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