Notes on Sources of Law: Statute Law and Case Law

Overview: Sources of law

• There are two main sources of law: statute law and case law. Both are essential for legal research and understanding how the law applies to a given issue.
• In practice, legal teams look to both sources when researching a case: statutes (written laws) and case law (judicial decisions). Even if you don’t do most case law research yourself, you should know what resources exist and what they’re used for.

Statute Law (Law written and enacted by legislatures)

• Also known as legislation or acts. Each statute may have accompanying regulations.
  • Regulations are secondary to the acts, usually easier to amend, shorter, and serve a specific purpose connected to the act.
  • A regulation must be connected to an act and have a specific purpose.
• Lawmaking process:
  • Politicians draft bills and introduce them in parliament.
  • Bills must be passed by the majority of members to become law.
• How statutes are published and accessed:
  • Official publication is done by legislatures and government bodies at both provincial and federal levels.
  • Publications occur in newsletters and are now largely digital; hard copies exist in law libraries and government offices.
  • It’s best to use official sources where possible to ensure you have the most up-to-date version.
• Official vs secondary sources for statutes:
  • Provincial statutes: use BC Laws (the official BC government statute website).
  • Federal statutes: use the federal government statutes site (search terms like “federal statutes”).
  • For court materials, CanLII (CanLII: Canadian Legal Information Institute) is a free online publisher of case law and statutes and is widely used for its clean PDFs and readability, but check version recency.
  • CanLII’s statute collection may not be as robust as official sites; always verify that CanLII shows the most recent version by comparing with BC Laws or the federal statutes site.
  • CanLII is free and publicly accessible; official government sites are free as well. Other publishers (e.g., Quicklaw) offer subscriptions and are more common in law firms; they’re often better for professional research rather than public access.
• Practical notes for sourcing:
  • Ask about preferred default sources for your materials (official vs. publisher sites).
  • When including statutes in court materials, prefer official sources but be aware of the availability and quality of secondary publishers.
  • If you use CanLII, verify the up-to-date version by cross-checking with official sites.
• Practical tip for research teams:
  • LAAs (Legal Administrative Assistants) may not frequently perform case law research, but should know the purpose and use of these resources and how to locate statutes and case law.

Case Law (Judicial decisions)

• Case law is created by judges as they decide cases; it is not made by politicians, although it interprets and sometimes expands or refines statutes.
• What case law typically does:
  • Interpret existing statutes and apply them to the facts of a case.
  • Expand or adjust existing legislation, or sometimes strike down constitutional issues and rewrite subsections.
  • A case may create a new legal principle or clarify application of existing law.
• How judges use sources:
  • When faced with a legal question, judges look to statutes, previous case law, and the facts of the current case.
  • The outcome becomes the decision in that case, which can influence future cases.
• The role of precedent and stare decisis (Latin for “to stand by things decided”):
  • Judges must follow the rulings of higher courts on the same issue (binding precedent).
  • In Canada and many common-law jurisdictions, decisions from higher courts on the same issue are binding on lower courts at the same or lower levels.
  • If a judge is faced with a later case, they will consider higher court rulings (e.g., for a BC Supreme Court case, look to BC Court of Appeal and the Supreme Court of Canada for binding precedents).
• Two reasons a judge may not follow a previous decision:
  • If the previous decision comes from the same level of court or a lower level, it is not binding in the same way and may be followed or distinguished.
  • If the facts of the current case are sufficiently different from those in the prior ruling, the judge may distinguish the current facts and create a new precedent.
• Distinguishing:
  • A judge can explain why the facts are sufficiently different to avoid following a prior ruling and can establish a new precedent that more closely matches the current facts.
• Practical example (negligence):
  • A BC Supreme Court judge considers applicable statutes, then looks at higher court precedents on negligence to determine how to apply the standard of care.
  • If higher court decisions have not directly addressed the current factual scenario, the judge may base the ruling on distinguishing the facts or on existing precedent that most closely resembles the case.

System of law in Canada

• Canada uses a common law system nationwide except for Quebec.
  • Common law: relies on statutes and case law; statutes provide written laws and judges interpret and apply them using existing and new case law.
  • Civil law: not the system in most of Canada; it relies more on comprehensive codes and statutes, with judicial decisions guiding amendments rather than forming part of the law itself.
• Quebec operates under a civil law system.
• By and large, the common law system is among the most widespread worldwide (e.g., US, UK, Canada minus Quebec, many other Commonwealth countries).
• Civil law is prevalent in various European countries and Quebec; in civil law systems, statutes are the core source of law, while judicial decisions guide the interpretation and application of those statutes rather than forming binding law themselves.

Connections and implications

• Relationships among sources:
  • Statutes establish the primary legal framework; case law interprets and expands that framework.
  • Precedent from higher courts shapes how statutes are understood and applied in future cases.
• Practical implications for legal research and practice:
  • Always verify statutory text on official sites to ensure accuracy and currency.
  • Use case law to understand how statutes have been applied and interpreted, including how courts have handled similar facts.
  • Be mindful of the doctrine of stare decisis and when distinguishing a case can lead to new precedents.
• Real-world relevance:
  • In litigation, you will rely on both primary sources (statutes) and secondary sources (case law) to build arguments and anticipate how judges may rule.
  • Knowledge of the system of law informs strategy, such as where to file a case, which precedents to cite, and how to structure legal arguments.

Key terms and concepts

• Statute, legislation, act: written laws enacted by a legislative body.
• Regulations: secondary rules connected to an Act, with specific purposes; easier to amend than Acts.
• Bills: proposed laws introduced in parliament.
• BC Laws: official BC provincial statute site.
• Statutes (federal): official federal statutes site.
• CanLII: free online publisher of case law and statutes; useful for readability, but verify version against official sources.
• Upper-level courts: e.g., Court of Appeal, Supreme Court of Canada (for BC Supreme Court cases).
• Stare decisis: principle that judges follow precedent from higher courts on the same issue.
• Distinguishing: a legal process where a judge finds the facts of a current case are sufficiently different from a prior ruling, thereby not applying that precedent.
• Book of Authorities: a compilation used in court submissions to organize authorities (cases, statutes, etc.).
• Common law: law based on the combination of statutes and case law, with interpretations by judges.
• Civil law: statute-based system where judicial decisions influence but do not form the binding law; used in Quebec.
• Levels of court: trial court, appellate court, highest court; higher court decisions bind lower courts on similar issues.
• Federal vs provincial statutes: both exist; statutes published officially by respective government bodies.
• Publication formats: print (law libraries) and digital (official sites, newsletters).

Quick reference guidance for researchers

• Always start with the official source for statutes (e.g., BC Laws for provincial statutes; federal statutes site for federal laws).
• Cross-check CanLII or Quicklaw against the official source to ensure you’re citing the most current version.
• When writing for court, consider what the court may rely on as binding precedents from higher courts.
• Be prepared to explain when you distinguish a prior ruling due to differing facts.
• Keep in mind the jurisdictional differences between common law and civil law systems, especially if working on matters involving Quebec.