Sources and Principles of Canadian Law

Question 1

What is Common Law

Answer 1

It is an English invention
It is judge made law
It is developed through the common law courts
Judges give individual opinions and dissenting opinions are permitted

Question 2

What is Civil Law

Answer 2

It arises out of the Roman Law of Justinian Corpus Juris Civilis
Quebec is a civil jurisdiction
Based on established law and generally written as broad legal principles
Also includes doctrinal writing and interpretations written by learned scholars

Question 3

Grimard v The Queen [2009] FCA (Federal Court of Appeal) 47

Answer 3

The court held that both the common law and civil law are authoritative in Canada
When determining which law to look at, reference must be made to the concepts in force in the province at the time

Question 4

Reception of European Law in Canada

Answer 4

As soon as colonial land became the subject of settlement and commerce, all transactions in relation to it were governed by English law
Once a decision was made by either the Privy Council or the House of Lords on a common law principle, all common law jurisdictions, at least in the formative years, would accept the decision as binding

Question 5

What is a mixed law jurisdiction

Answer 5

It contains both common law and civil law
Canada is a mixed law jurisdiction
Also known as Bijuralism

Question 6

What type of law does Quebec practice

Answer 6

Quebec’s legislative, judicial, and executive and administrative institutions and processes belong to English tradition, meanwhile many of their private laws are civilian based

Question 7

What does stare decisis mean

Answer 7

It is a reliance on past cases
“Let the decision stand”

Question 8

What is precedent

Answer 8

A decision in a prior case that must be followed in like cases

Question 9

What are the current rules on precedent

Answer 9

1. All Canadian courts, except the Supreme Court of Canada are bound to follow a precedent of the Supreme Court of Canada and any pre 1949 decision of the privy council that has not yet been overruled by the Supreme Court (a minority opinion of the Supreme Court is not binding)
2. Provincial courts of appeal are not bound to follow a decision of the appellate court of another province
3. Provincial courts of appeal will generally be bound by their own prior decisions
4. Provincial courts lower than the highest appellate court are bound to follow a decision of the provinces appellate court
5. Provincial courts at any level are not bound by the decision of the appellate courts of other provinces by decisions of the Federal Court of Appeal
6. A decision of a court of coordinate jurisdiction are not biding, however, are highly persuasive

Question 10

Define Ratio Decidendi

Answer 10

“reason of deciding”
This i said to constitute the binding rule for purposes of precedent

Question 11

Define Obiter Dicta

Answer 11

Parts of the decision that are not binding (non-essential parts)

Question 12

What are the two points of view in which every case must be looked at

Answer 12

1. that of the narrowest rule that a subsequent unkind court will concede that has been laid down
2. the widest rule that a later friendly court could use to support a more novel position

Question 13

How can you overrule a precedent

Answer 13

There must be good grounds and those good grounds must be legally recognised
Legal principles may also help a judge depart from precedent (rule of law, legislative supremacy)

Question 14

What are legal principles

Answer 14

Standards which must be respected for reasons of justice, fairness or morality

Question 15

What are presumptions

Answer 15

They resemble rebuttable rules that provide predetermined outcomes to disputes
They relax the burden of proof that would otherwise be imposed

Question 16

R v Sullivan 2022 SCC 19

Answer 16

The court held that a declaration of invalidity by a superior court is not binding on superior courts of other provinces but are persuasive

Question 17

When does Horizontal stare decisis apply

Answer 17

It applies to courts of coordinate jurisdiction within a province and applied to a ruling of constitutionality of legislation

Question 18

When should a judge disregard the decision of another judge of the same court

Answer 18

R v Sullivan 2022 SCC 19
1. When subsequence decisions have affected the validity of the impugned judgment
2. When it is demonstrated that some binding authority in case law or some relevant statute was not considered
3. When the judgement was considered a nisi prius judgement given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority

Question 19

What is the importance of Vavilov

Answer 19

The court held that there is a rebuttable presumption of reasonableness as the standard of review - used to balance legal principles against presumptions

Question 20

What are the two categories of presumptions

Answer 20

1. Presumptions with basic facts: require or permit inferences to be drawn upon the proof of certain facts
2. Presumptions without basic facts: rules of substantive law in relation to the burden of proof-most judicially created presumptions are these

Question 21

What are the different standards of review

Answer 21

Reasonableness and Correctness

Question 22

What is the correctness standard of review used

Answer 22

On pure questions of law

Question 23

When should findings of fact be reversed

Answer 23

They should not be reversed unless it can be established that the trial judge made a ‘palpable and overriding error’

Question 24

What is the basic rule regarding the review of pure questions of law

Answer 24

An appellate court is free to replace the opinion of the trial judge with its own - the review is one of correctness

Question 25

What are the bases for deferring to the findings of fact of the trial judge

Answer 25

1. Limiting the number, length and cost of appeals
2. Promoting the autonomy and integrity of trial proceedings
3. Recognising the expertise of the trial judge and his or her advantageous position

Question 26

What is equity

Answer 26

The body of law developed by the Court of Chancery

Question 27

What was the original function of Equity

Answer 27

To provide a corrective to the perceived harshness of the common law

Question 28

What were some matters falling within the jurisdiction of the Chancery Courts

Answer 28

Property, Contracts, procedure, Guardianship, Commercial matters

Question 29

What are some equitable claims and remedies

Answer 29

Fiduciary duty, Trust, Undue influence, specific performance and Injunction

Question 30

KLB v British Columbia 2003 SCC 51

Answer 30

Notes four grounds for government liability in regards to foster care:
1. Direct negligence by the government
2. Vicarious liability of the government for tortious conduct of the foster parents
3. Breach of non-delegable duty of the government
4. Breach of fiduciary duty of the government (EQUITY)

Question 31

What is the basic principle of common law interpretation

Answer 31

A statutory rule will supersede a judge made rule

Question 32

What is domestic law

Answer 32

Law that exists as legislation enacted by the legislature or made as regulations by the executive
Comes in the form of common law

Question 33

What is the difference between written and unwritten constitutional law

Answer 33

Written constitutional law: entrenched legislation - need special procedure to amend
Unwritten constitutional law: product of judicial decision making - also cannot be amended without special procedure

Question 34

What are two main sources of international law

Answer 34

Treaties and “customary international law”

Question 35

What are treaties

Answer 35

Law-making contracts between the states
Treaty between two states - bilateral
Treaty between a larger number of states - unilateral

Question 36

What are other names for treaties

Answer 36

Convention, covenant, protocol and agreement

Question 37

What is customary international law

Answer 37

Law that binds all states except those that have been sufficiently persistent in rejecting it prior to its emergence as a binding norm

Question 38

What are the five steps to the treaty-making process

Answer 38

1. negotiations
2. Signature
3. Ratification
4. Implementation
5. Coming into force

Question 39

Who is responsible for negotiating international treaties on behalf of Canada

Answer 39

The Department of Foreign Affairs, Trade and Development Act states that the Minister of Foreign Affairs is responsible for this

Question 40

Who can be involved in the negotiations in the treaty making process

Answer 40

Ministers, deputy ministers, diplomatic representatives or other negotiators

Question 41

What occurs once treaty negotiators have agreed on terms

Answer 41

The lead department working with Global Affairs Canada, requests Cabinet approval, submitting an explanatory memorandum to Cabinet setting out the details of the agreement

Question 42

What is involved in the ratification step of the treaty making process

Answer 42

Once a treaty is signed, a document is prepared establishing that the formalities for the coming into force and implementation of the treaty has been completed and Canada agrees to be bound by it
Ratification is wholly controlled by the executive branch

Question 43

When can Canada ratify an international treaty

Answer 43

Only when measures are in place to ensure that the terms of the treaty are enforceable in Canadian law

Question 44

What occurs when provincial or territorial legislation is implicated in the treaty making process

Answer 44

As a matter of policy, the executive branch does not ratify the treaty until all Canadian jurisdictions have indicated that they support ratification

Question 45

“Canada is a dualist jurisdiction” explain

Answer 45

This means that a treaty has no direct effect in domestic law until domestic legislation is passed to “transform” or “implement” it into Canadian law

Question 46

What is the dualist dilemma

Answer 46

The fact that there may be potential conflict between international law and domestic law

Question 47

What happens when a rule becomes recognised as customary law

Answer 47

It automatically becomes part of Canadian common law
Customary law can be displaced by statute

Question 48

Nevesum resources Ltd v Araya [2020] 1 SCR 166

Answer 48

The court held that customary international law is part of Canadian domestic law

Question 49

Define Comity

Answer 49

Comity means that when one state looks to another for help in criminal matters, it must respect the way in which the other state chooses to provide the assistance within its border

Question 50

Does the Canadian Charter apply extraterritorially

Answer 50

Section 32 of the Charter does not expressly impose any territorial limits on the application of the Charter, it falls upon the courts to determine this
The principle of sovereign equality is important here - respect for the sovereignty of foreign states

Question 51

What are the two main documents of Canada’s written constitution

Answer 51

The Constitution Act 1867 and the Constitution Act 1982

Question 52

What Canadian act encompasses the charter

Answer 52

Constitution Act 1982

Question 53

Two principle sources of unwritten constitutional norms recognised by the Supreme Court

Answer 53

Constitutional conventions and unwritten principles of the constitution

Question 54

Three ways in which Conventions come into existence

Answer 54

1. A practice or agreement developed by political actors
2. A recognition by political actors that they are bound to follow the convention
3. The existence of a normative reason for the convention

Question 55

Main problem with the use of conventions

Answer 55

They are not considered law and as such cannot be enforced by the courts

Question 56

What is the main purpose of conventions

Answer 56

Resolution to Amend the Constitution [1981] 1 SCR 753
To ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period

Question 57

Four main unwritten principles of the constitution

Answer 57

1. Federalism
2. Democracy
3. Constitutionalism and the rule of law
4. Protection of minority rights

Question 58

Are unwritten principles legally binding

Answer 58

yes

Question 59

How did the court in Reference re Secession of Quebec [1998] 2 SCR 217, describe the unwritten principles of the constitution

Answer 59

Federalism: political and legal response to underlying social and political realities
Democracy: political system of majority rules (s 3 Charter guaranteeing the right to vote)
Constitutionalism and the rule of law: law is supreme over the acts of both government and private persons
Protection of Minorities: key considerations motivating the enactment

Question 60

What is the Rule of law

Answer 60

All exercises of legitimate public power must have a source in law and every state actor is subject to constrain of the law

Question 61

What are the two things the rule of law means according to the court in Re Manitoba Language Rights [1985] 1 SCR 721

Answer 61

1. the law is supreme over officials of the government as well as private individuals and thereby preclusive of the influence of arbitrary power
2. the rule of law requires the creation and maintenance of an actual order of positive law which preserves and embodies the more general principles of normative order

Question 62

What are the three principles of the rule of law according to the court in British Columbia v Imperial Tobacco Canada Ltd 2005 SCC 49

Answer 62

1. The law is supreme over officials of the government as well as private individuals
2. Requires the creation and maintenance of an actual order of positive law
3. The relationship between the state and the individual shall be regulated by law

Question 63

What does Constitutional Supremacy mean

Answer 63

The constitution is the supreme law of the society and any ordinary law that is inconsistent with the constitution is of no force or effect
Constitutional law overrides ordinary law where the two conflict
Implies that the constitution cannot be amended in the same way as ordinary legislation is enacted

Question 64

What must be involved in the process for amending the constitution

Answer 64

A super-majority

Question 65

What does Parliamentary sovereignty mean

Answer 65

Subject to the constitution, the legislative branch of the state is the holder of all legitimate public power and may enact any ordinary statute law and (generally) delegate any of its power as it deems fit

Question 66

How has Canada transformed to a system of constitutional supremacy over parliamentary supremacy

Answer 66

The supreme court noted in Quebec Secession Reference that with the adoption of the Charter the Canadian government was transformed to a significant extent from a system of parliamentary supremacy to one of constitutional supremacy

Question 67

Babcock v Canada (AG) 2002 SCC 57

Answer 67

The court held that the unwritten principles must be balanced against the principle of parliamentary sovereignty

Question 68

Define the notion of Federalism

Answer 68

Parliamentary supremacy in Canada is subject to the division of law - making powers of jurisdiction between a national parliament and legislatures of the provinces, as set out in the constitution

Question 69

What are matters that are within federal jurisdiction

Answer 69

Criminal law in s 91(27)
Trade and commerce in s 91(2)
Banking in s 91(15)

Question 70

What are matters that are within provincial jurisdiction

Answer 70

Hospitals (other than marine hospitals) in s 92(7)
Municipalities in s 92(8)
The most important provincial jurisdiction is that over property and civil rights in s 92(13)

Question 71

What three institutional branches are public power exercised through and what are their functions

Answer 71

The legislature - the making of law
The executive - the implementing of law
The judiciary - interpreting and applying the law

Question 72

What are two principle purpose of the separation of powers

Answer 72

1. A functional purpose of identifying the institutional homes of each of the three major forms of public power
2. A normative purpose of providing general boundaries for the operation of each institution

Question 73

How does the executive branch derive its power

Answer 73

Solely from laws or statutes passed by the legislature
Therefore the executive branch is subordinate to the legislature

Question 74

How does the court in Ontario v Criminal Lawyers’ Association of Ontario 2013 SCC 43 describe the roles of the three branches

Answer 74

1. The legislative branch makes policy choices, adopts laws and holds the purse strings of government, as only it can authorise the spending of public funds
2. The executive implements and administers those policy choices and laws with the assistance of a professional public service
3. The judiciary maintains the rule of law by interpreting and applying these laws through the independent and impartial adjudication of reference and disputes, and protects the fundamental liberties and freedoms guaranteed under the charter

Question 75

What is the importance of judicial independence

Answer 75

The judicial branch of the state must have a sufficient degree of institutional independence from the legislative and executive branches of the state in order to perform its constitutional function

Question 76

What section of the Constitution Act 1867 contains provisions on the judicature

Answer 76

sections 96-101

Question 77

Two recognised ways in which constitutional evolution occurs in Canada

Answer 77

1. Involves an approach to interpretation that permits the judiciary to read constitutional text in light of changes in society and contemporary uses of language
2. Sometimes called the “living tree” approach - the text of the Constitution is not frozen in meaning

Question 78

What are the five different constitutional amending formulas

Answer 78

1. Agreement of parliament and the legislatures of at least two-thirds of the provinces having at least 50 percent of the population of Canada (s 38)
2. Unanimity of parliament and all provincial legislatures (s 41)
3. Parliament and the legislatures of just those provinces affected by an amendment (s 43)
4. Parliament alone, with respect to its own institutions (s 44)
5. A provincial legislature alone, with respect to the provincial constitution (s 45)

Question 79

Describe s 96 of the Constitution Act 1867

Answer 79

It gives effect to the compromise reached at Confederation yb protecting the special status of the superior courts of general jurisdiction as the cornerstone of our unitary justice system

Question 80

Factors to consider when determining whether the legislature has created a prohibited parallel court with the superior court

Answer 80

• the scope of the jurisdiction being granted
• whether the grant is exclusive or concurrent
• the monetary limits to which it is subject
• Whether there are mechanisms for appealing decisions rendered in the exercise of the jurisdiction
• The impact on the caseload of the superior court of general jurisdiction
• Whether there is an important societal objective
  ( monetary value is not determinative only a relevant factor)

Question 81

What is the three step residential tenancies test

Answer 81

A test to determine whether a grant of jurisdiction is constitutionally infirm
1. Does the transferred jurisdiction conform to a jurisdiction that was dominated by superior, district or county courts at the time of Confederation
2. if so, was the jurisdiction in question exercised in the context of a judicial function
3. If the first two questions are answered in the affirmative, is the jurisdiction either subsidiary or ancillary to the administrative function or necessarily incidental to the achievement of a broader policy goal of the legislature

Question 82

What is the core jurisdiction test

Answer 82

When the core jurisdiction of the Superior Courts is affected, the court must ask whether the legislation has the effect of removing any of the attributes of the superior courts’ core jurisdiction
The core jurisdiction test prevents the legislature from transferring to other courts the features that are essential to the role of the superior courts as the centrepiece of the unitary justice system and the primary guardians of the rule of law