Chapter 2 Four Sources of Law in Canada PDF

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Penny Hamilton Chapter Notes...

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FOUR (4) SOURCES of Law in Canada: See text: figure 2.4 1. Constitutional Convention: Important rules that are NOT enforceable by a court of law but that from a practical point of view determine how a given power is exercised by government. Example: office of Prime Minister of Canada. 2. Royal Prerogative: Historical rights and privileges of the Crown, including the right to conduct foreign affairs and declare war. 3. Statute Law: Government-made law; a response in Bill form to perceived need for creation of new laws, change to existing laws, repeal of existing laws. The BILL is generated by the Executive branch, Cabinet, government departments, policy makers in response to a lobby, a need, a deficiency and so forth. The BILL is passed into LAW by majority vote provincially in the Legislative Assembly or federally in the House of Commons and Senate (Legislative branch). Once a BILL has passed the voting stage and received ROYAL ASSENT it is proclaimed into LAW – either immediately or on a future, fixed date or a general statement of ‘coming into effect on a date to be fixed by proclamation’ . 4. Common law: Judge-made law; (Judicial branch). This branch is the Judges and Court levels within each province and, at the national level, the Supreme Court of Canada (the highest level of Court in Canada). Judges in the COMMON LAW SYSTEM OF LAW (British system) apply the doctrine of STARE DECISIS/PRECEDENT to determine the existing state of the law set out in prior cases based on similar fact and law. Judges in the CIVIL LAW SYSTEM of LAW (Quebec, provincially – private law) apply the CIVIL CODE (French system) which sets out PRINCIPLES of LAW to be applied to the case at hand. Judges interpret and apply government-made laws to the facts and evidence in the case before them but they also make new law where no statute law exists. Examples: areas with Negligence and Contracts

ALBERTA Court System: Supreme Court of Canada (SCC) – the highest appeals court in the country; the appellant needs to apply to the SCC and ask for LEAVE to APPEAL. In most cases, leave is not granted. The SCC usually limits the cases that it hears to cases of (i) national importance (ii) new and/or unique questions of law and (iii) areas of law that need to be revisited, revised, clarified and so forth. The Supreme Court of Canada binds ALL courts of all levels across the entire country. There are nine (9) Judges on the SCC – appointed by the Prime Minister (federally appointed) and representing a cross-country spectrum. FYI: The newest SCC appointment is Justice Russell Brown, from Edmonton AB.

2 Alberta Courts System, continued: Court of Appeal: the highest court of APPEAL in the province of AB – federally appointed judges. Appeal Court judges sit in Edmonton and Calgary. There are usually three (3) judges that hear and decide the case being appealed (highest level of binding precedent in the province but, like all other courts in Canada, it is also bound by the SCC). Queen’s Bench: the highest TRIAL court in AB – Federally appointed judges; hear serious criminal matters, civil matters over $50 000, adoptions, wills and estates, pre-trial conferences and JDRs (judicial dispute resolution). This is the ONLY level of Court that hears JURY trials. (QB cases are a higher level of binding precedent than the AB Provincial Court. QB judges are bound by decisions on point of the AB Court of Appeal and the SCC). Queen’s Bench judges also sit alone as appeal judges when the case under appeal is a matter arising out of provincial law at the provincial court level or municipal bylaws matters. Provincial Court: PC judges are provincially appointed judges and they hear cases at the lower (also called inferior) court level. This court level has the highest volume of cases and is where all criminal cases begin (but, depending on the severity of the charge) might then move to QB for trial. It has the lowest precedential value of all court levels. There are FIVE (5) COURTS within the Alberta PROVINCIAL COURT system: CRIMINAL – as explained above; first appearance for those charged with criminal offences, trials for summary conviction offences and for some indictable offences (as set out in the Criminal Code of Canada). CIVIL (aka Small Claims Court) – Judges hear all civil cases where the monetary limit claimed is UNDER $50 000. IF your amount is slightly above $50 000 (i.e. $51 000) you can either bring your action to Queen’s Bench OR waive the $1000 and bring it to Provincial Court Civil (aka Small Claims). It’s cheaper and faster and less burdened with certain procedural rules to go to PC-C than QB. FAMILY – Provincial Court, Family division deals with Spousal support, parenting plans (aka child custody and support), mediation, permanent and temporary guardianship orders and MEP (maintenance enforcement proceedings) and REMOs (reinforcement of maintenance orders in other participating jurisdictions). YOUTH – Criminal Justice – This court deals with all youth justice matters where the youth is between the ages of 12-18 years of age. This includes criminal matters, provincial offences matters and bylaw offences. TRAFFIC – Traffic Court hears provincial offences under i.e. the AB Traffic Safety Act and municipal bylaw infractions....