Module 1: Introduction to Legal Concepts

The Nature of Law and Social Order

Societies live according to rules, regulations, and laws. Law and our legal institutions play an increasingly important role in regulating behaviour, permeating all forms of social interaction and representing a complex and extensive system of social control. Laws govern marriage and divorce, child custody and support, speed limits, driver registrations, voting, business contracts, tuition fees, taxation, rent controls, inheritance and wills, and property ownership. It is difficult to think of anything in modern life that is not directly or indirectly influenced or governed by law.

Small traditional societies were relatively homogeneous and were able to function without formal laws, relying instead on norms, folkways, customs, and traditions. Social control was informal — enforced by family, friends, and neighbours through praise or criticism, shame, ridicule, gossip, and ostracism. Religion played a significant role in the evolution of these customs. As societies become larger and more complex, people no longer know one another as neighbours, society becomes more heterogeneous, and informal mechanisms of social control grow less effective. Because there is great potential for conflict, there develops a need for explicit rules and regulations to govern conduct, as well as mechanisms for enforcing these rules and ensuring conformity.

Law refers to norms or rules that (1) have been established by a political body; (2) are enforced by threats of punishment or coercion; and (3) are enforced by persons or agencies who are authorized to do so. Law thus has a degree of legitimacy since it is passed by a government body and represents the interests of the state. Laws are formal rules and regulations — typically written documents made public, including specific penalties and a formal system of social control (i.e., the police and the courts). Law also symbolizes the use of power since the government must have the means (coercion) to pass and enforce laws.

The Role of Lawyers and Judges

Lawyers play an adversarial role in society and concern themselves with resolving problems and disputes on behalf of their clients. As trained professionals, lawyers approach a dispute as a competition in which they attempt to gain as much advantage as possible for their client. This means that lawyers do not assess situations objectively in search of truth — instead, they look for weaknesses in the opponent’s case and attempt to gain a victory on behalf of their client. Lawyers are advocates for their client’s cause, taking all possible steps within legal and ethical boundaries to protect their client’s rights and achieve victory. They can easily argue the opposite position for a different client the following week.

Sociologists, by contrast, are social scientists who attempt to take a balanced approach to problems, be as objective as possible, and seek the truth. Law is highly technical and most people need lawyers to navigate the courts. Lawyers occupy an intermediary position between their clients and the legal system, taking a personal complaint and turning it into a legal cause that is actionable in law. Most lawyers never see the inside of a courtroom — the majority deal with real estate transactions, wills, uncontested divorces, and other matters.

Judges are the highest authority inside the courtroom, and their power reaches well beyond the court into the community. The courtroom is designed to reinforce the judge’s status: the judge’s chair is elevated above all others and separated by a barrier; the judge has a private chamber and a separate entrance; and everyone in the courtroom is required to rise upon the judge’s entry. The judge is addressed as “Your Honour” and alone has the power to interpret the rules of law governing the proceedings. Judges may charge anyone who shows disrespect with contempt of court, which includes disparaging comments, criticizing a ruling, or any act calculated to embarrass, hinder, or obstruct the administration of justice. Judges can be investigated by the Canadian Judicial Council and removed from the bench for serious breaches — though such removal is extremely rare in Canada.

Functions of the Law

There are five central functions to the law, similar to those of norms in general.

1. Maintaining Social Control and Social Order. This is considered by many to be the main function of law — to regulate behaviour and maintain an orderly society. Laws are blueprints for action and tell people what is expected, presupposing the ideas of power, authority, and sanctions. The law has a repressive function that ensures social control through the coercive threat of punishment. The legal system does not have a monopoly on social control; sociologists view institutions such as the family, schools, and church as contributing more to social order than the justice system.

2. Dispute Resolution. Laws assist in conflict resolution and offer a peaceful alternative to warfare and vengeance. In a heterogeneous society, people may not agree on fundamental values, giving rise to conflict. Society can develop mechanisms for conflict resolution that people accept as legitimate and use to settle problems. To the extent that there is respect for the law, citizens will use it to settle social and economic conflict peacefully.

3. Instruments of Social Change. Laws are used to implement social change, particularly in a complex society like Canada. Various interest groups continuously lobby government to pass laws implementing social and economic changes they value. In this sense, laws have an innovative and redistributive function since they can significantly redistribute power, privileges, and resources.

4. Upholding Rights and Defining Duties. Laws define the rights and privileges that go with various roles in society and legitimize a person’s claim to those rights. Parents, for example, have many obligations to their children (providing food and shelter) and many rights (choosing their children’s names, religion, school, and place of residence). Because the rights and duties attached to various roles are widely understood, this facilitates interaction and contributes to social order.

5. Communicating Moral Standards — The Ideological Function. This refers to the belief system and values underlying the law. Law represents morality and can legitimize certain conduct or condemn other behaviour. Because people respect the law, they condemn the behaviours that laws prohibit. Laws thus have an educational, socialization, and legitimizing function and communicate society’s moral values. One of the arguments against the legalization of marijuana was historically that removing the criminal prohibition sends the message that the government condones the behaviour.

Critique and Dysfunctions in Law

Critics argue that the law can be used to justify and protect the status quo, prevent reforms, and maintain inequities within society. Laws can be discriminatory and promote injustice and inequality. In many countries, laws are used as a weapon of oppression by those in power against the weak and powerless — one of the main critiques advanced by conflict theorists. Laws can also be complex and expensive to use and enforce, meaning the legal system may benefit those who are rich and powerful at the expense of poor and minority groups.

Mediation, Arbitration, and Adjudication

Dispute or conflict resolution often involves the intervention of a third party and can be done formally or informally.

Mediation is a non-adversarial technique in which a neutral third party assists the disputants to reach an agreement. The mediator cannot impose a decision — only persuasion can be used to influence the final outcome. Mediation works best when both parties are willing to work out a reasonable settlement. The underlying principle is cooperation rather than competition, aiming for compromises and mutual satisfaction. Canada’s Divorce Act requires that lawyers mention the possibility of using mediation to their clients. Research indicates that couples who use mediation are less likely to return to court, are more satisfied with the results, and have better post-separation relationships.

Arbitration also involves a third party, but in this case the arbitrator can impose a solution on the parties. Parties typically must agree beforehand that the arbitrator’s decision will be final. Arbitration is rights-based and often adversarial, with hearings held in a manner similar to a civil trial but typically in private. Both mediation and arbitration are faster than a civil trial and usually reduce costs significantly.

Adjudication is the public and formal method of resolving conflicts, best illustrated by the court system. Courts can intervene in a dispute, impose a decision on both parties, and have the authority to enforce that decision. Courts require that disputes be narrowed down to legally relevant facts and issues and may find a compromise or leave a clear-cut winner and loser — making it much more of a zero-sum game.

Administrative Law and Regulatory Offences

Government is often described as having three branches: (1) the legislative branch (federal and provincial assemblies, which create statutory laws); (2) the judicial branch (the courts, which hear cases); and (3) the executive branch (government departments, responsible for implementing laws and social policies).

Violations of administrative law are sometimes referred to as regulatory offences. Some authors distinguish between true crimes — behaviours considered inherently wrong and harmful by the majority of the population, such as robbery and murder — and regulatory offences, which are meant to control activities considered lawful such as business, trade, transportation, and industrial production. The objective of regulatory offences is to protect the public from harm resulting from careless or unscrupulous actions by business and industry.

The burden of proof for the Crown is less demanding for regulatory offences than for criminal offences. For criminal offences, the Crown must prove both the act and intent beyond a reasonable doubt. For regulatory offences, it is usually sufficient for the Crown to prove that the accused committed the prohibited act; the accused must then prove on a balance of probabilities that they were not negligent.

Administrative Tribunals

Government employees regulate programs for citizens according to the rule of law, but disputes arise between citizens and government agencies. Most departments have developed administrative tribunals to help resolve disputes. These are created by federal, provincial, or municipal governments and called by various names: boards, commissions, committees, councils, tribunals, or agencies. Provincial examples include: the Human Rights Commission, the Children’s Aid Society, the Landlord and Tenant Board, the Workman’s Compensation Board, and the Psychiatric Review Board. Federal examples include the National Parole Board, the Immigration and Refugee Appeal Board, and the RCMP Complaints Commission.

These bodies often have significant powers: they can levy fines, send people back to prison, de-certify professionals, revoke licenses, fire people, deport them, and impose a wide variety of punishments. Despite the powers given to these tribunals, citizens still have recourse to the courts if they feel they have been treated unjustly. The courts maintain a supervisory role and will overrule a tribunal if there has been a violation of due process or if the judgement is contrary to the Charter of Rights and Freedoms.

One common critique of these boards is the conflict of interests inherent in having members who are also representatives of the organizations being reviewed. A key operational variable is due process or procedural fairness: procedures must be relevant, lawful, fair, and impartial, and the complainant has the right to be given relevant information, representation, and the opportunity to participate.

Advantages of administrative tribunals include: (1) they offer a mechanism to ensure that individual rights are respected; (2) they are faster, more efficient, and less costly than the formal court process; (3) members have specialized knowledge and expertise; (4) the process is less formal and can use a wide variety of evidence; (5) waiting times are much shorter than for court cases; and (6) the decision-making process is generally open to public scrutiny.

Module 2: Legal Ethics and the Law Profession

Becoming a Lawyer

All Canadian provinces have a governing body — such as the Law Society of Upper Canada in Ontario — that is controlled by lawyers and has a monopoly over the certification and discipline of the legal profession. To become a lawyer, applicants must: (a) possess a law degree from an accredited law school; (b) complete an apprenticeship known as articling, working with a law firm; and (c) pass their bar admission exams. Articling is largely an unstructured affair in which students learn from experienced lawyers what it is like to work under the pressure of deadlines.

During the bar admission ceremony, graduates take an oath to uphold the highest standards of moral integrity — a practice dating back to Rome’s Theodosian Code and Anglo-Saxon England. Before being admitted, applicants must be certified as being “of good character,” though there is little consensus on what this requirement entails, and it is generally confined to questions on application forms. It is relatively rare for the Bar Association to disbar lawyers; most disciplinary proceedings focus on “professional misconduct” and lead to sanctions much less severe than disbarment.

Public Perception of Lawyers

Public perception of lawyers is marked by ambivalence: the law profession has an image as a noble and honourable vocation — defenders of the poor and dispossessed — yet lawyers are also viewed with disgust and contempt by many. The negative image revolves around what is perceived to be unethical conduct. The practice of law places lawyers in ethical dilemmas on an everyday basis. Lawyers are also over-represented in positions of power and frequently at the centre of corruption and scandals.

The Legal Monopoly and the CBA Code of Professional Conduct

In all provinces, there is a statutory framework that prohibits unauthorized persons from engaging in the practice of law. This prohibition is intended to ensure that clients can be confident that the person they consult has received appropriate training and is answerable to the Law Association. The Canadian Bar Association’s Code of Professional Conduct imposes a set of ethical standards that lawyers must follow. Compliance is not optional — it is demanded by the profession and used as the basis for disciplining members.

The Rules focus on three aspects of a lawyer’s role:

1. As a representative of clients: Lawyers must advise clients about their legal rights and responsibilities, advocate their position vigorously, negotiate on their behalf, and pursue litigation when appropriate.
2. As an officer of the legal system: Lawyers must act within the law, show respect for the legal system and all its players, use legal procedures in a legitimate and non-abusive way, and act in a manner that does not bring the administration of justice into disrepute.
3. As a public citizen: Lawyers must seek to ensure that access to the law is available to as many people as possible, contribute to the reform and improvement of the legal process, and support efforts to ensure the profession fulfills its civic duties.

The Adversarial System

The traditional view of lawyering is based on the idea that lawyers are hired hands — professionals who acquire specialized knowledge and expertise, which they use on behalf of their clients without regard for which side of a dispute they are on. The adversary model is the basis of our justice system and involves lawyers doing battle in the courts on behalf of their clients. Its historical origins lie in trials by ordeal and by battle, in which adversaries would compete physically in the belief that good would triumph over evil.

Characteristics of the adversarial system include: an aggrieved party initiates the proceedings; both sides may have legal representation; lawyers act in their clients’ best interests; lawyers do battle through evidence, arguments, and cross-examination; the judge and/or jury are neutral adjudicators; and there is a winner and a loser.

Critics of the adversarial system argue that it obscures rather than illuminates truth, fosters injustice by allowing the strong or rich to triumph over the weak and poor, and undermines respect for the judicial system. A client’s wealth can have a strong impact on the outcome, meaning injustices will result.

Ethical Norms When Dealing with Clients

Lawyers assume a wide variety of obligations to clients, including: (1) partisanship — a fiduciary duty to act in good faith and loyalty; (2) competence — delivering services in a conscientious, diligent, and efficient manner; (3) loyalty — placing the client’s interests above all else and making complete disclosure about conflicting interests; (4) candour — dealing with clients in an entirely open and honest way, not overstating the merits of their case; (5) pro-activity — vigorously pursuing clients’ interests; and (6) confidentiality — holding in strict confidence all information that comes into their possession while fulfilling professional duties.

The Paul Bernardo Case

A landmark case illustrating the tension between lawyer-client privilege and the duty to justice involved Paul Bernardo’s first lawyer, Ken Murray. Murray removed six videotapes from the Bernardo-Homolka residence after being directed to do so from jail by Bernardo. The tapes — depicting the rapes and torture of murder victims Leslie Mahaffy and Kristen French — were kept in Murray’s safe for 17 months. Murray later passed the tapes to successor counsel John Rosen, who turned them over to authorities.

However, by then the Crown had already made the infamous deal with Karla Homolka, who received only a 12-year sentence for manslaughter in exchange for testimony against Bernardo. Murray was charged with obstructing justice. The judge ruled that while Murray-Bernardo communications may have been privileged, the tapes themselves were not — they were dramatic pre-existing evidence of a crime. The judge found that Murray had three legal options: (1) turn over the tapes to the prosecution immediately; (2) deposit them with the trial judge; or (3) disclose their existence and prepare to do battle to retain them. Murray was ultimately acquitted because the judge accepted that he believed he had no duty to disclose until trial. The Law Society of Upper Canada withdrew its misconduct proceedings, acknowledging that its rules were too vague to guide lawyers in such dilemmas.

The Role of the Crown Attorney

A Crown Attorney is a representative of the government trusted with ensuring that due process occurs. The Crown must not proceed with a charge unless there is a “substantial likelihood of conviction.” Unlike defence counsel, the Crown can only pursue a line of argument they have good reason to believe to be true. The duty of prosecutors is not to seek convictions, but to seek the truth and ensure that the accused has a fair trial. The Crown must disclose all relevant evidence as early as possible.

Conflict Perspective on the Legal Profession

Conflict theorists argue that the practice of law is a business and that lawyers prefer clients with money. The poor are often under-represented and overwhelmed in legal cases. The lives of the privileged class are relatively problem-free, and problems are not systemic — they face occasional challenges and use lawyers to remedy a discrete conflict. The problems faced by the poor, in contrast, are numerous, continuous, and systemic. Conflict theorists further suggest that lawyers act as “enlisted custodians of the status quo,” maintaining a false image of independence and impartiality while resisting meaningful social change.

Module 3: Theories of Social Order

The major theoretical perspectives explaining the relationship between law and society can be characterized as: (a) value consensus; (b) pluralistic or interests theory; and (c) conflict or coercion models of social order. Each reflects different political philosophies along a continuum moving from conservative, to liberal, to radical.

The Consensus Model

The consensus model of law and social order is based on the assumption that society is held together by a system of common values. Common values give legitimacy to government and transform power into authority. Value consensus fosters respect for the law and social institutions such as the police. The basic principles of a consensus model are:

1. Social order is based on consensus; people are committed to a unifying set of values internalized through socialization.
2. People obtain personal satisfaction and status from conforming to society’s norms and values.
3. Law reflects the collective will of the people — it is merely the written statement of their collective agreement.
4. The law serves all people equally and neither serves nor represses the interests of any particular group.
5. The theory explains disorder in reference to improper socialization — crime results from the unique properties of the criminal, and solutions must focus on the criminal rather than on changing society.

The Pluralistic Model — Interests Theory

A pluralistic model recognizes the existence of multiple social groups with different and competing interests and values. People do not necessarily agree upon definitions of right or wrong, but they can agree upon a conflict resolution mechanism for settling disputes. Social order evolves because people find that they can only achieve their aims by cooperating with others; business and commerce, for instance, need dependability and predictability. The basic principles of a pluralist model are:

1. Society is composed of diverse social groups with regional, economic, gender, age, race, and ethnic variations.
2. There exist differing and sometimes conflicting definitions of right and wrong.
3. There is collective agreement on the mechanisms for dispute resolution — all groups agree to settle conflicts within a legal and political framework.
4. The legal system is value-neutral, existing as a value-free arena in which disputes can be settled fairly.
5. The legal system is concerned with the best interests of society as a whole.

The Conflict Model — Coercion Theory

According to the conflict perspective, social order is the result of power and coercion. Society is characterized by dissension, conflict, and hostility, and people are compelled to conform because of threats and coercion. This theory explains conflict in reference to the competition for power and scarce resources. Those in power impose their will through laws and law enforcement on those who are less powerful. The basic principles of a conflict perspective are:

1. Society is composed of diverse groups who compete for scarce resources.
2. There exist differing definitions of right and wrong, with diverse values, goals, and interests that at times conflict.
3. The conflict between social groups is one of political power — there is always an imbalance of power.
4. Law is designed to advance the interests of those in power. It is not a value-neutral forum for dispute settlement.
5. A key interest of those in power is to prevent change and maintain the status quo.

The conflict model provides three theoretical perspectives on crime, law, and social control. As a theory of crime, it argues that capitalistic society benefits an elite class and that people in the lower classes are driven to lawbreaking by economic oppression. As a theory of law, it argues that laws are based on the power of ruling classes and serve the interests of the elite. As a theory of social control, it argues that law and the machinery of criminal justice are used to maintain the status quo and punish those who threaten the well-being of the elite.

Thorsten Sellin — Culture Conflict Theory (1938)

Thorsten Sellin’s theory of culture conflict argues that crime originates from expectations brought to bear on individuals by subcultural or ethnic values that are in conflict with society’s laws. Laws reflect the values of the dominant group but do not respect the cultural traditions of smaller ethnic communities. Culture conflict develops: (1) where cultural codes clash at the border of contiguous culture areas; (2) when the law of one cultural group is extended to cover the territory of another (e.g., Canadian criminal law covering aboriginal nations); and (3) when members of one cultural group migrate to another. The theory is criticized as deterministic because it fails to consider free will and volition, and because it cannot explain most serious crime since no cultural group positively approves of rape, robbery, or murder.

Critique of All Three Models

Critics of the consensus model argue that modern societies are not homogeneous and that it is difficult to define a system of values upon which most people agree. Critics of the interests theory argue that interests are not freely chosen — society imposes goals and interests on individual members. Critics of conflict theory argue that coercion is seldom sufficient to maintain social order: the use of coercion means people will resist and must constantly be watched and controlled.

Most theorists argue that social order depends upon a combination of coercion, interests, and value consensus. The extent to which one has priority over the others varies from culture to culture and changes over time.

Module 4: Due Process and Crime Control Models of the Criminal Process

The Crime Control Model

The crime control model represents traditional values in Canadian society. The British North America Act of 1867 emphasizes “Peace, Order, and Good Government.” This model assumes that crime and social disorder threaten liberty and that freedom is only possible with social order. Maintaining social order and repressing crime is the most important function of the criminal justice system; there is a basic trust in the justice system.

The crime control model places faith in the police force, viewing the police as the “good guys” who play an important and positive role in society. Police must be given the resources necessary to investigate crime, arrest and charge offenders, and obtain convictions. Police operate on a presumption of guilt. One of the most significant resources is the law — laws must give the police the powers necessary to do the job and should be “enabling.” The value system underlying a crime control model emphasizes social order, the punishment and deterrence of criminal conduct, and concern for victims and victim rights.

The model emphasizes ends (the protection of society and criminal convictions) over means (how evidence is gathered). The public is willing to overlook excessive zeal in law enforcement. The courts allow evidence obtained illegally as long as it does not bring the criminal justice system into disrepute. The system is described as “assembly line justice” and has a premium on informality, speed, and finality. The crime control model can be encapsulated in the phrase: “Throw the book at them.”

The Due Process Model

The due process model is the emerging Canadian model and the traditional U.S. model. The American Declaration of Independence, 1776, emphasizes the principles of “Life, Liberty, and Freedom.” This model assumes that the greatest threat to freedom comes from the misuse of power and authority. There is a fundamental distrust of authority and government — particularly the police. The law profession subscribes to the due process model.

The protection of individual rights is given the highest priority and is enshrined in a constitution and/or charter of rights. Police must operate under the strict rule of law. Laws limit police powers and are experienced by the police as impediments to investigation. Evidence obtained illegally or in violation of an individual’s rights is ruled inadmissible. The operating principle is the presumption of innocence — embodied in the phrase: “It is better that a hundred guilty persons go free than to have one innocent person convicted.”

The due process model demands a formal, adjudicative, adversarial process headed by an impartial tribunal, judge, and/or jury. The model stresses the possibility of error and bias particularly against minorities and the poor. Mistakes — such as the Donald Marshall case — are used as evidence to argue that the process needs reform. The emphasis is placed on legal guilt as opposed to factual guilt: defence lawyers are less interested in whether their client “did it” than in whether the police and Crown can prove their case and whether their client’s rights have been respected. The due process model can be encapsulated by the phrase: “Doing it by the book.”

Cost-Benefit Analysis of Both Models

Ideally, laws should enable the police to do their job while still affording citizens protections against the abuse of power. Canadian values are changing towards a greater acceptance of due process in everyday activities — leading, critics argue, to the “Americanization” of Canada and the introduction of an individualistic, adversarial, and litigious value system.

Module 5: Canada’s Legal History, the Court System, and the Charter of Rights and Freedoms

The British North America Act (1867) and the Canada Act (1982)

The process of Confederation began in 1867 when the British Parliament passed the British North America Act (BNA), now referred to as the Constitution Act. The act created two levels of government — federal and provincial — and conferred different powers on each. The BNA gave the federal government power over a common currency, the Criminal Code, the military, trade and commerce, immigration, and divorce. Provincial governments received control over education, marriage, the health system, and other matters. Although provinces were given power to create and manage the court system, the federal government retained the right to create national courts and appoint judges to superior courts.

Canada finally became a completely autonomous nation in 1982 when the British Parliament, at Canada’s request, passed the Canada Act 1982. This is the constitution upon which all government powers are based and prescribes the means by which the constitution can be changed, a guarantee of Aboriginal rights, and the Canadian Charter of Rights and Freedoms.

The Three Branches of Government

Canadian government has three distinct branches: (1) the legislative branch consists of elected members of Parliament and provincial legislatures, which debate and pass legislation; (2) the executive branch consists of the Prime Minister, Cabinet ministers, and their departments, which implement laws and social policies; and (3) the judicial branch consists of the courts and judges, who are expected to be concerned with the law, not political matters. Judges are independent and free to make decisions according to law and free of political interference. They have the power to strike down laws passed by a provincial or federal government if judged unconstitutional or a violation of the Charter.

The Evolution of the Common Law

The common law evolved in Britain over several centuries through judges appointed by the King to deal with conflicts among his subjects. Originally, these circuit judges had no written laws to guide them and relied on local customs, traditions, religious values, and their own sense of fairness. Over time, judges began making reference to previous decisions — giving rise to the use of precedents in adjudicating similar cases. As the law became more complex, a professional class of attorneys-at-law emerged to advocate on behalf of clients.

By the 19th century, the practice of following precedents had evolved into a relatively strict rule of law. In Canada, the federal and provincial governments have replaced most common law offences with statutory laws, though there are still many defences and principles of justice that have their basis in the common law.

An Overview of the Court System in Canada

Each province in Canada has established two levels of trial courts and a provincial court of appeal. There are three levels of courts in each province: inferior or provincial courts, superior courts, and the provincial Court of Appeal, plus the federal Supreme Court of Canada.

Provincial inferior courts (provincial courts) have several divisions including criminal, civil, family, youth, and traffic/provincial offence divisions. Small claims courts deal with civil claims under $10,000 in most provinces (rising to $25,000 in British Columbia and Ontario). Within the criminal division, provincial courts deal with less serious summary conviction offences and hold preliminary hearings for more serious offences.

Provincial superior courts are the highest trial level courts in the provinces and are called the Court of Queen’s Bench, the Supreme Court, the Superior Court, or the Divisional Court depending on the province. Jury trials are only heard in superior courts. Judges in superior courts are appointed and paid by the federal government. In recent years, there has been a trend towards specialized courts such as Drug Treatment Courts and Mental Health Courts.

The Supreme Court of Canada hears appeals from the courts of appeal of all provinces. It grants appeals in cases of national importance or when issues have great significance to the law in Canada. The appointment of Supreme Court Justices has taken on great political significance given the Charter’s role in shaping society.

One important feature of the court system meant to ensure fairness and legitimacy is openness: with few exceptions, courts in Canada are open to the public and the media. Judges may exclude persons from hearings to protect child witnesses and in the interest of public morals, and media bans are common for preliminary hearing evidence, names of sexual assault victims, and young persons.

The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms was enacted as part of the Constitution Act 1982 when Canada moved away from the BNA Act of 1867. The Charter deals only with matters between the public and the government, governing the manner in which government officials use their powers in dealings with members of the public.

Qualifications on the Charter

There are two major qualifications on the application of the Charter.

Section 1 guarantees the rights and freedoms contained therein “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This means that freedoms and rights are not absolute, and the government may pass legislation that infringes on rights if such legislation is reasonable. A clear example relates to freedom of speech: reasonable limits are imposed through laws that prohibit pornography, slander, incitement to violence, and hate materials.

Section 33 — the notwithstanding clause — states that Parliament or a provincial legislature may expressly declare an Act to operate “notwithstanding” the provisions of Sections 2 or 7 to 15, which contain fundamental freedoms, legal rights, and equality rights. This is a powerful limitation since it allows governments to pass laws violating fundamental rights by invoking the clause. The Quebec government did just that in 1989 to permit only French-language signs. A “sunset clause” automatically voids the legislation after five years, requiring renewal.

Fundamental Freedoms (Section 2)

Section 2 provides for fundamental freedoms including: freedom of religion, thought, belief, expression, opinion, and freedom of the press; freedom of peaceful assembly; and freedom of association.

Democratic Rights (Sections 3–5)

These protections cannot be overridden by the notwithstanding clause. They include the right of all citizens to vote, the requirement that elections be held at least every five years, and that Parliament have a sitting at least every twelve months. Historically, various groups were denied the vote including federal inmates, Asians, and women (who obtained the right to vote in 1920). Federal inmates were granted the right to vote by the Supreme Court in 1995 in Sauve v. Canada.

Mobility Rights (Section 6)

Section 6 gives Canadian citizens and permanent residents the right to leave and enter Canada, to travel and live within the country, and to earn a living in Canada. There are significant limitations, however, since each province has the right to regulate various professions and require provincial accreditation. Subsection 6(4) permits affirmative action programs to right imbalances in employment.

Legal Rights (Sections 7–14)

Section 7 states that “everyone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The right to life does not extend to an unborn fetus, meaning that abortions are legal in Canada.

Section 8 provides the right to be secure from unreasonable search and seizure. Section 9 provides the right not to be arbitrarily detained or imprisoned. Section 10 requires that everyone detained has the right to be told of their rights to consult a lawyer.

Section 11 contains a number of provisions dealing with criminal proceedings, including: the right to be informed of the specific offence without reasonable delay; the right to be tried within a reasonable time; protection against self-incrimination; the presumption of innocence; the right to reasonable bail; the right to a jury trial where the maximum penalty is imprisonment over five years; protection against double jeopardy (Section 11h — autrefois acquit or autrefois convict); and the right to the lesser punishment if the penalty changes between commission and sentencing.

In the landmark case R. v. Askov (1990), the Supreme Court dismissed charges because the accused’s rights had been violated due to excessive delay of over three years — caused by backlogs in the Ontario courts. This decision led to tens of thousands of criminal and quasi-criminal cases being stayed or dismissed across Canada, causing a huge public outcry. The Supreme Court later clarified that delays of over eight months do not automatically constitute an unreasonable delay if there are extenuating circumstances.

Section 12 provides that everyone has the right not to be subjected to any cruel or unusual treatment or punishment.

Equality Rights (Section 15)

Section 15 states that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Module 6: Civil Litigation and Tort Law

Civil Litigation and the Trial Process

The vast majority of civil cases do not make it to trial. Civil actions are so time-consuming and costly that most plaintiffs cannot afford them, and the system is set up to screen out cases and encourage settlement. Some provinces, such as Ontario, have instituted a mandatory mediation process before a case can proceed.

Pre-Trial Procedures

In Ontario, a civil action is started by filing a notice of action that informs the defendant an action has been started. The plaintiff must make a statement of claim outlining allegations and damages. The defendant prepares a statement of defence and may make a counter-claim against the plaintiff. Discovery in the pre-trial phase involves an examination of documents by the lawyers and may include testimony and questioning under oath; the objective is to make all evidence and allegations available before trial with no surprises in court.

In-chamber meetings with a judge are common for lawyers to explain why a settlement cannot be reached. Judges will question the merits of the case, point out weaknesses, and pressure both sides to settle.

The Trial

Civil trials are heard by judge only, unless it is a personal injury case, in which a jury can hear the case. There are strict rules of evidence. The judge makes a determination based on the balance of probabilities and may award: special damages (for specific accountable costs); general damages for pain and suffering and future loss of income; punitive damages as a form of deterrence; costs including lawyer’s fees; an injunction ordering someone to cease and desist; or specific performance of certain obligations.

Small claims court hears cases in which damages contested are below $10,000 (Ontario). The judge takes a more active role questioning and cross-examining witnesses, and judgement is typically made on the spot.

Basic Principles Underlying Tort Law

Tort law deals with situations in which one party has caused harm or injury to another party or their property. Torts refer to a breach of legal duty with liability for damages and are used in the absence of a contract. Tort liability is premised on a lesser degree of proof — a balance of probabilities.

Strict liability offences do not require the plaintiff to prove fault — simply committing the act makes the person guilty. Vicarious liability involves situations in which a person is held responsible for the actions of others (e.g., employees under their command). Joint liability refers to situations in which several people are held jointly responsible for harm committed.

Intentional torts refer to actions that are wilful, deliberate, and conscious — the person need only intend the act, not the harm that results. Negligence refers to actions that are inadvertent rather than wilful. The overwhelming number of actions in civil court deal with negligence.

Five Elements for a Successful Negligence Suit

1. Duty of care: Was there a duty on the part of the defendant to be careful?
2. Fault or breach: Did the defendant’s behaviour fall below the standard? The test is whether the harm was reasonably foreseeable.
3. Loss, damage, or injury: The plaintiff must demonstrate they suffered some sort of loss or injury.
4. Causation: There must be a sufficiently close causal connection between the action and the injury.
5. No contributory negligence: There must be no prejudicial conduct on the part of the victim.

Premises liability generally requires that people who own or occupy property take due care to ensure that no one suffers injury or harm when on that property.

Defences to Torts

Defences to torts include: accident (the danger could not be reasonably foreseen); necessity (self-preservation or preservation of others); lawful authority (police using force in making an arrest); self-defence or defence of property; consent of the victim; and the victim voluntarily assuming the risk.

Insurance is often a variable in court decisions, as is the ability to pay. There is always a temptation to place the obligation to pay damages on the party who can pay or has insurance coverage, as insurance is meant to spread out the risks and losses.

The Increase in Tort Actions and Frivolous Lawsuits

The increase in tort actions reflects a more litigious society and a cultural shift in which people are less willing to accept accidents as inevitable. Critics argue that some lawsuits are frivolous and abusive, making it costly to provide ordinary products and services. Defenders argue that tort law provides incentives to improve safety and holds corporations accountable.

Module 7: Contracts and Contract Law

Basic Principles Underlying Contract Law

A contract may be defined as an agreement between two or more parties that is binding in law, generating rights and obligations that may be enforced by the courts. The normal method of enforcement is an action for financial damages for breach of contract, though in some cases the court may compel performance.

Bilateral contracts involve promises by each party, whereas unilateral contracts involve one party promising to do something in exchange for an act of the other party (e.g., offering an award). Basic principles of contracts include: (1) contracts are always about commercial relationships; (2) courts assume that you mean what you say; (3) if it looks like an agreement, it almost always is one; (4) courts are generally not concerned about the fairness of a contract; (5) written contracts carry great weight; and (6) we often have little control over the content of most contracts.

Three Ingredients of a Valid Contract

1. The parties must reach an agreement or consensus — offer and acceptance.
2. They must intend to be legally bound.
3. Both parties must provide valuable consideration.

Certain persons in society are vulnerable and therefore in need of special protection, limiting their freedom to enter into legally binding contracts. The use of duress (threats of violence, imprisonment, blackmail) or undue influence (where one person has power over another) is considered wrongful conduct and may affect the validity of the contract.

Misrepresentation is a false statement of fact that induces a person to enter into a contract they would otherwise not enter. A seller cannot actively mislead or provide false information — this may void the contract. Exclusion clauses inserted into a contract aim to exclude or financially limit one party’s liability for breach of contract, misrepresentation, or negligence.

Remedies for Breach of Contract

Where a contract has been breached, there are several possible remedies: (1) damages — monetary compensation (“quantum meruit” — as much as he/she deserves); (2) an injunction to make a person stop what they are doing; and (3) specific performance — requiring the breaching party to finish the work under the contract.

A contractual relationship can be discharged in four different ways: performance, agreement, frustration, and breach.

Basic Principles Underlying Criminal Law and Civil Law

Criminal Law

Under criminal law, crime is defined as an offence against the public as represented by the government. Offences are prosecuted by the Crown Attorney, who represents the Queen (charges are read as Regina v. Smith). The Criminal Code is a federal statute.

Criminal law’s main goal is punitive: by punishing people who break the law, the criminal justice system aims to deter others from crime and protect society. Serious criminal offences are punished by terms of imprisonment. Deterrence theory is based on the assumption that society can maintain social order through fear. Other principles of sentencing include retribution, denunciation, and rehabilitation.

The criminal law is meant to apply to all citizens equally. A criminal offence consists of the act (actus reus) and the intent (mens rea). The Crown attorney must prove both beyond a reasonable doubt, whereas the defence only has to raise a reasonable doubt to gain an acquittal. Criminal convictions carry heavy stigma since the offender is viewed as having done something serious, harmful, and morally wrong.

Civil Law

Civil law deals with situations in which one person (the plaintiff) sues another (the defendant) for damages as the result of an injury. Most laws relating to torts and contracts are provincial. Civil law can attribute individual or collective responsibility — a plaintiff can sue an individual, corporation, or the government.

The burden of proof in civil matters is significantly less than criminal law and requires only that the plaintiff establish fault based on the balance of probabilities. Civil law is designed to compensate victims for their injuries; it aims to redress personal injuries. Prison sentences are not allowed under civil law.

Module 8: Principles of Criminal Law

The Criminal Code of Canada

The Criminal Code of Canada (C.C.C.) is a federal statute that applies uniformly throughout Canada. One can only obtain a criminal record by violating certain federal offences including the Criminal Code, the Controlled Drugs and Substances Act, and the Crimes Against Humanity and War Crimes Act. The Youth Criminal Justice Act deals with criminal offences committed by young persons aged 12 to 17.

Summary conviction offences are less serious offences punishable by a maximum of six months in prison plus a fine not exceeding $2,000, tried before a provincial court judge. Examples include theft under $5,000 and causing a disturbance in a public place.

Indictable offences are more serious crimes punishable by imprisonment. Most offences in the Criminal Code are indictable. Very serious offences such as murder are tried by a superior court judge sitting with a jury. Indictable offences have five categories of seriousness indicated by the length of prison sentence: two years, five years, 10 years, 14 years, and life. Most prison sentences listed in the Criminal Code are maximum sentences.

Criminal offences fall into three general categories:

1. Offences against public order and the good of the state: treason (Sec. 46), terrorism (Sec. 83), perjury (Sec. 131), fabricating evidence (Sec. 137), public mischief (Sec. 140), nudity (Sec. 174), and causing a disturbance (Sec. 175).
2. Offences against the person: murder, manslaughter, assault, sexual assault, kidnapping, robbery, etc.
3. Offences against property or of a financial nature: malicious damage, arson, forgery, theft, fraud, break and enter, etc. — the vast majority of criminal charges and convictions in Canada.

Notable Cases: Nudity and Indecent Acts

Section 174 prohibits nudity in a public place or a place exposed to the public even if the person is on private property. Nudity includes being clothed so as to offend against public decency or order — a woman wearing a transparent blouse could be charged under this section even though she is technically clothed. In R. v. Jacobs (1996), University of Guelph student Gwen Jacobs challenged the law by walking down the main street of Guelph shirtless and challenging the police to charge her. She was acquitted — the courts ruled her actions did not violate community standards of intolerance.

Accessories to a Criminal Offence

An accessory before the fact counsels, procures, or incites another person to commit an offence. An accessory during the act aids and abets the offender while they commit the act (e.g., acting as a lookout during a robbery). An accessory after the fact (Sec. 23) receives, comforts, or assists a person for the purpose of enabling them to escape, knowing they have committed an offence. A celebrated English case involves Derek Bentley, who called out to his armed accomplice Chris, “Let him have it, Chris” — the jury convicted Bentley as an accessory to murder for the shooting of a police officer, and he was hanged, while Chris (a juvenile) was tried in youth court.

Actus Reus and Mens Rea

There are two elements to an offence: the act (actus reus) and the intent (mens rea). Actus reus refers to the prohibited harm — an act or omission — which must be voluntary. Mens rea deals with the person’s state of mind when they committed the offence — the “guilty mind.”

For factual causation to be established, the Crown must prove that “but for” the accused’s conduct, the prohibited consequences would not have occurred. An act or omission is not voluntary if it is a reflex or convulsion or bodily movement during unconsciousness or sleep.

Because it is difficult to determine what goes on in a person’s mind, courts assume that people are rational and can foresee the natural consequences of their actions. The reasonable person test requires that the judge or jury put themselves in the accused’s place and ask what a reasonable or prudent person would have done under the circumstances. The Crown must prove that actus reus and mens rea occurred simultaneously.

Forms of Intent

Intentionality is the most serious form of mens rea: the person commits a criminal act knowing it is wrong, with an intention to do so and to cause the consequences. First degree murder, which is planned, premeditated, and deliberate, is the prime example.

Recklessness is defined as total indifference to the consequences of an act. In these situations, the accused knowingly takes a deliberate and inexcusable risk. If Smith fires a high-powered rifle through an apartment wall and kills his neighbour, he would likely be found guilty of second-degree murder based on reckless disregard for the safety of others.

Criminal negligence (Sec. 219) is a less serious form of intent than recklessness and refers to indifference to the consequences of an act — a person was not thinking when they should have been thinking. Everyone is criminally negligent who, in doing or omitting to do anything that is their duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

Offences of Strict and Absolute Liability

Regulatory offences were historically considered offences of absolute liability, where the Crown only had to prove the actus reus elements. In the landmark case R. v. Sault Ste. Marie (1978), the court distinguished between three categories:

1. Real crimes in which the Crown must prove both actus reus and mens rea.
2. Offences of strict liability in which the Crown only has to prove the actus reus, but defendants can avoid liability by proving they acted with due diligence.
3. Offences of absolute liability in which the Crown only has to prove actus reus and the defence of due diligence is not available.

Offences of strict and absolute liability are found primarily in public welfare statutes dealing with food and drugs, speed limits, pollution, immigration, landlord and tenant disputes, construction, and employment regulations. The justification for these offences is that they provide incentives for companies and individuals to take care, and they offer administrative efficiency for dealing with high volumes of cases.

Module 9: Mental Disorder and the Law

Historical Background

The history of mental health law in Canada evolved from the old parens patriae principle — the idea that the state has a duty to care for those unable to care for themselves. The old Mental Health Act allowed for long-term, often indefinite, detention of mentally disordered persons. This was gradually replaced by a framework emphasizing patient rights, due process, and the least restrictive treatment.

The Health Care Consent Act of Ontario (1996)

The Health Care Consent Act deals with the rights of patients within Ontario medical facilities, including psychiatric institutions, specifically as they relate to consent to treatment. Section 10(1) states that no treatment may be administered without consent unless the health practitioner believes the person is capable and consents, or the person is incapable and a substitute decision-maker consents on their behalf.

The elements required for valid consent are: (1) the consent must relate to treatment; (2) it must be informed; (3) it must be given voluntarily; and (4) it must not be obtained by misrepresentation or fraud.

The Consent and Capacity Board is an independent body created by the provincial government. Board members for psychiatric hearings usually consist of one psychiatrist, one lawyer, and a member of the general public. The Board will hold a hearing within a week of the application. Patients may attend hearings and be represented by a lawyer or rights advisor. Any party may appeal the Board’s decision to the General Division of the Ontario Court.

The Mental Health Act of Ontario (1990)

The Mental Health Act deals mainly with the rights of patients under observation, care, and treatment in a psychiatric facility.

Section 15 — Application for Psychiatric Assessment: A physician may make application for a psychiatric assessment if the person has threatened or attempted to cause bodily harm to themselves or others, or has behaved violently, or has shown a lack of competence to care for themselves, and the physician believes the person is suffering from a mental disorder that will likely result in serious bodily harm or serious physical impairment. This application is sufficient authority for seven days to take the person to a psychiatric facility and detain them for not more than 72 hours.

Section 16 — Justice of the Peace’s Order: Where information on oath is brought before a justice of the peace meeting the same criteria as Section 15, the justice may make an order directing police officers to take the person to a physician for examination — for a period not to exceed seven days.

Section 17 — Action by Police Officer: Where a police officer has reasonable and probable grounds to believe a person is acting in a disorderly manner meeting the Section 15 criteria, and it would be dangerous to proceed under Section 16, the officer may take the person to an appropriate place for examination.

Section 20 — Duty of Attending Physician: The attending physician, after observing and examining the person, shall: release them if not in need of treatment; admit them as an informal or voluntary patient if they need treatment and are suitable for voluntary admission; or admit them as an involuntary patient by completing a certificate of involuntary admission if required conditions are met. An involuntary patient may be detained for not more than two weeks under an initial certificate, with subsequent renewals of one, two, and three months.

Section 26 — Communications: No communication written by or sent to a patient shall be opened, examined, or withheld, except where the officer in charge has reasonable grounds to believe the contents would be unreasonably offensive to the addressee, prejudice the patient’s best interests, interfere with treatment, or cause the patient unnecessary distress. Subsection 3 exempts communications with a barrister or solicitor, a member of the Board, or a member of the Assembly.

The Defence of Mental Disorder

The defence of mental disorder — found in Section 16(1) of the Criminal Code — aims at the mens rea component of an offence, arguing that the person did not have the capacity to form a criminal intent because they suffered from a mental disorder at the time of the offence. The section states:

“No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of an act or omission or of knowing that it was wrong.”

The M’Naghten Rules

The origins of this defence lie in British case law. In 1843, Daniel M’Naghten shot and killed Edward Drummond (secretary to Sir Robert Peel) and was acquitted based on evidence that he was “insane” at the time. The resulting public outcry led the House of Lords to develop the M’Naghten rules, requiring that: (a) a person must be suffering from a disease of the mind of such a degree that (b) it renders them incapable of appreciating the nature and quality of an act or omission or (c) of knowing that it was wrong.

These rules lay down very narrow grounds: most people suffering from a mental disorder would not qualify because their cognitive abilities are generally not sufficiently impaired. In 1991, the federal government amended Section 16(1), replacing the stigmatizing term “insanity” with the modern term “mental disorder” — the abbreviation is NCRMD (not criminally responsible by reason of mental disorder). When this defence is raised, expert testimony is provided by psychiatrists, who must convince the court that the mental disorder is established with reference to the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Critics of the defence point out that it relies almost exclusively on cognitive factors and excludes emotional factors: a person may understand what they are doing and know it is wrong yet be incapable of controlling their behaviour.

Disposition of NCRMD Cases

Prior to 1992, a person found not guilty because of insanity was sent to a secure psychiatric facility indefinitely. The Supreme Court struck down this provision in R. v. Swain (1991) as a violation of Sections 7 and 9 of the Charter. Parliament amended the Criminal Code in 1992 to require review boards in all provinces and territories. The review board may choose between three dispositions: (1) an absolute discharge; (2) a conditional discharge; or (3) an order to hold the accused in custody in a psychiatric facility. The board must consider the need to protect the public, the mental condition of the accused, reintegration into society, and other needs. The law makes it clear that dispositions of NCR persons are not meant to serve as punishments.

Fitness to Stand Trial

This section is used when an accused person appears to suffer from a mental disorder to an extent that they are judged unable to understand the court proceedings and assist in their defence. An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that they are unfit. A verdict of unfit to stand trial does not prevent the accused from being tried subsequently once they become fit. A court must hold an inquiry not later than two years after the verdict — and every two years thereafter — to decide whether sufficient evidence can be adduced to put the accused on trial.

Module 10: Family Law and Social Policy — Marriage and Divorce

Three Concepts of Marriage

Marriage can be conceptualized in three ways that reflect different value systems and have historically shaped its legal treatment.

The sacred concept defines marriage as divine and a holy institution created and blessed by God. This traditional view sees marriage as a contract with God — permanent and not subject to divorce. The emphasis is on duty, responsibility, sacrifice, and rigid conformity to Church laws, with individuality and individual rights suppressed.

The social concept also represents a traditional view but focuses on social rather than sacred obligations. Authority is centred in the kinship group, community, and Church. Extended family groups exert great social control on individuals, demanding rigid conformity to norms. Power resides in elders and typically with men. Women are generally subject to the authority of men, and arranged marriages are often practised.

The personal concept is a more modern view that gives priority to individual rights, needs, and desires. Individuals have personal freedom to marry whom they choose, when they marry, and whether to seek a divorce, free from the control of Church and family. Marriage exists for the individual and is concerned with “self-actualization,” personal fulfilment, and happiness.

Jurisdiction and the Legal Definition of Marriage

Canada has a divided jurisdiction in matters of family law. The BNA Act of 1867 gave the federal government power to legislate with respect to marriage and divorce (the Divorce Act is federal), while the power to solemnize a marriage was given to provinces. Provinces also have power over matrimonial property, support of spouses and children, custody, succession, adoption, and guardianship.

Marriage is a legal, social, moral, and religious contract between two consenting adults involved in a conjugal relationship. Marriage has five main characteristics: it is a socially legitimate sexual union; it is a public affair and must be publically registered; it is undertaken with some idea of permanence; it involves emotional commitment and support; and it is a legal contract with specific rights and obligations. Marriage must be solemnized by a Judge, Justice of the Peace, or someone authorized by the provincial government.

In 1978, the Ontario Family Law Reform Act moved towards recognizing common-law marriages — a conjugal relationship where no legal marriage has taken place. A spouse for the purposes of support obligation includes either a married person or a couple living together continuously for five years or within a relationship of some permanence where there is a child born. In July 2005, the government of Canada passed Bill C-38, legalizing same-sex marriages, following court decisions in British Columbia and Ontario ruling that laws prohibiting same-sex marriages violated equality rights.

To marry, each person must have the legal capacity to appreciate the nature and quality of the legal commitment and must do so freely. If consent is coerced or affected by alcohol or drugs, the marriage can be declared void and an annulment granted. Bigamy — being married to more than one person at the same time — is prohibited and punishable by up to five years in prison in Canada.

The Family Law Act of Ontario abolished the distinction between legitimate and illegitimate children — both have the same legal rights. The basic principle is that “net family property” should be divided equally between spouses unless an equal distribution would be manifestly unfair. Property includes pensions, RRSPs, business interests, and stocks.

Divorce Legislation

People are required by law to obtain a divorce if they wish to remarry. In 1970, the State of California became the first government in the Western world to institute no-fault divorce, permitting either party to divorce when “irreconcilable differences caused the breakdown of the marriage.” No-fault divorce laws shifted the focus from moral questions of fault and blame to economic issues of marital property, custody, and support.

The Divorce Act of 1968 made divorce easier to obtain in Canada. The most significant addition was Section 4(1), which allowed a divorce to be granted if a spouse could prove desertion after living apart for three years, or after five years with no requirement to prove fault.

The Divorce Act of 1985 further liberalized divorce laws and remains in effect today. Section 8 allows either or both spouses to petition for a divorce on the ground that there has been a breakdown of their marriage, established either by: (a) the spouses having lived separate and apart for at least one year immediately preceding the determination; or (b) the respondent having committed adultery or treated the other spouse with physical or mental cruelty rendering intolerable the continued cohabitation.

Research examining the impact of divorce laws indicates that women and their children typically experience a sharp decline in their standard of living after divorce. The high divorce rate has vastly increased the number of single mothers left alone to support themselves and their minor children.

Spousal and Child Support

Spousal support in Ontario is gender-neutral — either spouse can claim support — replacing the old concept of alimony (historically available only to wives who could prove desertion or fault by their husband). The Federal Divorce Act (Section 15.2(6)) sets out the policy objectives of spousal support: to recognize economic advantages or disadvantages arising from the marriage or its breakdown; to apportion financial consequences from the care of any child; and to promote the economic self-sufficiency of each spouse within a reasonable period.

The goal of economic self-sufficiency was heavily criticized by women’s groups as placing unreasonable and unrealistic expectations on wives to support themselves after spending decades out of the workforce raising children and taking care of the home. Beginning in the early 1990s, courts began awarding greater spousal support and for much longer periods, recognizing the problem women faced in the workplace.

Wives obtain custody of children in 85 to 90% of cases and courts typically order fathers to pay child support. Domestic contracts — marriage contracts and separation agreements — must be in writing, signed by the parties, and witnessed. These can be disputed on grounds of fraud, duress, misrepresentation, improvidence (manifest unfairness), coercion, or non-disclosure of assets. A separation agreement can be enforced just like any other contract.

Module 11: Drug Legislation and Social Policy in Canada

The History of Drug Legislation in Canada

In 1908, the Canadian Federal Government passed its first drug laws with the proclamation of the Opium Act, prohibiting the importation, manufacture, and sale of opium. Prior to this, the Chinese community on the West Coast lawfully imported large quantities of opium for their own consumption, drug use caused little concern amongst the population, and opiates were widely available in various legal medicines.

The anti-opium movement was successful primarily because it was directed at the Chinese — a disliked and politically powerless minority — while simultaneously not targeting the large number of Caucasian users dependent on opium-based products of Caucasian pharmaceutical companies. When racial unrest resulted in the 1907 Vancouver riots, the federal government dispatched Deputy Minister William Lyon MacKenzie King to investigate damage to Asian businesses. King discovered a large opium industry and submitted a private report to Parliament emphasizing the drug’s moral impact rather than its physiological effects. Less than three weeks later, the Opium Act of 1908 was passed without discussion or opposition.

In 1920, Maclean’s magazine ran five racially biased articles on Asians and drug use written by Mrs. Emily Murphy. Her book The Black Candle (1922) claimed that vile and corrupt Asian and Black addicts were spreading addiction among innocent white persons. Parliament responded by passing the Opium and Narcotic Drug Act of 1923, which added cannabis to the list of prohibited substances.

Opposition to harsh penalties emerged in the 1960s when significant numbers of young middle-class Canadians began using marijuana and hallucinogens. Convictions for cannabis offences rose markedly until marijuana and hashish offences represented 90% of all drug convictions, and the law was widely criticized for criminalizing otherwise law-abiding and respectable youth. The Le Dain Commission issued four reports in the early 1970s and recommended a harm reduction strategy based on the gradual withdrawal of criminal sanctions for drug usage — recommendations that the government largely ignored.

Canada legalized cannabis for medicinal use nationwide in 2001. The Cannabis Act (Bill C-45) was passed in November 2017 and came into effect in October 2018, making Canada the second country in the world, after Uruguay, to formally legalize the cultivation, possession, acquisition, and consumption of marijuana. The legislation removed cannabis possession for personal consumption from the Controlled Drugs and Substances Act and implemented regulations similar to those governing alcohol.

The Controlled Drugs and Substances Act (1997)

In 1997, Parliament replaced the Narcotic Control Act and the Food and Drug Act with the Controlled Drugs and Substances Act (CDSA), which classifies drugs into eight categories or “Schedules” ranging from opiates, hallucinogens, and a vast array of prescription drugs.

Possession (Section 4): A person has anything in possession when they have it in their personal possession, or knowingly have it in the actual possession or custody of another person, or have it in any place for their own or another’s use or benefit. To establish possession, the Crown must prove mens rea — that the accused had knowledge of the substance and of its nature. It is not necessary for the accused to know the exact nature of the drug; as long as they believe the drug is prohibited or are willfully blind to it being prohibited, knowledge is established.

Double-doctoring (Section 4.2): It is an offence to seek to obtain any of the prohibited substances from a physician without disclosing particulars relating to the acquisition of any of the scheduled substances from any other practitioner within the preceding 30 days — punishable by imprisonment ranging from 18 months to seven years.

Possession for the Purposes of Trafficking and Trafficking (Section 5): Trafficking consists of the offence of possession plus an intention to traffic. No actual trafficking needs to be proved. Evidence typically includes: the amount and value of the drugs seized; exhibits indicating sales activities (scales, debt lists); police observations of the accused associating with known drug traffickers; and electronic surveillance.

Penalties under the CDSA are severe: anyone in possession of a controlled substance is guilty of an indictable offence punishable by a maximum of seven years for heroin and cocaine. Anyone guilty of importing, exporting, producing, or trafficking in cocaine or heroin is liable to imprisonment for life.

The Liberalization/Prohibition Debate

The debate over Canadian drug policies falls into two polar extremes: the conservative side supports harsh prohibition, while the liberal side proposes sweeping legalization.

Prohibitionists support strict legal penalties against illicit drugs and argue that widespread availability results from ineffective law enforcement and soft penalties. They argue that any liberalization will lead to more drug users and addicts, reduced stigma, lower prices, increased availability, and industry advertising targeting vulnerable populations.

The liberalization (harm reduction) model argues that prohibitionist policies do more harm than good and are largely to blame for the disease and violent crime surrounding drug usage. Law enforcement efforts to stem the flow of drugs are doomed because drugs are too profitable — whenever the police arrest one dealer, the void is filled by another. After all, the real problem is demand. Critics also argue that the war on drugs has led to an erosion of civil liberties through intrusive investigative techniques, has disproportionately impacted poor people and racial minorities, and has been enormously expensive — the U.S. spends an estimated $30–35 billion annually on drug control.

The harm reduction model focuses on reducing health problems, violence, and harsh legal penalties; it stresses the need for a shift in resources away from enforcement and towards prevention, education, and treatment. It supports initiatives such as methadone programs, needle-exchange centres, and prescription heroin.

Module 12: Laws and Social Policy Related to Prostitution

A Historical Overview

Much of Canada’s Criminal Code regarding prostitution comes from British heritage — laws against keeping “bawdy houses” and earlier vagrancy statutes (the 1824 Vagrancy Act). Historically, the keeping of bawdy-houses was viewed as corrupting public morals and a threat to social order. Laws against prostitution in Canada date back to the eighteenth century and focused on the homeless and unemployed; only women were defined as prostitutes and the laws were clearly discriminatory.

Vagrancy laws including prostitution-related offences were repealed in 1972 and replaced by Section 195.1, making it an offence for any person to solicit in a public place for the purpose of prostitution. However, the courts ruled that soliciting had to be “pressing and persistent” to constitute an offence (Hutt, 1978), making the law difficult to enforce.

In 1985, the soliciting law was replaced with Section 213 (the “communication” offence). This section makes it an offence to (1) stop or attempt to stop a person to communicate for the purposes of prostitution, and (2) communicate or attempt to communicate for the purposes of prostitution. Intention can be inferred from the words and actions of the accused; courts have ruled that references to money and payment constitute evidence of intent.

Types of Prostitution

Research in all countries indicates that prostitution typically involves women offering sexual services to male clients for money. There is a hierarchy within prostitution. Call girls and escort agencies work out of public view and meet clients in hotels, apartments, or private homes; they charge higher prices and are typically young and attractive. Massage parlours may be fronts for prostitution at a middle level. At the bottom of the hierarchy are street prostitutes — women who advertise their services by standing on street corners. Street-level prostitutes tend to be lower socioeconomic class, have often been abused, come from dysfunctional homes, are over-representative of minority groups, and suffer from substance abuse. They are more vulnerable to arrest and to violence by clients.

Current Laws Regarding Prostitution

Prostitution itself (the sale/purchase of sexual services) is not an offence in Canada. However, several prostitution-related behaviours are found in the Criminal Code:

Communication Sec. 213 C.C.C.: Every person who in a public place stops or attempts to stop a vehicle, impedes traffic, or communicates with any person for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute is guilty of a summary conviction offence. Studies indicate that Section 213 is not enforced equally — the police target prostitutes much more than their clients (the Johns).

Bawdy-houses — Sec. 210 C.C.C.: Everyone who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Landlords, owners, or others who knowingly permit a place to be used for purposes of a common bawdy-house are also guilty.

Procuring — Sec. 212(1) C.C.C.: This section covers procuring, enticing, knowingly concealing a person in a bawdy house, and — most notably — living wholly or in part on the avails of prostitution of another person, which is an indictable offence punishable by up to ten years. Living on the avails of a person under eighteen, using violence or intimidation, is punishable by five to fourteen years.

The Prohibition and Harm Reduction Models

The prohibition (criminalization) model views prostitution as morally wrong and advocates harsh laws and strict law enforcement. This model is moralistic and promoted by religious groups and some feminists, who view prostitution as evil and prostitutes as victims of an oppressive, exploitative, and patriarchal society. Moral entrepreneurs often mount moral crusades against what they see as the evils of prostitution, with the long-term goal of eliminating it as a viable endeavour.

The harm reduction model takes a more practical approach, ignoring moral issues and advocating a liberal and utilitarian perspective. From this perspective, prostitution is here to stay and cannot be eliminated through punitive laws. The main goal is to regulate and control prostitution and diminish its harmful effects. Decriminalization means removing most laws from the Criminal Code that prohibit prostitution-related activities; legalization means removing all criminalizing laws, allowing prostitutes to conduct activities like any legitimate business.

The Fraser Committee (1985) proposed a combination of legalization and decriminalization: removing all criminal law except provisions dealing with nuisance activities, exploitation, and violence; licensing prostitutes to work in private residences offering greater personal security. Although well received by the public, no Canadian government has had the political will to move in this direction.

The Feminist Perspective

Feminist scholars fall into two camps. Liberal feminists advocate for the rights of prostitutes to work without fear of arrest and detention. They recognize that some women enter prostitution by choice and support decriminalization as a means of respecting women’s rights and minimizing harm. They oppose laws that force street prostitutes to move into dangerous industrial areas of the city.

Radical feminists view prostitution as degrading, oppressive, and harmful to women — the result of a patriarchal system that devalues women and treats them as a sexual commodity. From this perspective, prostitution is always to some degree the result of coercion — either directly through pimps or indirectly through limited job opportunities.

Both groups would like to improve economic conditions for women so that they have greater economic choices and opportunities, helping reduce the need for women to prostitute themselves in order to make a living.

Worldwide Trends

Prostitution is viewed and treated differently around the world. Sweden has criminalized the purchasing of sex while decriminalizing the selling of sex. The Netherlands formally legalized prostitution in 2000, and Germany and New Zealand did the same in 2002 and 2003 respectively. In Canada, the federal government has continued to support a criminalization and punitive approach. There is a recent trend in some countries towards decriminalization, but Canadian governments have seemed content to respect the status quo.

Note: The law in Canada has changed substantially since this course was offered in Spring 2021. The Protection of Communities and Exploited Persons Act (PCEPA), enacted in 2014, adopted a “Nordic model” approach, criminalizing the purchase of sexual services while protecting those who sell them. Students should consult current Criminal Code provisions when researching contemporary Canadian law on this topic.

Course notes compiled from lecture materials provided by Prof. Fred Desroches, St. Jerome’s University, Spring 2021. © University of Waterloo and others.