Sources of Law in Canada (Unit 1 Set 3)
Published on Oct 03, 2016
An understanding of the three areas Canadian Law is derived from
MORE DECKS TO EXPLORE
PRESENTATION OUTLINE
Categories of Law
- The Consitution: "Constitutional Law"
- From Parliament:
- "Statute Law"
- From Past Cases:
- "Common Law"
Canadian law comes from three places.
Photo by Domiriel
Common Law
- Law based on decisions made by judges in previous cases.
Common law gets its roots from English Common Law.
Remember the travelling courts (assizes) and judges during the time of England's King Henry the II (1154-1189)?
These judges noticed that often the legal issues in the villages they visited were near equivalent to each other. When the judges began recording the cases and the decisions made, they recognized that they now had a common way of dealing with similar issues.
Common Law is also called Case Law.
Remember the travelling courts (assizes) and judges during the time of England's King Henry the II (1154-1189)?
These judges noticed that often the legal issues in the villages they visited were near equivalent to each other. When the judges began recording the cases and the decisions made, they recognized that they now had a common way of dealing with similar issues.
Common Law is also called Case Law.
Photo by Jose Luis Mieza Photography
Stare Decisis
- Latin for: "to stand by the decision."
- The modern day equivalent is the rule of precedent.
This principle means that the judge from one court would use the decision made in another court for an issue that is similar.
Common law develops as new cases are heard.
Consequently, lawyers for either side of a case will search for decisions that favour their side.
Common law develops as new cases are heard.
Consequently, lawyers for either side of a case will search for decisions that favour their side.
Photo by CoenV
What happens if?
- One judge does not agree with another.
- The current case involves a new technology.
- The past precedent is no longer applicable today.
If any of these things happen, the judge of the current case has the option to reject the previous decision(s) and fashion a new precedent. This is called distinguishing a case.
distinguishing a case:
Identifying a case as being different enough to justify another decision.
distinguishing a case:
Identifying a case as being different enough to justify another decision.
Photo by Valerie Everett
Statute Law
- Laws which come from elected representatives.
- Statute law is passed in the form of an Act.
Act:
A legal document codifying the results of deliberations of a legislative body.
Acts become law after going through a formal procedure in parliament (federal) or the legislature (provincial).
Many common law decisions have become statutes.
A legal document codifying the results of deliberations of a legislative body.
Acts become law after going through a formal procedure in parliament (federal) or the legislature (provincial).
Many common law decisions have become statutes.
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Statute Law
- Where no statute law exists common law prevails.
- When statute law does exist, common law is used to demonstrate how a previous judge applied the statute.
Each level of government (federal, provincial, municipal) has the power to enact legislation in its own jurisdiction.
Jurisdiction:
The territorial range of legal authority or control.
Jurisdiction:
The territorial range of legal authority or control.
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Federal Government and Statute Law
- The Federal Government's jurisdiction to write laws includes:
- Criminal law, Federal Penitentiaries, Employment Insurance, Banking, Currency, Marriage, Divorce, Postal Service Etc.
Everyone in the country is subject to these laws.
Photo by Onasill ~ Bill Badzo
Provincial Government and Statute Law
- The Provincial Government's jurisdiction to write laws includes:
- Hospitals, Property Rights, Highways, Police Forces, Provincial Jails, Education etc.
Everyone in the specific province is subject to these laws.
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Municipal Governments
- Local governments create bylaws to govern their jurisdiction.
- Examples: Parking, Building Permits, Garbage Collection, Property Tax.
Bylaw:
Laws which deal with local issues
Everyone in the specific municipality is subject to these laws.
Laws which deal with local issues
Everyone in the specific municipality is subject to these laws.
Photo by Loutron Glouton
Constitutional Law
- Sets out standards that all other laws must be in compliance with.
- Consitutional law overrides all other laws.
- Laws that breach constitutional law will be struck down.
The Constitution of Canada is the supreme law in Canada. It outlines Canada’s system of government and the jurisdictional authority between the provinces and the federal government.
Photo by See-ming Lee 李思明 SML
Pyramid of Law
Constitutional Law overrides all other laws.
Statute Law overrides Common Law
Statute Law overrides Common Law
