mod 1 - Intro To The Legal System

Question 1

Two major sources of law

Answer 1

1. Law made by courts (common law/case law)

2. Law made by legislators (statute law)

Question 2

Statute

Answer 2

• A written law of a legislative body (Act of Parliament)
• laws may may be passed by both federal and provincial legislatures
• before it becomes a statute, an act proceeds through the legislator in the form of a bill
• broad and diverse
• can be enacted in anticipation of future events
• does not rely on past decisions for its legitimacy; entirely new laws can be put in place and existing ones amended as circumstances dictate
• ex. The criminal code and the income tax act were entirely created by statute

Question 3

Common law

Answer 3

• deals with changing or social or legal conditions only as they emerge in actual disputes; it cannot anticipate them
• Case by case basis
• based on the principle of stare decisis, the idea that like cases should be decided alike

Question 4

Regulations (subordinate legislation)

Answer 4

• Most acts passed by legislators provide only a general framework. Filling the details is the responsibility of the cabinet the the more detailed laws enacted by the cabinet are called delegated legislation or regulations
• passed by governor-in-council
• ability to enact a wide variety of laws with little or no public debate
• example: Ontario employment standards act

Question 5

Procedural law

Answer 5

• generally deals with court, pre-trial procedure and rules of evidence
• only procedural laws can be applied retrospectively, this means with consideration of past events

Question 6

Substantive law

Answer 6

• deals with the rights of individuals
• ex. In a criminal prosecution the law relating to how a criminal charge can be worded is procedural law, while the law relating to the parameters of self-defence is substantive law

Question 7

Public law

Answer 7

• is concerned with matters that affect society as a whole
• it includes criminal, constitutional and administrative law
• it sets the rules for the relationship between individual and society or for the roles of different governments
• ex. If someone breaks a criminal law, it is regarded as a wrong against society as a whole

Question 8

Private law

Answer 8

• also called “civil law”, deals with the relationship between individuals
• civil law sets the rules for contracts, property ownership, the rights and obligations of family members, and damage to someone or their property caused by others
• case between private parties (ex. Someone is suing another person)

Question 9

Federal Parliament

Answer 9

• Parliament can make laws for all of Canada, but only about matters assigned to it by the constitution
• usually deals with issues concerning Canada as a whole, such as trade between provinces, national defense, criminal law, money, patents and the Postal Service
• it is responsible for the Yukon, the Northwest territories and Nunavut

Question 10

Provincial legislators

Answer 10

• have authority to make laws concerning education, property, civil rights, administration of justice, hospitals, municipalities and other matters of local or private nature within the provinces

Question 11

Municipal councils (i.e. Toronto)

Answer 11

• laws only apply within municipality
• authorized to make laws only respecting matters assigned by provincial government
• includes local matters, such as zoning, smoking, pesticide use, parking, business regulations, and construction permits

Question 12

Aboriginal governments

Answer 12

• have their own governments, ex. powers over reserve lands under the Indian Act

Question 13

Civil law vs. Common law

Answer 13

• civil law can also refer to private law system operating in Quebec based on civil code
• common law = whole body of decisions rendered by courts in particular matters (private and public)
  ^ applies to private matters outside Quebec
  ^ applies to public law matter everywhere across the country
• unlike common law courts, courts in a civil law system first look to the code (Civil Code), and then refer to previous decisions for consistency

Question 14

Two meanings of civil law

Answer 14

1. sometimes the term is used in contrast to common law to refer to the legal system that is based on a civil code, such as the civil code of Quebec
2. in another sense, civil law refers to matters of private law as opposed to public law, and particularly criminal law, which is concerned with harm to society at large

Question 15

The Quebec Act of 1744

Answer 15

• made Canada a “bijural” country, one with two types of law
• The Quebec act stated that common law was to be applied outside Quebec in matters of private law, while similar matters in Quebec were to be dealt with under civil code law
• for public law, on the other hand, the common law was to be used in an outside Quebec

Question 16

Judges

Answer 16

• not elected, but appointed
• whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases
• The common law is unique because it cannot be found in any code or body of legislation, but exists only in past decisions (however, flexible and changing)

Question 17

The court system

Answer 17

• hierarchical system in which decisions made in higher courts are binding on lower courts
• court cases almost always start in lower trial courts, and, if appealed, move up to the higher courts
• lower courts are assigned original jurisdiction over different matters
• different courts fulfill different functions
• the doctrine of stare decisis requires lower courts to follow the decisions of higher courts in the same jurisdiction

Question 18

The adversarial system - Philips v. Ford Motor Co. of Canada

Answer 18

• a legal system used in common law countries where two advocates represent their parties’ case before an impartial person, usually a jury or judge who attempts to determine the truth
• “our mode of trial procedure is based upon the adversary system in which the contestants seek to establish the role supporting evidence, before an impartial trier of facts, those events or happenings which form the bases of their allegations
• Not a scientific inquiry; it is for the purpose of providing justice for the litigants
• decision to be based on evidence adduced by parties, who are presumed to be best able to advance their case
• judge is to be neutral arbiter
• distinguished from inquisitorial system

Question 19

How to read a case

Answer 19

Smith v. Jones
- smith = plaintiff, person who is suing
- Jones = defendant, person who is being sued
- v. = and
R v. Jones
- R = the Crown, all criminal cases are launched in the name of the Queen

Question 20

Interpreting the law

Answer 20

• Legislation necessity couched in general language, since it is meant to apply to broad classes of person events
• The process of statutory construction has two distinct aspects: interpretation, where the meaning of the words of the statue is determined, and application, where the meaning is applied to the facts of specific cases

Question 21

Statutory interpretation

Answer 21

• Best viewed as a process that requires the exercise of judgement and balancing the ordinary meaning of words, the context of the entire statute and the purpose of the statute
• there is no set formula for determinating legislative meaning
• Rules of statutory interpretation are better understood as guidelines
• courts also rely on canons of interpretation which gives clues as to how problems of statutory meanings have been resolved in the past (canons are known as rules of statutory interpretation)

Question 22

Three major rules of construction

Answer 22

1. The mischief rule, whereby statutes were constructed according to their object, with relatively little importance attached to the actual words used
2. The literal or strict rule, under which statutes were constructed by a literal reading of the text, without regard to the purpose of the legislation
3. The golden rule, which allowed deviations from literal construction where such construction lead to an absurdity
   - have now all been absorbed by the Modern Rule of Interpretation

Question 23

The mischief rule

Answer 23

• heydon’s case
• the actual wording of the legislation was a relatively little importance
• Judicial lawmaking was accepted, and indeed required, if it furthered the object of the statue
• assumes that the object of a statute is not in doubt and that the intention of the legislature in framing it is clear, so that all remains for judges to do is make sure the object is achieved
• importance of the mischief rule today lies in its insistence that legislation does, or should, have a purpose that the courts must keep in mind when construing statutes

Question 24

Literal or strict construction

Answer 24

• requires that the words of the statue themselves, and nothing else, are used in determining the meaning of the statute
• words are to be given their plain, ordinary, or grammatical meaning (statute meant exactly what it said)

Question 25

The golden rule

Answer 25

• came in response to the literal rule
• it accepts that the ordinary and grammatical sense of words is to be adhered to, except in cases were doing so would lead to an absurdity
• It permits the modification of the words of the statue in order to prevent absurdities (absurd = deficient in logic and not simply offensive)

Question 26

The modern rule of interpretation

Answer 26

• summarized in E.A. Driedger, the construction of statutes
• The words of an act are to be read and their entire context in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act and the intention of parliament
• this rule was adopted by the Supreme Court of Canada in Stubart investments
• There are three essential elements: the ordinary meaning of the words, the context and the purpose of the Act

Question 27

The principle of stare decisis

Answer 27

• stare decisis means to stand by decisions and not to disturb settled matters
• treating like cases alike creates certainty in the law and reaching the same results when faced with similar sets of facts is essential to fairness, thereby increasing respect for the law
• decisions of lower courts can be persuasive, but nonetheless non-binding
• does not mean that every decision sets a precedent that other courts must follow
• a court is only bound to follow the decisions of those courts that are higher in the same judicial hierarchy
• only the ratio is binding; dicta are merely persuasive

Question 28

The ratio decidendi

Answer 28

• “the reason for deciding”
• The principle of law or legal grounds upon which the case was decided
• it is the ratio decideni of a case, and only the ratio, that can constitute a binding precedent
• statements of the judge that are not part of the ratio are obiter dicta

Question 29

Obiter dicta

Answer 29

• “things said by the way”
• “dicta” is shortened term
• unlike the ratio, obiter dicta are not binding on lower courts

Question 30

Obiter example

Answer 30

Zamparo v. Brisson (ONCA): “this is sufficient to dispose of the appeal. However, since my colleague has gone on to support the learned trial judge on the alternate ground on which he found Dr. Brisson liable for the plaintiffs injury, I feel impelled to make a few brief observations on that issue also”
- everything that follows is obiter

Question 31

Persuasive authority

Answer 31

• does not mean convincing, rather a persuasive authority is one that can be used to convince
• greater weight is generally given to: a decision of a higher court, a decision in which the court was unanimous, a series of cases standing for a single proposition, a decision of a well respected judge or court, an older decision which is considered a founding case B one which established a rule of law that still applies; and a decision that was reserved for consideration, rather than delivered orally
• lesser weight is generally given to: A decision containing a dissent, particularly if the dissent is strong or there is more than one to dissenting judge, a decision in which the judges agree on the outcome, but not the reasons, an older decision in a quickly changing area of law, an older decision recorded by an unreliable reporter, and a decision in which the court failed to take note of a relevant case or statute, which is often called a decision made per incuriam

Question 32

R v. Hummel

Answer 32

• The crown appeals on two grounds. first, the Crown submits that Judge Perkins erred in not following a binding decision of a higher court directly on point, therefore contravening the doctrine of stare decisis

Question 33

The process of distinguishing

Answer 33

• generally, a court is only bound to follow precedent if it is “directly on point”. This means that the case being heard deals with the same issues as the precedent case
• facts must be very similar to those in the precedents case, with no new material facts that would alter a court’s reasoning
• to distinguish a persuasive or binding decision, a judge will examine the material facts about the case being heard and the case urged as precedent. If the material facts of the precedent case differ from facts of the case being heard, the judge may be able to avoid following the precedent case

Question 34

R v. Ancio

Answer 34

• this appeal involves consideration of the mental element required for proof of the crime of attempted murder, the subject of this Court’s earlier judgement in lajoie…for these reasons, it is my view that lajoie should no longer be followed

Question 35

R v. Mara

Answer 35

• the central points distinguishing the present case from tremblay are the physical contact between patron and dancer that occurred here, but was prohibited in tremblay, and the public nature of the activity in the present case; here the activity took place in an open tavern, while in Tremblay the acts took place in a private room
• similar cases but factual differences, therefore different conclusion (Tremblay, lap dance was not indecent of the law and in Mara is was indecent)