Sources of LawCLU3M

Mr. Menla

Sources of Law in Canada

In Canada, law originates from 3 sources:1. Canadian Constitution

Constitutional Law - E.g.: Canadian Charter2. Elected Government Representative

Statue Law - E.g.: Highway Traffic Act3. Previous Legal Decisions

Common Law – Decisions made by Judges on Civil cases

Constitutional Law can override Statute and Common law

Statute Law can override Common Law

Canadian Legal Hierarchy/Pyramid

Common LawCommon Law: Law that has a general universal

application and is developed in English courts. It relies on case law and is common to all people (Def.)

It is also known as English Common LawIt is also called Case Law, since its sources include

the decision made by judges in previous casesIt is constantly evolving, as judges decide new

cases based on previous judicial decisions Stare Decisis◦Stare Decisis: “To Stand by Decision”. Judges must abide

by decisions that has already been made on a similar case (Def.)

◦Hence, Lawyers of today constantly look for favourable precedents to argue the outcomes of their case

When Stare Decisis Can be OverturnedThere are scenarios and situations where

the Judges may not practice Stare DecisisHence, a new precedent would be created

in a process called Distinguishing a Case◦Distinguishing a Case: It is when a Judge identifies

a case as being sufficiently different from previous cases, as to warrant a different decision (Def.)

◦This may occur as a result of change in social norms (E.g.: Killing a murderer)

Advancement in technology can also warrant a change◦E.g.: Laws against downloading movies and

music, Texting behind the wheel etc.

Statute LawStatute Law: It is a law or act passed by

elected government and representatives (Def.)Acts becomes law when passed through a

formal procedure in Parliament, or Provincial Legislature

Many of the current laws are actually Statutes, which were once common laws that have been codified

Each level of government: Fed., Prov. and Mun. has power to enact legislation in its own area of political jurisdiction (authority and control)

Jurisdiction: It is the political or legal authority to pass and enforce laws, or judicial authority to decide on a case (Def.)

Roots of Statue Law

Statue Law (Cont’d)Federal Gov. Provincial Gov. Municipal Gov.

• It enacts laws relating to criminal law, employment insurance, federal penitentiaries, banking, currencies postal service etc.

• Everyone in Canada is subjective to these laws

• It can pass legislation in other areas such as warning messages on cigarette boxes• This is done in an

effort to regulate what is considered to be a dangerous product

• They enact laws affecting hospitals, police forces, property rights, highways, roads and provincial jails

• They make laws called Bylaws, which regulate local issues such as snow removal, recreational services, marriage, divorce and garbage removal etc.

Aboriginal Governing Structures

Under the Indian Act, Aboriginals can establish their own local governments

Each Indian band has some authority to pass Bylaws that apply to their own reserves

This includes regulation of roads, bridges, public works located on reserves etc.

Nisga’a Nation in BC has power to makes laws with respect to Marriage, adoption, education, social and health services

These law-making powers are generally exercised by the assistance of Prov. Gov.

Nisga’a Nation

Procedural Law vs. Substantive LawSubstantive Law Procedural Law

• It consists of all laws that set out rights, duties & obligations of all people (Def.)• It allows Canadians to:

A. Own property & enjoy rights that come with it Expel trespassers, use to their enjoyment

B. Right to go to court to seek remedies against violations of their property rights

• It outlines steps and procedures involved in protecting and enforcing rights given under substantive law (Def.)

• They are include procedures for legal arrest, jury selection

E.g.: Steps involved in drawing up legal contracts, wills

Homework

Stare Decisis (Video)Westbank: A Self-Governing First

Nation (Video)

Law in ActionPg. 38 – Q. 1-2