Yukon College Papers by Murray Lundberg, 1993-1994
Criminology 135 Midterm Exam
February 28, 1994
A: Discuss and explain the sources of law.
Defining the sources of law is as complex as defining law itself:
Because law is not a single, homogeneous entity, but rather an amalgam of all kinds of entities of various natures, then it follows that each type of commandment or law that governs our behaviour may be traced to its own unique source or law-giver (Gall,1990:32).
Law as the general guiding principles of human behaviour traces its roots at least as far back as law-givers such as Hammurabi, Moses and Confucius, with formal declarations of acceptable behaviour dating back over 3,000 years, to the Ten Commandments. These forerunners of our current system of law had as their sources various beliefs based on cultural norms such as religion, concepts of natural justice, social custom, and individual conscience (Gall,1990:32-34).
For a practical understanding of the Canadian legal system, the legal sources of law are seen as the most important:
Through an examination of the legal sources of law, we are able to discover the various rights, duties, powers and privileges which define the nature of control that the law exerts over human affairs (Gall,1990:36)
Based mainly on English law, "statutory enactments and cases adjudicated by the courts" are the two primary sources of Canadian law (Gall,1990:36; Waddams,1992:17), with custom, convention, and the prevailing morality as guides. The Parliament of Canada and the Provincial Legislatures can all enact statutes known as primary legislation. These sovereign legislative bodies also grant authority to a wide variety of agencies to enact subordinate legislation under certain conditions. This
legislation may take the form of “by-laws, ordinances, statutory instruments, orders in council, rules and regulations" (Gall,1990:37).
The cases adjudicated by the courts, containing "a set of principles [and exceptions] enunciated through the decisions of courts over the past six hundred years", form a body of law known as the common law, and is a major source of Canadian law except
in Quebec, where the principles of civil law provide the source. Common law is the unenacted, traditional law of the country, as contrasted to local customs, or statutes and ordinances (Gall,1990:38)
B: Discuss and explain private and public law.
The Canadian legal system uses what is called positive domestic law, the law "as set out in the various legal sources of law", which is used to "govern the affairs of all persons" within the country (Gall,1990:24,25). The positive domestic law is
divided into procedural law (the procedures followed by the legal system), and substantive law ("the legal principles set out in the various legal sources of law"). The positive, domestic, substantive law is further divided into public law, and private law according to whose interests are primarily served by the legal principles involved (Gall,1990:24).
"The public law is defined, essentially, as those areas of the law in which the public interest is primarily involved". There are four main divisions in public law: constitutional law, administrative law, criminal law, and taxation law (Gall,1990:24-25).
Constitutional law involves "the relationship between the various components" of the government; it also involves private interests through the Charter of Rights and Freedoms and its guarantees of fundamental freedoms for individuals (Gall,1990:24).
Administrative law may involve private interests through adminstrative decisions which are "based upon certain guidelines which promote and advance the public interest" (Gall,1990:24).
Criminal law involves the public interest "in the sense that crime is regarded as an offence against the state, against the people and against the public interest". Protection of the public interest is the reason that various agents of the
government (police, Crown attorney, Corrections, and criminal injuries compensation boards) all may be involved in the investigation, prosecution, and attempted resolution of crimes (Gall,1990:25).
Taxation law involves "the collection of moneys needed to finance the operations of government and the conduct of public programmes" (Gall,1990:25).
"The private law is defined, essentially, as those areas of the law in which the private interest in primarily involved". In all areas of Canada except Quebec, private law is governed by the common law system; in Quebec, a civil law system governs
(Gall,1990:49). Private law (also called civil law (Waddams,1992:16) comprises the major portion of the work of the legal profession and courts, and involves the laws of contracts, property and torts, including wills, patents, corporate law,family law, consumer protection and so on (Gall,1990:25-26).
It is important to note that these divisions are not clearly delineated or fixed, and, for example, one case could involve both public and private legal actions (Gall,1990:24). Also, in the distinctions between criminal and civil cases, different
procedures and terminology are used, and court jurisdictions vary (Waddams,1992:60-61).
C: Discuss and explain precedents and stare decisis.
The use of precedents, using the judicial decision in a previous case as a guide in future cases, is a basis for the necessary stability of legal decisions over time. "The principle of reliance on decided cases is called the principle of stare
decisis (to stand by what has been decided)" (Waddams,1992:77). Using this principle, every judicial decision "is at once an application of the law and a contribution to the law itself" (Waddams,1992:85).
An important distinction is made between the actual reasons for the decision (ratio decidendi), which is, in theory at least, the basis for stare decisis, and everything else said by the judge in a certain case (obiter dicta). In actual practice, the division between the two is often blurred, particularly in decisions of appellate courts where there are several judges, and "the ratio decidendi of a case is only as wide as a subsequent court will concede it to be" (Waddams,1992:77,79,81).
The use of precedents in the modern Canadian legal system is more flexible than it was historically:
A hundred years ago it was commonly believed that legal rules once declared by the court should be unalterable. ...Thus the law was to become more and more certain and complete as the judges filled in the gaps, so that eventually there would be a known legal rule for every possible case (Waddams,1992:82).
In current use, precedent is generally looked at in view of its applicability to the present circumstances. Though this approach "threatens the principle of stare decisis itself", it is felt that "if stare decisis led to retention of an unworkable rule it would increase, rather than decrease, uncertainty". Judges must therefore use precedent as a guide along what Lord Denning called "the path to justice" (Waddams,1992:83,84).
Though the Supreme Court of Canada can, and has, overruled its own previous decisions, "decisions of superior courts are binding on lower courts". Canadian courts continue to occasionally look for guidance to English, other Commonwealth, and American court decisions as well, though non-Canadian decisions are not binding (Waddams,1992:84,86).
The use of precedent and stare decisis is governed to varying degrees by the personal orientation of the judge. There are two main factors in this orientation: whether he regards the principles of precedent and stare decisis as "rules of law, conventions or customs now enshrined within the law, judicial attitudes, or otherwise", and where he stands on the continuum that ranges from those judges who see themselves as acting in a "quasi-legislative" role, to those who see their role as being
basically interpretative, relying heavily on precedents (Gall, 1990:272, 273).
Most judges view their role as falling somewhere between these extremes, ...as essentially an interpretative one, tempered, however, by the dictates of justice and fairness, [and with] reference to changing social conditions (Gall,1990:273).
D: Discuss the difference between a constitutional statute and a non constitutional statute.
"Statutes are the most important legal source of law" (Gall,1990:37); they may may be constructed as constitutional, non-constitutional or, some would argue, quasi-constitutional forms. The primary difference is stated clearly in Section 52(1) of the Constitution Act of 1982:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The primacy of constitutional statutes arises from the nature of both the construction, and of the principles involved:
A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power, and when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, it cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social,
political and historical realities often unimagined a by its framers (Hunter v. Southam Inc., (1984) 2 S.C.R. 145 at 155, in Whitley,1989:10).
Although there is currently an amending formula for the Constitution, it is unlikely to be used, by political convention, because of Quebec's opting out (Willis, January 26,1994). The nature of those constitutional concerns necessitates the use of more general language, in order to facilitate subtle changes in the application of the basic principles, while not altering its use as "the legal touchstone for the nation" (Whitley,1989:12).
Quasi-constitutional statutes strictly speaking are non-constitutional in nature and could be repealed at any time, but "they intrinsically occupy a special status for reason that their subject matters fall within the constitutional realm". Statutes of this type include the 1985 Canadian Bill of Rights, and the 1985 Supreme Court Act (Gall1,1990:62).
In the actual functioning of constitutional and non-constitutional statutes, other major differences are apparent: "The Supreme Court of Canada has clearly indicated that a constitutional document is not to be interpreted in the same manner as a statute" (Whitley,1989:foreword). Whereas non-constitutional statutes are to be strictly interpreted, "the dominant view seems to be that flexibility and generous interpretation ought to be the approach to constitutional interpretation" (Whitley,1989:7,8). As part of that flexibilty, the rules of evidence allow for a much wider range of evidence than is permissible in a statute interpretation (Gal1,1990:81-82).
E: Discuss the purpose of a constitution.
A constitution is, essentially, a formal compilation of "the fundamental laws and principles that normally govern the operation of a state or association" (Funk & Wagnalls,1989). Focusing on political constitutions, Stuart Whitley (1989:1-2) describes constitutionalism, "the tradition of government limited by fundamental principles of law" as having as a hallmark:
the identification of values - some explicit, others implied - which will enjoy primacy in society. These principles, which are fundamental to the organization, institutions, beliefs and aspirations of a particular polity, constitute the backbone of a constitution.
...Such principles are invariably ...described in ideal terms, to which the sober realities of human existence rarely reach.
Tracing back 2,300 years, Aristotle recognized three dimensions
of constitutionalism which are still widely accepted:
Constitutions are not only frames of government, they reflect the realities of the distribution of a political power in the polity served, ...[and] they also reflect, explicitly or implicitly, the moral principles underlying polities or regimes (Elazar,1984:240).
Daniel Elazar (1984:233) has classified constitutions, in terms
of their purpose, into five different models by analyzing "the relationship between the contents of the constitutional document and the fundamental character or form of the polity it is designed to serve". He identifies these models as:
1. The constitution as frame of government and protector of rights: ...works best in political systems where there exists basic consensus with regard to the character of the polity;
2. The constitution as code: ...reflects the reality of polities in which the character of the regime itself is sufficiently problematic for change in its authority, power or functions to require explicit consent;
3. The constitution as revolutionary manifesto: ...designed for the comprehensive revolutionary reconstruction of an established civil society;
4. The constitution as (tempered) political ideal: ...combines an expression of what its citizens believe the regime should be [without any serious expectation that it will reach those ideals] with the basic structure of authority;
5. The constitution as a modern adaptation of an ancient traditional constitution: ...frequently finds expression in an "unwritten constitution", a collection of documents of constitutional import.
The Canadian Constitution Act is considered to function as a "frame of government and protector of rights", and as such, "it is not designed to be highly specific and is only explicit in connection with those elements essential to those two tasks" (Blazar,1984:234). The fundamental and relatively constant nature of the values and principles involved, and the general agreement of the members of the society as to their worth, allows the unique construction of this type of constitution, in terms of "the very generalized language that constitutions employ", the "great silences" on many specifics (Whitley,1989: 7,12), and in the complexity of the mechanisms for repealing or amending a
While the purpose of the generalized language is meant to allow for subtle shifts in interpretation in order to "keep the frame of government in tune with societal change" (Elazar,1984:234), it is possible to have other results: "the more flexible the framing document is, the greater the possibility for unintended and unperceived changes" (Elazar,1984:246). Those "unintended and unperceived changes" may result from the beliefs of the Supreme Court judges who weigh the multitude of factors required to arrive at an interpretation of any portion of the constitution: "as the late Chief Justice Laskin reminds us: 'the constitution is as open as the minds of those who are called upon to interpret it; it is as closed as their minds are closed'"
(Trakman,1991:162). As an ideal, the Canadian Constitution "Serves as a reminder to each individual judge that his discretion is grounded in community values, and, in particular, long term community values (Lamer J., in Whitley,1989:19).
F: Discuss how the courts have interpreted section one of the Charter of Rights and Freedoms and the purpose of section one.
1 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 1 of the Charter lays the foundations for the required balancing of individual rights and freedoms as guaranteed in the Charter against the values of the community as a whole. The primal nature of s.1 has resulted in it being termed
"the genetic code of the Charter" (Scolin J., (1986), 51C.R.(3d) 166 at 172; in Whitley,1989:133). The generalized language used in s.1, while allowing for the growth necessary in a constitutional document (Whitley, 1989:12), has resulted in a continuing series of challenges and interpretations as the Courts assessed, initially, the intentions of the framers of the Charter, and, currently, the applicability of s.1 in specific
Section 1 was initially condemned by civil libertarians who objected to the idea that individual rights and freedoms should be able to be limited by either the legislature or the Courts. The October 1980 version of s.1 was stated as:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.
A compromise was reached with the inclusion of the statement that limitations on rights and freedoms must be "prescribed by law" and "demonstrably justified" (Whitley, 1989:122).
John D. Whyte (1985) offered an analysis of potential s.1 interpretations which were based on s.1 being used to further the goals of one of two political models, the liberal, and the organic state. A basic understanding of these two models presents
a revealing light in which to view subsequent Charter case decisions. Under the political philosophy of liberalism, "society is arranged without a particular conception of the good and individuals have claims of right to equal regard and respect"(p.174). In the organic society, "the primary focus is not the autonomy of the individual, but the importance of
nurturing communities or corporate life" (p.174). Whyte argues that "the values of liberalism and communitarianism are values which compete with each other in any society" (p.175); that the accommodation of these principles in Canada continues to shift; and that the interpretation of s.1 has, so far, been towards the "perfect[ion] of the liberal state in Canada":
In the perfect liberal state we would ...want the values of the Charter to prevail not only in respect of the conduct of the government and the administration of law but also in respect of as much private inter-personal action as possible. The values of personal freedom and equal respect which governments must honour should also be honoured within one's home, church, union, tribe, school, or other form of corporate existence (p.175).
In discussing attempts to clearly divide individual and government rights, Leon Trakman (1991:101) suggests that:
Once courts insist that the State itself protect the individual's right to be autonomous, they enshrine a peculiarly public interest in that autonomy. ...The Supreme Court contends, (regarding freedom of religion and Sunday store closings] in Big M Drug Mart, that 'the ability of each citizen to make free and informed choices is the absolute prerequisite for the legitimacy, acceptability, and efficacy of ...self-government.
The Charter is presumably based on the underlying value system of the dominant sections of Canadian society. It is the responsibility of the Courts to assess those values as they relate to the specific sections of the Charter, "to seek an equilibrium between the expression of the common will (which usually will occur in the democratic process resulting in a statute) and the principles enshrined in the Charter". It is generally agreed in Canada that freedoms must be limited in cases
where other members of society may be injured. It is debatable whether or not those freedoms should be limited, as F. Bergman argues (in Whitley, 1989:120), in cases when it is deemed necessary to protect a person from parts of their own nature which are "unappealing or mean or retrograde or evil". Bergman goes on to state his belief that "freedom is anything but a categorical or unquestionable good. How great or how smal its
value depends decisively on the value of the force to be released". The complexity of that equation is obviously increased by the lack of consensus in Canadian society as a whole regarding the "value" of specific beliefs or behaviours.
Whether or not it was planned that way by the framers, the Charter has had the effect of moving Canada away from the British example of the supremacy of Parliament, towards the American example in which the Supreme Court has the ultimate power in the resolution of the main social issues (Waddams,1992:97-98).
As part of the required value assessments by the Courts, evidence may or may not be presented at a s.1 inquiry. In R. v. Jones ((1986],47 Alta. L.R.(2d)97[S.C.C.]), the Court stated that presentation of evidence is not always necessary "to establish legislative purpose"; that the Court would be presumed "to have a
general knowledge of our history and values and to know at least the broad design and workings of our society" (in Whitley, 1989:130).
When presented, evidence "will usually be directed to the nature of the Canadian polity and the society it reflects. Such evidence is, by definition, amorphous, and different times will demand different imperatives" (Whitley,1989:99). A presentation
known as a "Brandeis Brief", first used in the United States in 1908, is occasionally used in Charter cases to provide information to the court on a particular area of the social sciences (Whitley,1989: 102,105,107).
In R. v. Oakes (1986), Dickson C.J.C. stated that "the standard of proof under s.1 of the Charter is the civil standard, since the criminal standard (beyond reasonable doubt) would 'be unduly onerous on the party seeking to limit'" (in Whitley,1989:122). Another extremely important distinction is that the standard of presumption of constitutionality does not apply in Charter cases, in which "judicial authority to date seems to favour a two-stage approach in the context of other Charter rights, when s.1 is used at all" (Smith,1985:403). In the first stage of a Charter challenge, "the initial onus in proving that a Charter violation has been violated falls on the party alleging the violation" (Gall,1990: 84). If the violation is proved, the onus shifts:
"the burden of persuading a court that s.1 justifies a law or other government act that is ostensibly in breach of a Charter right rests on the government (or other party that is relying on the validity of the law or act)" (re Hunter v. Southam , in Hogg,1985:681).
In the above case, the Supreme Court held that the government did not prove that the search powers under the Combines Investigation Act were necessary for the public good.
The definition of specific words and phrases in s.1 has proven to be significant. The distinction between the use of the word "limits" and actual denial of rights was one of the crucial points in A.-G. Que. v. Quebec Protestant School Boards ([(1984] 28.C.R. 66; in Hogg,1985:682-684). The Supreme Court decided that the "Quebec clause", which excluded children educated in English-language schools from areas other than Quebec from enroling in Quebec English-language schools, was invalid under s.23, and that s.1 did not apply because this was a denial of rights, not a limit as prescribed by s.1. Hogg objects to this interpretation because:
Whether that contravention [of a Charter right] is a "denial" of that right - a severe breach - or merely a "limit" on that right - a less severe breach - is a question of degree upon which reasonable people are bound to differ, and upon which it will be impossible to develop judicially manageable standards (p.683).
The interpretation of the phrase "prescribed by law" in s.1 has followed the example of the European Court of Human Rights in interpreting the same phrase, used in the European Convention on Human Rights, in deciding that common law rules were valid, but directives from government agencies were not (Hogg,1985:684-686). In Re Ontario Film and Video Appreciation Society ( 450.R.[2d]80[Ont.C.A.]), it was decided that the powers of the Ontario Board of Censors were not only a breach of s.2, but that
s.1 was not a protection for those powers because of the vagueness of the departmental regulations regarding the Board's activities.
The interpretation of dual qualifiers on the "limits", "reasonable" and "demonstrably justified", have been based on proportionality, as well as the assumption that "the word 'reasonable' in s.1 requires that a limit on Charter rights be rationally related to a legitimate government purpose" (Hogg, 1985:687). Hogg called for the weighing of three factors, which became crucial in Oakes in assessing the validity of the "reverse onus" clause in s.8 of the Narcotics Control Act:
(1) the importance of the Charter right that has been infringed; (2) the extent of the infringement; and (3) the importance of the governmental interest asserted in the justification. The significance of the phrase "demonstrably justified" is that factor (3) clearly outweighs the combined effect of factors (1) and (2) (p.688).
Hogg also asserts that this requires the Court to decide not only on "the legitimacy of the government purpose", but also whether the statute in question will achieve the purpose, and whether a statute which is less restrictive of a Charter right would accomplish the same purpose (p.689). The concept behind this assertion became known as the "Oakes test", and was verified by Chief Justice Dickson in 1986 in R. v. Edwards Books and Art Ltd.. Dickson C.J., in discussing the requirements of a valid limiting statute, stated that:
...the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative object, albeit
important, is nevertheless outweighed by the abridgement of rights (in Gall,1990:68)
The use of evidence from other jurisdictions than Canada is suggested by the use of the term "in a free and democratic society". Because of that phraseology, Canadian courts have examined evidence from Europe (particularly the United Kingdom and Germany), the United States, and Australia notably.
Elazar, Daniel J. (1984). Constitution-making: The Pre-eminently Political Act. In Keith G. Banting and Richard Simeon (Eds.). "Redesigning the State. The Politics of Political Change". Toronto: University of Toronto. 1985.
Gall, Gerald L. "The Canadian Legal System. Third Edition". Toronto: Carswell. 1990.
Hogg, Peter W. "Constitutional Law of Canada. Second Edition". Toronto: Carswell. 1985.
Smith, Lynn. (1985). A New Paradigm for Equality Rights. In Lynn Smith (Ed. in Chief) "Righting the Balance. Canada's New Equality Rights". Saskatoon: The Canadian Human Rights Reporter Inc. 1986.
Trakman, Leon E. "Reasoning With the Charter". Toronto: Butterworths. 1991.
Waddams, S.M. "Introduction to the Study of Law". Toronto: Carswell. 1992.
Whitley, Stuart James. "Criminal Justice and the Constitution". Toronto: Carswell. 1989.
Whyte, John D. (1985). Is the Private Sector Affected by the Charter? In Lynn Smith (Ed. in Chief) "Righting the Balance. Canada's New Equality Rights". Saskatoon: The Canadian Human Rights Reporter Inc. 1986.
See a pdf of the paper.