Charles Mwewa Lectures



What is Law?

· Moralist View – right v. wrong

· Realist View – what legislature says it is

Functions of Law; serves two functions in western society:

· It orders and regulates the affairs of all persons (individuals, corporations and governments)

· It acts as the standard of conduct and morality

 General Sources of Law

· Royal prerogatives (the Crown had the power to pardon the convicted)

· Morality

· Customary conventions

· Writings of legal scholars

· Others


Legal Sources of Law in Canada

· Statues: law made by Parliament of Canada or the Provincial Legislatures

· Case Law: law made by judges of the Supreme Court of Canada

· By-laws: laws made by the municipal governments

· Policy?


Doctrine of Parliamentary Sovereignty

· Statute Law viewed as being superior to Case Law

· Judges – do they view Parliament as superior to court systems

· Administrative Law and Enabling Statutes

· INTRA VIRES – or within their power

· ULTRA VIRES – outside their power

· Charter of Rights and Freedoms v. Parliamentary Sovereignty


Canada, a Bijural Nation

· Bijural Legal System – where there is two different legal systems operating side by side

· Common Law v. Civil Law

· Two uses of phrase “Common Law”

· English Common Law as opposed to French Civil Law

· Rest of Canada (Common Law – Case Law) v. 

(Civil Law – Civil Code)



· Prior to 1066, England was a fragmented kingdom

· In 1066, William the Conqueror, a knight from Normandy, France invades England, defeats regional kings on his way to London at the Battle of Hastings. He builds the Tower of London

· William sends his trusted knights to outlining areas of the kingdom


History: King’s Peace and King’s Court (Curia Regis)

· British concept that the monarchy has a duty to protecting the well-being of its subjects

· "Sheriff" from shire reeve - responsible for keeping the peace, enforcing by-laws

· They represented the King (Rex) or the Queen (Regina)

· Court cases became Rex/Regina (R) v. the Person

· Plaintiff: starts a non-criminal court action in court


History: Feudalism

· William introduces Feudalism – political, military and landholding system in mediaeval Europe; characterized by an exchange of rights, duties and allegiances among kings, nobles and subjects

· William’s nobilities are sent across the kingdom to promote peace and order


History: Royal Judges

· Henry II began sending royal judges to represent the king

· Royal judges issued “Kings Justice”

· They wore a wig and a robe/gown, which represented power

· In Canada at official ceremonies, judges wear red/purple gowns

· Queen’s Counsel or QC wear silky gowns

· Royal judges were addressed as “Your Worship”

· Similarities in judgments began to emerge


History: Common Application of Laws

· Precedent : a legal decision serving as an authoritative rule in future similar cases, usually made for the first time on a new point of law

· Inns of Court: when Royal Judges came to London, they stayed at the Inns of Court. These were institutions in London that have authority to call English law students to the bar. The four Inns of Courts in England today are Inner Temple; Middle Temple; Lincoln’s Inn; and Gray’s Inn

· Common application of legal principles across England or Precedent became known as Common Law

· Equity: law given by judges in the Court of Chancery, it provided fairness and relief


History: Stare Decisis

· Latin: “to stand by decided matters”

· Common Law principle that relates to when Precedent must be followed

· Three words associated with Stare Decisis:

· Binding: term used to describe the rule requiring a lower court to follow a Precedent from a higher court in the same jurisdiction


When a Judicial Precedent is Binding

· From a higher court

· From the same area of law

· Has the same ratio, Ratio Decidendi or judge’s reasons for the decision as opposed to Obiter Dicta or remarks made by a judge that are not crucial to the decision

· From the Supreme Court of Canada

· Has not been distinguished


Distinguishing a Judicial Precedent

· Material facts are different

· Obiter Dicta

· Case wrongly decided or Per incuriam (“through lack of care"). A court decision which ignores a contradictory statute or binding authority, and is therefore wrongly decided and of no force

· From a lower court

· From different province/jurisdiction



· Both the Common Law and the Civil Law came to Canada from Europe

Pre-Renaissance Law in Europe

· Roman Era: consolidation of all known laws by Emperor Justinian (483 – 565 C.E)

· Corpus Juris Civilis (the Body of Civil Law), a reference law

· Contained Classical Roman Civil Law; Codex; Digest; Institutes; Novels or “books”

Dark Ages (410 – 1095)

· Parliament is introduced of mediaeval French nobles; in England Curia Regis is introduced to advise kings

· Customs: written laws of tribal kingdoms in mediaeval France

The Renaissance

· 12th  and 13th Centuries: consolidate laws based on Justinian tradition

· 1804: Napoleon Bonaparte established the Code Napoleon (a Civil Code)

· Code Napoleon was influenced more by university scholars than by judges

19th Century

· 1759: The French are defeated by the British under General James Wolf 

· 1763: After the Treaty of Paris, decided to take Common Law to Quebec

· 1774: Quebec Act, Quebec could use Civil Law

· Constitution Act 1791: Prior to this year, Ontario was a part of Quebec. This English Statute divided Quebec into Upper Canada (Ontario) and Lower Canada (Quebec)

· Loyalists from the United States established  the Common Law in Ontario

· 1866: Code Civil of Lower Canada

· 1867: Under the British North American Act, 1867, modern Canada is established , Canada becomes a new federal state  

· Union Act 1840: Ontario and Quebec join together again, and become known as the Province of Canada until 1867

· 1840 – 1867 Period of Legal Confusion: Sir George-Étienne Cartier (1814-1873), a prominent Montreal lawyer, and Sir John Alexander Macdonald, a lawyer from Kingston, became very good friends

· During this period, Cartier assembled the Codification Commission, a three-person commission to consolidate Quebec laws into a comprehensive Civil Code modified upon Code Napoleon of France



Federal Court System of Canada

· Supreme Court of Canada (Chief Justice of Canada and eight Puisne Judges)

· Specialized federal courts (e.g., Tax Court of Canada and Court Martial Appeal Court of Canada)

· Federal Court of Appeal

· Federal Court


Provincial Courts of Canada

· Provincial courts of appeal; Trial Division

· Provincial and territorial superior courts

· Provincial and territorial courts

· Federal and Provincial administrative tribunals



Def. of Public Law: area of law in which the public interest is primarily involved. Public Law regulates our relationships with government. Four basic areas:

· Constitutional Law

· Administrative Law

· Criminal Law

· Taxation Law

Def. of Private Law: area of law in which the private interest is primarily involved. Private Law regulates personal, social and business relationships. Five basic areas:

· Property Law: deals with ownership, rights and interests in property 

· Consumer Law: deals with goods and services

· Business Law: deals with formation and operations of businesses in Canada (Sole Proprietorship – an individual carrying on business alone; Partnership – ownership and responsibility of the business is shared by two or more persons; and Corporation – a business organization that is a separate legal entity from its shareholders)

· Law of Contracts: deals with voluntary and binding agreements that are enforceable at law

· Law of Torts: concerned with intentional violations of the private rights of others and the negligent obligation of legally recognized interests

Generally, however, all the laws in Canada can be divided into:

Substantive Law: the rules that govern behavior and set limits on conduct

Procedural Law: the rules that denotes how rights and obligations are enforced; it dictates procedure

(Source: Canadian Judicial Council)

(Source: Canadian Judicial Council)