 Hello, this is Weyland Chow and this is structure of the Canadian Legal System, Module 2, Part A. In this part, we will begin our explanation of the basics of the Canadian Legal System by looking at what is considered to be law, and then give a brief explanation of the two different types of legal systems in Canada, the common law system and the civil law system, and explain the difference between what is considered to be public law and what is private law. There are many different areas of law, but we can categorize every area into either public law or private law. Public law is defined as law that regulates our relationship with government, and private law regulates personal, social, and business relationships. Let's now do a quick quiz to illustrate the difference between public law and private law. On the left hand side of the screen, you will find different areas of law, and your challenge is to determine whether each of these areas is public law or private law. Please pause the video at this point so that you can attempt this quiz. Constitutional law is considered to be public law. Constitutional law are the rules that set up our political and legal system, and also rules that protect our basic rights and freedoms against government laws or actions. That in Canada we call the Charter of Rights and Freedoms, which we will discuss a little bit later. Those rules regulate our relationship with government, so that's why it's considered to be public law. Contract law is considered to be private law. These are the rules that govern the creation and enforcement of agreements between individuals and businesses. That is private law, because private law are rules that regulate the relationship between individuals, businesses, and organizations. Property law is also considered to be private law. Property law are the rules that regulate the ownership of property, so that is private law. Tax law is considered to be public law. These are the rules regarding the collection of monies by government from individuals and businesses. When do we have to file a tax for how much tax do we need to pay, though that has to do with money that we pay to government, so that's public law. Tort law are the rules that determine liability arising from what we call a private wrong committed by one person against another. In a future module, we will talk in detail about various tort. Tort law is considered to be private law. Criminal law, these are laws that set out particular behaviors as offenses against the state, so they could be, for example, murder, theft, fraud. Those are all examples of criminal offenses. Criminal law is considered to be public law. Criminal law, every time you commit a criminal offense, it's considered to be an offense against the state. Even though there might be a victim for that crime, strictly speaking, from a legal standpoint, the offense is against the state, so that's why it's considered to be public law. The last area of law that we have here is called administrative law. A lot of administrative law are rules that the government has set to regulate business using government agencies or boards or commissions or tribunals. Some of the areas that administrative law regulates is broadcasting, international trade, energy development, competition, labor relations, and municipal zoning. Administrative law is considered to be public law. One point to keep in mind is that a number of different areas of law can apply to the same situation. For example, for some reason, you punch me in the face. I don't know why you might do that, but you did. The applicable areas of law there are criminal law. I could call the police and the police could charge you with the crime of assault, so that's criminal law and criminal law, if you remember, is considered to be public law. Tort law could also apply. Tort law is considered to be private law. I could sue you under tort law for the tort of battery and claim damages for the injuries I suffered from you striking my face. In that one situation, we have both criminal law and tort law applying, or in other words both public law and private law applying to the same situation. The Constitution of Canada does two basic things. The first is it sets out the rules which create our legal and political systems. In particular, it creates a federal system of government, which means there is one national government and also various regional governments, which we call provincial governments. In order to have a federal system, there has to be a division of lawmaking powers between the federal level government and the provincial level of government. Those rules are contained in the part of the Constitution called the Constitution Act 1867 because those rules were created back in 1867. The second purpose of the Constitution is to protect our basic individual rights and freedoms and that part of the Constitution is called the Charter of Rights and Freedoms and also specifically it's under the part of the Constitution, which is named the Constitution Act 1982, so that is when the Charter was created. The Constitution of Canada is made up of two pieces of legislation. The first is the Constitution Act 1982 and the second is the Constitution Act 1867. The Constitution Act 1982, which is what we see here, includes the Charter of Rights and Freedoms, which we will talk about in the next part of this module, but it also includes the rule which makes the Constitution the supreme law of Canada. What that means is that any law that's made by a government in Canada, that would include the federal government, provincial governments and municipal governments, so any Canadian law, if it is inconsistent with the Constitution, that law is deemed to be invalid. What we also find in the Constitution Act 1982 is something called the amending formula. So the amending formula sets out the requirements for making an amendment or a change to the Constitution. So this amending formula is purposely set up to make it very difficult to amend the Constitution. So what it requires is the approval of, number one, the federal parliament, which would include both the House of Commons and the Senate, and we also need the approval of at least two-thirds of all the provinces, and those provinces have to represent at least 50% or half of the population. So it's that second requirement of getting the two-thirds and 50% population, which is usually very difficult to achieve. So practically speaking, we need, it would be very difficult to get an amendment if one or two of the biggest provinces in Canada don't approve of an amendment. So those provinces would be Ontario, Quebec and DC. Our system of government in Canada is created by our original Constitution, which was created back in 1867, and this is a picture of it here. It was an act of the Imperial Parliament. So what that refers to is the British Parliament. So our original Constitution was a British law. It was an act for the Union of Canada, New Brunswick and Nova Scotia. So Canada refers to both Ontario, which is Upper Canada and Quebec, which was lower Canada. So originally, Canada was made up of four provinces. So this act of the British Parliament was also known as the British North America Act. That British North America Act, or BNA Act for short, was renamed in 1982 to be the Constitution Act 1867, which I referred to in the previous slide. So it was renamed because in 1982, our Constitution became Canadian in the sense that it became a Canadian law. The Constitution Act 1867 was an act of the Parliament of Canada. So our Constitution was no longer British as of 1982, but became Canadian. So within the Constitution Act 1867, which was identical to what was in the British North America Act, so within there we find the rules which create our system of government. So firstly, it creates what's called one Parliament for Canada. So that Parliament is made up of the Queen, which is considered to be our, or who is considered to be our head of state and a Senate and a House of Commons. It also creates legislative assemblies for each of the provinces. So a legislative assembly for Ontario, one for Quebec. So you'll notice in the provision for Quebec, it also refers to a legislative council of Quebec. So what that was, it was the equivalent of a Senate for Quebec. Back in 1968, that legislative council was abolished. And as well, the name of the legislative assembly of Quebec was changed to the Quebec National Assembly. And also, the Constitution Act 1867 or the BNA Act acknowledged the existence of the legislatures of the provinces of Nova Scotia and New Brunswick. So what the Constitution created was two levels of government in Canada. A federal level, which was the Parliament of Canada, and a provincial level, which were the provincial legislative assemblies. In a federal system of government, like we have in Canada, we need rules which assign lawmaking powers to each level of government, the federal and the provincial levels. So we find these rules in the Constitution Act 1867 in sections 91, 92, and 93. So let's look first at section 91, which assigns lawmaking power to the federal Parliament. So the beginning of section 91 is reproduced here. So it's a lot of, you know, very difficult to understand words. So let's try to make sense of it. So the first part refers to the Senate and the House of Commons is refers to the federal Parliament. It's basically saying, you know, the federal Parliament has the power to do these things. And then it also talks about, it says, you know, all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces. So what that is saying is that there's a list of powers given to the provinces, which is in sections 92 and 93. So anything that's not listed and given to the provinces, so if there's a certain subject matter that is not assigned to the provinces, then it automatically belongs to the federal Parliament. So that that power is called is commonly called the federal residual power. So residual means what's left, what's left over. So what's not listed is belongs to the federal, the federal Parliament. And then at the end, it's basically saying, you know, the following list is, you know, or is a list of subject matter, which the which the federal Parliament has exclusive right to make to make laws about the provincial lawmaking powers are set out in the Constitution Act 1867 sections 92 and 93 section 92 contains a long list of subject matter, which the provinces have have jurisdiction over. And section 93 specifically gives the provinces the power to make laws concerning education. Please now access the Constitution Act 1867 by either going to this link or use the link that is on slate. You will need to refer to the Constitution Act 1867 in order to do the quick quiz on the next slide. Time for a quick quiz. Referring to sections 91, 92 and 93 of the Constitution Act 1867. Determine whether it is the federal government or federal Parliament or the provincial legislatures that have the power to make laws regarding each of these subject matters. So at this time, please pause the video and work on this quiz. And once you're done, restart the video. Okay, let's look at banks first. The power to make law about banking belongs to the federal Parliament under under section 91 15. So the specifically the legislation that the federal government has for banking is called the Bank Act. Property and civil rights belong to the provincial legislatures under section 92 13. Now, what we were what we're talking about when we're when when it refers to civil rights is not human rights, which is the more modern meaning. Civil rights in the Constitution means private rights. So so things rights that arise from contract or from or from tort. So tort, meaning, you know, the rules that regulate liability arising from a private wrong committed by one, one person against another. So if I, if I negligently hit you with my car and cause damage to your car, that's considered to be a tort and you consume me to to recover, recover your losses. So so that's governed that that's considered to be civil rights and it's governed by by by the provinces. So this this power to regulate property and civil rights from a business standpoint is very is very significant and even extends to give the provinces the right to regulate stock markets because what stock markets are about our our contracts, there are contracts to buy and sell stocks. So that's why the provincial legislatures are specifically in Ontario. It's the Ontario Securities Commission. They regulate the the stock markets. The next subject matter is is taxation that that the power to regulate taxation belongs to both the federal parliament and and the provincial legislature. So the federal parliament has power to regulate taxation under section 93 and the provincial legislatures get their power to tax under section 92 to the creation of municipalities belongs to the provinces under section 92 eight. So it's up to the provinces to create cities like City of Mississauga or City of Toronto or Town of Lowfield. They're the ones that create the the municipal governments and give these municipal governments the power to make bylaws. The power to regulate navigation and shipping belongs to the federal parliament under section 91 10. And any matters of a local or private nature within the province belongs to the provincial legislatures under section 92 16 copyright and any other intellectual property matters such as such as patent belong to the federal parliament. So copyright is regulated by by a statute called the the Copyright Act and that is that is under section 91 23. The issuance of money and currency belongs to the federal parliament. So the money is issued by the by the Royal Canadian Mint which is which is owned and operated by by the federal federal government. And that's under section 91 14. Employment insurance is under the jurisdiction of the federal government under section 91 2 a 91 2 a says unemployment insurance actually which is the original name for for employment insurance. It was under the the government of Brian Mulroney when they changed the name from unemployment insurance to employment insurance. Corporations or more specifically the laws governing the creation of corporations belong to both the federal parliament and provincial legislatures. The provincial powers are more obvious one under section 92 11 the incorporation of companies with provincial objects. The the federal powers not is not so obvious. It arises from section 91 2. The the regulation of trade trade and commerce bankruptcy belongs to the federal parliament. And the the statute for that is is called the bankruptcy and insolvency act. And that's under section 91 2 of the Constitution Act 1867. Interprovincial and international trade and commerce belongs to the federal federal parliament. So that would so that would cover with respect to international trade and commerce. So that would cover entering into international trade trees such as the the recent one the Trans Pacific partnership. And also interprovincial trade is is the jurisdiction of the federal parliament. So conversely trade and commerce within a province is is the jurisdiction of the provincial legislatures. And that's usually because of 92 13 which gives the the provinces the the right to regulate property and civil rights. And any matter that is not exclusively given to the provinces or in other words the residual power belongs to the federal parliament. And we've discussed this before. So under under the the opening words of of section 91 it basically says that any any subject matters that are not specifically given to the provinces belong to the federal parliament. So things that such as telecommunications and air travel which are which are clearly not mentioned at all anywhere in the Constitution Act 1867 because neither of those things existed at that time. Both of those subject matters are regulated by the federal federal parliament. In applying the division of powers between the federal and provincial governments there are a couple of legal concepts that we need to be familiar with. The first concept is called the doctrine of federal paramountcy. So this deals with the situation where we have both a federal law and a provincial law that applies to the same situation. And the two laws are inconsistent or in conflict between each other. So which law do you apply. So this doctrine says that we apply the federal law. The federal law is paramount over the provincial law. The other legal concept we need to be familiar with is the Latin term ultra virus. When we say that legislation is ultra virus it means that a court has declared that a particular law that was created by a provincial or federal government was created outside of the scope of that government's authority. And therefore that law is ineffective or of no force or effect. So what the court would be saying when it says a law is ultra virus is that the government that created that law did not have the power to create that law as given to it under the Constitution. Let's now do a quick quiz question. Please pause this video to consider this question and feel free to go back and look at the previous slide. The answer here is C. The question is a province created a statute. A court ruled that the statute was ultra virus. That means that C the statute is invalid because the province acted beyond its powers under the division of powers set out by the Constitution.