Week 1 - Questions and Answers
Chapters 1 and 2
6. Q: Explain the common law system, and how it relates to the function of
A: The common law system, legal system relying on the decisions of
judges / the courts to as the major source of legal principle.
7. Q: Why is the doctrine of stare decisis an important part of the common
A: Stare decisis, the decision stands, the fact that each ruling is binding on
lower courts in future cases involving similar facts, the common law
system would not function if decisions were not binding. Decisions are the
source of principles of law.
8. Q: How does the common law differ from the principles of equity? From
A: Equity is a separate set of principles, evolved at some later time, to
step in and supercede where common law principles as established
yielded a result that was unfair, or unjust.
9. Q: How does a legislature establish a new law? Explain the procedure.
A: This is set out fairly completely in the text, on pages 16 and 17 (7 th
edition) and pages 10 and 11 (8 edition), there is no need to reproduce
10. Q: Define substantive law, and explain how it differs from procedural law.
A: Substantive law, the principles of law that set out rights and obligations,
i.e. “what you get”: Procedural law, the process or means by which the
substantive law is put into effect, i.e. “how you get it”.
11. Q: Describe the difference between the common law and the Civil Code of
the province of Quebec. What are the relative merits of each system?
A: The common law system, the system of relying on the decisions of
judges over time to establish legal principle. The Civil Code system of law,
where the substantive “civil” law (i.e. law that is not criminal) is codified in a statute.
Common law system: flexible, over time law is easily changed; but change
Civil code: change in statutes is faster, codification produces greater
certainty, simply refer to the Code, however, still subject to interpretation,
and technically courts are not bound by prior interpretations; statutes must
be perfectly worded to function properly; statutes are narrowly interpreted
by the courts;
13. Q: How does a “regulation” made under a statute differ from other “laws”?
A: Regulation: subordinate, secondary to, it serves or puts into effect the
enabling statute, can be modified or created by an official or an official
“body” empowered by the primary statute, no debate required, no reading,
no committees etc.
14. Q: Explain how the enforcement of a public law differs from the
enforcement of rights under private law.
A: The state enforces public law, private individuals must bring a law suit
to enforce private rights.
15. Q: The Canadian Charter of Rights and Freedoms has been described as
being “supreme” law, or law that is “entrenched.” Why, or in what sense, is
this the case?
A: Supreme: all other laws must conform to the Charter, if they violate the
rights and freedoms and cannot be justified under s. 1, they are of no
force and effect; Entrenched: can’t be changed by a simple act of
Parliament, only changed by a special amending formula.
17. Q: Does the Canadian Charter of Rights and Freedoms permit the
Supreme Court of Canada to override the will of Parliament or a provincial
legislature? If so, in what way?
A: Again, if the statute, the expression of the will of Parliament, is
inconsistent with the Charter, the courts have the power to declare the law
of no force and effect.
20. Q: In what way does the Constitution Act, 1982, affect the legislative
jurisdiction of the Parliament of Canada and the provincial legislatures?
How are the questions of jurisdiction decided?
A: The Constitution Act 1982 incorporates the British North America Act 1867, re-named the Constitution Act 1867, of which s. 91, and 92 set out
the legislative powers of the provincial and federal legislatures. Each law-
making entity can only make laws about things listed in these sections.
The courts must decide questions of jurisdiction, a law outside of that
body’s jurisdiction is ultra vires and therefore of no force and effect.
1. Q: “In a free and democratic society, the courts perform the important role
of guardians of the rights and freedoms of the individual. While important,
this is far from being the only part they play in society.” How do the courts
perform this important role? What other functions do they have in society?
A: In Canada, courts ensure that statutes are consistent with the Charter,
as well as decide if an official has acted within his or