CH.

1: LEGAL SYSTEM OVERVIEW

(ONTARIO)
A.

Sources of Law:

(1)

Levels of Government:
Canada has one federal government, 10 provincial governments
(e.g. Ontario), and 3 territorial governments (e.g. Yukon)
laws are passed by federal government through Parliament
(this is located in Ottawa)
laws are passed by provincial governments through
Legislature (in Ontario this is located at Queens Park)
provincial governments can create municipal governments (to
run cities, towns, etc.)
municipal governments are created by statute
laws are passed by municipal governments through municipal
Council (in Toronto this is located at City Hall)

(2)

Laws Made by Government:

called statutes (municipal laws are called by-laws)
some statutes have provisions that allow government (i.e. ruling
party) to make further laws without having to go back to
Parliament/Legislature

the laws made under these powers are called regulations

Daniel R. Shear 2000 2011
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statutes and regulations override common law (described below)

legal authority to make statutes is subject to Canadian Constitution
and Charter of Rights and Freedoms (see below)
legal authority to make regulations is subject to what statute
specifically allows (also subject to Canadian Constitution and
Charter of Rights and Freedoms)
legal authority for municipality to pass by-laws is subject to what
statutes specifically allow (also subject to Canadian Constitution
and Charter of Rights and Freedoms)
(3)

Court Cases (the common law):

(a)

Courts follow past cases theory of precedent:

theory:
decisions must be consistent with past court cases having
similar facts
how close is similar? unclear, open to courts
interpretation
court not required to follow past court cases if not
similar facts
rules:

lower courts must follow past decisions of higher courts

in same province
Daniel R. Shear 2000 2011
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lower courts must consider (but not necessarily follow)

decisions of higher courts of other provinces
courts must consider (but not necessarily follow)
decisions of same level of court in same province
all courts (except Supreme Court of Canada) must follow
decisions of Supreme Court of Canada)
courts may consider (but do not have to) decisions of
lower courts in same province or same or lower courts in
other provinces
summary:
past case in Ontario

if higher court: follow

if same level: consider
if lower level: open choice

past case not in Ontario if higher court: consider

if same level: open choice
if lower level: open choice
past case SCC
(b)

all levels must follow

(except SCC)

Courts making new laws:

theory: courts generally interpret and apply laws, not make them

law-making is left up to elected governments (since these

are accountable to society)

Daniel R. Shear 2000 2011

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practice: courts sometimes make new laws when deciding court

cases
because of theory of precedent (above), these cases may have to be
followed by other courts
but note that judges are NOT elected, so they are not accountable
to society (society cannot vote judges out of office)
governments can override law-making by judges, except
where courts make new laws involving interpretation of Charter
of Rights and Freedoms (see below)
(c)

Court System
judges:
decide court cases
not elected (they are instead appointed by government)
levels of courts:
trial court (1 judge)
parties bring witnesses, evidence
party suing is called plaintiff (pf) and party
defending is called defendant (dt)
court of appeal (3 judges majority decision)

no witnesses or new evidence decide whether

trial court erred in interpreting or applying the law
Daniel R. Shear 2000 2011
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Supreme Court of Canada (9 judges for most cases

majority decision)
no witnesses or new evidence decide whether
court of appeal erred in interpreting or applying
the law
(4)

Constitution/Charter:
one part covers division (allocation) of government powers
between federal government and provincial governments
federal government is national government whose laws apply
all across Canada
provincial government is the government of each
province/territory whose laws apply only in that province
another part covers Charter of Rights and Freedoms
certain basic rights that all individuals enjoy in Canada
some of these rights can be overridden for 5 years at a time, if
government passes a statute that says Notwithstanding the
Charter,
laws can be passed that put reasonable limits on these rights
if the limits can be demonstrably justified in a free and
democratic society
constitution and Charter override all other laws

courts interpret and apply Charter

Daniel R. Shear 2000 2011
All rights reserved.

these court decisions cannot be changed except by appealing the

decision (see Court System below) or by following specified
formula in Charter (which includes approval by federal
government and certain majority of provincial governments)
B.

Civil Law System vs. Criminal Law System:

civil: concerned with private rights and remedies (people suing
people)
criminal: concerned with crimes and punishment

C.

Court System:
trial court:
when bring lawsuit against someone else - go to trial court
normally person bringing the lawsuit must prove the facts necessary
to win
prove = persuade judge that it is more likely than not (i.e.
more than 50% likely) that your version of the facts is what really
happened
different standard applies in criminal cases (normally must prove
beyond reasonable doubt)
in practice, proving your case is not always easy to do

key role of trial court is to determine the true facts normally this
determination will not be overruled by appeal courts
Daniel R. Shear 2000 2011
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appeal process
to help prevent unfair result, judge bias, etc.:
trial judges decision can be appealed to court of appeal
panel of 3 judges
determines whether trial judge made error in applying the law to
the case
majority decides
court of appeal decision can be appealed to Supreme Court of
Canada (SCC)
panel of 9 judges
2-step process: (i) ask SCC for leave (permission) to hear
case; (ii) if leave granted, SCC hears case and determines
whether court of appeal made error

majority decides

Daniel R. Shear 2000 2011

All rights reserved.

Judicial Law-making: A Thought-Provoking Case:

Fact Situation:
A ship was sailing in the South Atlantic Ocean when a huge storm came
along. The storm capsized the ship about 1500 km from the nearest
land. Three men and a boy managed to escape the ship in a small boat
before the ship sunk. They had a small amount of food with them, but
the food was gone after only a few days.
So for the next six days, the survivors had no food at all, and barely
stayed alive by drinking rainwater. All three men were married, with
young families. In desperation, two of the men suggested to the third
that someone should be sacrificed to allow the rest to stay alive a little
longer in the hopes that they would be rescued in time. The third man
opposed this idea, and the boy was not consulted.
A day later, the two men again made the same suggestion to the third
man, but he refused again. The proposal was not put to the boy, who
was very weak and laying in the bottom of the boat. The first two men
decided that if there was no vessel in sight by the next morning, the boy
should be killed.
On the following day, the first two men offered a prayer for forgiveness,
and proceeded to kill the boy with a knife. The two men then fed upon
the boys body for four days until all three men were picked up by a
passing ship. The third man refused to eat the boy, and became very
weak but did not die.

Once rescued, the first two men were charged with first degree murder
(but the third was not charged with any offence). The distraught family
of the boy also brought a lawsuit against the two men for the tort of
battery.
Daniel R. Shear 2000 2011
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The Criminal Code defined murder as killing someone where the killer
meant to cause the person's death, or meant to cause bodily harm that
was likely to result in their death. First-degree murder was defined as
murder where the killing was "planned and deliberate" - in other words,
where the murder was premeditated.
Battery meant unlawful physical contact with another person without
their consent.
The two mens lawyers argued that the men should not be found guilty
based on the defence of necessity (i.e. that a person should not be
guilty of murder if they reasonably believe that it is absolutely necessary
to kill someone else in order to save their own life). This defence was
not in the Criminal Code, and had never been raised before.

What do you think the court decided?

Daniel R. Shear 2000 2011

All rights reserved.