CHAPTER 1. THE LAW AND THE LEGAL SYSTEM
THE SOURCES AND COMPONENTS OF MODERN CANADIAN LAW
1. The common law (case law)
The law is not found in a code but in the recorded judgements of the courts and based on the
doctrine of Stare decisis or the theory of precedent (to let a decision stand or to stand by a
previous decision). The rules apply to decisions from the judge’s own court, court of equal rank
or from the higher or superior court.
The rule of precedent follows that a judge must apply the previous decision of a case similar to
the one before the court.
a. The supreme court is the only court having unrestricted ability to overrule its previous
b. Decisions of the supreme court is all powerful and binding on all the lower courts
c. Decisions of higher court are binding on lower courts within its own jurisdiction.
d. Decisions of higher courts or courts of equal rank from other jurisdiction are persuasive but
Modern day, we see the courts adapt common law to changing times as it is seldom that we find two
cases to be exactly the same and as such differences in the facts or circumstances allow the judge to
decide if the precedent is valid or obsolete for the given case.
Previously there was the law of England (local in form and application) followed by the Norman
conquest bringing centralized system for administration of justice.
2. Canon Law
The law developed by the church courts and ecclesiastic courts to deal with matters that fell
within its jurisdiction (religion, family and marriage, morals and matters relating to the descent
of personal property of the deceased). , became part of common law and some were
administered by royal courts and the civil courts.
3. Law Merchant
- Early merchants and artisans belonged to guilds
- Development of body of rules brought about standardization, and settlement to disputes by
- Previously dominated by merchant guilds, the body of law “law merchant” was then
adopted by non members.
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. 4. Equity
Rules originally based on decisions of the king rather than on the law and intended to be fair.
Common law’s rigid and strict application led to some unsatisfied claimants who petitioned the
king for fairness in decision. These principles later followed by the chancellor and court of
5. Statute law
Statutes are laws that are established by the governing bodies of particular jurisdictions and
have their root in the Latin word statutum, meaning “it is decided”. (End results of legislative
- Initiated by wishes of the people
- Interpreted by the member of the parliament or provincial legislature
- Becomes law when majority believes the law is necessary
a. Bill: proposed law presented to a legislative body (House of Commons or provincial legislature).
b. Motion: decision to read a bill for the first time and prepare to debate its contents before going
Second reading (if necessary)
c. Sent to committee of the house or legislature for study on clause by clause basis.
d. Once passed all stages (clauses), the chair reports the bill in final form to the legislature.
e. The report maybe further scrutinized , debated, amended and given third reading
f. When passed, gets sent to the senate at the federal( if the senate issues bill, it gets sent to the
house of common for the process again)
g. Once passed house of common, senate and or provincial legislature, it must receive royal assent
by the governor general (federally) or the lieutenant-governor (provincially). And then become
law and is proclaimed ( or becomes effective)
h. each year, revised statues are statues that are updated or amended, and they are published and
affects residents of the province (provincial statute) or all the residents of Canada ( federal
Statute laws 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.
Advantage of statute law over common law is its relative ease in adapting to changing societal needs.
Disadvantage of statute law is that it will be strictly interpreted by the courts (requires careful drafted
6. Quebec’s civil code
A body of written law that sets out the private rights of the citizens of a state. It may be consulted in the determination of rights and duties. It is but common law under the
jurisdiction of Quebec’s legislature.
- First codification of law of major significance took place under Roman emperor Justinian
- Frederick the great of Prussia directed the preparation of a new code
- France under napoleon brought French law in 1804
- Which was then followed in Quebec? It made its own civil code of lower Canada in 1866 by
Quebec act of 1774
- New civil code of Quebec came into force in 1994
Civil code was a short evolution from its original philosophical roots shortly after the French revolution.
7. Codification of common law
England codified the law in 1882 w/ respect to bills of exchange and negotiable instruments
1890- Codified laws of partnership.
1893 codified sale of goods
Advantage of this over common law is certainty (it is there for all to see and know and brings
settlement to disputes).
In the absence of specific articles, decision is based on general principles of law set out in the
Only after ww2, was there sufficient interest in codification to produce the U.S uniform
commercial code. (1952drafter, 1975 adopted by all).
8. Administrative law ( public service were established to perform duties and regulated activities
that fall within their legislative jurisdiction)
A body of rules governing the application of statutes to activities regulated by administrative
tribunals or boards (activities of whom are said to be administrative acts)
Primary focus: regulations or procedural rules made under statute law and enforced by
Example: sale of securities, labour relations, employment standards, etc.
THE CONSTITUTIONAL FOUNDATION OF CANADIAN LAW
Initially the king by virtue of his supreme authority as the head of the state could make laws.
Then came democratic form of government with authority to make laws governing their people.
This resulted in the powers of the government being circumscribed, in order to protect the fundamental
rights of the citizens from the abuse of power by governments.
Constitution: the document that sets out both the fundamental rights and freedoms of their citizens
and the law-making powers of the various legislative bodies of the state. “The basis upon which a state
is organized and the powers of its government are defined”. U.S of America