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Sources of Law

Source: Canadian and


International Law
Two main sources
Primary Sources: have influenced our ideas and values
about law over hundreds, even thousands, of years
Include: customs and conventions, religious
doctrines, and social & philosophical views

Secondary Sources: include the laws and cases that


were codified (written down) in response to cultural,
religious, and philosophical values
Include: the Constitution, legal statutes, and judicial
writings & decisions
Primary sources
CUSTOMS & CONVENTIONS
CUSTOMS: (practices) created to deal with situations
that arose from everyday living. Likely passed on
instinctively. Some carried on despite the original
reason no longer existing. Some have developed into
law. (Adverse possession laws old English squatters
rights)

CONVENTIONS: the agreements or arrangements that


are not necessarily part of a formal contract but impose
an obligation of the parties involved. (Geneva
Conventions)
Primary sources
CONVENTIONS (contd): can also refer to a
way of doing something because that is the
way it has always been done.
Example: It is not actually written down that
the party with the most seats forms the
government in Canada. This is how it has
always been done so now it is a binding
convention.

Do we actually have to follow these? What


binds us to them?
Primary sources
RELIGION: Our Charter begins with:
Whereas Canada is founded upon principles
that recognize the supremacy of God and the
rule of law
What does this demonstrate?

The influence of religion on our law can be


traced back to the Mosaic Law of 1200 BCE.
This became the foundation for Judeo-Christian
moral teachings.
Primary sources
SOCIAL & POLITICAL INFLUENCES
Some argue that Canadian laws are the written
expression of what most citizens feel is right
and proper.
Our Criminal Code reflects a high value on the
protection of people and property
Our tax and social welfare laws demonstrate
valuing the more equal distribution of wealth
and privilege.
Primary sources
Our laws can be looked at
differently, depending on
perspective

So what?
Primary sources
Law cannot be divorced from the social, political,
economic, and cultural beliefs of the time.

Example: Womens Rights


Laws need to strike a fine balance. Laws that are too far
behind or too far ahead of the attitudes of society may
not be obeyed by the majority of people.

Example: Wife kills abusive husband, self-defence


held up.

What about abortion? Same-sex marriage?


Secondary sources
CONSTITUTIONS
Canadian Constitution enacted in 1867, amended
in 1982
- highest level of law in Canada
When there is disagreement about which level of
government has jurisdiction over a certain area of
law, it is up to the Supreme Court of Canada to
make the decision.
Ex.: Safe Streets Act in Ontario dealt with
criminal behaviour, so SCC could deem it to be
federal in scope
SECONDARY SOURCES
Ultra Vires: a Latin term meaning beyond or
outside the power, referring to a law that may
exceed the power of the courts or the
government

Intra Vires: a Latin term meaning within the


powers referring to a law that is within the
jurisdiction of the government or the courts
SECONDARY SOURCES
CHARTER OF RIGHTS AND FREEDOMS
Added to the constitution in 1982
all laws must conform to the Charter
any law that violates a right under the
Charter can be struck down by the SCC
(R. v. Zundel) in contrast to (R. v.
Keegstra)
SECONDARY SOURCES
STATUTE LAW
The Criminal Code, Highway Traffic Act, Canada
Evidence Act

Statute: a law passed by our elected representatives at


either the federal or provincial level.

Lengthy: Criminal Code, Anti-Terrorism Act


Broader in scope: Education Act
SECONDARY SOURCES
JUDICIAL DECISIONS (CASE LAW)
Canada has a dual system of law in that it has statutes
and codes but also looks to the recorded decision of
judges for guidance in law.
Common Law: a legal term that means law that is
based on judicial decisions, as opposed to areas of law
governed mostly by statutes.
Tort Law is almost entirely based on case law
Since the introduction of the Charter, we rely on
judicial decisions to interpret all laws in light of the
Charter.
Examples Charter challenges
R.v. Oakes Reverse Onus in drug trafficking cases
R.v. Askov 2 years before trial was heard court said that
6 months was a reasonable time to wait for a trial
SECONDARY SOURCES
Rule of Precedent (stare decisis): the principle of
following legal rules established in previous court
cases if the case is the same or similar.
Material Facts: facts that are relevant to or have a
bearing on the issues in question
Uniformity: like cases must be decided alike
Impartiality: judges cannot permit their feelings
for those involved in the case to enter into their
judgments
SECONDARY SOURCES
Ratio Decidendi: the reason for
deciding
- lawyers compare & contrast the
ratio decidendi of cases and try ot
find similarities or differences that
will support their argument
LAW HIERARCHY IN CANADA

CONSTITUTIONAL LAW
Canada Act,, 1982
BNA Act, 1867
Charter of Rights & Freedoms

SUBSTATIVE LAW
Statutes e.g.: Criminal Code
Highway Traffic Act
Municipal Bylaws

COMMON LAW
Case law- judicial
decisions
Categories of Law
Substantive vs. Procedural

Substantive Law Law that identifies the


rights and duties of a person or government
i.e. Criminal Code of Canada 1st degree
murder

Procedural Law Law that outlines the


methods/procedures by which substantive law
is enforced
Categories of Law
Domestic vs. International

Domestic Law a law that governs


within a particular country

International Law a law that has


jurisdiction in more than one country
Categories of Law
Public vs. Private

Public Law area of law that regulated


activities between citizens and the state
Includes:
Administrative law governs relations between the people and
government agencies/departments
Criminal Law prohibits and punishes behavior that injures
people, property, and society

The issue of marijuana?


Categories of Law
Private Law (Civil Law) laws that
regulate disputes between
individuals/organizations
Involves a plaintiff (party suing) and a defendant
(being sued)
Includes Family law, Contract law, and Tort law
Tort Law area of law concerning civil
damages that one party causes to another
Criminal vs. Private
Comparison Civil lawsuits Criminal prosecution

Type Private law (cit. v. cit.) Public law (govt. v. cit.)


Parties Plaintiff v. Defendant R. v. Defendant

Breach of Statutes provincial Jur. Statutes federal Jur.

Purpose Resolution of disputes Protect society

Action Lawsuit Prosecution


Both sides hire own lawyer Victim does not hire lawyer

Remedy Monetary compensation Punishment (jail, fine)

Burden of proof On the plaintiff On the prosecution

Standard
of proof On a balance of probabilities Beyond a reasonable doubt
(50% + 1 = most likely you are liable) (100% certain = you are guilty)
In Short
Your Turn!
Why do we have procedural law? How
can this protect us?
What is the difference between Primary
and Secondary sources of law?

Should laws ever be ignored?

Case Time What do you think?