Source: Canadian and International Law 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 (cont’d): 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: Women’s 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 Private Law (Civil Law) – laws that regulate disputes between individuals/organizations Involves a plaintiff (party suing) and a defendant (being sued)

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 Both sides hire own lawyer Prosecution Victim does not hire lawyer Remedy Burden of proof Standard of proof Monetary compensation On the plaintiff On a balance of probabilities (50% + 1 = most likely you are liable) Punishment (jail, fine) On the prosecution Beyond a reasonable doubt (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?