Legal System Flashcards
Sources of law (5)
Law is made by (2)
Constitution Statutes Federal/provincial regulations Decisions by judges in court cases International law
Courts (common/case law)
Legislature (statute law)
Common law v.s. statutes
Common law = rules laid down by courts on decisions from specific cases, are reactive
Statutes = broad rules passed by legislature, better to accomodate/predict change
Procedural law v.s. substantive law
Procedural law = laws dictating how rights can be enforced (e.g. pre-trial procedures, rules of evidence), can be applied retrospectively
Substantive law = what rights people have
Public law v.s. private/civil law
Public law = matters that affect society, dealing with powers of the levels of government
Civil law = relationships between individuals
Division of law making powers
Parliament: national issues (e.g. interprovincial trade, national defense, criminal law)
Provinces: education, property, civil rights, etc.
Municipalities: zoning, smoking, parking, construction permits, etc.
Some Aboriginal bands self govern and can negotiate with federal government
Quebec Act 1744
Made Canada into bijural country
Common law is used for public law cases in Quebec and rest of Canada
Civil law is used for private law matters in Quebec, whereas common law is used for private law matters in rest of Canada
Supreme Court of Canada
Highest court in Canada, hears appeals from other courts
Where constitutional questions may be referred to
Its decisions are binding on all other courts, is not bound by decisions of other courts but may reference court decisions of other Commonwealth countries
Philips v. Ford Motor Co. of Canada
Case where judge took on role of inquisitor instead of neutral arbiter when he ordered testing for evidence
Shows difference between adversarial system (our system) in which case is decided by which side advocates better for their client, and inquisitorial system (commonly used in civil law cases)
Statutory interpretation
Guidelines to interpreting the law
E.g. is a mushroom a vegetable? Yes, in context of minimum wage standards legislation
Guideline as to how laws should be interpreted: First determine the meaning of statutory terms, then determine applicability of statutory terms
Mischief rule of statutory construction
Statutes should be interpreted according to their purpose (little basis on actual words)
Is difficult when legislature and judiciary are separated, is not really applicable today
Literal/strict rule of statutory construction
Statutes should be interpreted using literal meaning without regard to their purpose
Evolved as opposition to mischief rule
No extrinsic records are to be used in interpretation
If statutes had no plain meaning, judges considered themselves helpless to deliver a verdict
Usually produced unfair or even absurd results
Golden rule of statutory construction
Allows deviations from literal rule because literal rule let to absurdity
Response to literal rule
Permits modifications/exceptions to literal rule only in cases of logical absurdity
Must differentiate between objective and subjective absurdities
Increased element of uncertainty, fell into misuse
Modern rule of interpretation
Balance of ordinary meaning, context and purpose
Both letter and spirit of the law are considered
Combination of 3 historical rules
Weight given to each aspect is up to the judge to decide, even Supreme Court has revised their statements on which one to favour throughout history
Stare decisis
Justification for it
When it applies
Court is required to follow decisions of superior courts in its jurisdiction
When a court has applied a legal rule to a set of facts, that rule should apply whenever the same facts are present in court
When a court adjudicates a dispute, its decision becomes a precedent and part of common law
Justification: Treating like cases alike creates certainty in the law, and allows potential disputes to be resolved based on assessment of the probably result of litigation
Applies when the current case deals with the same issue and there are no new material facts
Ratio decidendi
Obiter dicta
Ratio decidendi = principle of law upon which the case was decided (binding)
obiter dicta = statements of the judge that are not part of the ratio (merely persuasive)
Ratio of a case is only as wide as a subsequent court accepts it to be
