Public Law I: September 16, 2005. Basic concepts regarding the Canadian Legal System The Canadian court structure
Written constitution (s. 52(1) of CA, 1982
statute law (laws created by legislatures)
case law (created by judges)
Other (informal) sources that inspired both statute and case law: Ten Commandments, Magna Carta (1297), Roman law, canon law, writings of legal scholars (eg. Coke 1552–1634, and Blackstone 1723-1780), community standards (eg. obscenity cases), Hogg's text, constitutional conventions
ratio decidendi and obiter dicta
common = general
common law judges "find" the law
Parliamentary Sovereignty or Legislative Supremacy (same).
Separation of powers
Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone
Crown prerogative: residue of discretionary power. Crown privilege: the claim that the crown my decide not to present documents ordered by judges, H of C or Senate.Sources of Law
NB & NS: 1758
Quebec: 1759: French civil law. 1763: English public law
Man, Alta., Sask: 1870.
Federal gov't: date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont. 1792.
“Imperial” statutes (Br laws applying to whole empire) remained in force until Statute of Westminster, 1931.
Development of common law courts (king’s bench, common pleas) and courts of equity (remedies other than damages or punishment – writs, injunctions). Merged in 1880s.
Preamble to BNA Act: implied Bill of Rights
Barristers and Solicitors
Judicial Committee of the Privy Council (JCPC); 1949.
England: specialized appeal j's; Canada: generalist appeal j's.British Legal Tradition