Chapter 2: Sources of Canadian Law

Brief history of law reporting?

Int he early stages, largely informal and just for personal edification. Early records kept in The Year Books (1535) Mid sixteenth century = more formalized, although still private occupation that created a series of law reports referred to as The Reports. Listed under the name of compilation, covering 1537-1865 1865 = formal process of law reporting established, and the modern series known as the Law Reports continue today. In addition to authorized reports, also commercial publishers

What is the decision-making process in our courts?

1. Determine if there is a statute in place that affects the court. If there is and the statute has been appropriately passed and is able to be applied then the judge interprets the terms and applies the stature. if no statute, the judge looks at common law and the principles of equity to see if there is a precedent and applies a similar decision 2. Distinguishing the case - selecting the most appropriate case that the lawyers for each side present to support client's position

What is equity law?

Another major source of Canadian law, the only one for judge-made law in our legal system.

How did canon and church law affect common law?

Church courts used to have massive power, and then this was reduced and the areas of jurisdiction that were once ecclesiastical were given to the common law courts. The bodies of law developed by these church courts were retained and incorporated into English common law. Because church courts and roman law were so connected, this was also another way that Roman civil law influenced common law. Matrimonial and family matters especially were developed by church courts, and the principles developed are still in effect today wills and estates also fell into the church courts jurisdiction and modern rules come from the laws developed by them

What is the difference in interpreting a statute vs a civil code?

Civil codes are very broadly worded, and allows the judge to go through a process of reasoning and expanding on a prior judge's words because the general legal principle is not simply stated. However, in a statute the legal principle is very clearly set out, and the judge is generally not allowed to make inferences or reason about what is meant by it, and must apply statute as written

What are the influences on common law?

Customs Roman Law Canon or church law Mercantile and Maritime Law

What are specific customs?

Customs limited to a particular geographical location/particular profession/trade

What are the important Canadian law reports?

Dominion Law reports, the federal series that provide all of Canada a general report of the most important cases at the provincial and federal level since 1912 Supreme Court Reports: semi-official that record decisions made by supreme reports Western Weekly Reports: covers important decisions in BC, Alberta, Saskatchewan and Manitoba Atlantic provinces Report: Maritime provinces Specialized areas of law: Canadian Bankruptcy, Business Law, Criminal Cases, Motor Vehicle Reports

Where are the statutes and regulations of Canada's government published?

Each level of the government publishes enactments and regulations in a newspaper format called the Gazette Each provincial gov't publishes its legislation annually in volumes, which are added to the body of provincial statutes; federal gov't publishes its statutes similarly Mostly contains the summaries of the changes in legislation - for current provincial law - it is referred to as the revised statutes of [insert province name here] and in federal law as the Revised Statutes of Canada

What levels of the government can make statutes?

Federal level: gov't can make statuses (acts Provincial level can make statutes (acts Municipal can make statutes (if authorized by province = bylaws) Delegated powers can make regulation Legislative publications on internet, statutes cna be looked up on internet

What are the three levels of government the Canadian system supports?

Federal, provincial, municipal

Give an example of a preamble

First place to look for remedy is if there is a BC statute that determines if there is a falling fruit legistation? If not, we look at what next: stare decisis, look at precedent cases. Also none of that, so then we are left with persuasive cases that the principle of stare decisis doesn't apply Mitten vs Faudrye (1626) in England = the owner may fetch it in the other man's land, consistent with civil code.

What are the two types of customs?

General and specific

What are the distinct meaning of equity

Generally, equated with justice or fairness (the results in a particular case were equitable = results were fair) reference to the body of rules developed by the Court of Chancery before the Judicature Act

What is an example of distinguishing a case?

ICBC injury case: vehicle that had a driver and an occupant. On a remote country road in the dark, late one night, occupant had drank too much and driver pulled over so the occupant could relieve himself. Occupant gets out of the truck, walks to the back, goes to bathroom, so drunk they pass out and falls onto the road. Car comes up and goes around truck and doesn't see the person and the road and runs over their legs. Issue: coverage for the injuries suffered by the person that got ran over Under ICBC insurance policy, which refers to a statute of the ICBC insurance legislation, certain benefits are given to an occupant of the vehicle Word occupant was not defined: turns to the court to determine the meaning of occupant in the circumstances No definition, look up definition it means someone occupying a vehicle, which they were not at the time Lawyer of the occupant comes up with a precedent: person sitting inside a vehicle where it was parallel parked, person got out and was exiting vehicle and had hand on doorhandle and got hit by a passing car, court decided that that person was an occupant Left with needing to distinguish case from the circumstances: was not touching the vehicle; argued successfully that the case could be distinguished because they were in the process of exiting without completing, and occupant included people in the process of exiting until they completed it. Court could distinguish that case and exclude occupant without breaching rule of stare of decisis because they completed their exit

How did mercantile law influence common law?

It affected Sale of goods law of negotiable instruments insurance law trademarks partnership and agency Because merchants regularly travelled to trading fairs across Europe, a common system of rules to govern their actions was necessary, and so there was an internationally enforceable body of rules called the "Law Merchant" that came into effect - a unique and recognizable body of law Court of Chancery especially allowed Continental merchants to enforce claims against English merchants, and as the guilds declined the regular courts of England started handling disputes. and the use of the Law Merchant was taken over by the common law courts - treated law merchant as the CUSTOMS, and applied this as the law, continuing to adapt around changes and developments in the customs

What are the rules of statutory interpretations? (three court rules especially!)

Judge must follow the terminology that the statute lays out in the definition section Both federal and provincial interpretation statutes will set out rules of interpretation applicable to ALL statutes In addition to the legislated interpretation rules, the courts developed their own rules, and developed three main rules of statutory interpretation 1. Literal rule 2. Golden rule 3. mischief rule

What are the two major portions of our law?

Judge-made law, made up of common law and equity Law created by legislation, statutes and regulations passed under parliamentary/legislative authority

What is law?

Law is a set of rules of human conduct that are generally obeyed and enforced within a politically organized society.

What are the areas of common law that have been influenced significantly by Roman civil law?

Law of bailment Separation of ownership and possession of property Easement in real property Commercial relations and obligations Law of wills and estates and even torts and contracts have been influence by roman civil law

What is the process of distinguishing a case?

Lawyers on each side present several different precedents that seem to require the judge to decide in their favour Judge must rationalize the conflicting precedents, and may set aside a precedent that does not closely fit the situation before the court, giving reasons to reject it. In effect, the judge will say that a precedent is a good law, but does not apply to the case at hand because the facts are different

What are examples of. judicial presumption?

Legislation won't deprive a person of property or liberty Mens rea (guilty mind) must be present for criminal liability the Crown is not bound by an act of parliament Helps guide courts in process of interpretation, they are operative and will determine the effect of a statute, unless another intention is clearly stated within the body of that statute

What is obiter dicta?

Meaning w"words in passing" these are comment made by the judge that are not directly associated with the actual decision and they are not binding

How must a judge make their decision?

Not arbitrarily, and only exercise discretion in certain situations (like determining the appropriate sentence) must point to the law and justify the interpretation of it and the final decision Reasoning must be based on sound legal principles and follow accepted traditions of society

What are most major statutory enactments?

Not unique to any one jurisdiction! See: the Sale of Goods Act, Statute of Frauds and Partnership act, which show only minor variations from province to province Many statutes, like the Bills of Exchange Act, are borrowed from other countries Some are just consolidations or summaries of previous case law

What are the two major distinctions between British and Canadian approaches to parliamentary government?

Parliament on its own is the biggest source of law in England, with its statutes being the supreme and ultimate authority. Canada however, distinguished two levels of government, the federal and provincial, and BOTH have supreme authority within their constitutionally defined jurisdictions The intro of the Charter into the Constitution of Canada made an intentional limit on the power of the federal Parliament, provincial legislative assemblies or any government agencies - any enactment inconsistent with the basic human rights and freedoms laid out in the Charter may be declared invalid. IN England, the Parliament is supreme and unfettered in exchange of power

What is the golden rule?

Qualification of literal rule - words in the statute must be given literal interpretation and the sentences their normal grammatical structure unless it leads to a logical absurdity, or inconsistency. Should this happen, the golden rule allows the courts to move from the literal interpretation only as far as necessary to remove the conflict

What are the disadvantages to following precedent?

Rigidity of common law - little room to make new laws Most new laws must be accomplished by statute, and parliament is the source of new law Law has sometimes developed illogically

What are the two titles an act can have?

Short: the convenient name by what the act is normally called Long: embodies the purpose of the act and can be helpful in determining the objectives of the legislators when they passed the statute, aiding in interpretation

What is the legislative process?

Statute begins as a bill presented to either Parliament or a legislative assembly BY AN ELECTED REP Initial process of putting a bill before the House of Commons/Legislative Assembly is known as the first reading, with no debate or discussion Once a bill is before the House/Legislature, it can be presented for a second reading, to be approved in principle after discussions of its general content and purpose At this stage, most bills presented by opposition are defeated After second reading and approval by simple majority vote, go to committee stage to be examined provision by provision and sometimes with public hearings. If completed, bill is presented back to the House for THIRD READING. Amendments may be recommended and further debate. Finally a bill is given third reading (approved by majority vote) and passed by the House/Legislature. At federal level, this is repeated in the Senate, and given its stamp of approval. still, the bill does not become law until it has received royal assent. Queens Rep (Governor General or Lieutenant General) must approve it by signing the bill on behalf of the Queen

What is the Interpretation Act?

Statute that gives us rules for how statutes can be interpretation Interpretation act gives list of words that apply if it is not in the statute Court looks at ordinary dictionary meaning of the word (literal rule), golden rule is that if the ordinary dictionary meaning makes no sense, then the less common meaning is used. Mischief = if these definitions don't help, what are they trying to get at

What are the important features of a judgement?

Summary of the facts necessary to reach decision The reasoning process behind said decision Actual judgement/order

What decisions are binding on which court?

Supreme Court of Canada (highest court) 9 judges or less, odd # of judges | | BCCA. | (court of Appeal, always Odd # of judges) | | | BCSC (supreme) BCPC (provincial) | ACA CQB

What is supremacy of parliament?

THE PRINCIPLE ESTABLISHED AFTER THE ENGLISH CIVIL War, where an act of parliament overrode any principle of common law or equity that was inconsistent with it

What is a preamble?

THe summarization of the purpose of the legislation and its objectives, which can be helpful in resolving interpretation problems

What is the ratio decidenti?

The "root of the decision" - only this is binding as precedent E.g. Legal principle taken out of the case that can be applied in a future case Hannah is walking down an icy sidewalk in PG, and slips and falls, hurts herself. She sues the city from failing to properly clear sidewalk. Evidence comes out of what she was wearing, and Hannah admits she wasn't dressed perfectly for the sidewalk; she was wearing heels. The court decides that the city should not be liable, since she was wearing heels. That is the decision Savannah slips down sidewalks in Smithers, slips and falls and sues city. Goes to trial, and city of Smithers lawyers and Savannah's found the case of Hannah vs PG that says it is not liable in that case. Ratio decedendi can be interpreted differently by different lawyers to help their case: Saves Lawyers Ratio decedendi: distinguishing the case: Sav was wearing the proper attire, so it is a different case. Principle/Ratio decidendi: municipalities should not be liable for slips when the plaintiff is wearing the proper footwear Municipalities should not be held liable for slips and falls if the plaintiff is wearing improper footwear: can be moved to other cases

How did the maritime law affect common law?

The Admiralty court created to deal with matters of carrying goods at sea and responsibilities of the transporters, when the common law courts took over, it retained the right to hear matters dealing with maritime law until the merger of the courts. The personnel were all Roman civil law trained

What is an example of regulations in Canada today?

The Worker's Compensation Act - the chairman of its board is given the power under that^^^ act to make the regulations necessary to fulfill goals of the legislation. Boards authority includes the power to specify the circumstances under which a person would get compensation, and how much. AS long as its within the limits of authority granted, they have the force of the law

What is equity?

The body of law developed by the Courts of Chancery and intended to supplement common law

What are the advantages to following precedent?

The certainty and predictability and practicality

What is the impact of Roman law on areas of the law?

The courts of the Admiralty, where the Law merchant and maritime law were adopted into common law, were presided over by judges trained in Roman civil law Law merchant itself was based on roman civil law and developed along with he merchant guilds Canon law, used in ecclesiastical courts, was based on Roman civil law Priests who presided over church courts and Courts of Chancery trained in Roman law

What are general customs?

The custom that prevails throughout a nation; these became part of common law by judges decisions, and became precedents the were binding when a similar situation came before the court

What is ultra vires?

The declaration of a parliamentary enactment being invalid (beyond the power of the body making it)

What are the differences between the continental system of following a prescribed code and English following precedent?

The degree of generalization - the codes set out broad principles and continental judges take it and apply it to the specific case, whereas in common law, the precedent making cases are particular and well detailed, so common law judges look at these and develop a consistent principle and follow it In civil law, within the parameters of the general rule, big flexibility for the judge, whereas the flexibility of common law judge is limited

what are examples of obiter dicta?

The judge suggesting what might have happened had the facts been different while explaining the reason behind a decision City of PG not reliable for slip and fall bc of improper footwear, not reasonable, a reasonable person would be ready for winter. If Hannah had been wearing appropriate shoes, I perhaps would have been decided against PG Can be very persuasive

How does following precedent makes law predictable?

The judge's decisions are binding on subsequent judges - remember, judges didn't believe they were making a new law, but discovering and giving voice to legal principles that always existed

How did judges, in the common law jurisdictions, keep their decisions from being arbitrary?

The most important source of law is the body of case decisions or precedents set by the judges

What are regulations?

The rules made by government agencies its that have been given authority by the prov/fed gov't to deal with the operations of particular areas, and have the same force of law as the legislation authorizing the creation

What is common law?

The term is now used to describe the whole system of law in place of the countries that have adopted it, but this system is named after the law created by common law courts and embodied in case law, which is made up of the decisions handed down and recorded by judges in those courts Common law system based on customs of the poeple. Civil codes were drafted by the governmental authority and dictated what rules were laws. Common law (remember the courts travelling), was founded when the courts said that they were "discovering" the law common to the area, and the common rules that applied to the commoners. Discovering the laws/rules that were applicable, learning customs and traditions Large Roman influence to fill in gaps from Roman Civil Code. When there was gaps in common law, the judges draw on other sources (like the civil, canon or church law) Not all ecclesiastical was trial by ordeal/battle, but settled wills and estates and family law Principles made there that were brought into our legal system, including mercantile and maritime law All of these sources were drawn on to assist courts to make common law deiciosn, which is where our precedents come from

Why are general customs no longer a source of law?

They have been since embodied in precedent cases or override by statutes/equity

How do judges use the process of distinguishing cases?

To dispose of precedents obviously not intended to cover the situation being dealt with Avoiding applying certain precedents

What is the role of the courts in our legal system?

Ultimate enforcement branch of the law; only intervene when there has been a suspected violation of a law, or to determine the nature of rights and obligations between parties

What is the literal rule?

When words and phrases are embodied in the legislation clearly their meaning must be applied as written, even if the judge doesn't like the result

What are the roles of a judge?

With a duty to follow proper procedural rules they... hear and weigh evidence determine which laws actually apply to the case make decisions that favour one of the sides of the argument

How was common law developed?

by common law courts, specifically the Court of Common pleas, the Court of King's Bench and the Court of Exchequer who operated under the belief that the law had always existed and that they just gave voice to it In theory, it was not created by judges or any other body; it was common to all the people As a result, major component of English common law is based around the traditions at the time, and judges merely borrowed and adopted these "common" rules

What are the sources of law in Canada?

common law equity statutes

What is the mischief rule?

if there is an ambiguity in the statute, the court may look at the reason why it was originally passed to determine how this should be solved. When there is an ambiguity, attention should be given to the problem the statute was created to solve, and it should be interpreted in a way to solve the problem. What mischief is the statute suppressing? What remedy is it advancing? The judge looks at this remedy or mischief and interprets the statute that either gives effect to the remedy or suppresses the mischief.

What are the sections of the doctrine of following precedent?

stare decisis ratio decedendi obiter dicta