Law 101 – LS-2 to LS-17
Sources of law
- a) the constitution
- b) statutes (enacted by federal parliament or provincial legislature)
- c) federal or provincial regulations
- d) decisions rendered by judges in the cases they decide
- International law is also a source of law.
- Two major sources of law:
o Law made by courts (common and case law)
o Law made by legislature (statute law)
- Common law deals with changing social or legal disputes only as the emerge in
actual disputes (cannot anticipate them).
- Response to new situations is built up slowly, case by case.
- Common law is at a disadvantage in confronting rapid social change.
- Legislation (statutes) are better equipped to deal with social change (e.g. can be
enacted in anticipation of future events and are very broad).
- Legislation is unable to deal with many of the details of the law.
- The cabinet is responsible for filling these in.
- These laws, enacted by the cabinet are knows as delegated legislation or
Divisions of Law
- Procedural law: generally deals with court and pre-trial procedure and rules of
evidence. (e.g. law relating to how a criminal charge can be worded)
- Substantive law: deals with the rights of individuals. (e.g. law relating to the
parameters of self-defence).
- Civil case: another way of referring to a private case or “suit” (where someone
sues someone else).
- Criminal case: involves a prosecution by the Crown under a public-law statute
such as the Criminal Code etc.
- 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
- Parliament can make laws for all of Canada but only if assigned by the
- Federal parliament deals with Canada as a whole (e.g. national defence, trade
between provinces, criminal law, money etc.)
- Provinces can make laws about education, property, civil rights, hospitals etc.
- Local/municipal governments have jurisdiction over such things as zoning,
smoking, parking etc.
- Aboriginal peoples have different types of government. Where our legal system comes from
The common-law tradition
- Canada’s legal system derives from various European systems brought to the
continent by explorers and colonists.
- After the battle of Quebec in 1759, Canada fell almost exclusively under
English law (except for Quebec where civil law is based on the French Code
- Common law developed in Britian.
- Based on the decisions of judges in the royal court.
- Evolved into a system of rules based on “precedent” – a rule that will guide
judges in making subsequent decisions in similar cases.
- Common law is flexible and adaptable to changing circumstances.
The civil-law tradition
- Based on Roman law.
- Book compiling all of the laws to avoid confusion.
- Contains a comprehensive statement of rules many of which were framed as
broad, general principles, to deal with any dispute that may arise.
- Unlike common-law courts, civil-law first looks at the code to refer to previous
decisions of consistency.
Two meaning of civil law
- #1: Civil law in contrast to “common law”, based on the civil code.
- #2: Refers to matters of private law as opposed to public law, and particularly
criminal law, which is concerned with harm to society at large.
- Quebec act of 1774 made Canada a “bijural” country, one with two types of
o Common law was to be applied outside Quebec in matters of private
law, while similar matters in Quebec were to be delt with under the civil
o For public law, the common law was to be used in and outside Quebec.
Structure of the Courts
- Supreme Court of Canada:
o Highest court in Canada.
o Hears appeals from the provincial appeal courts, the federal court etc.
o Constitutional questions may be referred by the Attorney-General,
directly to the supreme Court of Canada (called reference cases)
o E.g. most recent reference case was about same-sex marriage.
o Decisions of supreme court are binding on all other courts of Canada.
- Provincial Courts:
o Bounded by decisions of the supreme court.
o Courts of one province are not bound by the decisions of other
provinces. - Ontario Court System:
o Court of Appeal:
Highest court in Ontario
o Superior Court of Justice:
Deals with civil matters and more serious criminal matters.
1. The Family court, 2. Small claims court (for minor civil
matters), 3. Divisional court (an appeal court above the superior
court of justice but below the court of appeal).
o Ontario Court of Justice:
Deals with less serious criminal matters and some family
- Also a Federal Court which operates across the country.
- The U.S