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SECONDARY SOURCES OF LAW
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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
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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)
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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
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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…
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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
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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
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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.
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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
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Case Law• Organized through citations
• Starson v. Swayze (2003) 225 DLR (4th) 385 (SCC)
• R. v. Tessling (2003-01-27) ONCA C36111