Magna Carta (1215)
Monarch is not above law - first document to say that
Rule of Law
- The government enacts law in an open and transparent manner
- The law is clear and known, and it is applied equally to everyone
- The law will govern the actions of both government and private persons, and their relationship to each other
- The courts will apply the law independently of political or outside influence
Domestic law vs International law
Federal, provincial, municipal - domestic
UN, Treaties - international
Substantive vs Procedural
Substantive - truthfulness of allegation, the accuracy of the verdict, and appropriateness of the sentence
Procedural - rights of individuals upheld through fair procedures
Statues
Statutory law is generally accorded dominance as a source of the legal form because of the long-standing tradition of British parliamentary supremacy
Parliament is supreme because it represents the will of the people
How statues/legislations are made
- First reading in HoC or the legislative assembly
- Second reading without debate
- Often bill stops here due to the cabinet and caucus priorities
- If there’s a second reading, the minister responsible for the bill sets out the purpose of the legislation
- Debate
- Bill is sent to a committee of the house or Assembly composed of both government and opposition members
Charter of Rights and Freedoms: Investigation of crime (4)
Everyone has the right:
Against unreasonable search & seizure
Against arbitrary detention
To be informed about the reason for arrest/detention
To legal counsel without delay
Charter of Rights and Freedoms; Criminal trial process
Everyone has the right:
If charged, to be informed without unreasonable delay of the offense
To trial within a reasonable time
To be presumed innocent until proven guilty
Not to be compelled to testify at own proceedings
Not to be denied reasonable bail
To life liberty & security not to be deprived of the principles of fundamental justice
Against cruel and unusual punishment
Not to have evidence given in one trial used against their own/another trial
Every individual is equal before and under the law
Case Law
- Law established by the decisions in specific court cases
- Subsequent courts will turn to these decisions, known as judicial precedents when attempting to make judgments about similar issues
Two problems with judicial precedents as sources of law
- First is the danger that, in trying to mesh current situations with preexisting case law, the courts and counsel may make illogical distinctions
- The second problem has to do with the ability of a court, particularly the supreme court of Canada, to reverse itself
