Law governs the relationship of society's individual members to each other and to society as a whole. Every human society has a legal system, because every society must attempt to resolve the basic conflict between the needs of the individual and those of the community.
Law governs the relationship of society's individual members to each other and to society as a whole. Every human society has a legal system, because every society must attempt to resolve the basic conflict between the needs of the individual and those of the community. Law is not synonymous with justice, although it has been described as "part of Western man's dream of a life governed by reason."
Canada has inherited 2 of the world's basic law systems: common law (in the 9 provinces and the territories) and civil law (in Québec). Common law, which originated in England, is unenacted law, as opposed to statutes and ordinances. In theory it is traditional law - that which has always been and still is law, if it has not been overridden by legislation. Civil law, however, is based on ancient Roman law, which, together with laws derived from French custom and legislation, was codified by Napoleon. Most of continental Europe, Scotland, Central and South America, parts of Asia (Taiwan, for example), some of the West Indies and much of Africa now use the civil law system. The phrase "common law" has different meanings in different contexts. Sometimes it refers to a whole legal system (in contrast with "civil law" systems). Sometimes it refers to judge-made law, as opposed to statute. Sometimes it is contrasted with equity, discussed below, and sometimes with criminal law.
New France was the first region of Canada to adopt a system based on European law. In 1664 Louis XIV of France ordained that French law existing in the area surrounding Paris was to apply in the colony. This body of law was supplemented by portions of French law as it developed in France during the 18th century and by the laws and regulations developed by the colonial authorities.
In 1763 the SOVEREIGNTY of the territory now identified as Canada was transferred from the French to the English Crown, and in 1774 the QUEBEC ACT guaranteed the place of French civil law (le droit civil) in Canada alongside English public or constitutional law and English parliamentary institutions. In 1857 the Province of Canada legislated the drafting of a CIVIL CODE and a Code of CIVIL PROCEDURE, major compilations of Québec private law on property and civil rights and the form and style of proceedings before Québec courts. These works were brought into force just prior to Confederation. Today theorists describe the Québec legal system as mixed. The relationships between and transactions among persons subject to Québec law are regulated by both the Civil Code and the Code of Civil Procedure. At the same time, and as a result of legislation passed in Québec since 1763 and later incorporated into the codes, portions of English law have also found their way into Québec private law.
The Civil Code governs the status of individual persons, the law of marriage and relations between married persons, the relations of parents and children, the law of property and the law of contracts and responsibility for civil (noncriminal) wrongs. Today the decisions of French courts and the writings of French legal commentators may be accorded respect when the provisions of French law remain similar to those in force in Québec, but they have no binding authority in Québec law. Law reform in Québec draws its inspiration as much from legal developments in N America and elsewhere as it does from continental Europe.
The other 9 provinces and the territories have adopted English common law. Each jurisdiction has a statute providing that from a certain date the law of England shall be the law of the jurisdiction unless changed by statute, an important qualification. Until 1949 the highest Canadian court was the JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, which sat in London and was composed largely of English judges; English common law developments were incorporated more or less automatically into Canadian common law. Since 1949 English court decisions, though not binding on Canadian courts, have been treated with great respect, though the SUPREME COURT OF CANADA has sometimes rejected English authority. Canadian decisions are quite often cited in English cases and have influenced English law. The American states (except Louisiana) also adopted English common law in the 18th century and, although the links with modern English law are naturally weaker there than in Canada, American common law still retains the style of reasoning and argument found in all countries affected by English law. As Canada adopts more legislation based on American models the influence of American law will increase and is likely to be particularly strong in the interpretation of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS incorporated into the Canadian CONSTITUTION, for part of the Charter's origins can be directly traced to the American Bill of Rights.
Sources of Law
Fundamental Legal Concepts
Divisions of the Law
Justice is an elusive word. To lawyers it incorporates the notions of fairness, rationality and due process. In any disputed case there are always arguments on both sides, and some lawyers would say that often there is no right answer. However, if disputes are determined by fair procedures before an impartial tribunal honestly trying to give rational and consistent reasons for its results, it can be said that justice has been done.
Rule of Law
Rule of law is another elusive phrase with several different meanings. It is a British constitutional doctrine imported into the Canadian constitution through the Preamble of the Constitution Act of 1867, in which the founders of our constitution expressed a desire to establish a constitution "similar in principle to that of the United Kingdom." It describes an ordered society, like the phrase "law and order," but it also describes judicial independence of the executive branch of government. According to this principle, the police must obey the law and actions of government officers must be authorized by statute. The phrase is also used to support the reasons given by courts for their decisions; in rational explanation lies the assurance to the losing party that the decision is not just a whimsical exercise of arbitrary power. Another aspect of the rule of law, often called the principle of legality, is the avoidance of retroactive lawmaking. The courts will lean in favour of construing penal statutes to apply only to conduct arising after a statute comes into force, a principle included in the Canadian Charter of Rights and Freedoms.
The Constitution and Legislation
The Constitution and legislation are the most authoritative sources of law. The Constitution outlines the DISTRIBUTION OF POWERS and the legislative jurisdictions of Parliament and the provincial legislatures. Each is granted the right to enact statutes (and in Québec, codes), which are a major source of law, often referred to as primary legislation. Subordinate legislation is legislation (bylaws, ordinances, orders-in-council, regulations) enacted by an individual or group with the delegated power to do so. The courts, bound to give effect to validly enacted legislation, nevertheless retain important powers. First, in the case of a dispute it is up to the courts and ultimately the Supreme Court to determine whether the legislation is validly enacted.
Disputes frequently arise over whether a provision is within the powers of the legislature that has enacted it. The rules dealing with the respective powers of the legislatures are a very important part of constitutional law. Secondly, the meaning of words is elusive, and disputes over interpretation of legislation must be resolved by the courts. In interpreting legislation the court must always ask itself, expressly or implicitly, what purpose the legislature had in mind and determine what meaning to give to the words used. By saying, for example, that it presumes the legislature does not intend to take away property from citizens without providing compensation and does not intend to take away other rights unless such a purpose is expressly stated, the court interprets legislation to provide some protection to interests it considers important.
The Canadian Charter of Rights and Freedoms, under which individual interests are more directly protected than in the Constitution, was influenced by British and American traditions. According to the former, protection of individual interests is best secured by Parliament itself, and parliamentary Acts bind the courts even if they are contrary to the court's conception of fundamental justice, though much can be done by the courts through interpretation. In the American tradition, by contrast, the courts, on the basis of the Bill of Rights, can strike down legislation contravening fundamental rights. As the language of any such charter of rights is very general, this gives the highest court the last word on many matters of social and political controversy.
A compromise between these views, the Canadian Charter of Rights and Freedoms, was based partly on the American Bill of Rights, but the principle of legislative supremacy was preserved by including a power in any legislature to declare expressly in an Act that the Act or any provision of it shall operate notwithstanding certain provisions of the Charter. This power is, in fact, not frequently used.
The charter was also influenced by the international instruments enacted by the United Nations or on a multilateral basis in the international community, especially over the past half century. An example is the International Covenant on Civil and Political Rights. These international instruments are now being used in Canadian courts in some Charter cases.
The second most important source of law is judicial decisions, known also as case law. In deciding cases judges often record the relevant facts of a case, the issues of law involved and the reasons for the decision. In the common law, prior decisions of higher courts are binding on lower courts in the same jurisdiction, and Supreme Court of Canada decisions are binding on all courts. Judges are not bound by decisions of judges of the same or lower rank within a given jurisdiction or by judges of other jurisdictions. The decisions of these other judges may, nonetheless, have a persuasive effect.
It is now established that the Supreme Court of Canada is not bound by its own decisions. Some provincial courts of appeal consider themselves bound by their own prior decisions. Despite this, the doctrine of binding precedent is much less restrictive than it appears. Only the reason for the decision of the prior court is actually binding, and the subsequent court retains the power to define for itself the true reason. The circumstances of cases are never precisely similar, so it is usually possible for the later judge to find between the prior case and the case before him a factual distinction enabling him to come to a different conclusion. The words used in an earlier case are not construed like statutes but read in the context in which they were spoken.
It is essential for the law to retain such flexibility, for a judge can never foresee the infinite varieties of human conduct that will give rise to subsequent disputes, and it would be unduly rigid to apply the words of an earlier judge to circumstances he could not have foreseen. The development of both common and civil law depends on the creation and refinement of distinctions in cases, and the final decision over whether to apply a rule in an earlier case always rests (subject to appeal) with the court called upon to decide the point in the later case.
Legal reasoning in common law is primarily reasoning by analogy. To avoid arbitrary decisions, like cases must be decided alike (see STARE DECISIS), but there is always room for argument about which facts of a previous case are relevant and which are not. In this system legal reasoning is an attempt to make persuasive arguments for, or to give a rational explanation for, distinctions between cases. This is a never-ending process, as other cases will always arise; as new decisions are made, the principles and exceptions enunciated as part of that case law form the basis of common law.
In Québec civil law - that is, the portions of Québec private law under the Civil Code - judicial decisions are viewed differently, at least in formal theory. In this system the courts will look to the Code to determine a given principle and then apply the principle to the facts of the case. The primary authority for Québec judges is the Code itself; therefore, they are entitled to apply it without being bound by a prior decision, even that of a higher court. In practice, however, great reliance has traditionally been placed on previous judicial decisions (JURISPRUDENCE), as in the common-law tradition and for the same reasons - that it is unwise as a matter of public policy to revive uncertainty about a law once its sense and meaning have been established. Moreover the techniques adopted by Québec judges for making distinctions between cases are similar to those of their counterparts in other provinces. The real status and weight of earlier decisions therefore depend on whether a jurisprudence has been established, and this itself depends upon a judge's interpretation. There is no rule about the number of such cases necessary to establish them as a truly authoritative source of law.
Although it is not as important as statutes or case law, royal prerogative (see PREROGATIVE POWERS) does constitute a source of law. In Canada these powers are vested constitutionally in the Crown, represented by the governor general and the provincial lieutenant-governors. The Crown also has the prerogative to pardon those convicted of crime. Formerly the Crown could not be sued in tort, and some of these restrictions on its liability still survive.
Scholarly writings have sometimes been considered a source of law. In the common law, writings were until quite recently considered of inferior weight, and it was said that writers could not be considered authorities until they were dead. Nevertheless, lawyers could always adopt the argument of a writer as their own. The courts now readily hear and cite arguments of contemporary legal scholars, although these are not true sources of law until the judges adopt them. In Québec, doctrinal writings (la doctrine) of scholars, living or dead, and whether in the form of books, articles or commentaries on individual judicial decisions, have always been freely consulted and cited by legal practitioners and judges, although they are no more a source of law or of binding authority than they are in the tradition of the common law.
Equity, meaning fairness or justice, also describes a special body of rules sometimes considered a source of law. These rules developed in England alongside common law to permit enforcement of legal rights for which common law did not provide appropriate remedies. During the Middle Ages the king retained the power to override decisions of the courts on grounds of equity and began to refer petitions for the exercise of this discretion to the chancellor, who for this purpose established the Court of Chancery. By the 16th century, this court was conducting a large volume of business and, as reasons were given for decisions, an originally unfettered discretion became a body of principles and rules. As a result the English legal system contained the principles of both common law and equity, with 2 sets of courts; if the rules conflicted, equity prevailed because the chancellor's orders were enforced by threat of immediate imprisonment. Ironically, the rules of equity became even more rigid than the common law, so that by the 19th century the Court of Chancery was ridiculed by Charles Dickens. Although in England the 2 courts were united and a similar union has been effected in all Canadian common-law jurisdictions, the principles are not yet fully merged.
In Québec no separate body of rules or courts of equity developed. The legislature, in formulating a provision of law, will attribute a measure of discretion to judges, enabling them to bring into play considerations of fairness and equity, and to respond to changing notions of social justice. This equitable discretion may be more widely framed in areas such as family law than in others, eg, property law.
The law may be conveniently divided into public and private law. The most important branch of the former is CONSTITUTIONAL LAW, which deals with the powers of governments and the division of powers among different levels of government. The second branch is CRIMINAL LAW, which governs the punishment and deterrence of offences regarded as wrongs against society. Criminal conduct often constitutes a civil wrong as well; eg, an assault is a crime for which the assailant can be punished by the state and a civil wrong for which the person assaulted can recover compensation in a civil court. That is, a single activity can give rise to both public law (ie, criminal) and private law (ie, civil) consequences. The distinction is important; because of the consequences of a criminal conviction, greater protection is required for the accused in a criminal case than for the defendant in a civil case, the most important safeguard being the requirement of proof of guilt beyond a reasonable doubt. In contrast, a civil action for damages can succeed on the balance of probabilities. Plaintiffs in civil cases have a right to win if their case is more persuasive, but the complainant in a criminal case has no right to a conviction. The only right to a conviction belongs to the community, and although it is in the interests of the community to suppress crime, it is almost as important not to create a society whose members live in constant fear of wrongful conviction. ADMINISTRATIVE LAW, of increasing importance in a highly regulated society, is the third branch of public law. It governs, among other things, the exercise of government powers, which greatly affect most citizens. A fourth branch is taxation law, under which revenues are raised with the objective of spending for public purposes.
Private law regulates the relations of citizens among themselves. The main divisions of the civil and common law governing the obligations of individuals to each other are CONTRACTS (the law of agreements and promises) and the law of civil wrongs (TORTS in the common law and DELICTS in the civil law). To these must be added the law of PROPERTY (governing the acquisition and transfer of rights in goods, land and intangible property) and the law providing for recovery to avoid unjust enrichment (restitution or quasi contract). There is no consensus on the proper arrangement of further divisions and subdivisions, although much of Québec law is structured in the Civil Code.
FAMILY LAW is another important branch of private law as far as its impact on ordinary persons is concerned. Another important branch, known as conflicts, or private international law, governs the effect of foreign (or extraprovincial) elements in a dispute. Other specialized branches of law include corporation law, sales, negotiable instruments, security for debt on property, agency or mandate, taxation, evidence, debtor and creditor, insurance, wills and trusts, patents, copyright, trademark law and transfer of land; some of these relations may be regarded as subbranches of contracts and property.