Foundations of Canadian Law Flashcards

What is 'bijuralism' in Canada and how does it affect the federal legal system?

Answer: It means Canada has two legal traditions — common law (in 9 provinces and territories) and civil law (in Quebec) — and federal legislation must be interpreted and applied consistently with both traditions

Canada's bijuralism means that two private law traditions coexist: the common law tradition (English origin) in nine provinces and the three territories, and the civil law tradition (French origin, codified in the Civil Code of Québec) in Quebec. Federal legislation applies across all provinces and must be harmonized with both traditions. This is reflected in the bilingual drafting of federal laws and the requirement for SCC justices from Quebec.

What is the 'honour of the Crown' doctrine in Canadian law?

Answer: It is a constitutional principle requiring the Crown to act honourably in all its dealings with Indigenous peoples, giving rise to duties including consultation, accommodation, and the honourable negotiation and implementation of treaties

The honour of the Crown is a constitutional principle that governs the Crown's relationship with Indigenous peoples. It requires the Crown to act honourably in all dealings, gives rise to the duty to consult and accommodate, requires generous interpretation of treaties, mandates honourable treaty negotiation and implementation, and prevents sharp dealing. It is the foundation for the duty to consult (Haida Nation) and informs the interpretation of section 35 rights.

What is the doctrine of 'precedent' and how do Canadian courts distinguish binding precedent from persuasive authority?

Answer: Binding precedent must be followed (decisions from courts above in the hierarchy on the same legal point), while persuasive authority (decisions from courts in other provinces, lower courts, or other common law jurisdictions) may be considered but is not binding

Binding precedent comes from courts higher in the same judicial hierarchy on the same point of law. Persuasive authority includes: decisions from courts in other provinces or territories (horizontal), lower courts, other common law jurisdictions (UK, Australia, US), academic commentary, and dissenting judgments. While not binding, persuasive authority can influence the development of the law, especially in novel areas.

What is the role of equity in the Canadian common law system?

Answer: Equity is a body of law originally developed by the Court of Chancery to mitigate the rigidity of the common law, providing remedies such as injunctions, specific performance, constructive trusts, and estoppel when common law remedies are inadequate

Equity developed to address situations where strict common law rules produced unjust results. In Canada, courts of law and equity are merged (unlike historical England), but equitable principles remain distinct. Key equitable concepts include: trusts, fiduciary duties, estoppel, unjust enrichment, and equitable remedies (injunctions, specific performance, constructive trusts, tracing). The maxim 'equity follows the law' means equity supplements rather than contradicts the common law.

What is the significance of section 52 of the Constitution Act, 1982?

Answer: It declares the Constitution of Canada to be the supreme law of Canada and that any law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect

Section 52(1) establishes constitutional supremacy in Canada: '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 or effect.' This is the basis for judicial review of legislation — courts can declare laws unconstitutional and of no force. It distinguishes Canada from the UK model of parliamentary sovereignty.

What are 'Indigenous legal traditions' and how are they being recognized in Canadian law?

Answer: Indigenous legal traditions are the laws, legal principles, and dispute resolution mechanisms developed by Indigenous nations over millennia, increasingly recognized as a source of Canadian law through section 35, the UNDRIP Act, and academic and judicial developments

Indigenous legal traditions are increasingly recognized as a legitimate source of law in Canada. The United Nations Declaration on the Rights of Indigenous Peoples Act (2021) commits Canada to aligning its laws with UNDRIP. Section 35 protects Aboriginal rights which may include legal traditions. Courts and the Truth and Reconciliation Commission have called for greater engagement with Indigenous law. Law schools now teach Indigenous legal traditions alongside common law and civil law.