Sources of Canadian law

Spread the love

There are some significant sources of law in Canada which can be summarized as below: –

The Constitution

  • Supreme law of the land
    • Section 52 of the Constitution Act, 1982: – The Constitution of Canada is the supreme law of Canada, and any law which is not in consistency with the Constitution is, to the extent of that inconsistency, without force or effect.
  • Two essential parts
    • Constitution Act, 1867 (division of powers)
      • Determines which levels of government have authority over which areas of law.
        • Section 91 Federal
          • Criminal
          • Immigration
          • Currency
        • Section 92 Provincial
          • Roads
          • Licence
          • Hospitals
      • Health care is taken by both federal and provincial
  • Constitution Act, 1982 (Charter of Rights and Freedoms)
    • It guarantees individual and collective rights.
    • Applies only to government actors
    • Section 1: Rights are not absolute
    • Section 2: Fundamental freedoms
      • Freedom of expression
      • Freedom to choose one’s religion
    • Section 3-5: Democratic rights
      • Right to vote
      • Running for a public office
    • Section 6: Mobility rights
    • Section 7-14: Legal rights
      • Right to a lawyer on arrest
      • Right not to be subjected to unreasonable searches and seizures
    • Section 15: Guarantee of equality

Legislation

  • It is a written law created by the government and sometimes referred to as a statute or act. The draft law called the bill is passed for approval by the Parliament / Legislature.
    • Create prohibitions: – example: Criminal Code
    • Impose obligations: – example: Income Tax Act 
    • Create benefits: – example : Employment Insurance Act
    • Provide rights/protections: – Human Rights Code
  • Each level of government can pass legislation in accordance with their division of constitutional power:
    • Federal
      • Criminal Code of Canada
      • Canada Health Act
      • Assisted Human Reproduction Act
      • Controlled Drugs and Substances Act
    • Provincial
      • Medical Act
      • Personal Health Information Act
      • Pharmacy Act

Regulations

  • Regulations are delegated legislation.
  • These are subordinate, which means they must be authorized by statute, cannot conflict with the statute, and can be overruled by statute.
  • The statute creates a general framework for the rules in the field and generally allows another authority to make small rules that flesh out the details.
  • Usually the Cabinet or a Minister
  • Example: Annual fees – Section 29 of the College of Physicians and Surgeons Regulations (under Medical Act)
  • These can be done faster but less permanent and less protective

The Common Law

  • Sometimes referred as judge made law where judges refer to previous cases, or precedents to decide disputes.
    • Brief History
    • Features
      • Consistency
      • Predictability
      • Reasoning by analogy
      • Discretion
  • Many important areas of law for residents are governed primarily by the common law including both contracts and torts.
  • Common law always subject to being overridden by the legislation. Example: touching a patient without consent is, at common law, the tort of battery. Every province has public health legislation that allows doctors to treat patients against their will for certain communicable diseaseas. It overrides the common law of battery.

Administrative Bodies

  • Sometimes the authority delegated to enforcing a law or regulating an area is not a member of Cabinet but another complete entity
  • Created by legislation – enabling statute
  • Example: Enabling Statute Medical Act creates administrative body (College of Physicians and Surgeons) which further creates rules and policies governing the practice of medicine in Nova Scotia