ACCT 202 Lecture Notes - Lecture 10: Canadian Charter Of Rights And Freedoms, Uniform Commercial Code, Equal Protection Clause
29 May 2018
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Chapter 1: The Law and the Legal System (pg. 8-23) (37-52PDF pg)
Amended: make minor changes in (a text) in order to make it fairer, more accurate, or more up-to-date.
THE SOURCES AND COMPONENTS OF MODERN CANADIAN LAW
Common Law (case law): The law (except statute law) as found in the recorded judgments of the courts
since 1290 in year books by 1477 they were available in other forms
• Few remnants of early Roman law, and the laws and customs brought to England by the Anglo-
Saxon invaders.
• The Norman Conquest of 1066 brought with it a central system for the administration of justice
and, the incorporation of the customs and laws from all parts of the country into the Common
Law.
Stare decisis: to let a deisio stad, o to stad a peious deisio means that a judge must
apply the previous decision of a case similar to the one before the court if the facts of the two cases are
the sae, poidig suh a deisio as fo the judge’s o out, fo a out of eual ak,
or (3) from a higher (or superior) court.
• Only the Supreme Court of Canada has the unrestricted ability to overrule its previous decisions
doing so with caution as all their decisions are binding out lesser courts and lesser courts are
bound to follow the decisions taken by higher courts in their own jurisdiction.
• Decisions of higher courts or courts of equal rank from other jurisdictions are persuasive, but
not binding.
• This theory has allowed common law to remain flexible but gives it a level of stability and
judiciary have found was to conform to common law while adapting it to modern times as the
judge has the authority not to use and obsolete precedent if the facts/circumstances are
different and the use of this precedent would give unsatisfactory results
Canon Law: The law developed by the church courts (ecclesiastic courts) to deal with matters that fell
within their jurisdiction. Originally, the church had jurisdiction over religion, family and marriage,
morals, and matters relating to the descent of personal property of deceased persons. Which are now a
part of common law.
Law Merchant: The customs or rules established by merchants to resolve disputes that arose between
them, and that were later applied by Common Law judges in cases that came before their courts. Long
time it was in the exclusive domain of the merchant guilds.
Equity: Rules originally based on decisions of the king rather than on the law, and intended to be fair.
Body of legal principles that takes precedence over the Common Law when the Common Law and
rules of equity conflict.
The king, and, later, his chancellor, heard these cases and in each case made what was called an
equitable
Decision: oe ot eessail ased upo the la, ut oe that the kig osideed to e fai
Statute law it is deided.: A law passed by a properly constituted legislative body at the end
of/result of a process.
• Governments have the power to make laws either due to written constitution or as a result of
long-standing tradition
• Process: starts with the peoples wishes which are interpreted by members of provincial
legislature/ Parliament of Canada and debated in legislative assembly becomes law if majority
see it as necessary which is reviewed by the house of commons and senate
Bill: A proposed law presented to a legislative body. (Such as the House of Commons or a provincial
legislature)
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Motion (decision): The decision to read a bill a first time and printed for circulation
Process: bill (proposed law) is sent to legislative body requiring a motion to have it read/printed
/circulated for the first time in the committee who has a given time frame to read/debate the contents
then it is brought before the house or legislature again for a second reading and if it passes the second
reading it is passed to the committee/legislature to be read and examined on a clause by clause basis
and amend which can be done by Any member of the committee. Then the bill is passed by committee,
the Chair of the Committee reports the bill in final form to the legislature. It then goes through a third
reading and if passed, the bill is then sent to the Senate at the federal level to go through a similar
process before passed. They initiate bills, but if it does, it must send the bill to the House of Commons.
Royal assent, given by governor general, Needed in order for a bill to become law. is largely automatic,
as it has never been refused at the federal level but may be at provincial level.
Proclaimed: When a bill becomes law and law becomes effective, as government may implement a bill
later or parts of it now and some later
Revised statutes: Revised statutes Updated or amended statutes. A consolidation of laws and their
changes,
• Statute law can be used to create laws to cover new activities or matters not covered by the
Common Law, or to change or abolish a Common Law rule or right.
• Statutes may also be used to codify the Common Law by collecting together in one written law
the Common Law rules or principles relating to a specific matter.
• The particular advantage of statute law over the Common Law is the relative ease by which the
law may be changed.
• The disadvantage of statute law is that it will be strictly interpreted by the courts. Occasionally,
a badly drafted statute only serves to compound the problems that it was intended to solve, and
may require additional laws to respond to the problems it created.
Civil Code: A body of written law that sets out the private rights of the citizens of a state. may be
consulted in the determination of rights and duties. the province of Quebec has codified much of the
law that is normally found in the Common Law of other provinces. Its makers intended it to be a
complete legal pathway for life: birth, family, business relationships, death, inheritance, and
management of their chief obligations and assets along the way. it serves as a starting point and
framework for more specific laws to build upon or create exceptions.
Codification of Common Law
• The Common Law relating to the sale of goods was codified in 1893, since then, no major effort
has been made to codify other branches of mercantile law except to modify or settle matters of
difficulty relating to particular issues.
• Advantage is certainty, the judge decides a dispute by reference to the appropriate part of the
code however if no specific article covers the dispute, then the decision is based upon general
principles of law set out in the code.
• particular difficulty with the code is that it might be interpreted differently in some cases by
different judges so places with civil codes consider the decisions of other judges who have
decided similar cases.
• United States Uniform Commercial Code. This code, which governs commercial-law practices,
was first drafted in 1952 and, following a number of amendments, eventually was adopted by all
states by 1975. Not all of the states adopted the entire code, and some altered the code to suit
their own particular needs.
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