Contracts

							        Categories of Law

   1. Substantive Law
    – Rights and obligations
    – Example: You must pay your debts.
   2. Procedural Law
    – Methods used to enforce substantive law
    – Example: The court process used to
      collect an unpaid debt.
           Codes of Conduct
   Written by a regulator, an association, an
    industry, a firm or an organization.
    – Example: University of Regina Athletics Program
      Athlete’s Code of Conduct
   Sets standards of conduct for a certain
    segment of the population
     – Not laws
        Usually impose greater standard than laws
        Focused on narrow group

    – From a practical standpoint, need to obey
         Codes of Conduct
   Binding Codes
    – Professional Associations or Governing Bodies
    – Institute of Chartered Accountants of
      Saskatchewan
   Voluntary Codes
    – Industries
    – Concerned Children’s Advertisers
   Self-Imposed Codes
    – Single Firm
    – The Body Shop
Sources of Law in Canada

1.   Constitution
2.   Statutes and Regulations
3.   Case Law (Court Decisions)
              Constitution
   Most Important Source
    – General Principles Canada is Founded Upon
    – Basic Rights and Freedoms of all Canadians and
      the Powers of the Government
    – General rules for how the Government functions
   Two main parts (for this class)
    – 1. Division of Powers
    – 2. Charter of Rights and Freedoms
                  Constitution
   Division of Powers
    – Power to create laws is divided between
      provinces and federal government
          Can only pass laws if Constitution gives the power
    – Provinces delegate some power to municipalities
      (cities, towns, rural municipalities)
           Division of Powers

   Section 92 sets out the Provinces’
    powers
    – Property and Civil Rights
          Contracts, Land, Personal (including business)
           Property, Business regulation
    – Direct Taxation
    – Administration of Justice
    – Non-renewable Resources and Forestry
    – All Local Matters
       Division of Powers

   Section 91 - Federal Government’s
    powers
    – Taxation
    – Military and Defence
    – Banking (not Credit Unions)
    – Criminal Law
    – Residual Power
    – Emergency Power
          Problems with
        Division of Powers

   Huge Amount of Overlap in Division of
    Powers
   Example: Firearms (guns) Registry
    – Province – Power over property
    – Federal Gov’t – Power over criminal Law
   Marriage
    – Province – Power over marriage procedures
    – Federal Gov’t – Power over the definition of
                      marriage
             Problems with
           Division of Powers
   Ultra Vires – If a law is outside a
    government’s power then it is not
    enforceable.
   Concurrent Power
    – Both have power over many areas of law
          Two earlier examples illustrate
    – Can still both pass laws as long as both laws can
      still be obeyed in a practical manner.
          Example: Display of cigarettes at a convenience store
      Canadian Charter of
      Rights and Freedoms
   Entrenched in the Constitution in 1982
   No law passed by either the Federal Gov’t or
    a Provincial Gov’t is valid if it violates the
    Charter.
    – Unless they can establish justification for doing
      so.
          Lots of justifications have been found
             – To benefit society in general
             – Individual rights often collide with the rights of society
          Must interfere with the right as little as possible
      Canadian Charter of
      Rights and Freedoms
   Freedom of Thought, Belief, Expression, Religion
    – Can think, believe and say whatever you want
           Subject to reasonable limits
           Cannot unduly infringe other people’s rights
    – Example: Insults allowed but hate speech prohibited
    – Example: Cannot yell “fire” in a crowded theatre
    – Example: Can criticize a person but you might be sued for
      defamation if lie and harm his reputation
    – Example: Cannot worship the “marijuana gods” by
      smoking marijuana
      Canadian Charter of
      Rights and Freedoms
   Freedom from unreasonable detention,
    freedom from unreasonable search and
    seizure,
    – Emphasis on unreasonable
    – Example: Police detain - check for drunk driving
    – Example: Police search your home with a
      warrant
   Right to have a lawyer, right to a fair trial
    – Does not mean gov’t will pay expenses for a
      lawyer (will in some cases)
      Canadian Charter of
      Rights and Freedoms
   Section 15 – Laws cannot unjustifiably
    discriminate
    – Example: Same sex couples were denied
      government benefits that opposite sex couples
      receive.
      Canadian Charter of
      Rights and Freedoms
   Discussion:
     – Freedom of Religion vs. Freedom from
       Discrimination:
          Should a marriage commissioner appointed
           by the government be able to refuse to marry
           a same sex couple if it is against the
           commissioner’s personal religious beliefs?
     – What about a refusal to marry couples of
       different ethnic or religious backgrounds?
     – What about a clerk refusing to issue a driver’s
       license to anyone under the age of 30?
     – What about a nurse refusing to aid in the
       conduct of an abortion?
      Canadian Charter of
      Rights and Freedoms
   Section 33 – Notwithstanding Clause
    – Notwithstanding the Charter, a government can
      pass a law that unjustifiably discriminates
    – Example: A law could state men cannot drive in
      Saskatchewan.
    – Four Proper Steps
          1. Pass the law
          2. Someone challenges the law and the Court says it
           offends the Charter
          3. Gov’t re-enacts the law using section 33.
          4. Must re-enact the law every five years
    – Only used 3 times ever outside of Quebec
 What the Court Might Do
  if the Law Violates the
          Charter
1.   Declare law invalid immediately
2.   Declare law invalid but leave
     effective for a specified time
3.   Read in some new wording
4.   Sever only the part that violates the
     Charter
5.   If already changed, do nothing
      Canadian Charter of
      Rights and Freedoms
   Only Government Subject to Charter
    – Others subject to Humans Rights Legislation
          Individuals or businesses cannot discriminate in
           contracts, employment, housing … on the basis of
           characteristics such as race, sex, age (as long as 18 or
           older) …
             – Example: Cannot refuse to rent an apartment to
               someone on the basis of ethnic background
             – Age restriction of 64 was removed in November of 2007
                  Mandatory retirement is now discrimination but still
                   some exceptions to this.
           Constitutional
           Amendments
   Constitution (including Charter) cannot
    be changed by Parliament or one
    Province
    – Unanimity required for most changes
Sources of Law in Canada
   Statutes and Regulations
    – Written laws passed by a province in the
      Legislature or by the federal government in
      Parliament
    – Federal Statutes, Provincial Statutes (City
      Bylaws)
    – All persons in Canada are deemed to know all
      laws
          No defence to not know the law
          Example: Did not know you must slow down to 60
           km/hour when passing emergency vehicles on the
           highway – still guilty.
Sources of Law in Canada

   Case Law (Court Decisions)
   Precedent System for Case Law
    – Courts must follow decisions of Courts
      (cases) at their own level or higher in
      their own jurisdiction
    – Influenced by Courts in other jurisdictions
    Courts in Saskatchewan
   Role of the Courts
    – 1. Determine the validity of legislation
    – 2. Interpret legislation
    – 3. Resolve disputes between people,
       organizations, governments, etc.
    – 4. Enforce criminal and regulatory statutes
    – 5. Protect people’s rights
 Courts in Saskatchewan
Open to the Public
  – An effective system of justice must be open to
    the media and public scrutiny
  – Rare exceptions where privacy needs outweigh
    the public benefit
  – Sometimes partial publication bans
        Example: Sexual assaults – name of victim
        Example: Young offenders’ names not published
Courts in General

   Supreme Court

     Appeal Court

Court of First Instance
         Courts in General

   Courts of First Instance
    – Where the court case is started
    – Where the trial takes place
        Witnesses testify
        Other evidence is filed
         Courts in General

   Appeal Courts
     – Hear appeals once a decision has
       already been made by a Court of
       First Instance
     – Review findings of the trial judge for
       errors
   Supreme Court of Canada
     – Final Court of Appeal
                    Supreme Court



Saskatchewan Court of Appeal        Federal Court of Appeal



          Court of                       Tax         Federal
        Queen’s Bench                    Court        Court




Administrative    Provincial
  Tribunals         Court
    Courts in Saskatchewan

   Provincial Court
    – Court of First Instance
    – Majority of Criminal Matters
    – Youth Court
    – Small Claims Court
          $20,000 limit
    Courts in Saskatchewan

   Administrative Tribunals
    – “Courts” of first instance
        Not officially courts
        Judicial style hearings and decisions

    – Examples:
        Labour Arbitrations
        Saskatchewan Human Rights Tribunal
    Courts in Saskatchewan

   Saskatchewan Court of Queen’s Bench
    – Court of First Instance
        Most Family law
        Serious Criminal Matters
        Civil disputes (Lawsuits)
        Wills and Estates

    – Appeal Court
          Some provincial court matters and some
           administrative tribunals
    Courts in Saskatchewan

   Saskatchewan Court of Appeal
    – Sit as a panel of 3 judges
          Decision does not have to be unanimous
    – Reviews the trial evidence and the decision
          Not a new trial with witnesses and new evidence
          Reviews the transcript and other evidence from the
           trial
    – Difficult to have findings of fact changed
    Courts in Saskatchewan

   Options for the Sask Ct of Appeal
    – 1. Court agrees with trial judge and dismisses
      the appeal.
    – 2. Court disagrees with the trial judge and
      reverses the decision.
    – 3. Court varies the trial judgment
          Increases or decreases the amount
          Changes the criminal sentence
    – 4. Court declares there must be a new trial
    Courts in Saskatchewan

   Supreme Court of Canada – Ottawa
    - 9 judges – usually all sit as a panel
    - Must get “leave” (permission) to appeal
       -   Three judges review it - Rarely allowed
       -   53 cases from all of Canada in 2007
            - 54% criminal
       -   2 cases from Saskatchewan in 2007.
            - Usually only about 1 case per year for Saskatchewan.
    – same options as the Court of Appeal if an appeal
      occurs