Law 2101 Lecture Notes - Lecture 1: Golden Rule, Statutory Interpretation, Mischief Rule

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22 Sep 2016

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Paul Dimovski
Law 2101
Textbook Readings: LS2-LS8
Sources and Divisions of Law:
Sources of Law
The Constitution, Statutes enacted by the federal Parliament or a provincial legislature,
Federal or Provincial regulations, the decisions rendered by judges in the cases they
decide, International law is also a source of law in Canada
The two major sources of law are the law made by the courts (common law or case law)
and the law made by legislature (statute law)
A statute is a written law of legislative body, i.e. an Act of Parliament. Before it becomes
a statute, an act proceeds through the legislature in the form of a bill.
The common law deals with changing social or legal conditions only as they emerge in
actual disputes. Statues deal in generalities and affect broad classes of persons and can
be enacted in anticipation of future events.
Today, some of our most important laws, such as the Criminal Code and the Income Tax
Act, are entirely created by statute.
The more detailed laws enacted by the cabinet are called delegated legislation, or
oCabinet: Is the committee of ministers that holds executive power.
Many statues contain sweeping enabling clauses which give the cabinet virtually the
same law-making powers as the legislature
Divisions of Law
Procedural law generally deals with court and pre-trial procedure and rules of evidence.
Substantive law deals with the rights of individuals.
Public law is concerned with matters that affect society as a whole. It includes criminal,
constitutional and administrative law.
Private law, also called “civil law”, deals with the relationships between individuals. Civil
laws set the rules for contracts, property ownership, the rights and obligations of family
members, damage to someone or to their property caused by others and so on
A civil case is another way of referring to a private case of “suit”- that is, where
someone sues someone else. A criminal case involves a prosecution by the Crown under
a public-aw statue such as the Criminal Code, the Controlled Drugs and Substance Act or
the Competition Act.
Territorial Issues
Under Canada’s federal system of government, the authority or “jurisdiction” to make
laws is divided between the Parliament of Canada and the provincial and territorial
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Paul Dimovski
legislatures. Parliament can make laws for all Canada, but only about matters assigned
to it by the Constitution. Laws apply only within the province’s borders.
The federal Parliament deals with trade between provinces, national defense, criminal
law, money, patents and the postal service. It is responsible as well for the Yukon, the
Northwest Territories, and Nunavut.
The provinces have the authority to make laws concerning education, property, civil
rights, the administration of justice, hospitals, municipalities and other matters of a local
or private nature.
There are also local or municipal governments. They deal with zoning, smoking,
pesticide use, parking, business regulations, and construction permits.
Aboriginal peoples in Canada have different types of government. Indian bands can have
a range of governmental powers over reserve lands under the federal Indian Act.
Two Systems: Common Law and Civil Law:
The Common Law Tradition
oCanada’s legal system derives from various European systems. Battle of Quebec
in 1759, the country fell almost exclusively under English Law. Quebec, where
the civil law is based on the French Code Napoleon.
oThe common law, was based on the decisions of judges in the royal courts.
Precedent: a rule that will guide judges in making subsequent decisions in similar
cases. Common law is flexile and adaptable to changing circumstances.
The Civil-Law Tradition
oIt is based on Roman Law, Emperor Justinian ordered his legal experts to
consolidate all the laws into a single book to avoid confusion. Civil-law system
first looks to the Code, and the refer to previous decisions for consistency.
The Two Meanings of the Civil Law
oContrast to “Common Law’ to refer to the legal system that is based on a civil
code, such as the Justinian Code or the Civil Code of Quebec. Civil law refers to
matters of private law as opposed to public law, and particularly criminal law,
which is concerned with harm to society at large.
oBijural country, one with two types of law
Bijural: The coexistence of two legal traditions within a single state
oCommon law in Quebec were to be dealt with under Civil Code law. Pro public
law, n the other hand, the common law was to be used in and outside Quebec.
The Court System:
The Structure of the Courts
The Supreme Court of Canada is the highest court in Canada.
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The decisions of the Supreme Court of Canada are binding on all other courts in Canada.
The Supreme Court is not bound by decisions from any other jurisdictions, but will often
refer to decisions.
The decisions of the superior courts of each province are binding on the lower courts in
that province. Decisions of coordinate or superior courts in other provinces are
generally considered persuasive authority.
Highest Court in Ontario: Court of Appeal for Ontario
oSuperior Court of Justice
oIncludes: Family Court, Small Claims Court (For minor civil matters) and the
Divisional Court (an appeal court above the Superior Court of Justice but below
the Court of Appeal)
Ontario Court of Justice
Stare decisis requires lower courts to follow the decisions of higher courts in the same
oStare decisis: the legal principle of determining points in litigation according to
The Adversarial System
Adversary system in which the contestants seek to establish through relevant
supporting evidence, before an impartial trier of facts those events or happenings which
form the bases of their allegations
A court must be concerned with trust, in the sense that it accepts as true certain sworn
evidence and rejects other testimony as unworthy of belief, but it cannot embark upon
a quest for the “scientific” or “technological” truth when such an adventure does
violence to the primary function of the court.
Textbook Readings: LS9-LS17
Basic Concepts in Learning the Law:
Statutory Interpretation:
The process of statutory construction has two distinct aspects: interpretation, where the
meaning of the words of the statute is determined, and application, where the meaning
is applied to the facts of specific cases.
Statues may be interpreted, however, without reference to any specific controversy.
Application, on the other hand, presupposes interpretation
Statutory interpretation is probably best viewed as a process that requires the exercise
of judgment in balancing the ordinary meaning of words, the context of the entire
statue and the purpose of the statute.
Canons of interpretation which give clues as to how problems of statutory meanings
have been resolved in the past
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