Canadian Public and Private Law and International Law - Assignment Example

? IDENTIFY Real World Examples of Canadian Public and Private Law and International Law Tort Law Artifact Torts or wrongful acts may be committedby individuals or business. An example of tort law is the law of negligence.( Civil Law in Canada {Torts}) A person may carelessly bump into another causing him/her to fall, sustaining injuries. A business may commit a tort by manufacturing a product not fit for its’ intended purpose, or fail to keep its premises as safe as possible for the visiting public. Analysis Canadian tort law is a branch of civil law based on legal precedent or previous judgments that do not require a contract between the parties. It is founded on the notion of what a reasonable man would do to protect others from injuries and/or property damage as a result of their activities. Canadian liability insurance policies protect policy holders whether individuals or firms from the consequences of unintended torts, usually negligence. They do not insure intended torts such as assault because they are completely within the power of the perpetrator to prevent and therefore uninsurable because they are not accidental. Because of Canada’s winter climate, a very common example of tort is negligence for failure to tale reasonable steps to keep business and residential parking lots and sidewalks free from the hazards of ice and snow. In theory this does not mean, for example, that a store is automatically responsible for injuries suffered by a person falling on an icy sidewalk. They would not be liable if the accident happened in the midst of a storm, but if the business failed to salt and sand after the storm passed they would be judged responsible by a court. Unfortunately, in practical terms insurers usually have to pay claimants something, for example out of pocket expenses regardless of their degree of negligence if any. However, their exposure can be reduced if businesses keep a log showing when they salted and sanded to demonstrate their efforts to keep the premises as safe as possible. In other words, while such tort negligence claims usually require some insurer payout, the amount can be reduced significantly if the business shows it did all it reasonably could under the circumstances. 2). Contract Law Artifact Canadian contract law refers to that branch of civil law which pertains to the conditions required for a valid enforceable contract or agreement between parties.( Canadian Contract Law) Unlike tort law it is not based on judicial precedent but on the specific terms of the particular contract. They are usually written but can be verbal. They may be based on negotiated terms between the parties or on standard wordings as many insurance contracts are. Analysis Binding contracts are freely entered into agreements between individuals, groups and/or businesses to perform a specified service or provide a designated product to the other contracted party/parties in exchange for consideration, that is, money, benefit, right or interest, or some forbearance, loss or responsibility given, suffered or undertaken by the other. ( Making and Breaking Contracts). It also must be a clear, unequivocal, direct offer to another party to contract which is accepted on the same basis by this party to become a binding contract. In Canada there are certain situations where a court will not enforce a contract, for example, if it involves the commission of a crime, it is entered into by people deemed mentally incompetent, and therefore unable to understand it’s terms, and in some cases involving minors unless the court declares it provides a clear and necessary benefit to the minor, or can be revoked by the young person without penalty. Otherwise, to ensure enforceability it is very important that the terms be clear, consistent precise and address all foreseeable eventualities. Especially in Canada in the case of standard wordings written exclusively by insurers, any ambiguities will be interpreted in favor of the policyholder. 3). Criminal Law Artifact The Canadian Criminal Code may be regarded as a codification of intentional torts or wrongs against individuals, groups or the state. Acts alleged under the Criminal Code are considered not only as wrongs against the victims, but also society at large as represented by the state. Therefore in the interests of deterrence, public protection and punishment, upon conviction the state imposes sanctions to reflect how serious the crime is considered. Over the years the Criminal Code has evolved to reflect changing social values and technologies as Canada has become a more multi cultural nation. Analysis Originally the Canadian Criminal Code reflected the relatively homogeneous values of its’ Judeo-Christian heritage. Thus, not only were peoples’ personal and property rights protected, but the church’s value system as well. In recent years laws have changed to reflect the multi cultural and multi religious populations of Canada. The focus of the criminal justice system is no longer to uphold any particular lifestyle, but mainly to regulate the relations between individuals and/or groups. As former Canadian prime minister, Pierre Trudeau, put it when he showed a lack of interest in legislating sex practices, “the state has no business in the bedrooms of the nation” .However, the Canadian Criminal Code does not consistently follow this principle and there are still some puritanical aspects to the Code (Warren 2012) For example while prostitution itself is legal, soliciting for it is not. Prostitutes can visit customers in their homes, but not legally work out of their own. Until recently in Canada, police raided swinger clubs and charged owners and attendees with bawdy house offences, although the trend is for courts to dismiss such charges. In my opinion prostitution laws should be repealed and prosecutions pursued on the basis of exploitation, for example human trafficking and involving minors. Another area of concern is a omnibus bill before the Canadian parliament imposing mandatory prison sentences even for some nonviolent offences. In my opinion, prisons should be used mainly to protect the public from violent offenders, and rehabilitation and restitution programs should be used to deal with the others (CBC News Canada). 4) Constitutional Law (the Charter) Artifact Canadian constitutional law is somewhat unique in the world in that it has both unwritten and written components. (Constitutional Law of Canada) The unwritten portion consists of various precedents and conventions derived largely from English common law. The written part includes various statutes, the most important of which are the first Constitution Act of 1867, formerly known s the British North American Act, passed by the British parliament establishing Canada as an independent confederation consisting of 4 provinces from the previous colonies. The constitution established the division of powers and responsibilities between the federal and provincial governments. The second Canadian Constitution Act of 1982 contains 2 parts, the first is the Charter of Rights and Freedoms and the second rights specific to the Aboriginal Peoples of Canada (The Constitution Act- Canadian) Analysis (Charter of Rights and Freedoms) The 1982 Charter guarantees Canadians rights and freedoms under various categories. For example, Fundamental Freedoms includes freedom of religion, Democratic Rights includes elections at least every 5 years except in times of war and insurrection, Mobility Rights within and out of Canada, subject to provincial programs designed to lower unemployment rates higher than the national average, Legal Rights including trial by jury except for offences under military law, Equality Rights except for laws designed to ameliorate conditions of disadvantaged groups, access to government services in 2 Official Languages, English and French, where there is sufficient demand and Minority Language Educational Rights where the minority linguistic population is sufficient, People or groups who feel their Charter rights have been violated, may initiate a court challenge. The courts have to decide whether Charter rights have actually been violated and if so whether circumstances such as a national emergency justify the temporary suspension of certain rights in the interest of national survival. Sometimes rights may appear to conflict with each other and the courts must decide if this is the case, given all the circumstances which right must prevail. For example, in Supreme Court of Canada case, R. v. Kapp, the court ruled that British Columbia’s policy of denying fishing licenses to Japanese-Canadians fishermen was constitutionally acceptable because it was intended to help a disadvantaged group, namely the aboriginals, to promote “substantive equality” in the industry.( Carpay 2008). 5) Legal Personnel (Police, Lawyers, Judges) Artifact The Canadian judicial branch is charged with the responsibility of applying and interpreting laws enacted by the legislative branch (parliament) and administered by the executive branch (civil service). Canada’s legal framework is an adversarial system so that lawyers represent defendants in criminal trials, each party in civil suits, and the complainant and the government in challenges to the constitution. In criminal matters the state will be represented by a prosecuting lawyer Analysis Lawyers not only represent clients in court but in quasi-legal alternatives such as Arbitration and Alternative Dispute Resolution These alternatives have become popular in recent times as they tend to be more economical, less formal and drawn out than court trials. They focus less on a determination based on the law, but rather on a compromise, acceptable to both sides, fairly quickly in order to avoid further costs. They are especially useful when underlying issues are murky and trial outcomes are therefore difficult to predict. Lawyers are not necessarily required, but especially in more major cases their negotiating skills and knowledge of the law may justify their fees. Lawyers in Canada practice as individuals or in law firms of varying sizes. They also may be hired by corporations to represent their legal issues or they may be appointed by the court at public expense to defend indigent individuals charged with criminal offences. Most lawyers specialize in civil, criminal or constitutional law and within these categories may specialize in various subspecialties. For example a civil lawyer may handle only insurance law. Clients who feel they have been victims of incompetent, unethical or unprofessional service may appeal to provincial law societies for redress as well as sue for malpractice. ( The Law Society of Upper Canada). Conclusion Generally speaking, I believe the Canadian legal system serves people quite well. Criminal and civil law sometimes overlap as it does in the US. Victims alleging an intentional tort can sue civilly if a conviction is not obtained in criminal court possibly because the burden of proof is beyond a reasonable doubt. They may have a better chance in civil court because the burden of proof is only guilt by a preponderance of the evidence. New technologies and globalization represent challenges for Canada’s legal system. Extradition treaties between nations are necessary at least for more serious offences. While each country is sovereign, efforts need to be made to harmonize offence and evidence gathering law at least for extraditable offences to avoid potential disputes as to whether extradition requests should be honored. As previously stated, the Canadian Criminal Code should be modernized, especially regarding prostitution laws to put more emphasis on protection from victimization rather than defending the Judeo-Christian sexual ethic per se. It is interesting to note that Canadian criminal law forbids the possession of child pornography yet allows adult sexual and graphic violence pornography. While simple possession of such material does not cause a threat to society, the creation of it is probably a crime because it likely requires the coercion of children to participate In contrast actors in adult pornography probably do so willingly and violent pornography can be simulated. I also suspect that consumers of child pornography are more likely to act out their fantasies putting innocent children at risk. Therefore I feel in these circumstances that contrary to Trudeau the state does have “ business in the bedrooms of the nation” In any event since the internet has enabled this to become a global issue, I feel that it along with drug and human trafficking must be controlled by international treaties and crime fighting resources. References 1) “Lesson 1. Civil Law In Canada (Torts) “ retrieved from www.saskschools.ca/kiddlaw/civi/lesson1/1c.html. 2) “Canadian Contract Law” retrieved from www.canadiablaw.ca/contracts.html/ 3) “Making and Breaking Contracts. Canadian Contract Law” retrieved from canadiancontractlaw.com/makingandbreakingcontracts.html. 4) “What Critics Worry About. Omnibus Crime Bill” CBC News Canada Mar. 6, 2012 retrieved from www.cbc.ca/news/canada/story/2012/03/roi//c-10-objectives-html 5) Warren, Jeremy “Sexual Services Bylaw Endorsed” The Star Phoenix Mar. 6, 2012 retrieved from www.thestarphoenix.com/news/Sexual-services-bylaw-story.html. 6) “Constitutional Law of Canada” retrieved from www.uottawa.ca/constitutionallaw.general.html 7) “The Constitution Act-Canadian” Canadian Law retrieved from www.canadianlawsite.ca/Cdn.charter.html 8) “Resource Center The Law Society of Upper Canada retrieved from rc/lsuc-on.ca/Home/PractisinginOntario. 9) Carpay, John “Dividing the Catch” National Post July 22, 2008 retrieved from www.canadianconstitutionfoundation.ca/court/php. Read More