3010 Sources of Law in Canada

MGT 3010 Law Sources of Law in Canada Legal rules are derived from three sources in Canada: (a) The Constitution including the Canadian Charter of Rights and Freedoms: (b) Federal and provincial statutes (legislation). (c) The Common Law – that is, decisions by courts in matters not governed by legislation. (d) Canadian law also embraces Equity. While courts of equity amalgamated with common law courts in 1873-75, principles of equity still differ from those of the common law. The Constitution Canada’s Constitution established by the British Parliament in 1867 (now enshrined in the Constitution Act 1867) provides for a federal system with power shared by the federal Parliament and provincial legislatures. Banking, airlines, railways, other inter-provincial transport, criminal law, customs and revenue, the military, (most) telecommunications, aboriginal matters and foreign affairs are federal powers. Education, health, local government, regulation of business beyond those specifically within the federal domain are provincial matters. Constitutional protection of the French language and the Roman Catholic religion reflects the needs and influence of Quebec and New Brunswick at the time of confederation. English and French are the official languages of the latter. Disputes sometimes arise over the extent of federal and provincial powers. There is inevitably overlap in some matters. See Reference re Firearms Act [200] 1 S.C.R. 783. Gun Registry. Does it infringe on property rights and civil rights or is it primarily about criminal law? See R. v. Westendorp [1983] 1 S.C.R.43. Municipalities controlling pornography and prosecution. May clash with federal jurisdiction over criminal law. For example, if a municipality in Province of Manitoba uses the power conferred on it by the provincial legislature to regulate business and 1

other activities within its boundaries, it may stray into the federal jurisdiction of criminal law. A local by-law prohibiting and penalizing the use of public streets for purposes of prostitution might appear to be within municipal and provincial jurisdiction, but might also fall within the exclusive jurisdiction of the Federal Parliament, constitutionally responsible for the Criminal Code. See Maple Ridge District v. Meyer Note the issues of shared jurisdiction. Health and safety at work laws. There are provincial laws and the Criminal Code. See paramountcy. Law Society of B.C v. Mangat The courts are the arbiters of jurisdictional disputes on constitutional matters and can strike down legislation or by-laws that are ultra vires, that is, beyond the constitutional power of the level of government that purported to pass the law. In the foregoing example, if the Manitoba Court of Appeal held the by-law to be illegal, all lower courts in Manitoba would be bound to ban any similar by-laws in that Province. Such decision of the Manitoba Court of Appeal would not bind even the lower courts in the other provinces. For example, Alberta’s courts might rule such by-laws to be within the powers of municipalities as conferred by the Province’s Municipal Government Act. The Manitoba decision would have persuasive authority before the Alberta courts but would not be binding. Ultimately, the Supreme Court of Canada would be asked to rule on the conflicting decisions of the Alberta and Manitoba courts and establish an interpretation of the Canadian Constitution binding on the courts and lawmakers of all provinces in Canada. The Canadian Charter of Rights and Freedoms (the Charter) This is also part of the Canadian Constitution. If federal or provincial legislation or government power exercised under such legislation offends any of the rights or freedoms protected by the Charter, the courts may strike down the offending legislative provision or find that it does not apply to the circumstances of the case before it. The creation of the Charter demonstrates the concern of Canadians that, if the definition of valid law depends merely upon the directive of the “sovereign” (for example Parliament), such law might offend “natural law” principles agreed by most Canadians as necessary for the existence and development of democracy. For example a 2

law banning speech that is critical of government policy might be seen by most Canadians as undesirable, but without the Charter, it would remain the law, unless repealed by Parliament.The effect of the Charter is that if legislation offends the Charter it is not valid law at all. For example, in R. v. Big M Drug Mart [1985] 1 S.C.R.295, the Supreme Court of Canada found unconstitutional the provision of the federal Lord’s Day Act which prohibited stores from opening on Sunday. This was held to be in breach of freedom of religion provided for by the Charter. RJR McDonald and Imperial Tobacco v. Canada (1995) 187 N.R. 1. Restricted tobacco advertising violated freedom of expression. The Supreme Court of Canada in Vriend v. Alberta [1998] 1 S.C.R. 493 held to be in breach of the Charter the Alberta Human Rights Act, which did not provide protection for discrimination on grounds of sexual orientation. The Court went as far as to write into the Alberta legislation the requirement that it protect persons against discrimination on grounds of sexual orientation. (See section 15 of the Charter, which does not specifically list sexual orientation as a protected ground. The courts have found that it is a ground “analogous” to those listed in section 15). It should be noted that it is open to Parliament or the legislature in these and other cases to use the “notwithstanding” (s. 33) clause of the Charter and pass legislation overriding the judicial decisions on the constitutionality of the statutory provisions. This was not done in any of the examples mentioned and is rarely done by legislatures or Parliament. To do so would involve political risks for the relevant government and typically they have not done so. (See however Quebec in language matters). The rights and freedoms entrenched in the Charter are fundamental but not absolute. Freedom of speech, conscience, association, religion, mobility within and outside the country are viewed as necessary for a free and democratic society. So are freedom from arbitrary arrest and imprisonment, the right to a fair trial and freedom from discrimination in access to benefits of the law without discrimination on such grounds as race, age, sex, disability and so on. Such rights and freedoms reflect a natural law perspective of the law. If governments or legislatures pass laws that infringe such fundamental values, the courts are liable to strike down such “laws” as having no legal effect or legitimacy. However, it is open to lawmakers to

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establish under section 1 of the Charter that the legislative infringement of the Charter is “justified in a free and democratic society”. Accordingly, the law criminalizing the dissemination of racial or religious hatred has been held justified in a free and democratic society even though it restricts freedom of expression, a ground protected in the Charter. See R. v. Keegstra [1990] 3 S.C.R. 697. The political debate over same sex marriage arose out of rulings by courts in two Canadian provinces that the lack of right of same sex couples to marry was in breach of section 15(1) of the Charter of Rights and Freedoms which entitles persons to receive the benefit of the law without discrimination on grounds of sex and sexual orientation, unless such discrimination can be shown to be justified in a free and democratic society. Of course some Canadians consider that lack of access to the legal benefits of marriage by same sex couples is not discriminatory or, if it is, it is justified in a free and democratic society to preserve the traditional conception of marriage. As the definition of marriage is a federal constitutional power, it is unlikely that any province could invoke the “notwithstanding clause”. Those who disagree with a particular Charter decision may be heard to criticize the courts for usurping the power of democratically elected members of Parliament of legislatures. Judges in Canada are not elected. Nevertheless, there is much more to democracy than elections every four years and voting by members of legislatures. While elected representatives are responsible for holding government to account, they most frequently support the initiatives of government leaders. Power tends to be concentrated in the hands of a few elected politicians and unelected bureaucrats as elected delegates consider their own political careers. Those critical of unelected judges as incompatible with democracy may also consider whether the immense power of large corporations is compatible with democracy.

Also even free decisions of the majority of elected delegates can oppress minorities, an outcome inconsistent with the dominant Canadian cultural value of diversity in society and the protection of vulnerable groups and individuals. Such values remain a strong element of Canadian laws and the Constitution. Ultimately legislatures and Parliament can override the courts if the have the support of public opinion and the issue is within their legislative jurisdiction.

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The Courts While the courts interpret the Constitution and federal and provincial legislation, they also have an important function in making and applying law that does not originate in legislation or the Constitution. This is “the common law”. In this sense the common law is used to distinguish law made by judges from that created in statutes passed by legislatures or Parliament. Since 1873, the common law also includes the law of equity which had been created and applied by the Court of Chancery in matters not within the jurisdiction of the common law. As mentioned in class, equity dealt with such matters as trusts and mortgages, which the common law failed to deal with because of the lack of precedent in such matters. Also, Equity courts could provide the remedy of “specific performance” of a contract rather than just damages to which the common law was confined by precedent. Equity courts recognized at times that justice might require an order to require a party in breach of contract to perform the contract rather than merely pay damages to the injured party. The systems of common law and equity are now joined but if lawyers are seeking equity they must seek it in accordance with the rules developed by the Court of Equity (Chancery). The common law was also influenced historically by the civil law (for example Roman Law), canon law (church law) in matters of marriage and other family law, as well as estates and succession, the law merchant which had regulated trade between nations. Judicial precedent In any jurisdiction in Canada a lower court is bound by a precedent established by a higher court in the jurisdiction on the relevant point of law. This is the doctrine of stare decisis. It cannot overturn or ignore the decision of the higher court. However, the lower court is only bound by the ratio decidendi of the precedent, that is, by the “reasons for the decision”. If a new case presented to a court involved different facts from that of a preceding case, the court might decide that such differences allowed it to distinguish the new case from the precedent and come up with a different decision. To use a simple example a court might be presented with a case of alleged intentional homicide and find from the facts that the defendant did intend to kill the deceased. The court might also have precedents where intentional killing was held to be murder and punishable by life imprisonment. Suppose, however, that the evidence indicated that in the new case, the defendant 5

acted in self-defence, having shot a burglar who also had a gun. The element of self-defence is a feature that distinguishes the new case from the precedent and will allow the court to depart from the precedent. Clearly, judges have some discretion in deciding what features of a new case are relevant distinguishing features. This distinction could apply to a civil law suit for battery or wrongful death. Note that the importance of precedents lies not only in whether they are legally binding. Lower courts in a jurisdiction or courts in another jurisdiction may follow a precedent not because it is binding but because it is persuasive. The case of Hedley Byrne (Yates Chapter 4) involving economic loss arising from another’s negligent misstatement is an example of the persuasive power of a House of Lords decision. The Court’s reasoning on liability for negligent misstatement did not bind future courts, even in England, because the reason for its decision to find against negligent misstatement was the fact that the defendant had written a disclaimer when it gave the negligent advice. It is clear that a court’s power to decide which different or similar fact situations of the case before it and the precedent(s) are relevant provides it with a fair measure of discretion about whether to consider itself bound by the precedent or whether to distinguish the two cases. Nevertheless, the courts are aware of the importance of consistency and predictability in the law, particularly in matters of business where insuring against risks is important.

Legislation Subject to constitutional challenge on jurisdiction or for breach of the Charter, legislation is supreme law. A court cannot strike down or choose not to apply legislation simply because it disagrees with the legislation or because some other province has different legislation on the matter. Courts have some discretion in how they interpret legislation but are bound to interpret it in a liberal manner to achieve the purposes of the legislation as the court perceives them. Accordingly, the Supreme Court in Ontario Human Rights Cmmission et al. v. Simpson Sears (1985) 23 D.L.R.(4th) 619 (the O’Malley case) interpreted the word “discrimination” liberally as embracing the effect of the employer’s action rather than narrowly to mean 6

the intent of the action. This was consistent with the Court’s view that the purpose of the legislation was to remedy the effects of discrimination not merely to deter intentional discrimination. This involved a value judgment but was within the scope of judicial discretion. Subsidiary legislation The realities of government bureaucracy are that much power to administrative bodies to establish legal rules is delegated by legislatures and Parliament to departmental ministers or to administrative bodies with expertise in the matter at hand. Primary legislation usually confers on Cabinet, a government minister or an administrative body, such as the Workers’ Compensation Board or the Human Rights Commission the power to pass regulations dealing with detailed matters. For example the Alberta WCB is empowered by the Workers’ Compensation Act to designate any class of persons as workers under the Act. The WCB cannot act beyond the powers conferred and if it does the subsidiary legislation (regulation) may be struck down as ultra vires the primary legislation. Local authority by-laws are a form of subsidiary legislation. They are just as legally binding as primary legislation but must be consistent with the power conferred by the primary legislation. The role of custom and ethics While Canadian law is seen as having the foregoing sources, those sources are themselves influenced by custom and the values of persons responsible for creating and interpreting the constitution, legislation and judicial case law. Such customs and values are slow to change but do change over time. For example, public and legal attitudes to race, gender, disablement have changed substantially in Canada in the last half-century and have influenced each source of the law. In employment law for example, it is no longer lawful for an employer to dismiss an employee who has a disability rendering him incapable of performing the job as defined by the employer. Within limits defined by the law, the value of including persons with disabilities in the workforce and society as a whole has become a more important value in law than traditional managerial right to define how work should be performed and by whom it should be performed. Changes in public attitudes to race, gender and so on have influenced employment law, family law and the criminal law.

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Another example of change in social values is the attitude to corporations. These are creations of the law and until as late as the mid-19th Century the dominant culture was that incorporation was a privilege conferred by the state for the benefit of the common good. There were legal limits placed on the actions and power of corporations, or more accurately upon those acting on behalf of the corporation. Today the corporation has most of the rights of “personhood” including rights protected by the Charter. The dominant culture is that corporations are bound to serve the interests of their shareholders, with the interests of other stakeholders, including those of the public, of secondary importance. Such values affect the law as applied to corporations.

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