SOURCES OF LAW

Lecture IA
Chapter 1

This material is copyrighted and shall not be BLAW 1320

reprinted, copied, photographed or uploaded Douglas College
to any website or organization without the
express written consent of the author Instructor: Brian Sugg
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Business and Risk Management

• businesses must manage legal risks
• 3 steps to risk management
• Identify: recognition of legal risks
• Can we be held liable for doing something
wrong?
• Evaluate: assessment of legal risks
• What are the chances of something going
wrong?
• Respond: reaction to legal risks
• What are we going to do about it?
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Forms of Risk Management

• Decision: How should our business treat different
kinds of risk?
• It depends
• Forms of risk management
• Avoid the Risk: eliminate risk
• Reduce the Risk: minimize risk
• Shift the Risk: let someone else take the risk
• Accept the Risk: live with the risk
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The Nature of Law

• Rules and Laws
• all laws are rules but not all rules are laws
• Morality and Law
• moral wrongs are informally sanctioned
• legal wrongs are formally sanctioned
• do laws always reflect morality?
• Laws = rules that can be enforced by courts
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A Map of the Law

Public Law versus Private Law
• public law: matters of societal concern
• private law: matters of personal concern

Ways to Distinguish
• Players
• Main Purpose
• Judgment
• Standard of Proof
• Types of Law
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A Map of the Law

Public Law versus Private Law
Ways to Distinguish
• Players
Public Law
State vs. Individual
Individual charged with an offence
Private Law
Individual vs. Individual
Individual sues another individual
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A Map of the Law

Public Law versus Private Law
Ways to Distinguish
• Main Purpose

Public Law
To Punish
Private Law
To Compensate
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A Map of the Law

Public Law versus Private Law
Ways to Distinguish
• Judgment

Public Law – Charged with an Offence

Guilty
Private Law – Sued for a personal wrong
Liable
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A Map of the Law

Public Law versus Private Law
Ways to Distinguish
• Standard of Proof

Public Law → Guilty . . .

beyond a reasonable doubt
Private Law → Liable . . .
based on a balance of probabilities
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A Map of the Law

Public Law versus Private Law
Ways to Distinguish
• Types of Law
Public Law – State vs. Individual
- Criminal Law
- Motor Vehicle Law
- Environmental Law
- Customs Law
- Immigration Law
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A Map of the Law

Public Law versus Private Law
Ways to Distinguish
• Types of Law
Private Law – Individual vs. Individual
- Contract Law
- Tort Law
- Property Law
- → focus of BLAW 1320 – Private Law
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Sources of Law

• Hierarchy of sources of law

• Constitution
• Legislation
• Courts – discussed in Lecture IB
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The Constitution
• provides basic rules for legal and political systems
• Canada’s Constitution developed in two phases
• Phase I – 1867
• British North America Act, 1867
• In 1982, renamed Constitution Act, 1867
• Establishes Canada’s federal system of government
• Phase II – 1982 – Constitution Act, 1982
• Canadian Charter of Rights and Freedoms (sections 1-34)
• Amending the Constitution (section 38)
• includes all previous Constitution Acts including the 1867
Act
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Federalism
• Canada - a federal country
• Constitution recognizes two levels of government
• federal government
• law making authority over national interests
• Parliament – Ottawa - bicameral structure
• House of Commons (elected)
• Senate (appointed)
• Provincial and Territorial government – Victoria (BC)
• Law making authority over regional interests
• Legislature (elected) } unicameral structure
• no Senate }
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Division of Powers
• Constitution Act, 1867 creates division of powers
• law making authority divided along topic lines
• Federal topics: section 91
• Provincial topics: section 92
• what happens to topics not allocated to either the federal
government or provincial government in 1867?
• s. 91 states that the federal government can make
laws for the “Peace, Order and good Government
of Canada”
• interpreted by courts to mean that federal
government holds residual power
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Division of Powers
• ultra vires legislation
• laws created by one level of government outside
its authority
• no force or effect (unconstitutional)
• “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 and effect.”
– s. 52 Constitution Act, 1982

• intra vires legislation

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Division of Powers
• IF a situation arises that both federal and provincial
governments believe it has law making authority
THEN
• Courts will decide if matter has more to do with a
provincial topic (s. 92) or a federal topic (s. 91) and
rule accordingly

• IF it appears that the Constitution gives both levels of

government conflicting authority over a particular situation
THEN
• Doctrine of Federal Paramountcy applies
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Amending the Constitution

• Amending Formula set out in Constitution Act, 1982
- section 38
• Constitution is difficult to amend
• Requires:
• majority support of House of Commons
• majority support of Senate
• ⅔ provinces with at least 50% of population
(according to latest census)
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Amending the Constitution

• Composition of the Senate (105 Senators)
• - ss. 21 and 22 of Constitution Act, 1867
• British Columbia – 6 Senators (5.7%) → 13.2% of Canada’s population
• Alberta – 6 Senators (5.7%) → 11.6% of Canada’s population
• Saskatchewan – 6 Senators (5.7%) → 3.1% of Canada’s population
• Manitoba – 6 Senators (5.7%) → 3.6% of Canada’s population
• Ontario – 24 Senators (22.9%) → 38.4% of Canada’s population
• Quebec – 24 Senators (22.9%) → 23.2% of Canada’s population
• New Brunswick – 10 Senators (9.5%) → 2.1% of Canada’s population
• Nova Scotia – 10 Senators (9.5%) → 2.6% of Canada’s population
• PEI – 4 Senators (3.8%) → 0.4% of Canada’s population
• Nfld & Labrador – 6 Senators (5.7%) → 1.5% of Canada’s population
• The three Territories – 3 Senators (1 each) (2.9%) → 0.3% of Canada’s population
*2016 census

•*
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Amending the Constitution

• Compare to Amending the United States Constitution
• Article 5 of the United States Constitution sets out amending formula

• Two-thirds (2/3) of the US House of Representatives

• Representation by population (435 representatives)
• California has 53 representatives
• Several states have only a single representative (Alaska, Delaware,
Montana, North Dakota, South Dakota, Vermont, Wyoming)
• Two-thirds (2/3) of the United States Senate
• Each state has 2 senators regardless of population
• California (pop. 39.9 million) and Wyoming (570,000) each have two
Senators
• Three-quarters (3/4) of the State Legislatures
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Charter of Rights and Freedoms

• Constitution Act, 1982
• protection of fundamental rights and freedoms
• freedom of religion – s. 2(a)
• freedom of expression – s. 2(b)
• freedom of mobility – s. 6
• right to equality – s. 15
• part of Constitution since 1982
• law inconsistent with Charter
• no force or effect = unconstitutional
• s. 52
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Charter of Rights and Freedoms

• right to vote – s. 3
• right to life, liberty and security of the person – s. 7
• protection against unreasonable search and
seizure – s. 8
• protection against arbitrary detention and
imprisonment – s. 9
• rights on arrest and detention – s. 10
• rights after arrest – s. 11
• no cruel or unusual treatment or punishment – s.
12
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Limitations on Charter Rights

• Application of the Charter
• Charter only applies to government action
• s. 32
• applies to government actions and not to private
organizations
• nature of actor – part of government
• federal, provincial and municipal governments

• “routine or regular control” by government

• Example – colleges and universities, police services, Crown
corporations (such as BC Ferries, ICBC)
• Douglas College Faculty Association v. Douglas College (1990) SCC

• “nature of the action”

• “ultimate or extraordinary control” exerted by government
• Example – hospitals, schools, and other organizations that receive
government funding, submit to government regulation, and more
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Limitations on Charter Rights

Application of the Charter
• Charter may apply in favour of private business
• some provisions are limited to “every individual” (s. 15)
• does not apply to estates and corporations
• some provisions are available to “any person” (s. 11)
• includes corporations
• some provisions apply to “everyone” (s. 2, ss. 7-10, s. 12)
• interpreted as every person physically present in Canada
including non-citizens
• some provisions apply only to “every citizen” (s. 3) or
“every citizen” and every “permanent resident” (s. 6)
• Provincial human rights legislation
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Limitations on Charter Rights

• Charter rights subject to s. 1 “reasonable limitations”
• balance individual rights and community interest
• R v. Oakes (1986) SCC
• sets out two broad criteria for interpreting s. 1 Charter
• Oakes test
• is objective of legislation sufficiently important to override
a constitutional right?
• are the limitations proportional?
• are the measures carefully designed to meet the objective (is there
a “rational connection”)?
• do the measures impair the right as little as possible?
• are the effects of the measures proportional to the objective?
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Limitations on Charter Rights

Rocket v. Royal College of Dental Surgeons of Ontario (1990) SCC
• Ontario Health Disciplines Act
• prohibited commercial advertising by dentists
• two dentists (Rocket and Price) engaged in an advertising campaign
(newspapers and magazines)
• found guilty of professional misconduct

• Decision:
• unanimous court found the prohibition infringed s. 2(b) Charter
• Court felt that it was not a reasonable s. 1 limitation
• Professional bodies have a right to regulate the profession
• Societal benefit to not allow unregulated professional advertising
• in this case, the legislation did not “impair the right as little as possible”
– some advertising should be permitted
• also, effects of the measures (complete advertising ban) not
proportional to the desired objectives (regulating unscrupulous
advertising)
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Limitations on Charter Rights

Charter subject to “notwithstanding clause”
• s. 33 Charter
• Federal or provincial government can override
some rights and freedoms
• section 2 fundamental freedoms
• sections 7 to 15
• override lasts for up to 5 years but can be renewed

• Ford v. A-G Quebec (1988) SCC

• Bill 101 - French only sign law (outside signs)
• 1993 compromise – French sign at least twice as large
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Legislation

• laws created by Parliament or Legislature

• legislative process
• introduced as “Bill”
• majority support through series of “readings” in
legislature or House and Senate
• finalized by “Royal Assent”
• Governor General
• subordinate legislation = government regulations
• created under authority of Parliament or Legislature
• Government ministers, tribunals, commissions