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    1 Sources of Law

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    1 Sources of Law

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    726 views23 pages

    1 Sources of Law

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    of 23

    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?

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