commissioner, may hear your complaint.
Complainant
Respondent
Gravamen
Prima Facie
Example Questions:
Cases:
A. A school fires a teacher because it was discovered by the administration that the teacher had recently been convicted of driving under the influence of alcohol. The teacher is angry.
B. In order to deal with drug dealing in a high school, the principal arranges for police dogs to walk by all of the lockers, sniffing for drugs. In suspicious cases, the principal orders students concerned to empty their pockets, wallets, and remove their shoes and socks. The principal also searches the lockers under suspicion. The students are angry.
C. Mandatory urine tests for drugs are given to new employees and random urine tests to current employees exist in the truck driving profession. Those refusing the test are fired and those testing positive are required to participate in a rehabilitation program. After the program, those refusing to be tested or who test positive again are fired. The truckers are angry.
D. A person applies for a job at a local clothing store. The person had worked in the sales and clothing industries for over five years and there was no one better qualified who obtained the position. The person was hired by the business but felt discriminated against because the business took over two weeks to offer the job. The person is angry.
E. An employee of a business is injured in a car crash. As a result, the employee cannot walk and needs very expensive equipment as well as an elevator to move around at work. The owner says she cannot afford the special equipment and elevator so she subsequently fires the employee. The employee is angry.
F. A Sikh male student comes to school with a kirpan (a religious ceremonial dagger), a requirement of his religion. His school board forbids the kirpan because it could be used as a weapon and suspends him. The student is angry.
Answers
Answers:
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The Trudeau government intends to cut widespread use of mandatory minimum sentences by giving judges back their discretion over punishment, Justice Minister Jody Wilson-Raybould says.
The changes will undo a major element of the Harper government's tough-on-crime agenda. Judges will be given the "appropriate discretion to be able to impose sentences, engage and understand – as they do better than anybody else – the individual that is before them," the Justice Minister told The Globe and Mail in an interview as the Liberals near the end of their first year in power. "To base their decisions on the actual circumstances of the case before them and render judgment."
She said new legislation on mandatory minimums is coming soon, "certainly in the early part of next year." Last month, the government gave judges back the discretion they had lost in 2013 over the victim surcharge – a financial penalty from which judges once routinely exempted impoverished offenders, until it became mandatory.
Trafficking - Involves selling, giving, transporting, or distributing a controlled substance; includes "intention" of trafficking
Possession - Having knowledge of and control over something (Schedule I to III) person must know what the substance is person in possession even if give to someone else as long as someone consents and knows what it is, they don't have to own it
Youth Criminal Justice Act (2003) Ages 12-17 Purpose: The long-term protection of society It is tough - the sentence must match the seriousness of the crime Police are required to consider measures other than custody Attempts to involve youth's family, victim, youth workers, other members of community in the sentencing and consequence process Includes Presumptive Offences - judges can impose adult sentences on first- and second-degree murder, attempted murder, manslaughter, aggravated sexual assault, and repeat "serious violent offences" Identifty of a young person who receives an adult sentence may be known, but only after sentencing.
The Youth Criminal Justice Act is the law that governs Canada’s youth justice system. It applies to youth who are at least 12 but under 18 years old, who are alleged to have committed criminal offences. In over a century of youth justice legislation in Canada, there have been three youth justice statutes: the Juvenile Delinquents Act (1908-1984), the Young Offenders Act (YOA) (1984-2003), and the Youth Criminal Justice Act (YCJA) (2003-present). A set of amendments to the YCJA was adopted by Parliament in 2012. The purpose of this document is to explain the background of the YCJA, to provide a summary of its main provisions and the rationale behind them, and to highlight the experience under the YCJA.
On April 1, 2003, the YCJA came into force, completely replacing the previous legislation, the YOA. The YCJA introduced significant reforms to address concerns about how the youth justice system had evolved under the YOA. These concerns included the overuse of the courts and incarceration in less serious cases, disparity and unfairness in sentencing, a lack of effective reintegration of young people released from custody, and the need to better take into account the interests of victims. The YCJA provided the legislative framework for a fairer and more effective youth justice system. The amendments adopted by Parliament in 2012 aimed to strengthen the ways in which the youth justice system deals with repeat and violent offenders.
Young Offenders Act (1984) Ages 12-17 Purpose: To hold young people accountable for their crimes but at a lower level of accountability than adult offenders Criticism: By early 1990s reported crimes by young people was on the increase Maximum penalty for murder was 3 years (later changed to 10 years) - should it be more harsh?
Juvenile Delinquents Act (1908) ages 7-16/18 Purpose: To treat young offenders not as criminals, but as misdirected youth Used training schools (provided discipline and job training) Criticism: High recedivism Treatment widely varied
A. Which one of the following offenders has to be present at the scene of a crime?
-aider
-abettor
-accessory after the fact
-co-perpetrator
B. Which party to an offence is each of these participants:
1 + 3 = Aiding
4 = Aiding + Counselling
2 + 6 = Accessory
5 = Perpetrator
C. Gilbert and Jamal work for a high-powered accounting firm in Halifax. They devise a plan to embezzle $500 000 from the firm. They are sure their plan will succeed until Dahlia, another employee, learns of it and threatens to tell the police unless Gilbert and Jamal give her $250 000. At Gilbert's urging, Jamal strangles Dahlia and dumps her body into the Halifax harbour. Can both Gilbert and Jamal be charged with a crime? Explain.
Jamal can be charged with murder and Gilbert can be charged with abetting and conspiracy to commit murder.
D. Nicole is a professional pickpocket who works the Montreal subway system during rush hour. One morning in a crowded subway car, she puts her hand in Michel's jacket pocket to lift his wallet but discovers the pocket is empty. She withdraws her hand a little too slowly, and Michel grabs her by the wrist. Can Michel have Nicole charged with a crime? Explain.
Michel can have her charged with Incomplete Crime: Attempt.
E. Abigail decides to intimidate Barney, her competitor in the canning industry, by having a biker break his legs. She meets the biker in a bar to discuss the plan. The biker sets his fee at $800. Abigail asks for 24 hours to think it over. She never calls the biker back. Meanwhile, the biker tells several regulars at the bar about Abigail's plan, and word gets back to Barney. Can Abigail be charged with Incomplete Crime: Conspiracy? Explain.
No, because she didn't actually make the agreement yet (money did not exchange hands.)
Incomplete Crime: Conspiracy: An agreement between two or more people to carry out an illegal act, even if the act does not actually occur.
Incomplete Crime: Attempt: The intention to commit a crime, even when the crime is not completed.
Party to Common Intention: The shared responsibility among criminals for any additional offences that are committed in the course the crime they originally intended to commit.
Accessory After the Fact: Someone who knowingly receives, comforts, or assists a perpetrator in escaping from the police..
Abetting: The crime of encouraging the perpetrator to commit an offence.
Aiding: The criminal offence that involves helping a perpetrator commit a crime.
Perpetrator: The person who carries out a crime.
Knowledge vs. Recklessness: Where a person acts knowingly he acts with the certainty that a certain result will follow from his actions. However, where a person acts recklessly the person does not know for sure that a specific result will follow.
Jonathan drives through a stop sign on two occasions: once when he simply wanted to drive through it and once when he was distracted by a dog. Jonathan being distracted by the dog would be considered negligence because it was unintentional, and recklessness would be driving through it on purpose.
Minnie throws a watermelon off the roof of a tall building onto the sidewalk below. She will choose one of two times to make her throw: Monday at 3am or Monday at 1pm The 3AM throw would be considered negligence because it is unlikely to hurt someone and everyone is aware that someone is probably not out during that time. The 1PM throw would be considered recklessness because there will be people out and you are aware of the risk.
Mens Rea How can a "guilty mind" be defined... Intent - a state of mind in which someone desires to carry out a wrongful action, knows the results, and disregards the consequences e.g., Alice walks up to Michael and punches him in the face. Michael's nose is broken by Alice's punch. The act was deliberate. Knowledge - an awareness of certain facts a reasonable person would know e.g., As a joke Elizabeth pushes her friend off a tall bridge into the water. Elizabeth's friend breaks both of her legs. Negligence - omitting to do anything that is one's duty the accused fails to take precautions that a reasonable person would take to avoid causing harm to another person the person is not generally aware of the risks e.g., Samantha runs a daycare centre. She lets the children run all over the centre. It never occurs to Samantha to buy a proper gate to keep the children away from the stairs. One day, little Lee falls down the stairs and is very seriously injured. Recklessness - consciously taking an unjustifiable risk that a reasonable person would not take the person is aware of the risks but continues anyway e.g., Michelle runs someone over with her car while driving to the store at 75 km over the speed limit and without her prescription glasses..
Actus Reus How can a "guilty act" be defined... Act - without consent; intentional e.g., Tim purposely threw his fist into Brian's face. Omission - failing to prevent wrongful act e.g., Rachael leaves her daughter unsupervised while playing beside a busy highway. *NOTE: Actus Reus must be voluntary, not forced
What is a collection of laws called?: A code What source of law is created by Canada's house of commons?
How to Change (Amend) the Constitution (Amendment Formula)
Need the agreement of 7 out of 10 provinces that have a total of 50% of the total population of Canada
Terms:
Entrenched - as in, the Charter is entrenched in the Constitution; so, to change the Charter you will need to use the Amendment Formula (as opposed to just a normal change to a statute law) in the House of Commons
Parliamentary Supremacy - the government (House of Commons) has the power to interpret laws, change them, etc.
Judicial Supremacy - the courts have the power to interpret laws and make sure all statute laws measure up to the freedoms listed in the Charter; arguably, with the creation of the Charter Canada is more based on judicial supremacy
Section 1 - The Guarantee
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 2 - Fundamental Freedoms
Lists all of your basic fundamental freedoms - religion (you can believe in any religion), assembly (you can join any club or group), protest (you can protest anything you want), speech (you can say anything you want), press (the media can print/public any news they want), etc.
Of course, all of these rights (like every right in the entire Charter) are subject to reasonable limits (Section 1)
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Section 10 (a) (b) (c) - Arrest or Detention
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Section 11 (a) (b) (d) (h) (i) Proceedings in criminal/legal matters
Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
(H&I are known as Double Jeopardy - tl;dr, If found guilty or not guilty you cannot be tried or punished for that exact same crime again)
Section 13 - Table 5
13 A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
e.g., while serving as witness for a trial you can say anything (as long as it is honest) and not have to worry about repercussions
Section 15 (1) (2) - Equality Rights
Equality before and under law and equal protection and benefit of law
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Section 24 (1) (2) - Enforcement
Enforcement of guaranteed rights and freedoms
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Section 33 (1) (3) - Application of charter
33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Five year limitation
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
The Notwithstanding Clause:
The notwithstanding clause — or Section 33 of the Charter of Rights and Freedoms — gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.
Royal Commissions
Royal Commissions, or commissions of inquiry, also influence changes in the law. Royal Commissions are appointed by the federal Cabinet, and their role is to conduct impartial investigations of specific national problems. Royal Commissions have ranged from investigations into the proper weighing of butter and cheese to the use of insanity as a legal defence. For example, between 1993 and 1996 a Royal Commission, led by Horace Krever, investigated Canada's blood-supply system. This commission was appointed because individuals had contracted hepatitis C and HIV in the 1980s after receiving blood and blood products screened by the Red Cross.
In the summer of 1990, the Mohawk people of Kanesatake engaged in an armed struggle with the villagers of Oka, Quebec, over the expansion of a private golf course onto land that the Mohawks claimed as thier own. The Mohawk Warriors Society set up a blockade, which was stormed by the Quebec police force, resulting in the death of a police officer. Troops of the Canadian Armed Forces were called in, and a standoff ensued, lasting 78 days. Once the conflict was over, a Royal Commission was set up to investigate and report on the dispute. The Commission made 440 recommendations, including reforms to Aboriginal health care, housing, training, and land claims. The cost of these reforms was estimated at $30 billion. The Commission also revived the idea that Aboriginal peoples should form a "third order of government," with suggestions for setting up an Aboriginal Parliament, a university, and development banks. Many Canadians questioned the $30 billion price tag, and many objected to the idea of a self-governing nation within Canada. However, George Erasmus, co-chair of the Commission and former chief of the Assembly of First Nations, said that the Royal Commission was the first step in establishing trust between Aboriginal peoples and the federal and provincial governments.
Lobby Groups
Lobbying is the act of attempting to influence decisions made by officials in a government. Lobbying is done by many types of people, associations and organized groups, including individuals in private sector corporations, fellow legislators or government officials, or advocacy groups (interest groups). Professional lobbyists are people whose business is trying to influence legislation on behalf of a group or individual who hires them. Individuals and nonprofit organizations can also lobby as an act of volunteering or as a small part of their normal job (for instance, a CEO meeting with a member of parliament about a project important to his/her company, or an activist meeting with his/her legislator in an unpaid capacity).
Lobby groups, such as MADD (Mothers Against Drunk Driving) and the Coalition for Gun Control have not only convinced legislators to change the law regarding drinking drivers and the registration of firearms, they have also succeeded in altering public opinion on these issues. Other organizations such as LEAF (Legal Education Action Fund) challenge existing laws in court and have forced a broad range of changer in law on matters from sexual assault to pay equity. Environmental lobby groups have managed to persuade legislatures to pass laws to protect the environment.
Roles in Government
The Party Whip: The whip of a party is a member charged with keeping other members of the same party informed concerning House business and ensuring their attendance in the House or in committee.
The Lieutenant Governor: The executive officer of a state who is next in rank to a governor and who takes the governor's place in case of disability or death.
The Cabinet: Made up from MPs picked by the prime minister. The heads of each department are called ministers. The role of the cabinet is to take responsibility for policies made by the government by agreeing with them in public or resigning
The Governor General: The Role of the Governor General is of a head of state carrying out the ceremonial day-to-day duties on behalf of the Queen such as appointing ministers, ambassadors, and judges on the advice of a prime minister and giving royal assent to legislation.
Members of Parliament: Members of Parliament is a term used to describe an elected politicians in the House of commons. This term can also refer to a appointed member of Senate.
The Prime Minister: The prime minister is the head of the government, allowing the role to have vast power over the government system. The role includes overseeing parliamentary processes, introduction of bills, and passing of laws. Overall, the prime minister is meant to guide, lead, and direct the government.
How A Law Is Made
Levels of Government
Municipal: Locally elected in villages, cities, and towns, and are the lowest tier within the three levels. Deal with local police, transportation, community centres, public works, parks and recreation, fire departments/police services and emergency medical services.
Provincial: Provincial government is limited to matters that take place in their own province, meaning they do not have power over decisions made in the federal government. Responsibilities include: Education, Transportation, Health, Prison, Municipalities, Road Regulations and Marriage.
Federal: Creates/forms laws and manages programs & services that affect the entire country. Responsibilities include: Foreign affairs, Federal taxes, Criminal law, National defense, Employment insurance, Banking, Copyright law, and the Post office.
Branches of Government
Legislative: The legislative system is the sector of government that consists of the legislative assembly of elected representatives at the provincial and federal level. Composed of the House of Commons and The Senate.
Executive: The executive system is the part of government that carries out and enforces laws/the basis of lawmaking. It includes the Crown (Queen Elizabeth II, 2021), the Prime Minister (Justin Trudeau, 2021), the Governor General (Mary May Simon, 2021) and the cabinet.
Judicial: The judicial system is comprised of courts that interpret, defend, and apply the law. The court applies and interprets the before deciding on a course of action. It includes the Lieutenant Government, Courts, Judges, etc.
The 9 Categories of Law
Private Law
Employment Law: The law that governs employer-employee relationships.
Family Law: Law that deals with various aspects of family life, like separation, custody and support of children, and divorce.
Wills & Estates Law: Law concerned with the division and distribution of property after death.
Contract Law: The branch of law that provides rules regarding agreements between people and businesses.
Property Law: The branch of law that governs ownership rights in property.
Tort Law: The branch of law that holds persons or private organizations responsible for damage they cause another person.
Public Law
Criminal Law: Law that prohibits and punishes behaviour that causes harm to others and society.
Administrative: Law related to the relationship between people and government departments, boards, and agencies.
Constitutional Law: The law that deals with the distribution and exercise of government powers.
The 3 Category Pyramid
Common Law: Judges decide new cases based on previous decisions.
Statute Law: A law or act passed by the government.
Constitutional Law: Deals with the distribution and exercise of government powers.
Trials by Ordeal [1200s]
In medieval Europe and England, people were very religious. Everyone assumed that God would protect people from harm. So, when a legal case was hard to decide, the judge would sometimes order a new trial to be "decided" by God.
Ordeal by combat took place between two parties in a dispute, either two individuals, or between an individual and a government or other organization. They, or, under certain conditions, a designated "champion" acting on their behalf, would fight, and the loser of the fight or the party represented by the losing champion was deemed guilty or liable.
Ordeal by fire was one form of torture. The ordeal of fire typically required that the accused walk a certain distance, usually 9 feet (2.7 metres) or a certain number of paces, usually three, over red-hot ploughshares or holding a red-hot iron. Innocence was sometimes established by a complete lack of injury, but it was more common for the wound to be bandaged and re-examined three days later by a priest, who would pronounce that God had intervened to heal it, or that it was merely festering—in which case the suspect would be exiled or put to death.
Ordeal by water was later associated with the witch-hunts of the 16th and 17th centuries, although in this scenario the outcome was an accused who sank was considered innocent, while floating indicated witchcraft. Demonologists developed inventive new theories about how it worked. The ordeal would normally be conducted with a rope holding the subject connected to assistants sitting in a boat or the like, so that the person being tested could be pulled in if he/she did not float. Some argued that witches floated because they had renounced baptism when entering the Devil's service.
Compurgation, also called wager of law and oath-helping, was a defence used primarily in medieval law. A defendant could establish his innocence or nonliability by taking an oath and by getting a required number of persons, typically twelve, to swear they believed the defendant's oath. The wager of law was essentially a character reference, initially by kin and later by neighbours (from the same region as the defendant), often 11 or 12 men, and it was a way to give credibility to the oath of a defendant at a time when a person's oath had more credibility than a written record. It can be compared to legal wager, which is the provision of surety at the beginning of legal action to minimize frivolous litigation.
Common Law [1000s]
Common law (also known as judicial precedent or judge-made law) is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of "common law" is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision).
The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.
The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. The British Empire spread the English legal system to its colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.
Magna Carta [1215]
1. That the English Church shall be free, and shall have her whole rights and her liberties inviolable [safe from sudden change]; . . . . We have also granted to all the freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be enjoyed and held by them and by their heirs, from us and from our heirs . . . .
12. No scutage [tax for military purposes] nor aid shall be imposed in our kingdom, unless by the common council of our kingdom; excepting to redeem [ransom] our person, to make our eldest son a knight, and once to marry our eldest daughter, and not for these unless a reasonable aid shall be demanded . . . .
14. And also to have the common council of the kingdom, we will cause to be summoned the archbishops, bishops, abbots, earls, and great barons, individually by our letters . . . .
38. No bailiff, for the future, shall put any man to his law upon his own simple affirmation, without credible witnesses produced for that purpose.
39. No freeman shall be seized, imprisoned, dispossessed [deprived of his land], outlawed, or exiled, or in any way destroyed; nor will we proceed against or prosecute him except by the lawful judgment of his peers [equals], or by the law of the land.
40. To none will we sell, to none will we deny, to none will we delay right or justice.
41. All merchants shall have safety and security in coming into England, and going out of England, and in staying in and traveling through England, as well by land as by water to buy and sell, without any unjust exactions [demands], according to ancient and right customs, excepting in the time of war, and if they be of a country at war against us; and if such are found in our land at the beginning of a war, they shall be apprehended [arrested] without injury to their bodies and goods until it be known to us or to our Chief Justiciary how the merchants of our country are treated who are found in the country at war against us; and if ours be in safety there, the others shall be in safety in our land.
42. It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely by land or by water, saving [preserving] his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom . . . .
60. Also all these customs and liberties aforesaid, which we have granted to be held in our kingdom, for so much of it as belongs to us, all our subjects, as well clergy as laity [nonclergy, or laymen], shall observe toward their tenants as far as concerns them . . . .
63. Wherefore our will is, and we firmly command that the Church of England be free, and that the men in our kingdom have and hold the aforesaid liberties, rights, and concessions, well and in peace, freely and quietly, fully and entirely, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. It is also sworn, both on our part and on that of the barons, that all the aforesaid shall be observed in good faith and without any evil intention . . .
Mosaic Law [1240 BCE]
Thou shalt not murder.
Thou shalt not steal.
Thou shalt not commit adultery.
Thou shalt have no other gods before me.
Thou shalt not covet (neighbour's house, wife, slaves, animals).
21:15 (Exodus) Whoever strikes his father or his mother shall be put to death.
21:17 Whoever curses his father or his mother shall be put to death.
21:29 When an ox has been accustomed to gore in the past, and its owner has been warned but has not kept it in, and it kills a man or woman, the ox shall be stoned, and its owner shall also be put to death.
22:1 If a man steals an ox or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and four sheep for a sheep. He shall make restitution; if he has nothing, he shall be sold for his theft.
23:1 You shall not utter a false report. You shall not join hands with a wicked man to be a malicious witness.
Salic Code [500 CE]
1. If any one, man or woman, shall have called a woman harlot, and a not have been able to prove it, he shall be sentenced to 1800 denars, which make 45 shillings.
2. If any person shall have called another "fox," he shall be sentenced to 3 shillings.
3. If any man shall have called another "hare," he shall be sentenced to 3 shillings.
4. If any one have assaulted and plundered a freeman, and it be proved on him, he shall be sentenced to 2500 denars, which make 63 shillings.
5. If a Roman have plundered a Salian Frank, the above law shall be ordered.
6. But if a Frank have plundered a Roman, he shall be sentenced to 35 shillings.
7. If any man die and leave no sons, if the father and mother survive, they shall inherit.
8. If the father and mother do not survive, and he leave brothers or sisters, they shall inherit.
9. But if there are none, the sisters of the father shall inherit.
10. But if there are no sisters of the father, the sisters of the mother shall claim the inheritance.
11. If there are none of these, the nearest relative on the fathcr's side shall succeed to that inheritance.
12. But of Salic land no portion of the inheritance shall come to a woman: but the whole inheritance of the land shall come to the male sex.
13. If any one shall have killed a free Frank, or a barbarian living under the Salic law, and it have been proved on him, he shall be sentenced to 8000 denars.
14. But if he shall have thrown him into a well or into the water, or shall have covered him with branches or anything else, to conceal him, he shall be sentenced to 24000 denars, which make 600 shillings.
15. But if any one has slain a man who is in the service of the king, he shall be sentenced to 24000 denars, which make 600 shillings.
16. But if he have put him in the water or in a well, and covered him with anything to conceal him, he shall be sentenced to 72000 denars, which make 1800 shillings.
Code of Hammurabi [~1750 BCE]
1. If any one "point the finger" at a sister of a god or the wife of any one, and can not prove it, this man shall be taken before the judges and his brow shall be marked (by cutting the skin, or perhaps hair).
2. If a herdsman, to whose care cattle or sheep have been entrusted, be guilty of fraud and make false returns of the natural increase, or sell them for money, then shall he be convicted and pay the owner ten times the loss.
3. If any one take a male or female slave of the court, or a male or female slave of a freed man, outside the city gates, he shall be put to death.
4. If any one take over a field to till it, and obtain no harvest therefrom, it must be proved that he did no work on the field, and he must deliver grain, just as his neighbor raised, to the owner of the field.
5. If any one is committing a robbery and is caught, then he shall be put to death.
6. If a merchant give an agent corn, wool, oil, or any other goods to transport, the agent shall give a receipt for the amount, and compensate the merchant therefor. Then he shall obtain a receipt from the merchant for the money that he gives the merchant.
7. If a man destroy the eye of another man, they shall destroy his eye. If one break a man's bone, they shall break his bone. If one destroy the eye of a freeman or break the bone of a freeman he shall pay one mana of silver. If one destroy the eye of a man's slave or break a bone of a man's slave he shall pay one-half his price.
8. If a man marries a woman and she bears him no sons; if then this woman dies, if the "purchase price" which he had paid into the house of his father-in-law is repaid to him, her husband shall have no claim upon the dowry of this woman; it belongs to her father's house.
9. If a man hires an ox, and he break its leg or cuts the ligament of its neck, he shall compensate the owner with ox for ox.
10. If a man strikes a freeborn woman so that she loses her unborn child, he shall pay ten shekels for her loss.
What Makes Law Just?
The Purpose of Law
Hobbes believed the lives of humans are poor, nasty, brutish, and short; thus, need to control humans
Locke believed law is there to protect the rights of individuals
Law is Latin for "to bind"
Cases
Criminal
R. v. Askov (1990) 2 S.C.R. 1199
Civil
Peterson v. Surrey School District No. 36 (1991), 89 D.L.R. (4th) 517 (B.C.S.C)
Statutes
Criminal Code of Canada, R.S.C. 1985, c. C-46 s. 2
Trials by Ordeal: The courts believed god would protect the truthful person in a courtroom, so they would have the plaintiff and defendant fight. This has no place in today's society but lawyers still battle in the courts.
Common Law: Standard practise of law that originated and spread across the UK. Common law changed from a case to case basis, and started with common sense.
Magna Carta: This code paved the philosophy for "innocent until proven guilty" and believed protecting the people was important as no one could just "make up" a law, all must be treated equal by the law.
Mosaic Law: This short code held very basic moral laws such as "thou shalt not murder, thou shalt not steal." and had harsh consequence for these actions. (Usually death.)
Salic Code: The philosophy behind the Salic code was also centered around atonement, however the way that they carried this out was by charging a fine. (The more severe the crime, the heavier the fine.)
Code of Hammurabi: Hammurabi's Code strictly followed the "eye for an eye" philosophy which believed that punishment was the best deterrent for breaking the code.
