TOPIC #3 – THE SOURCES OF LAW
You can‟t have law unless there is law marker – some society is god, morarch
In democracy = people make the law - these people fall into two categories
1. People we elect to legislatures who make a form of law called „Legislation‟
2. Judges who make „case law‟
Both legislatures and courts as sources of law.
Most important form of law today – primary role in making law
A. Primary Legislation: Statutes
All power comes from the constitution – the most basic and fundamental law there is – all legal power resides
In Canada, our constitution allocates the legislative power to 11 legislatures (institutions that make laws)
o 10 provincial legislatures and federal legislature (parliament)
o Each provincial legislatures have same legislative authority and they exercise it under their provinces
Provincial legislative authority - Health care, education
o Federal parliament exercise their power to the entire country
Federal legislative authority - Eg criminal law, foreign affairs
Only limitation – the constitution itself. Legislatures can make any law, as long as it conforms to the constitution
** See Political and Legislative Process**
B. Secondary Legislation: By-Laws, Order-In-Council, Regulations
Concept of Delegation
In large organization, person in charge don‟t do everything.
Legislatures are allowed to delegate legislative authorities. They can delegate others to make secondary legislations. Typically
to other government officials, or create government agencies
Responsibilities are delegated to others.
o They don‟t have enough time.
o They may not have technical knowledge to do all the things, need specialists.
Two basic requirements:
o Must pass a statute (define who) agreed by majority to delegate authority away to pass laws.
o Must define what the authorities are. – exactly what they are authorizing them to do/ not to do
Eg worker compensation board
o Compensate workers eg injuries
o Make regulations about work place safety
o Federal/provincial legislatures cannot worry about this, so they delegate workload to Worker Compensation Board
because they have the expertise and do this as a full time job.
Types of Secondary Legislation
Thousands of agencies across Canada that make laws under delegated authorities granted to them by the legislatures.
By Laws - City Councils – provincial legislatures gave them power to make local laws – eg parking tickets, banning of
smoking in restaurants
Order-In-Council - Cabinet– constitution give power to „legislatures‟ not the cabinet or prime minister. They only have power if
they have support of majority of MLA. Legislatures delegated most authorities to cabinets
Example: Minimum Wage (Regulations)
Statue - Employment Standard Act (Act = Statue) = says employer must pay minimum wage
Cabinet - pass regulation deciding minimum wage
Legislative Employment Standards Act Cabinet Minimum Wage Regulation The Political and Legislative Process
1. The Political Process
Every 5 years max. (now 4 years in BC by law)
o Constitutional requirement – need to seek new mandate from people
Candidates seek election to one of 87 seats in the Legislative Assembly (legislature)
There is one seat in the legislature for each of 87 electoral districts around the province
o Many elections happening simultaneously across province – divide BC into 87 consitutiences (electoral
districts) of roughly equal population –( eg Surrey 5, Burnaby 4, etc)
o During elections on the same date – each choose a person to represent and occupy their district seat in the
provincial legislature in Victoria.
Almost all candidates run for office as part of a political party
o Not all, some are independence. However people tend to vote for political party because they make it easier
for people – we know them better, they are branded – the brand name represent certain values –we usually
don‟t know the individual but we know what the party stand for and we vote whichever closest to our values
To win, a candidate needs only to get more votes than any of the other candidates -- “first past the post” electoral
system (not a majority of votes)
(b) After the Election – Forming a Government
The 87 winning candidates are sworn into office as Members of the Legislative Assembly (M.L.A.)
o Different MLA in each province.
o To pass a law need majority to agree before a law can be passed. So need lieutenant governor to determine
who will be government.
The Lieutenant-Governor looks at which group can work together as a majority … the Lieutenant Governor will then
ask that group of MLA‟s to form a government
o LG = Queen‟s represntitive to the province (small remaining power of the queen) – to ask someone to form a
government – prefer a GROUP who will consistently work together and between them have a majority of
votes in legislature = GOVERNMENT
o If NDP has most seats, then leader of NDP will form a government
All MLA‟s that are not part of the government are members of the Opposition
(c) After the Election – Forming a Cabinet (Executive Council)
The leader of the government is the Premier
o Need senior management team – Premier (CEO) – chosen by lieutenant government
o At federal level, it is the Prime Minister
Premier chooses several (~20?) government MLA‟s to form the cabinet or executive council (and the Premier can add
or remove people from the cabinet at any time)
The members of the executive council are known as cabinet ministers [examples: Attorney General; Minister of
Finance; Minister of Education; Minister of Health]
o Cabinet members must be from MLA
o CM responsible for own district, also have extra responsibilities.
o Politicians can occupy both branches – legislative and executive branch – in US only president = executive,
congress are legislative which are completely separated.
The cabinet only has power as long as a majority of MLA‟s support it
o Constitution give power to make law to LEGISLATURERS not directly to executives – premier cannot just
make laws, need majority of MLA in that legislature to have power
o A premier/cabinet can be brought down by a majority of the legislature if they dislike
o Usually not a