secondary sources of law. secondary sources laws and reported cases that have been written down by...

SECONDARY SOURCES OF LAW

Secondary Sources• Laws and reported cases that have been written down by

various types of law makers

• Enshrine society’s values, beliefs, and principles in written laws and regulations

• Lawmakers in Canada consist of two types of people: • Elected officials: MPs, MPPs, MLAs, MNAs• Judges who render legal; decisions

CONSTITUTIONAL LAW

(Ex: Canadian Charter of Rights and Freedoms)

STATUTES OR ACTS

(Ex: Criminal Code)

CASE OR COMMON LAW

(Ex: R. v. Big M. Drug Mart)

The Constitution• Statute must be revised if in conflict with what the

constitution says

• The constitution includes the Charter of Rights and Freedoms

• Statute law takes precedence over judicial decisions except when the statute is unconstitutional

The Canada Act 1982• Outlines the distribution of government powers and sets out certain

legal principles

• It is actually a collection of documents, the first being the BNA Act 1867

“a Constitution similar in Principle to that of the United Kingdom”

Judicial Independence: Judges act independently

Parliamentary Supremacy: representative body of the Canadian people has the supreme power to make laws in Canada

Wait…read those two again…

Statute Law• Any law passed by the federal or provincial government

• Royal Assent after three readings

• Legislative authority in various areas was divided between the federal and provincial governments by the 1867 BNA Act

• Ex: Sec. 91 Federal jurisdiction over defence and criminal law

• Sec. 92 Provincial jurisdiction over hospitals, property rights and education

• Therefore two more principles must be abided by:

Ultra Vires- outside of a governments’ powers

Intra Vires- inside of a governments’ powers

The federal government enacts a law that stipulates within every provincial education system there must be a course in senior grades to learn basic economics

Interpretation• Judges often have to interpret laws through cases that are

referred to them

• They are not passing laws simply trying to interpret the meaning behind a law

• Therefore any of the new assisted suicide laws will likely have to be interpreted through various cases that will inevitably occur.

Case Law• Judges render a written decision or explanation of their

ruling

• R. v. Lavallee- no law was created but a case created a law through the decision of the SCC- battered woman syndrome must be included as a form of defence

• To prepare a court case lawyers and judges will look back to all recoded cases that are relevant to the case in front of them

• Stare Decisis- precedent must be considered

Case Law• Organized through citations

• Starson v. Swayze (2003) 225 DLR (4th) 385 (SCC)

• R. v. Tessling (2003-01-27) ONCA C36111