The Sources of our Law
Legislation is enacted by every level of government in Canada – the federal government, the provinces and territories, cities and other municipalities – and forms a major body of law. Our elected representatives introduce and debate proposed laws dealing with matters within their jurisdiction. The federal government, for instance is responsible for criminal law, so Parliament makes changes to the Criminal Code, the statute that defines crimes and how the courts handle criminal cases. The provinces and territories create laws to regulate public activity in the many areas that are within provincial jurisdiction, including such things as highway traffic matters, education and the use of natural resources. Municipalities enforce bylaws and ordinances that deal with local issues, ranging from urban development to dog control. Whatever its source, this legislation forms a large body of written law that governs how Canadians live and work.
The common law, also referred to as case law, is a vast body of law that judges create, case by case, as they make rulings and as they determine the precise meaning of a law or regulation. Judges review the rulings of other judges in search of legal principles that can be applied to the dispute that comes before them. Judges may add refinements of their own pertaining to the specific facts before them, as the common law grows and evolves. Judges are obligated to follow a precedent set by a higher court in their jurisdiction, under a principle known as stare decisis – a Latin term meaning standing by former decisions. The common law originated centuries ago in Britain and enhances the predictability and fairness of our system of justice. It ensures that cases that raise similar legal issues will be resolved in a similar fashion. The common law and legislation are intertwined. Judges’ interpretations of legislation become part of the common law, and legislators often enact laws that incorporate or refine common law principles.
The Civil Law in the Province of Quebec is a codified system where judges primarily apply the legal principles set out in Quebec’s Civil Code and a body of statutes. Judges refer to case-law precedents as a secondary source to help them interpret and apply these legal principles to a particular case.