Overview of Secondary Sources of Canadian Law

Secondary sources of law

Laws and reported cases that have been written down by various lawmakers.

Importance of secondary sources

These sources enshrine a society's values, beliefs and principles in written rules and regulations.

Lawmakers in Canada

Members of Parliament and judges who render legal decisions.

Three secondary sources of law in Canada

The constitution, statute law and case law.

Hierarchy of sources of law

These sources form a kind of pyramid, with the Constitution at the top and case law at the bottom.

Constitution's precedence

The constitution is the most important source of Canadian law; if a statute conflicts with it, that statute must be revised or repealed.

Statute law's precedence

Statute law takes precedence over judicial decisions that make up case law, except when the courts find that a statute is unconstitutional.

Constitutional law

The body of laws that deals with the distribution of government powers and sets out certain important legal principles.

Written part of the Canadian constitution

Consists of several documents, most of which have direct links to the legal traditions of Britain.

British North America Act

Now known as the Constitution Act, 1867, it is the first document of the Canadian constitution.

Judicial independence

Judges function independently of the government that appointed them, reflecting their own legal interpretation of the law.

Parliamentary supremacy

Parliament, as the representative body of the Canadian people, has the supreme power of making Canadian laws.

Patriation of the constitution

In 1982, Canada gained the right to amend its own constitution, entrenched in the Constitution Act, 1982.

Canadian Charter of Rights and Freedoms

Part of the Constitution Act, 1982, it lists rights that the courts must protect.

Constitutional law decisions

Court decisions that have clarified various points of constitutional law.

Authority of the court

If a court finds that any law violates one of the rights listed in the Charter, it can strike down part or all of the law.

Statute

Any law passed by the federal or provincial governments.

Judicial interpretation

Judges interpret laws through cases referred to them, developing rules for statutory interpretation.

Case law

A substantial body of written decisions or explanations of rulings rendered by judges in court cases.

Stare Decisis

In law, the concept of stare decisis means that a precedent must be followed if it was set by a court higher than the one in which the case was heard.

Distinguishing Precedent

Judges have the option of distinguishing the precedent; that is, they decide not to follow the precedent and in their decision they outline the reasons why.

Case Law

Lawyers and judges prepare for court cases by reading through all the relevant case law, most often found in law reports, which are periodical publications that print judges' written decisions.

Legal Research

Because of the expense involved in purchasing law reports, the Internet is now used more and more frequently to conduct legal research.

Substantive Law

Substantive law: a law that identifies the rights and duties of a person or level of government.

Procedural Law

Procedural law: a law that outlines the methods or procedures that must be followed in enforcing substantive laws.

Domestic Law

Domestic law: a law that governs activities within a particular country.

International Law

International law: a law that has jurisdiction in more than one country.

Public Law

The main divisions of public law are constitutional law, administrative law, and criminal law.

Constitutional Law

In Canada, constitutional law is the body of written or unwritten laws that set out how the country will be governed and sets out the distribution of powers between the federal government and the provinces.

Administrative Law

Administrative law is the category of public law that governs relations between people and government agencies, boards, and departments.

Criminal Law

Criminal law is the category of law that prohibits and punishes behaviour that injures people, property, and society as a whole.

Private Law

Private law regulates disputes between individuals, businesses, or organizations on one side and other individuals, businesses, or organizations on the other.

Plaintiff in Private Law

In a private law case, the plaintiff sues the defendant, and each side may be represented by its own lawyer.

Balance of Probabilities

The plaintiff only has to prove his or her case 'on the balance of probabilities,' which is a less exacting standard than 'beyond a reasonable doubt,' the standard used in criminal cases.

Family Law

Family law is the area of private law that governs relations among members of a family.

Contract Law

Contract law is the area of private law that governs agreements between people or companies to purchase or provide goods or services.

Tort Law

Tort law is the area of private law covering civil wrongs and damages that one person or company causes to another, when the wrongs or damages arise independently of a contractual relationship.

Estate Law

Estate law is the area of private law that regulates wills and probates, and determines what happens to a person's property after death.

Property Law

Property law is the area of private law that applies primarily to the buying, selling, and renting of land and buildings and the use to which lands may be put.