1.3 Common Law

Introduction to the Common Law

  • Type of Law that comes from the Judicial Branch

    • Law that is created by judges; often referred to as “judge-made” law

    • Originated in the English legal system

    • Distinct from statutory law (legislation)

Canada’s System and Meanings of “Common Law”

  • Canada’s system is mostly a common-law system

    • Quebec uses a Civil Code and Civil Law in certain matters

    • Civil jurisdictions rely less heavily on precedent

    • Inherited from the French legal tradition

  • Different meanings of the term “Common Law”

    • Can refer to “judge-made” law (precedent or jurisprudence)

    • Can refer to the overall system of law (as a contrast to Civil Law or Customary Law)

    • Can be used as a noun: the common law

  • The common law as a noun or concept

    • Refers directly to previous court decisions

    • Synonyms: jurisprudence, precedent

    • Usage example: “What does the common law say?”

Who Creates the Common Law?

  • Judges in Canada are appointed, not elected

  • Judges are usually senior lawyers

  • Judges are recommended by a Judicial Advisory Committee

  • Appointments are permanent, with mandatory retirement at 7575

The Canadian Court System

  • Court hierarchy and major components (from the slides):

    • Supreme Court of Canada

    • Courts of Appeal (Provincial/Territorial and Federal)

    • Provincial/Territorial Superior Courts

    • Federal Court

    • Tax Court of Canada

    • Federal Administrative Tribunals

    • Provincial/Territorial Administrative Tribunals

    • Court Martial (military courts)

    • Federal Court of Appeal and Provincial/Territorial Courts of Appeal (repeated in diagrammatic slides)

  • Note on structure

    • Court decisions in one level bind lower courts

    • Includes both federal and provincial/territorial branches

What is a Decision? Precedent and Doctrine

  • When a court issues a decision, all courts below must follow it (binding precedent)

  • Some decisions are persuasive but not binding

  • Courts exist to resolve disputes in an adversarial system

  • Decisions are often hundreds of paragraphs long and fact-specific

  • Core concepts:

    • Ratio decidendi (the reasoning necessary to reach the decision)

    • Obiter dictum (non-binding observations incidental to the decision)

Development of the Common Law

  • Development involves applying old precedents to new situations

  • This process clarifies and adds to existing rules

  • Rarely does a dispute warrant the creation of an entirely new common law rule or principle

Relationship with Legislation

  • Common Law can be overruled by legislation

  • The judiciary does not have a democratic mandate (parliamentary supremacy concerns apply)

  • Parliament’s supremacy means legislation can override common law

  • However, courts may overturn legislation if it is unconstitutional

    • Constitution is the supreme law of Canada

    • The Constitution acts through the judiciary to overturn legislation when unconstitutional

  • Practical/ethical implication: balance between democratic legitimacy (legislation) and judicial protection of constitutional rights

Key Takeaways and Real-World Relevance

  • Precedent shapes how laws are applied over time; lower courts follow binding decisions

  • Quebec’s civil law system operates alongside the common-law framework in Canada

  • The constitution provides a check on legislative power, with the judiciary enforcing constitutional limits

  • Understanding ratio decidendi and obiter dictum helps distinguish binding parts of a decision from non-binding commentary

  • The appointment-based, permanent judiciary and retirement at 7575 reflect the design of Canada’s legal system and its tension with democratic legitimacy

Connections to Foundational Principles

  • Concept of precedent vs. legislation traces to the rule of law and judicial independence

  • The distinction between judge-made law and statutory law reflects the separation of powers

  • The constitutional framework ensures fundamental rights and constitutional supremacy within a democratic state

Practical Implications for Law Students

  • When researching cases, identify the ratio decidendi to determine what is binding

  • Recognize when a decision may be persuasive rather than binding in a given jurisdiction

  • Be aware of the jurisdictional differences between Quebec and the rest of Canada

  • Understand the hierarchy of courts to predict how a decision might propagate through the system

  • Consider constitutional challenges when legislation appears to conflict with constitutional rights