Chapter 2: The Machinery of Justice
Subcategories of public law:
o Constitutional law
o Criminal law
Subcategories of private law:
o Contract law
o Tort law
o Property law
Laws are divided into two other basic categories:
o Substantive law
The rights and duties that each person has in society.
I.e. the right to vote, to enter into contracts, to perform
contractual obligations etc.
o Procedural law
Rules that deal with how substantive rights and duties may be
The development, evolution, and relative importance of case law vary from
jurisdiction to jurisdiction depending on the legal system adopted by the
Two types of legal systems:
o Civil law
The system of law involving comprehensive legislated code,
derived from Roman law that developed in continental Europe
and greatly influenced by the Code Napoleon of 1804.
Requires that all law be consolidated into a consolidated body
of legislation known as the civil code.
If the code does not seem to cover a new problem, the courts
are free to settle the problem from general principles in the
Used in all of Europe, most of Scotland, much of Africa, the
whole of South/Central America, Quebec (most of private law),
Mexico and southern US.
o Common law
The case-based system of law originating in England, which is
based on the recorded reasons given by courts for their
Used in most of the English-speaking world and is a significant
part of the law of many non-English-speaking countries that
were part of the British Empire (i.e. India, Pakistan).
Roman law: the system of law codified by the Eastern Roman Emperor
Justinian in the 6 century. Civil law values legislation over case law (similar cases may be decided
differently), and common law gives case law the same or sometimes greater
value than legislation.
Whether in civil law or common law countries, judges must be interested in,
and influenced by, what other judges have decided in similar cases (need for
If people are to be able to find out where they stand and to act with
reasonable certainty, the law itself must be fairly predictable.
o Consistency among cases is key (easy to predict future outcomes).
Judges develop principles that describe the similarities between cases.
o Principles are then built into a body of doctrine – a framework of
predictable rules that serves as background for the vast majority of
Theory of precedent
o Latin phrase stare decisis: to stand by an earlier decision.
o The theory is not absolute:
Judges may be influenced by all prior decisions, but they are
only bound to follow decisions of a higher-level court.
In order to be fair, precedents bind only the same
No two sets of facts will ever be the same.
Judges may distinguish cases by dwelling on minor
o Allows them to adjust the law rather slowly to
changing circumstances and values.
o The theory makes it hard for judges to respond to rapid change in
They may be forced to directly overrule an earlier decision.
Distinguish: identify a factual difference that renders a precedent
inapplicable to the case before the court.
In order to overrule an established precedent, the matter must be addressed
by a court higher than the one establishing the initial precedent.
o Supreme courts may overrule themselves when they deem cases to
have been incorrectly decided or if the decision would be manifestly
You cannot assume that the conclusion decided in a precedent is the only
possible outcome for future cases.
The government source of law is referred to as:
May be passed by Parliament and by provincial legislatures.
The Cabinet may also legislate within certain limited areas by
Every province has passed statutes providing for the creation
of municipal governments and for their supervision. Municipal by-laws and regulations are a form of statute law.
Subordinate legislation: law created by administrative agencies whose
authority is granted by statute in order to carry out the purposes of the
Codify: set down and summarize in a statute the existing common law rules
governing a particular area of activity.
Strict interpretation: courts apply the provisions of a statute only where the
facts of the case are covered specifically by the statute.
Liberal approach: statutory interpretation that considers the legislative
intent, purpose, and history of the statute, as well as the context of the
Two main classes of legislation:
They prohibit an activity formerly permitted or else remove a
The legislation does not presume to supervise and regulate
Left to an injured party or law enforcement to bring it to
Gives the government itself the power to carry on a program –
to levy taxes and to provide revenue for the purpose stated in
May authorize a subsidy to be given for a particular economic
activity and for an agency to supervise and regulate the
Parliament cannot run a program requiring constant
supervision as they have a lot of other duties to do.
Important regulations (subordinate legislation) are first drafted by the
agency itself and then the minister responsible for the agency brings them
before the Cabinet in the form of an order-in-council.
o Lesser regulations may be authorized by the minister, the head of the
agency, or even a designated officer of the agency.
System of courts: the organization of courts into a hierarchy that designates
the responsibilities of the court and determines the importance of the
precedent; the standard system has three levels: trial, appeal, and final
appeal (Supreme Court).
Early common law precedents borrowed from:
o Canon law
Law created by the Church, which had its own jurisdiction and
courts in matters pertaining to itself, family law, and wills.
o Roman law
o Feudal law A system of land ownership rooted in sovereign ownership:
land was handed down to lords who gave possession of parcels
of land to lesser “royals” in exchange for military service and
o Merchant law
Rules and trade practices developed by merchants in medieval
trade guilds and administered by their own courts.
As more and more precedents were formed, their importance began to grow
within the legal system and the need to draw on outside sources fell.
Common law soon became very formal, with much of its cumbersome
procedure rooted in ancient customs and superstitions.
Writ: an ancient form required in order to take a grievance to court.
o Without an appropriate writ, the court would not grant a remedy.
People began to petition as old writs no longer provided relief for many
wrongs suffered by innocent parties.
o Led to the king hearing petitions and granting relief himself in some
cases (job was then transferred to the king’s chancellor).
Court’s of chancery: a system of courts under the king’s chancellor and vice-
chancellors developed from the hearing of petitions to the king – courts of
Equity: rules developed by the courts of equity as exceptions to existing rules
of common law.
The courts of common law generally only awarded monetary damages to
injured parties (usually due to a breach in contract).
Equitable remedies: new remedies created by the courts of equity to address
situations where money damages did not solve the problem.
Specific performance: an order by court of equity to carry out a binding
Contempt of court: a finding by a court that a party has refused to obey it and
will be punished.
In 1865 the British Parliament passed an act merging the courts of common
law and equity into the single system known today (Canada followed shortly
Equity provides a “conscience” for our modern common law.
o It prevents the law from straying too far from reason and fairness
(pivotal in the link between law and ethics).
A basic court system:
Final Court of Appeal
Court of Appeal
Trial Court The courts of first instance (trial courts)
o Also called courts of original jurisdiction because actions begin and
trials take place in this court.
o Witnesses are called and initial judgement is rendered.
The court of appeal
o A party dissatisfied with a decision in a trial court may appeal to the
court of appeals in the hopes the decision will be reconsidered.
o Appellant: the party who petitions for an appeal.
o Respondent: the party who defends on an appeal.
o No new evidence is given, no witnesses called, lawyers on each side
simply argue their case (with the judge looking at the written trial
The appellant side will argue the trial judge erred in
interpreting the law.
The respondent side will argue to uphold the decision of the
o The court may do one of four things:
Agree with the trial judge and dismiss the appeal.
Agree with the appellant and reverse the trial judgement.
Vary the trial judgement in part.
Declare that the trial judge erred in failing to consider certain
facts and send the case back for a new trial in the lower court.
o Cases are usually heard by a panel of 3 or 5 judges (depending on the
importance of the case).
o New trial: a case sent back by the appeal court for retrial by the lower
Final court of appeal (The House of Lords in England)
o The ultimate court of appeal and the highest court in the land.
o Usually consists of the Lord Chancellor and up to 9 Lords of Appeal in
Ordinary, who are full-time salaried judges.
The Constitution divides legislative powers into:
o Provincial jurisdiction
The administration of justice (i.e. the organization and
operation of police forces and the system of courts).
o Federal jurisdiction
Trade and commerce, banking, bankruptcy, and criminal law as
well as exclusive rights to appoint and the obligation to pay all
Supreme Court judges.
Supreme Court judges must be qualified and they hold office conditional on
good behaviour and can only be removed by “joint address”.
o Joint address means a vote is taken before both the House of
Commons and the Senate. o This was designed to keep judges as unbiased and immune from local
pressures as possible.
Three tiers in the Canadian court system:
o The courts of first instance (trial divisions)
o The intermediate provincial courts of appeal
o The final court of appeal (the Supreme Court)
Court of FederalCourt
Appeal of Appeal
Courts of First FederalCourt Tax Court
Instance Trial Division
Two branches of trial courts:
o Inferior trial courts
CInferiory provincial legislation for a particular purpose.
InstnceSmall Claims Court
o Deal with private disputes for smaller amounts
o Has a very simple and informal procedure to
reduce the cost of taking action.
o The busiest civil court.
o Deals with very little private law, and instead
hears criminal cases excluding the most serious
offences (i.e. murder, treason, sexual assault and
o May hold preliminary hearings to determine if
there is enough evidence for a Superior Court
o No jury trials are held before Provincial Division
Judges (must go to Superior Court judges).
o An accused can ask for a jury trial (usually) when
the prison sentence can be 5+ years.
o A different division of this court hears family
issues such as custody and support (not divorce).
o Superior trial courts
Constitutionally created courts presided over by federally
Include: Surrogate Court (Probate Court)
o Supervises the estates of deceased persons.
Determines the validity of wills and the
division of assets, and approves the
accounts of executors and administrators.
o 4 provinces have separate probate courts while
the other 5 have merged them into the Superior
General Division or Superior Court
o Has unlimited jurisdiction in civil (private) and
o Judges are federally appointed and they listen to
cases of divorce and the most serious criminal
matters, as well as all private law disputes
outside the jurisdiction of Small Claims Courts.
o May also serve as a court of appeal for less
serious criminal matters heard in Provincial
o Intermediate Appellate Court
Each province has a Court of Appeal (names vary), which hear
appeals rising from all matters arising in the courts of first
o Supreme Court of Canada
The final court of appeal in Canada.
Consists of 9 judges and hears appeals from both the provincial
courts of appeal and the Federal Court of Canada
Has special jurisdiction under the Supreme Court Act to rule on
the constitutionality of federal and provincial statutes when
they are referred to the court by the federal Cabinet.
In private actions, the appellant must obtain special leave from
the Supreme Court to appeal.
o Courts of First Instance
Tax Court of Canada
Hears appeals of taxpayers against assessments by the
Decisions may be appealed by either the taxpayer or the
department to the Federal Court of Appeal.
The Federal Court of Canada
o Trial Division
o Appeal Division
Has exclusive jurisdiction in matters relating to ships
and navigation, and many sorts of lawsuits against the
government itself. In the areas of copyright, patents, and trademarks, they
have exclusive jurisdiction in some sections but other
sections may overlap with provincial court jurisdictions.
o Federal Court of Appeal
Hears appeals from the Federal Tax Court and the Federal
Court of Canada Trial Division.
Appeals of their decisions go to the Supreme Court of Canada.
Rules of civil procedure: the provincial regulations that set out the steps in a
private lawsuit, including forms, fees, and timelines.
o Each province sets their own.
An adult citizen has the broadest ability to sue (non-Canadian citizens may
also sue under conditions).