1. Introduction to the Study of Law (DCC 2117) These slides are based on: Neil Boyd, Canadian Law: An Introduction, 5th ed.(Nelson Education, 2011)

2. The Sources of Canadian Law: Introduction 2  The inception of Canada as a state was in 1867 as a union of Upper and Lower Canada, Nova Scotia and New Brunswick.  Between 1870 and 1949, the other Canadian provinces joined the Union.  The British North America Act (Constitution Act), 1867 is the founding document of Canada.  The Union that joined the provinces is “federal” in nature, not unitary. That is, Canada has a federal system of government in which the power of law making is shared among the Federal parliament and the provincial and territorial legislatures.

3. The Sources of Canadian Law: Introduction 3  Sections 91&92 of the Constitution Act,1867 set out the division of the legislative powers between the federal Parliament and the provincial legislatures.  Canada’s constitution is composed of : The Canadian Constitution Act, 1867 (formerly the British North America Act) and the Constitution Act, 1982, which includes, inter alia, the Canadian Charter of Rights and Freedoms.

4. The Sources of Canadian Law: Introduction 4  Canada is a constitutional monarchy: the head of the State is the monarch who governs within the limitations of the Constitution.  Queen Elizabeth II is the head of the State and is represented by the Governor General of Canada.  Canada is a parliamentary democracy: Law enacted by the parliament is the supreme authority in Canada. The Parliament consists of: The Crown, the House of Commons and the Senate.

5. The Sources of Canadian Law 5  The Constitution  Legislation: Statute Law  Courts: Case Law  Custom  Equity

6. The Sources of Canadian Law: The Constitution 6  Canada’s constitution is composed of : The Canadian Constitution Act, 1867 and the Constitution Act, 1982, which includes, inter alia, the Canadian Charter of Rights and Freedoms.  The Canadian Constitution is the Supreme law in Canada “Primacy of Constitution”. Section 52(1) of the Constitution Act, 1982, provides: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”  Any law that is inconsistent with the constitution is of no force or effect.

7. The Sources of Canadian Law: The Constitution 7  The Constitution defines the basic rules of the democratic governance in Canada  It identifies three branches of government: Legislative, Executive, and judicial  According to the division of powers specified in the Constitution (sections 91-92), the federal parliament has the authority to make laws in domains such as, banking, copyright, crimes, foreign affairs, army, aboriginal matters. On the other hand, the provincial parliaments have power to legislate in domains such as, education, health, property.  Courts implement and interpret the Constitution

8. The Sources of Canadian Law: The Constitution 8  If the federal parliament or the provincial parliaments legislate beyond their powers, the legislation will be “ultra vires.” See s. 52 of the Constitution, supra.  According to the doctrine of paramountcy, where a conflict exists between a valid provincial law and a valid federal law, the federal law will prevail and the provincial law will become inoperative to the extent of the conflict (inconsistency): “the doctrine of paramountcy applies where there is a federal law and a provincial law which are (1) each valid and (2) inconsistent” See Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, citing Professor Hogg, Constitutional Law of Canada (1977), at p. 102.

9. The Sources of Canadian Law: The Constitution 9  The Canadian Charter of Rights and Freedoms is an important part of Canada’s Constitution  Any law that violates the Charter of Rights and Freedoms is invalid. In RJR - MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, the Court held that a number of sections from the Tobacco Products Control Act, S.C. 1988, c. 20, which included restrictions on tobacco advertising, were in conflict with the Canadian Charter of Rights and Freedoms, specifically with the right to freedom of expression.

10. Legislation: Statutory Law 10  Statutory law refers to the law made by the federal parliament or the legislative assemblies of the provinces and territories (e.g. The Criminal Code).  As long as the statutory law is not in conflict with the Canadian constitution, courts must not refrain from implementing it.  Courts have the power to implement and interpret the statutory law.  Legislative process (in general): the government introduces a bill the bill goes through a first reading at the House of Commons the bill goes through a second reading and its principles are debated

11. Legislation: Statutory Law 11 the bill goes to a committee that discusses its clauses clause-by-clause (more detailed study) the bill goes through the report stage in which it is debated again and where it can be subject to amendments the bill then goes through a third reading in which the members of the House of Commons debate the bill or any of its amendments and vote the bill passes through a similar process in the Senate the bill receives royal assent and becomes “Act”

12. Legislation: Statutory Law 12  The Parliament or legislatures may delegate (in the relevant primary legislation) the regulation of certain matters (usually require certain expertise) to cabinet, a person (e.g minister) or administrative body (e.g. The Copyright Board or the Canadian Radio-television and Telecommunications Commission).  This type of legislation is called “subsidiary legislation” or “subordinate legislation”. This legislation must not conflict with the primary legislation.

13. Courts: Case Law 13  Courts not only implement and interpret law as stated in the Constitution or statutes but also make it in domains not governed by statutory law.  Case law refers to the legal principles established by court decisions “judicial precedents”.  Subsequent courts will follow a judicial precedent (originating from a previous case) when they decide a case whose facts are similar to the previous case. This is called the doctrine of “stare decisis”: courts need to respect the legal principles established by higher courts. On the other hand, if the facts are different, the court may depart from the precedent set in the previous case.  The body of law originating from the decisions of courts is called “common law.”

14. Courts: Case Law 14  Case law is an important source of law since new cases may not have an immediate solution in statutory law  Case law reflects the dynamic nature of the legal system  Some concepts in statutory law need continuing interpretation of the statutory law (e.g. The concept of originality in copyright law)  Nevertheless, there can be some problems with judicial precedents as a source of law: Trying to integrate a current case in a complex body of case law may deviate from the intention of the legislator. Sometimes there is a need for courts, especially the Supreme Court, to depart from previously decided legal principles.

15. Other Sources: Custom 15  Custom refers to the collection of practices which are widely accepted to be binding upon individuals in a given community  Historically, custom played a leading role in establishing legal order in societies, and it was the source of many statutes in England, such as the Sale of Goods Act, 1893.  Custom shaped English law, which was imported into Canada, but custom per se did not have high significance in shaping Canadian law.  Exceptionally, the Supreme Court of Canada gave considerable importance to custom (“constitutional convention”) in the context of the federal-provincial disputes over the change of the constitution [Re: Resolution to amend the Constitution, [1981] 1 SCR 753.].

16. Other Sources: Equity 16  Courts of equity were created in England to mitigate the rigidity of common law  Under the umbrella of equity, arguments relevant to fairness and justice can be advanced before these courts.  The courts of equity and the common law courts were united. Nevertheless, the principles of equity are still different from the principles of common law [e.g. legal remedies (damages) v. equitable remedies (specific performance)].

17. Other Sources: Books of Authority 17  Books of authorities have played an important role in the formation of judicial precedents  Courts use not only the intellectual works of legal scholars but also the intellectual works of scholars in other fields, such as medicine, chemistry, computer science, etc. But why?

18. The Conceptual Divisions of Law: International v. Domestic 18  Law can be divided into international law and domestic law  International law generally governs relations amongst states. Its main sources are treaties and international custom.  Depending on the jurisdiction, some states give international law a direct effect. That is, there is no need to legislate an international law rule in a national statute. On the other hand, some states give legal effect to international law as part of its domestic law. In other words, the same international law rules have to be passed as part of the national law.

19. The Conceptual Divisions of Law: Canadian Domestic Law 19 Public Law : the branch of law that deals with matters of a public concern Private Law: the branch of law that deals with matters of a private concern  Constitutional law:  Criminal law  Administrative law  Taxation law  Contracts  Torts  Real estate  Family law  Wills and trusts  Company law  The law of agency  Patent law

20. The Conceptual Divisions of Law: Canadian Domestic Law 20 Substantive lawProcedural law E.g. Section 231 of the Criminal Code which criminalizes murder is considered substantive law E.g. Sections 645 & 646 relating to the trial procedures and evidence are considered procedural law

21. The Conceptual Divisions of Law: Canadian Domestic Law 21  The different divisions of law are useful for the purpose of studying law  However, sometimes these divisions are problematic when the law at issue can be considered relevant to both individual interests and public interests.  Due to the very integrated nature of the law and the legal system, some scholars argued that “all classification or divisions of law are to some degree arbitrary”.