Sources of Law: The Constitution, Legislation, and the Courts

There are three sources of law: the Constitution, legislation, and the courts. The Constitution is the foundation law from which all other laws draw their power. In turn, legislation is passed by Parliament and by provincial legislatures in compliance with the Constitution. Such statutes may codify case law that developed in the courts, or it may change case law. Lastly, the courts hand down judgments that also develop and shape legal principles. Each of these sources of law will be discussed in more detail in the sections to follow.

The Constitution

The Constitution provides the basic skeleton or framework for Canada’s legal system. It creates the basic rules for Canadian society and its legal and political system. The Constitution is also the highest source of law. Section 52(1) of the Constitution states: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” The Constitution is also very difficult to change—the normal amending formula requires the consent of Parliament as well as the consent of the legislatures of at least two-thirds of the provinces, which represent at least 50% of Canada’s population.

The Constitution implements the federal system of Canada by setting out the division of powers between the federal and provincial/territorial jurisdictions, that is, by setting out the areas for which each level can create laws. For instance, the federal government is responsible for criminal law, taxation, unemployment insurance, banking and money, bankruptcy and insolvency, trade and commerce, shipping, and copyright, while the provincial governments have jurisdiction over property and civil rights (e.g., contracts and torts), corporations with provincial objects, and the creation of municipalities. The federal government also has residual power—power over anything that is not otherwise mentioned, which gives it jurisdiction over areas that did not exist when the Constitution was written in 1867, including telecommunications and air travel. As well, if federal and provincial statutes are ever in conflict, the doctrine of federal paramountcy determines that the “federal law wins.”

The Charter of Rights and Freedoms

In 1982, the Charter of Rights and Freedoms became part of the Constitution. The Charter places limits on many aspects of government actions and protects human (versus property) rights. Figure highlights some of the rights and freedoms protected by the Charter.

It is important to note that the Charter does not describe property rights (the right to own and enjoy assets) or economic rights (the right to carry on business activities).

Fundamental Charter Rights and Freedoms

The Charter is also subject to a number of other important restrictions.

1. The Charter’s rights and freedoms are fully applicable only when a person complains about government behaviour. Thus, the Charter does not directly apply to disputes involving private parties; however, the Supreme Court of Canada has ruled that private law should be developed in a way that is consistent with Charter values.

2. The Charter also generally does not apply in favour of or against private corporations.

3. Section 1 of the Charter states that its rights and freedoms are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It is for this reason that limitations may be placed on selling violent pornography or advertising to children.

4. Section 33 of the Charter may allow Parliament or a legislature to create and enforce a law “notwithstanding” the fact that it violates the Charter. However, this section has only been used once in the common law provinces and territories.

When the Charter is violated, the court may award whatever remedy it considers “appropriate and just in the circumstances.” For instance, the court may simply issue a declaration that the Charter has been violated and leave it to the legislature to solve the problem. The court may impose an injunction that requires the government to resolve the problem in a specific way. Going even further, the court may strike down a statute that violates the Charter, leaving the legislature to enact a new law that adheres to the Charter. The court may also save a statute by re-writing part of it—by severing out the offending law, reading down a statute that is applied too broadly, or reading in a statute that is written too narrowly. The court may also award damages to people who suffer a Charter violation.

Statutes: Law made by Parliament, Provincial Legislatures, and Municipal Governments Legislation may be passed by either Parliament or provincial legislatures. The most important kinds of legislation are statutes or acts. For example, every jurisdiction in Canada has an act that allows corporations to be created.

In most cases, a bill is introduced into the House of Commons by a Member of Parliament. If the bill receives majority support at the First Reading, it goes to the Second Reading, where it is debated. If it receives majority support, it is sent to a legislative committee for detailed study. At the Third Reading, if it receives majority support, the bill passes and is sent to the Senate, where the process is repeated. The final step, a mere formality, is Royal Assent, where the bill is approved by the Attorney General, as the representative of the Queen.

There are two main classes of legislation—passive and active. Passive legislation either prohibits an activity that was formerly permitted or permits an activity that was formerly prohibited. Passive legislation provides a framework within which people legally go about their business and puts the onus on either an injured party or a law-enforcement official to complain about any activity that violates the legislation. In contrast, active legislation gives government the right to carry on a program such as levying taxes, providing revenues, and supervising economic activities. Every government department, agency, and tribunal is established by the legislature in a statute. In exercising its regulatory powers, an administrative agency creates new law (subordinate legislation), such as the criteria for obtaining business licences.

One of the most important types of subordinate legislation involves municipal by-laws. The Constitution is concerned with only two levels of government (federal and provincial) but it gives provinces the power to create municipalities and, in turn, it gives municipalities the power to pass rules and laws that govern the city or town.

Common Law: Law Made by Judges

In the context of a discussion of legal systems, the term common law refers to a legal system that can be traced to England, and the term civil law refers to a system that can be traced to France. The term common law has a second meaning—it refers to the source of a law. When used in this connection, common law refers to laws that are created by judges rather than by legislators or by the drafters of the Constitution. In this sense, common law is also known as case law.

Common law is still the main source of private law. Of course, the earliest judicial decisions could not depend on precedent. Instead, they were influenced by local customs, canon law (created by the Church and related to matters of the Church), Roman law, feudal law (derived from the feudal system of land ownership), and merchant law (rules and practices developed by merchants in medieval trade guilds and administered by their own courts).

The early courts of common law could offer only monetary damages to the injured parties. Thus, another set of courts came into existence—the courts of chancery or courts of equity where petitions were heard by the king and his chancellor and vice-chancellors. The rules of law that these courts administered became known as equity. Equity courts could offer equitable remedies. If they saw fit, they could order specific performance—the carrying out of a binding obligation. Defendants who refused were jailed for contempt of court until they agreed to carry out the court's order. As equity law developed, its principles—such as trust, loyalty, and consideration of the relative position of the parties—became accepted as common law principles. In 1865, the British Parliament passed legislation to merge the two systems of court into the common law system we have today; the Canadian provinces passed similar legislation shortly thereafter.

Relationship Between Statutes and Common Law

A statute overrides all the common law dealing with the same point. Legislatures may change common law or simply codify the law, i.e., summarize in a statute the common law rules governing a particular area of activity. The courts are often called upon to interpret a statute to decide whether it applies to the facts of a case and, if so, to decide on the consequences of breaking the law. These decisions then form part of judge-made law.

Courts regularly use precedent even though the facts in the original case may be quite different from the case at issue. However, they adhere to strict interpretation of statutes: the courts apply the provisions of a statute only where the facts of the case are specifically covered by that statute. Nevertheless, Canadian courts are encouraged by the federal Interpretation Act to take a “fair, liberal, and large” interpretation of statutes.19 Such a liberal approach to the interpretation of statutes considers the context, the custom and trade usage of the language, and the intent or purpose of the statute when it was passed.