INTRO TO LAW

1. SOURCES OF LAW

There are two primary sources of law in Canada: common law and statute law.

Common law (also called case law) is created by judges through their decisions in court cases. When judges decide cases, they establish legal rules that future courts are expected to follow. These rules are based on precedent, meaning past decisions guide future ones. Common law develops gradually and responds to real disputes as they arise.

Statute law is created by legislatures, such as Parliament at the federal level or provincial legislatures. Laws begin as bills and, once passed, become statutes or Acts. Statutes are written laws that apply broadly and can be enacted in anticipation of future situations.

The key difference between the two is that common law evolves slowly and reactively through cases, while statute law is proactive, flexible, and can address issues more quickly and comprehensively.

In addition to statutes, there are regulations. Regulations are detailed rules made by the executive branch (the cabinet), acting under authority granted by statutes. This is known as delegated legislation. Legislatures create the general framework of the law, while the cabinet fills in the technical details. Although necessary, this delegation raises concerns because regulations are often created with less public debate and oversight.

2. DIVISIONS OF LAW

Law can be divided into several important categories.

Procedural law governs how the legal process operates. It includes rules about court procedures, evidence, and how trials are conducted. Substantive law, on the other hand, defines the rights and obligations of individuals. For example, rules about self-defence are substantive, while rules about how a trial is conducted are procedural. A key point is that only procedural laws can be applied retroactively.

Public law deals with matters affecting society as a whole and governs the relationship between individuals and the state. It includes areas such as criminal law and constitutional law. Private law concerns disputes between individuals, such as contracts, family law, and torts.

Civil law (in the sense of a type of case) refers to disputes between private parties, usually involving compensation or enforcement of rights. Criminal law involves prosecution by the state for conduct considered harmful to society.

3. TERRITORIAL DIVISION OF LAW IN CANADA

Canada has a federal system of government, meaning that law-making authority is divided between different levels of government.

The federal government has jurisdiction over matters of national importance, including criminal law, national defence, trade, and currency.

Provincial governments have authority over more localized matters, such as education, health care, property, and civil rights.

Municipal governments are created by provinces and have the power to pass bylaws dealing with local issues such as zoning, parking, and business regulation.

Indigenous governments also exercise varying degrees of authority, either under the Indian Act or through negotiated self-government agreements.

Each level of government can only legislate within its assigned jurisdiction.

4. TWO LEGAL SYSTEMS IN CANADA

Canada is a bijural country, meaning it operates under two legal systems.

Common law is used throughout most of Canada. It is based on judicial decisions and precedent.

Civil law is used in Québec for private law matters. It is based on a comprehensive written code derived from Roman law and the Napoleonic Code.

The term “civil law” can be confusing because it has two meanings. It can refer to the civil law system (as in Québec), or it can refer to private law disputes (as opposed to criminal law). The meaning depends on the context.

5. THE COURT SYSTEM

The highest court in Canada is the Supreme Court of Canada. Its decisions are binding on all other courts in the country. Although it is not strictly bound by its own previous decisions, it rarely departs from them.

Below the Supreme Court are provincial and territorial courts. In Ontario, for example, the highest court is the Court of Appeal. Below it is the Superior Court of Justice, and below that is the Ontario Court of Justice.

Lower courts must follow the decisions of higher courts within the same jurisdiction. Courts in different provinces are not binding on each other, but their decisions may be considered persuasive.

6. THE ADVERSARIAL SYSTEM

The Canadian legal system uses an adversarial model of trial procedure. In this system, two opposing parties present their evidence and arguments, and a neutral judge (and sometimes a jury) determines the outcome.

The judge’s role is to remain impartial and evaluate the evidence presented. The judge is not supposed to investigate the case or gather evidence independently.

This principle was illustrated in Phillips v. Ford Motor Co., where the trial judge improperly took control of the case by ordering experiments and actively questioning witnesses. The appellate court found that the judge had abandoned neutrality and conducted the trial unfairly, resulting in a mistrial.

The adversarial system prioritizes fairness and procedural integrity over the pursuit of perfect or scientific truth.

7. STATUTORY INTERPRETATION

Statutory interpretation is the process by which courts determine the meaning of legislation and apply it to specific cases.

There are two aspects to this process. Interpretation involves determining the meaning of the words in the statute. Application involves applying that meaning to the facts of a particular case.

There is no strict formula for interpretation. Judges must balance the ordinary meaning of the words, the context of the statute as a whole, and the purpose of the legislation.

Historically, courts used three main rules of interpretation. The mischief rule focused on the problem the statute was intended to address. The literal rule focused strictly on the ordinary meaning of the words. The golden rule allowed judges to depart from the literal meaning if it produced an absurd result.

These rules were inconsistent and often led to unpredictable outcomes. As a result, they have largely been replaced by the modern rule of interpretation.

The modern rule states that the words of a statute should be read in their entire context, in their grammatical and ordinary sense, in harmony with the scheme of the Act, its purpose, and the intention of Parliament.

This approach combines elements of the earlier rules. However, courts still differ on how much weight to give to wording versus purpose, making statutory interpretation a flexible and evolving process.

8. STARE DECISIS AND PRECEDENT

Stare decisis is a fundamental principle of the common law system. It means that courts must follow previously decided cases, particularly those from higher courts in the same jurisdiction.

This doctrine promotes certainty, consistency, and fairness in the law. It allows individuals and lawyers to predict legal outcomes and ensures that similar cases are treated alike.

When a court decides a case, the legal rule it establishes becomes a precedent.

9. RATIO DECIDENDI AND OBITER DICTA

The ratio decidendi is the legal principle that forms the basis of a court’s decision. It is the part of the judgment that is binding on lower courts.

Obiter dicta are statements made by a judge that are not necessary to the decision. These statements are not binding but may be persuasive.

In practice, it is often difficult to distinguish between ratio and dicta. Judges do not explicitly identify the ratio in their decisions, and different interpretations may arise.

The case of Donoghue v. Stevenson illustrates this issue. The ratio can be framed narrowly (a manufacturer must not sell contaminated ginger beer) or broadly (manufacturers must ensure their products are safe). The broader the ratio, the greater its impact on future cases.

10. BINDING AND PERSUASIVE AUTHORITY

Binding authority refers to decisions that a court must follow. These include decisions of higher courts in the same jurisdiction.

Persuasive authority refers to decisions that a court may consider but is not required to follow. These can include decisions from other jurisdictions or obiter dicta from higher courts.

The strength of persuasive authority depends on factors such as the level of the court, whether the decision was unanimous, the quality of reasoning, and whether multiple cases support the same principle.

A decision may be considered weak if it contains strong dissent, is outdated, or was made without considering relevant law (per incuriam).

The case of R. v. Hummel demonstrates the importance of binding authority. A lower court judge refused to follow a higher court decision, which was a violation of the doctrine of stare decisis.

11. DISTINGUISHING

Distinguishing is the process by which a court avoids following a precedent by showing that the facts of the current case are materially different.

A precedent is only binding if it is directly on point, meaning it involves similar facts and legal issues. If significant differences exist, the court may decline to apply the precedent.

Distinguishing allows the law to remain flexible while still respecting the doctrine of precedent. In some cases, judges may interpret differences broadly in order to avoid applying a precedent they disagree with.

12. JUDICIAL REASONING WITH PRECEDENT

When dealing with precedent, judges typically take one of three approaches.

They may follow a precedent if it is binding and applicable. They may distinguish a precedent if the facts differ. They may overrule a precedent if they are in a higher court and determine that the earlier decision was incorrect.

Judicial reasoning often involves explaining why a precedent applies, does not apply, or should no longer be followed.

FINAL OVERVIEW

The Canadian legal system is built on a combination of statute law and common law. Courts interpret statutes and apply precedent to ensure consistency and fairness. At the same time, tools such as distinguishing and flexible interpretation allow the law to adapt to new situations.

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A strong understanding of how these components interact is essential to analyzing legal problems effective

ly.