Sources of Law in Canada

1. Sources of Law in Canada

2. Where do the laws come from? • In Canada, laws originate from 3 sources: • Canadian Constitution (Constitutional Law) • Elected Government Representatives(Statute Law) • Previous Legal Decisions by Judges (Common Law)

4. Common Law • Common law can also be called case law, English common law or judge made laws • Common law is constantly evolving as judges decide new cases based on previous judicial decisions • “Stare Decisis” means relying on decisions made by other courts • Lawyers look for favourable precedents to argue an outcome of their cases • KEY TERM: Distinguishing a Case – when a judge rejects previous decisions and creates a new precedent – an example could be a new technological or social issue

5. Statute Law • passed by elected representatives in the legislature in the form of acts or bills • many laws are statutes – these are common law decisions that have been codified • statutes override common law decisions • where no statute exists to deal with a particular situation, common law will prevail • when a judge interprets and applies a statute, that decision then sets a precedent – from that point on similar cases must be interpreted in the same way by all lower courts

6. Each level of government – Federal, Provincial, and Municipal – has the power to enact legislation in its own area or political jurisdiction.

7. Branches of Government in Canada Federal Government • some areas of jurisdiction are criminal law, federal penitentiaries, employment insurance, banking and currency, marriage and divorce, and postal services Provincial Government • some areas of jurisdiction are hospitals, police forces, property rights, highways and provincial jails Local Government • municipal or local governments make laws called bylaws, which are regulations that deal with local issues such as how high the backyard fence show be, who should clear the snow from the sidewalk or how often garbage should be collected

8. Aboriginal Governing Structures • Each Indian band has some authority to make bylaws that apply to each band’s reserve lands - the bylaws include the regulation of road and bridge construction and other public works located on reserves • Another form of Aboriginal government has been established under a self-government agreement where Aboriginal groups can make laws with respect to marriage, adoption education, and the provision of social and health services

9. Constitutional Law • Constitutional law overrides all other laws; the courts will interpret other laws to ensure that they are consistent with the Constitution • If a law is found to be in violation of the Constitution it may be struck down by the courts on the grounds that it is “unconstitutional”

10. Categories of Law How is the legal system organized?

11. 1. THE LAW: 2b) Domestic Law Canadian Law 2a) International Law

12. 2a) International Law • Law that governs the relationship between independent nations • Acceptance of laws by international community (i.e. NAFTA – international trade agreements) • Organizations that have international legal status which can help develop laws and act as a court to settle disputes – UN United Nations, ICJ International Court of Justice

13. 2b) Domestic Law • Law made and enforced within a nations borders • Law making authority comes from the power to govern – usually from a monarchy or a constitution • If entering into a self-governing country that has its own laws and legal system, you may be breaking the law without even knowing it • When travelling outside of Canada, you do not have the protection of Canadian law

14. Enforcement - • A major difference between international law and laws made within nations is enforcement: • Example: UN peacekeepers help to restore and maintain peace in a warring nation but their power is limited. National police forces exist with the authority to enforce a system of law – international and domestic drug trafficking, crimes of terrorism

15. THE LAW: International Law Domestic Law 3a) Substantive Law 3b) Procedural Law

16. Substantive Law (Domestic) • Defines the rights, duties and obligations of citizens and levels of government • Example: Property Law • Canadians have the right to own property: Therefore: • Expel trespassers • Sell property • Use and maintain the property • Pay property tax

17. Procedural Law (Domestic) • The steps involved in protecting the rights given under substantive law • A woodlot owner discovers people camping on her property • Steps she can take to stop trespassers • Get compensation – sue for damages

18. 1. THE LAW: Domestic Law International Law Substantive Law Procedural Law 4) Private Law 5) Public Law

19. 4) Private Law (Substantive) • Outlines the legal relationship between private citizens, and between citizens and organizations • Objective: to manage the behaviours of persons and organizations in conflict with each other and to pay damages to those who have been wronged

20. 5) Public Law (Substantive) • Controls the relationships between governments and the people who live in society

21. 4) Private Law 5) Public Law

22. Categories of Private Law • 4a) Tort Law • Deals with wrongs, other than breach of contract, that one person commits against another person • Malpractice and or negligence (carelessness) • 4b) Contract Law • Outlines the requirements for legally binding agreements • Breach of contract means the legal agreement has been broken and the injured party can sue for damages • 4c) Family Law • Deals with spouses, parents and children

23. Categories of Private Law • 4d) Wills and Estates • Division of property and assets after death, funeral preparations, power of attorney • 4e) Property Law • Anything that has a cash value • Set of legal rules that control the use, enjoyment, and rental of property • 4f) Employment Law • Governs the relationship between employers and employees • Minimum wage, pay equity, proper dismissal, working conditions, and workers’ compensation

24. 4) Private Law 5) Public Law

25. Categories of Public Law • 5a) Constitutional Law (Constitution Act. 1982) • Laws that set out the structure of the federal, provincial, and territorial governments and the division of power among them • 5b) Administrative Law • Areas of law that controls the relationship between citizens and government agencies • Example: Liquor Control Boards: manages the sale and consumption of alcohol and grant licences to serve them.

26. Categories of Public Law • 5c) Criminal Law • Passed by Parliament • Defines acts called “crimes” • Sets penalties • Criminal code • Objective: To punish the offender and protect society and its members • Lawyers represent both society and the accused. Crown attorney representing society, must prove beyond a reasonable doubt, the charges against the accused person (defendant)