Chapter 2

In Canada laws originate from three sources: 1. previous legal decisions (common law),

2. elected government representatives (statute law),

3. Canadian Constitution (constitutional law).

Common law is constantly evolving as judges decide new cases based on previous judicial decisions.

• If a judge disagrees with the decision made by a previous judge, or if the precedent no longer applies, he or she can reject previous decisions and create a new precedent.

• This process is called distinguishing a case.

Classifying Laws

Law that is passed by elected representatives in the form of acts or statutes.

Each level of government-federal, provincial, and municipal-has the power to enact legislation in its own area of political jurisdiction (authority and control). Statutes generally override previous common law.

Statute law

The federal government enacts laws that apply to everyone in Canada. It has jurisdiction in several areas of law, including criminal law, federal penitentiaries, employment insurance, banking and currency, marriage and divorce, and postal services.

The laws that provincial governments pass apply to people in that particular province. Provinces have jurisdiction to make laws affecting hospitals, police forces, property rights, highways, and other areas.

Municipal or local governments make laws called bylaws that deal with local issues such as garbage collection, the height of backyard fences, or who is responsible for clearing snow from sidewalks.

Indian Bands established under the federal Indian Act are like local governments in that they have some authority to make bylaws that apply to that band’s reserve lands. If an Aboriginal group has a self-government agreement, that group has wider law-making powers than a band.

Legal Jurisdiction

Legal disputes rarely fit neatly into one category or another without overlapping at some point.

Categories of Law

International law is law that governs the conduct of independent nations in their relationship with one another. For example, Canada has entered into agreements with other countries on free trade agreements and defence treaties.

Law made and enforced within a nation’s borders is known as domestic law.

One category of domestic law is substantive law.

• Substantive law is the content of the law. It defines the rights, duties, and obligations of citizens and levels of governments. • Right to own property• Right to protect property• Right to enter into a legal contract• Right to seek remedies•Governance of conduct

Domestic Law

The other category of domestic law is procedural law.

• Procedural law is the law that prescribes methods of enforcing the rights, duties, and responsibilities found in substantive law. •Rules for gathering evidence•Rules for a lawful arrest•Predictability•Fairness/equitability

• Procedural law helps ensure that all citizens are treated fairly and that neither the police nor the courts act arbitrarily.

Public law regulates the relationship between the government and its citizens. 1.Constitutional law2.Administrative Law 3.Criminal Law

•Constitution law comes from the Constitution, a document that determined the structure of government and divides law making between the federal government and the provinces.• Constitutional law also sets out certain basic laws, principles, and standards to which all other laws must adhere. • Constitutional law overrides statute law and common law, which means that if a law is found to be in violation of a constitutional law, the courts may strike it down on the grounds that it is “unconstitutional.”

Public Law

Canadians are probably more affected by administrative law than any other branch of law. Victims of violent crimes seeking reparation for injuries or expenses, injured workers seeking compensation, and people concerned about a subdivision being built near a conservation area all find themselves involved in administrative law.

Criminal law attracts the most media attention. Criminal law prohibits and punishes behaviour that causes harm to others such as murder, robbery, or assault. All crimes are described in the Criminal Code of Canada and only the federal government has the authority to pass criminal legislation.

Public Law

Private law, more commonly known as civil law, covers all the areas of law that deal with legal relationships between individuals and between individuals and organizations (excluding the government).

The main purpose of private law is to regulate conduct and compensate individuals who have been harmed by the wrongful actions of others. .

Private Law (Civil Law)

Categories of Private Law

Tort Law• Compensation for injury or harm caused by someone’s deliberate or negligent actions• (duty of care, standard of care, care taken)

Categories of Private Law

Contract Law• Purchasing goods or services•Whether or not a legal contract is signed – often it is implied

Categories of Private Law

Family Law•Marriage•Divorce•Division of property•Custody of children•Visitation•Alimony•Child support

Categories of Private Law

Wills and Estates•Division of property after death• Legal challenges to wills•Division of property if someone dies without a will (probate)

Categories of Private Law

Property Law• Rights relating to property ownership•Real estate

Categories of Private Law

Employment Law• Relationships between employers and employees• Legal age to be permitted to work•Number of hours of work•Minimum wage•Hiring/firing•Discrimination•Harassment• Safety• unions