Canadian Law. What is Law?

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1 8 MODULE 1 LAW 12 Canadian Law Canada s laws are complex (i.e., not easy to understand) and comprehensive (i.e., we have laws governing just about everything). They affect each of us every day of our lives. In fact, the law affects us even before we are born. For example, a pregnant woman s access to virtually all drugs and medical services is regulated by a variety of provincial and federal laws. Even after we die, the law dictates the way in which all of our possessions are to be distributed. Provincial law states how a will must be prepared for it to be legal, and what happens to the deceased person s possessions in the event that he/she dies without a legal will. What is Law? Law consists of rules and regulations governing behaviour in society that are enforceable in court. Therefore, the rules of etiquette (i.e., how to set a table for dinner, how to introduce people, etc.) and the rules of games, for example, are not laws. If you break these rules, the offended party cannot take you to court to have you punished or receive compensation. However, the rules of the road, for example, are law. If they are not followed, the offender can be punished by the courts, or forced to compensate others whom they have injured or caused damage to their property.

2 94 MODULE 1 LAW 12 The Canadian Federal Legislative Process The following flowchart shows the steps involved in enacting, amending or repealing any federal statute (law). The process is similar at the provincial level, except there is only one legislative body (no Senate). Cabinet and Federal Ministries Almost all new laws are proposed by a federal Minister, for example, the Minister of Health). The Minister may use the suggestions of a commission or have his own ideas about changes to the law. Law Commission of Canada The Law Commission of Canada continuously studies possible changes to improve our laws and makes suggestions to the government.

3 MODULE 1 LAW LAW COMMISSION OF CANADA CABINET AND FEDERAL MINISTRIES ROYAL COMMISSION LOBBYISTS DISCUSSION PAPER BILL HOUSE OF COMMONS FIRST READING Yes SECOND READING Yes ALL PARTY COMMITTTEE Yes THIRD READING Yes No No No Defeated Defeated Defeated SENATE (3 sta ges as in Hou se of Co mmons) ROYAL ASSENT STATUTE Royal Commission Periodically, an issue is of such national importance that the federal government will set up a Royal Commission to travel the country to study and receive input from various groups and individuals about changing laws regarding the issue. A recent example was the Romanow Commission on the Future of Health Care in Canada. Once a Royal Commission's report is filed, it is disbanded. Lobbyists Throughout the legislative process, lobbyists will try to influence the proposed new law. They are hired to protect the interests of business, environmental, charitable and other groups that will be affected by changes in the law.

4 96 MODULE 1 LAW 12 Discussion Paper The government often will issue a discussion paper to notify people about changes they are thinking of making in the law. This gives interested parties a chance to voice their opinions. For instance, in 2005, the federal justice committee released a discussion paper outlining the various options it was considering regarding the decriminalization of marijuana and inviting interested parties to give them their perspective on the issue. Bill The government will prepare a detailed written draft of the proposed legislation to be introduced and voted on at the next session of Parliament. This is known as a bill. First Reading During First Reading the bill is introduced in the House of Commons so that Members of Parliament can become familiar with it. There is no debate allowed and bills are almost always passed at this stage. Any bill defeated on any reading is removed from the order paper and cannot be reintroduced until the next session. Second Reading During Second Reading the sections of the bill are read in the House and there is a debate allowed about the general idea or principle of the bill. All-Party Committee Upon approval on second reading, the bill goes to a committee made up of members of all the political parties in the House so that the wording in each section can be examined in detail and improved.

5 MODULE 1 LAW Third Reading During Third Reading each section is read carefully and debated. When all the sections have been dealt with and all changes made, the House votes whether to pass the bill or to defeat it. Senate Bills passed in the House are then sent to the Senate for the same process. Royal Assent Bills approved by the Senate are then sent to the Governor-General for Royal Assent. On the Queen's behalf, the Governor-General signs the bill into law. Statue The legislative process has converted the bill into a statute. It is now a legally binding law of the land. Go now to your All About Law textbookand read Section 1.7: How Laws are Made in Canada, pages

6 MODULE 1 LAW 12 9 The Purposes of Law Laws are necessary for people to live together peacefully. Sadly, not everyone will respect other peoples rights (to own private property, to privacy, etc.) unless they are forced to do so. Therefore, every society needs laws. Without them, there would likely be anarchy. Go to your All About Law textbook now and read Section 1.2: What is Law and Why Do We Have It? on pages 3 6. Guided Practice 1.1A 1 Law or Not? State whether each situation is a law or not. Explain your answer. 1. The rule that requires employers to deduct income tax from their employees paycheques. 2. The rule that requires anyone entering a Canadian Legion (an Armed Forces veterans association) premises to remove their hat. 3. The rule that requires a man to present his fiancé with an engagement ring when he proposes. 4. The rule that requires business owners to purchase a licence each year in order to operate their business. 5. The rule that requires the driver on the left to yield to the driver on the right at an uncontrolled intersection.

7 MODULE 2 LAW Young Offenders Act (1984) Following the adoption of the Charter of Rights and Freedoms in 1984, it became apparent that an overhaul of the law regarding youth was needed. The federal government enacted the Young Offenders Act (YOA), which was in effect until This Act raised the minimum age for criminal purposes to 12 and extended full Charter rights to youths, who were defined as anyone between the ages of 12 and 17. A partial list of these rights include: the right to a lawyer to remain silent to be presumed innocent until proven guilty, and to have a parent present when you are questioned by the police The YOA also protected the identity of youth charged with crimes and set up a separate court for young offenders. The emphasis was on holding youth responsible for their actions and on their rehabilitation. The majority of people working with young offenders felt the system was very effective.

8 76 MODULE 2 LAW 12 The Youth Criminal Justice Act (2002) However, largely because of lenient treatment and short sentences for violent young offenders, the public was very critical of the Young Offenders Act. In 2002 a new Youth Criminal Justice Act, containing most of the features of the YOA, was enacted. Because of the concerns of the old Young Offenders Act, the new Youth Criminal Justice Act has two significant areas of change when dealing with young offenders: 1. An increased emphasis on including parents, victims, and community members in restorative justice programs and diverting first-time, non-violent youth out of the court system. 2. An attempt to provide more sentencing options and to deal much more severely with violent, repeat offenders. The Youth Criminal Justice Act tries to promote the long-term protection of the public by operating under the following principles: prevent crime by addressing the circumstances underlying a young person's behaviour. rehabilitate and reintegrate young people who commit offences back into society. ensure that a young person is subject to meaningful consequences for his or her offence(s). Note Taking To complete the section assignment you will need to take notes on the Youth Criminal Justice Act. You will be submitting your notes on the Youth Criminal Justice Act to your instructor as part of your section assignment. Collecting and efficiently summarizing textual information is an important intellectual skill for high school and university students, but it is also useful for lawyers and other legal workers. Note taking is used when interviewing clients and witnesses, and examining statute and case law. Writing and summarizing information is a skill practiced on a daily basis in the legal world.

9 MODULE 3 LAW 12 7 Lesson 3.1A Civil Law and the Civil Court System Overview In this lesson you will review the major differences between civil law and criminal law will be reviewed in this lesson. Resource List All About Law: Exploring the Canadian Legal System, 5th edition Law 12 Web site What is Civil Law? Civil law (also known as private law) is mainly concerned with helping settle disagreements and compensating people who have been wronged in some way. Civil law cases are between individuals, or groups, and are not considered to be in the public s interest; they are private matters that do not affect society as a whole. As a result, the onus of taking action in court is placed on the person (or group) that feels aggrieved, not the Crown. Other Key Features of Civil Law In civil law: The person or group who has allegedly been wronged is known as the plaintiff; the person or group who is allegedly to blame is the defendant. The aim is to determine if an actual wrong has occurred, and if it has to determine who, if anyone, is at fault. It is up to the plaintiff to prove that he or she has been wronged by the defendant.

10 8 MODULE 3 LAW 12 Proof of fault is based on the balance of probabilities is it probable that the injury or wrong was the result of the plaintiff s actions or inaction? The aim is also to compensate the defendant for injury or loss if fault can be determined. Civil Law vs. Criminal Law Study these graphics closely they illustrate some of the key differences between civil law and criminal law. Tort or Crime? The law distinguishes between wrongs against society (crimes) and wrongs against an individual (torts), but the difference can be difficult to understand.

11 MODULE 3 LAW 12 9 A crime is a forbidden behaviour that is so serious it threatens society as a whole. Society tries to prevent crime by apprehending and punishing criminals, even if the criminals are unsuccessful and cause no harm. But a tort focuses on the result of wrongful behaviour and the emphasis is on the victim receiving compensation for harm that actually happened, or receiving an injunction to prevent harm. Prevention may be a result (if you know someone can sue you, you re less likely to do wrong) but it s secondary to compensation. It s a Tort! It s a Crime! It s Both Tort and Crime! An offence can be both a tort and a crime. For example, suppose a speeding car smashes into yours, seriously injuring you. The crime (offence against society) is speeding or dangerous driving. The tort is injuring you, and you re entitled to sue for compensation. A thief who breaks your window and takes your stereo is caught, charged, convicted, and sentenced. The criminal has been punished. Whoopee, you say, what about my window and stereo? Ah yes, that s a tort. The police will try to recover your stereo. The judge may order the thief to make restitution. If not, you can sue the thief. It is not often that a common criminal is prosecuted in criminal court and also sued in civil court, as most often, it is not worth the time, energy, stress, and expenses to sue a criminal who has so few assets. The ability to collect from the criminal is problematic. Police may decide that a wrong isn t serious enough to lay criminal charges, but victims can launch their own legal action for damages.

12 MODULE 4 LAW Lesson 4.3D Settling an Estate Overview Settling estates can be simple or complex; the law assists in providing terms in which the estate is settled. Resource List Law 12 Web site Estate Settlement At some time in your life you will be involved in settling an estate. A simple estate with a valid will can be quite easily settled by anyone. More complex estates will require the services of a lawyer. Whether or not a lawyer aids in settling the estate, the executor still has many important tasks. A clear understanding of the process will help you, whether you are the executor or are just trying to help your family or friends through a difficult time. The Basic Plan Settling an estate can look quite complicated. There are many forms to complete, the steps must be followed in the correct order, and the court is very particular about how things must be done. Permission to Probate Once the will has been found, the executor or administrator must apply to probate court for Letters Probate. This document gives the executor or administrator the right to begin distributing the estate.

13 96 MODULE 4 LAW 12 Before it will grant Letters Probate, the court must have proof that: The estate has been properly described. This would include a list of assets (real property and chattels), and a list of liabilities (money owed by the deceased). A wills search has been completed. All the potential beneficiaries have been notified. Anyone can apply for Letters Probate. To do so, however, requires careful completion of a number of documents. Many people prefer to have this done by a lawyer. Pay the Deceased s Debts Once he or she has the Letters Probate, the executor can begin settling the estate. First, the debts must be paid. The executor must make a reasonable effort to contact anyone who has a claim on the estate. This may involve placing an advertisement in relevant newspapers. There may not be enough money to pay off all the deceased s debts. If this is the case, the law in British Columbia states that debts must be paid off in this order: Funeral expenses Legal expenses, fees, and costs to settle the estate Municipal taxes Income taxes Personal debts Distributing the Estate Once the liabilities have been subtracted from the assets, the rest of the estate will be distributed according to the deceased s wishes. If there is no will, then the laws of intestacy will apply.

14 MODULE 4 LAW When Minors Inherit A minor s inheritance, whether through a valid will or under the Estate Administration Act, will be managed by an adult. Where there is a will, it is usual for the surviving parent to manage the child s portion of the estate. To ensure that the minor has been treated fairly, the Public Trustee must see an accounting of how the estate was settled. Trusts Sometimes, a will specifies that the minor s portion will be placed in a trust. A trust is a legal arrangement where one person (the trustee) manages money on behalf of the minor. Where there is a will, the surviving parent will usually be named as trustee. The Public Trustee must be given regular accounting of how the money is managed. If the parent has died without a will, the Office of the Public Trustee will actually manage the trust. Where there is a large amount of money involved, it is usual for the principal to be invested. The person caring for the child then receives the interest on the investment in the form of regular payments. When the child turns 19, the terms of the trust are usually completed and the child then receives the entire trust.the surviving parent or guardian may also use the principal to help raise the child. This might be necessary if the child has a need, such as orthodontic care, and the interest alone from the trust would not cover the expense. Trusts can be quite complicated, and involve many different conditions. This has been a brief summary of only the most common arrangements.