Sources and Categories of Law
Sources of Law in Canada
Where do the laws come from?
In Canada, laws originate from 3 sources:
Canadian Constitution (Constitutional Law)
Elected Government Representatives(Statute Law)
Previous Legal Decisions by Judges (Common Law)
Common Law
made laws
Common law is constantly evolving as judges decide new cases based on previous judicial decisions
“Stare Decisis” means relying on decisions made by other courts
Lawyers look for favourable precedents to argue an outcome of their cases
KEY TERM: Distinguishing a Case – when a judge rejects previous decisions and creates a new precedent – an example could be a new technological or social issue
Statute Law
passed by elected representatives in the legislature in the form of acts or bills
many laws are statutes – these are common law decisions that have been codified
statutes override common law decisions
where no statute exists to deal with a particular situation, common law will prevail
when a judge interprets and applies a statute, that decision then sets a precedent – from that point on similar cases must be interpreted in the same way by all lower courts
Each level of government – Federal, Provincial, and
Municipal – has the power to enact legislation in its own area or political jurisdiction.
some areas of jurisdiction are criminal law, federal penitentiaries, employment insurance, banking and currency, marriage and divorce, and postal services
Provincial Government
some areas of jurisdiction are hospitals, police forces, property rights, highways and provincial jails
Local Government
municipal or local governments make laws called bylaws, which are regulations that deal with local issues such as how high the backyard fence show be, who should clear the snow from the sidewalk or how often garbage should be collected
Aboriginal Governing Structures
apply to each band’s reserve lands - the bylaws include the regulation of road and bridge construction and other public works located on reserves
Another form of Aboriginal government has been established under a self-government agreement where Aboriginal groups can make laws with respect to marriage, adoption education, and the provision of social and health services
Constitutional Law
Constitutional law overrides all other laws; the courts will interpret other laws to ensure that they are consistent with the Constitution
If a law is found to be in violation of the Constitution it may be struck down by the courts on the grounds that it is “unconstitutional”
Categories of Law
How is the legal system organized?
2a) International Law
1. THE LAW:
2b) Domestic Law
Canadian Law
2a) International Law
Law that governs the relationship between independent nations
Acceptance of laws by international community (i.e. NAFTA
– international trade agreements)
Organizations that have international legal status which can help develop laws and act as a court to settle disputes – UN
United Nations, ICJ International Court of Justice
2b) Domestic Law
Law made and enforced within a nations borders
Law making authority comes from the power to govern – usually from a monarchy or a constitution
If entering into a self-governing country that has its own laws and legal system, you may be breaking the law without even knowing it
When travelling outside of Canada, you do not have the protection of Canadian law
Enforcement -
A major difference between international law and laws made within nations is enforcement:
Example: UN peacekeepers help to restore and maintain peace in a warring nation but their power is limited.
National police forces exist with the authority to enforce a system of law – international and domestic drug trafficking, crimes of terrorism
THE LAW:
International Law
3a) Substantive Law
Domestic Law
3b) Procedural Law
Substantive Law (Domestic)
Defines the rights, duties and obligations of citizens and levels of government
Example: Property Law
Canadians have the right to own property: Therefore:
Expel trespassers
Sell property
Use and maintain the property
Pay property tax
Procedural Law (Domestic)
The steps involved in protecting the rights given under substantive law
A woodlot owner discovers people camping on her property
Steps she can take to stop trespassers
Get compensation – sue for damages
1. THE LAW:
International Law
Substantive Law
Domestic Law
Procedural Law
4) Private Law 5) Public Law
4) Private Law (Substantive)
Outlines the legal relationship between private citizens, and between citizens and organizations
Objective: to manage the behaviours of persons and organizations in conflict with each other and to pay damages to those who have been wronged
5) Public Law (Substantive)
Controls the relationships between governments and the people who live in society
4) Private Law
5) Public Law
Categories of Private Law
4a) Tort Law
Deals with wrongs, other than breach of contract, that one person commits against another person
Malpractice and or negligence (carelessness)
4b) Contract Law
Outlines the requirements for legally binding agreements
Breach of contract means the legal agreement has been broken and the injured party can sue for damages
4c) Family Law
Deals with spouses, parents and children
Categories of Private Law
4d) Wills and Estates
Division of property and assets after death, funeral preparations, power of attorney
4e) Property Law
Anything that has a cash value
Set of legal rules that control the use, enjoyment, and rental of property
4f) Employment Law
Governs the relationship between employers and employees
Minimum wage, pay equity, proper dismissal, working conditions, and workers’ compensation
4) Private Law
5) Public Law
Categories of Public Law
5a) Constitutional Law (Constitution Act. 1982)
Laws that set out the structure of the federal, provincial, and territorial governments and the division of power among them
5b) Administrative Law
Areas of law that controls the relationship between citizens and government agencies
Example: Liquor Control Boards: manages the sale and consumption of alcohol and grant licences to serve them.
Categories of Public Law
5c) Criminal Law
Passed by Parliament
Defines acts called “crimes”
Sets penalties
Criminal code
Objective: To punish the offender and protect society and its members
Lawyers represent both society and the accused. Crown
attorney representing society, must prove beyond a reasonable doubt, the charges against the accused person
(defendant)
