Chapter 2: Introduction to the legal system

Why is it difficult to come up with a satisfactory definition of law?

Law is complex because it can be defined morally (natural law), by authority (legal positivism), or by enforceability (legal realism), and no single definition captures all aspects.

How is law defined in modern terms?

Law is the body of rules made by government or courts that can be enforced by courts or other government agencies.

What is the difference between substantive and procedural law?

Substantive law establishes rights and obligations (e.g., right to vote, prohibitions against theft). Procedural law sets out how those rights are enforced (e.g., arrest procedures, court processes).

What is the difference between public and private law?

Public law governs relationships with government (e.g., criminal law). Private law governs relationships between individuals (e.g., contracts, torts).

Where do you look to predict the outcome of a legal dispute in a common law system?

Previous court decisions (precedents).

Where do you look to predict the outcome of a legal dispute in a civil law system?

The civil code or statutory rules; previous decisions are persuasive, not binding.

How does the use of previous decisions differ in civil law and common law jurisdictions?

Common law: precedents are binding (stare decisis). Civil law: precedents are persuasive; judges rely on statutory codes.

What does the statement "Common law judges did not make the law, they found it" mean?

Judges applied law discovered in customs and traditions rather than creating new law.

What are the advantages of stare decisis?

Ensures predictability, consistency, fairness, and efficiency in legal decisions.

What are the disadvantages of stare decisis?

Can perpetuate outdated or unjust law and limit flexibility to adapt to societal changes.

What problems with the common law led to the development of equity?

Common law was rigid, had limited remedies, and often denied justice due to strict rules.

What is the Court of Chancery?

A court administering equity to provide fair remedies when common law was insufficient.

What was accomplished by the Judicature Acts of 1873-1875?

Merged common law and equity courts, allowing both legal and equitable remedies in one court.

What is meant by "the supremacy of Parliament"?

Parliament is the primary law-making body; statutes override inconsistent judge-made law.

What effect does a properly passed statute have on inconsistent case law?

The statute takes precedence and overrides conflicting common law.

Outline the process of a parliamentary bill becoming law.

1. First reading (introduced)

2. Second reading (debated)

3. Committee review (amendments)

4. Third reading (approval)

5. Royal Assent → becomes law.

Using stare decisis, how do judges determine if they are bound by another judge's decision?

Bound by decisions from higher courts in the same jurisdiction when facts are similar; other decisions may be persuasive only.

What is included in Canada's Constitution?

1. Statutes (e.g., Constitution Acts 1867 & 1982),

2. Case law interpreting constitutional issues,

3. Conventions (unwritten rules guiding government).

What is the effect of sections 91 and 92 of the Constitution Act, 1867?

Section 91: federal powers (nationwide). Section 92: provincial powers (local). Each level is limited to its jurisdiction.

How can both federal and provincial statutes on the same subject be valid?

Both are valid if there is no conflict. If conflict exists, doctrine of paramountcy applies (federal law prevails).

What is the doctrine of paramountcy? When does it apply?

Federal law prevails over conflicting provincial law; applies when obeying both laws is impossible.

What are the limitations on delegating legislative powers?

Governments cannot abdicate exclusive powers but can delegate authority to inferior bodies (boards, civil servants).

How does the Charter affect Parliament's supremacy?

Parliament cannot override Charter rights except via constitutional amendment or Section 33 (notwithstanding clause).

What limitations apply to Charter rights?

Section 1: reasonable limits justified in a free and democratic society.

Section 33: notwithstanding clause allows temporary override of certain rights.

Give examples of Charter rights:

Democratic rights: vote, run for office (Sections 3–5)

Mobility rights: live/work anywhere, enter/leave Canada (Section 6)

Legal rights: life, liberty, security, fair trial, protection from search/arrest (Sections 7–14)

Equality rights: non-discrimination (Section 15)

Other rights: fundamental freedoms (speech, religion, assembly), language rights (Sections 16–22), minority education rights (Section 23)

What limitations exist for human rights legislation in Canada?

Applies only to specific areas (employment, housing, public services); private clubs may discriminate; does not cover all discrimination.

How do human rights codes differ from the Charter?

Human rights codes: apply to private individuals and workplaces, specific areas, enforced by tribunals.

Charter: applies only to government actions, broad constitutional protection, enforced by courts.