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Sources of LawCLU3M
Mr. Menla
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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
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Canadian Legal Hierarchy/Pyramid
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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
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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.
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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.)
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Roots of Statue Law
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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.
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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.
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Nisga’a Nation
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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
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Homework
Stare Decisis (Video)Westbank: A Self-Governing First
Nation (Video)
Law in ActionPg. 38 – Q. 1-2