Worldwide Canada is considered to be one of the leading countries that support the global human rights movement. The history of Human Rights Law in Canada begins in the advent of the Canadian Bill of Rights, before that the human rights issues were usually regulated with single court cases and the verdicts of such cases were used to regulate similar situations. In 1938 by the decision of Reference re Alberta Statutes, the Supreme Court of Canada first recognized an implied bill of rights. The case revolved around an Albertan law that prohibited the press from criticizing the government. Another major step in the Human Rights Law was done in 1948 when the Universal Declaration of Human Rights was signed and from that moment the Canadian Government attempted to make universal human rights a part of Canadian law. While even before that the Government has done lot of thing to solve various racial discrimination problems, with the signing of the Declaration the country turned to equality and problems of homosexual people. Canada by the way was the fourth country in the world to legalize same-sex marriage nationwide with an amendment of the Civil Marriage Act. Despite all these achievements there are still some problems left today. Some Canadian provinces still have religiously segregated schools, there is a certain lack of anti-discrimination laws to protect the disabled and the treatment of Canada’s First Nations people or Aboriginal Canadians attract criticism form the United Nations and other countries. But still the main areas of the Human Rights like the freedom of speech or the workers rights are heavily protected by the appropriate parts of the Canadian Law.

Today there are four key mechanisms in Canada to protect human rights: the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canadian Human Rights Commission, and provincial human rights laws and legislation. The cornerstone of human rights in Canada is the Canadian Human Rights Act. This Act was passed by the Canadian Government in 1977 and the goal of extending the law with this act was to ensure equal opportunity to individuals who may be victims of discriminatory practices based on various grounds such as gender, disability, or religion. The Canadian Human Rights Act applies throughout Canada, but only to federally regulated activities. Each province has its own anti-discrimination law that applies to activities that are not federally regulated. The Act triggered the creation of a Canadian Human Rights Commission that investigates claims of discrimination and also the creation of a Canadian Human Rights Tribunal to judge the cases. Another practice that is used in discrimination cases is the “Meiorin test”, it occurs if a complainant can show a valid case of discrimination and the defendant can rebut it by showing that their practice was for a justified reason. Also every case of discrimination in Canada undergoes several stages of investigation and remediation and only if the parties are not satisfied with the result the case will go to Canadian Human Rights Tribunal.

The Canadian legal system in every province except for Quebec is based on the British common law system. The Quebec province retains a civil system for issues of private law, however both of these legal systems are subject to the Constitution of Canada. Inside the commonwealth system everything is divided into areas like criminal law or civil law. It this article we will examine the Civil Law area and the Common Law area in Canada.

Common law

Canada belongs to a group of common law countries, so Canadian law adheres to the doctrine of stare decisis. In this system all the lower courts are bound by the decisions of higher courts and must follow it. But this works only inside one province, lower courts from two different provinces are not bound by each others decisions. The decisions made by a province’s highest court like the Court of Appeal, nevertheless are considered as “persuasive” even though they are not binding on other provinces. There is also the Supreme Court of Canada that authority to bind all courts in the country with a single ruling. If a there is a little or no existing Canadian decision on a legal issue it is possible that the court will look to a non-Canadian legal authority for reference. Most often the decisions on other commonwealth countries like the U.S. and England are utilized. While the decisions of English higher courts like the English Court of Appeal are respected and these courts are considered the be persuasive authority, many of the constitution or privacy related issues are solved basing on the decisions of United States courts, because the there is a much greater body of jurisprudence in U.S. law than English law in these areas. Canadian courts are also particularly bind with the decisions of the House of Lords made before 1867, but practice shows that most of these decisions were overturned by the Canadian Supreme Court or simply not considered serious by any of the Canadian lower courts.

Civil law

Civil Law in Canada involves numerous areas of law that contain disputes between parties (individuals, corporations and government). In such disputes parties seek remedies from the court in contractual matters, tort disputes, and property law cases. Civil Law is opposed to Criminal law that is typically enforced by the government, while the civil law, may be enforced by private parties. In Canada Civil Law also includes a growing sphere called Administrative Law, which deals with things like federal and provincial administrative tribunals, including labour boards, human rights tribunals, and workers’ compensation appeal tribunals. These decisions still can be reviewed by superior courts like the Federal Court Trial Division or the Federal Court of Appeal. Also Civil Law contains the Municipal Law area that covers jurisdiction of the provincial legislatures (that naturally varies from province to province). Established by the Supreme Court of Canada, the Charter of Rights and Freedoms applies to the activities of municipal governments.

GOLIATH DOESN’T NEED HELP

If after David beat Goliath the government decreed that henceforth when people fight giants, they must do so with six-inch sling shots and pebbles instead of rocks, there would be a huge outcry of protest.  However, the changes that are being imbedded in our legal system in the name of tort reform are attempting to do the same thing.

There have been efforts (some successful) in Congress and many state legislatures to make it more difficult for an injured person to pursue a lawsuit and to limit the amount that can be recovered.  Part of the impetus for this reform is a misconception that injured people are somehow taking advantage of insurance companies and corporate America.  The truth is before an individual files a lawsuit against a large business, he or she better be armed with more than a slingshot as there is a long tough battle ahead that usually will not be won unless the facts warrant such and sometimes not even then.

Another reason people feel reform is necessary is the perception that unscrupulous, greedy lawyers are ruining the system.  Obviously the over-zealous conduct of some attorneys needs to be curtailed.  However, such conduct is exhibited by both plaintiff and defense counsel.   So, if any changes are made to the system, we must make certain they equally impact both sides and do not adversely affect the ability of an injured person to obtain fair compensation.

From time to time an individual will receive an outlandish jury award for a small case.  This is akin to someone continually playing a slot machine and eventually hitting the jackpot.  It is these jackpots that receive big press coverage because instant wealth is deemed newsworthy.  However, simply because this occasionally happens doesn’t mean that we need to toughen the odds from it happening again.

 There are already many safeguards in place in our legal system to prevent outrageous results.  For example, a judge has the power to reduce a jury award when it is deemed appropriate.  This is far more appropriate than an across-the-board money cap imposed by a legislative body.  The judge knows the law, is familiar with the case, and can recognize an absurd dollar amount.  Unfortunately, these judicial reductions usually are back page news items compared to an initial award decision.

When an individual is hurt or injured, it can be extremely difficult to receive fair compensation as he or she is usually doing battle with a giant in the form of a big corporation, an entity with unlimited legal resources.  The expenses attached to a lawsuit dictate that the injured person thoroughly explore a settlement for a sum close to what is fair before filing suit.  To suggest that these individuals take advantage of big companies in the legal arena is as illogical as saying that David took advantage of Goliath.

Do we really want to limit the amount of money a person can receive to a figure such as $250,000.00 plus medical bills?  This may seem like a lot of money that could keep most of us happy for a long time, but it is usually insufficient when an injured victim has a permanent disability that will affect the individual’s quality of life for the remainder of their life.  Imagine only receiving $250,000.00 if you lose or limb or are paralyzed.

Before supporting tort reform we must remember that the playing field is already tilted in favor of the giants.  It seems totally inappropriate to tilt the field even more.  David has a tough enough job.

December 18, 2008

Hiring a Criminal Defense Lawyer for a DUI Charge

Ever been pulled over on a DUI charge? Yes this happens but you can beat the system with the help of a criminal defense lawyer.

Drinking under the influence of DUI requires fast action on your part so that your license will not be suspended. The first thing you have to do of course is hire a lawyer so you can immediately be released from jail.

In some cases, this does not happen because you are released on your own recognizance. However, some will require you to post bail which your lawyer can take care of.

Once released, it is now time to address this issue. In some states, a DUI charge generates 2 separate cases. The first is filed with the Department of Motor Vehicles while the other is a criminal court case. When faced with this problem, you have to face these charges within ten days from the date of the arrest.

Just like any other criminal case, this begins with your arraignment. You will be asked to enter a plea of guilty or not guilty. Chances are, your criminal defense lawyer will tell you to plead not guilty to these charges. This will give him or her time to review the facts of the case so your defense will be established.

There are many strategies available that your lawyer can use to you get out of a DUI and have proven to be successful.

Your lawyer may for example argue lack of probably cause for the initial stop. This means there was no reason at all to stop you and if that is the case, submit a petition to suppress any evidence that the police obtained when you were pulled over.

It is also possible to argue faulty of unreliable BAC results. The BAC stands for blood alcohol test which is used to test if the person’s alcohol level has reached the maximum limit which makes him or her unsafe to drive a vehicle.

The results could be faulty if your lawyer can prove that the test was not properly administered, the equipment used was not properly maintained or you have a medical condition that may have an impact on the reliability of the test.

Another tactic is to attack the credibility of the arresting officer. If your lawyer is able to question the police officer and prove there are inconsistencies in their testimony compared with the police report they filed, you just might have a chance of getting a not guilty verdict.

But if things are not working in your favor and everything was done by the book, then your criminal defense lawyer may advise you to accept a favorable plea agreement. Doing so may get you reduced charges or sentencing concessions with the district attorney.

If you don’t want to negotiate and decide to gamble in court and lose, then you can try to appeal the court’s decision. If you don’t, there will likely be an increase in your insurance cost, limits on employment options and you will now have a permanent record.

Hiring a criminal defense lawyer is the only way to get out of a DUI charge. After all, there are circumstances which you can argue so that you name will not be included in the criminal database system.

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