Foundations of Canadian Law Flashcards

What is the 'rule of law' and why is it considered a foundational principle of Canada's legal system?

Answer: It means that all persons and institutions, including the government, are subject to and accountable under the law, which must be publicly made, prospective, clear, and applied equally

The rule of law is a foundational constitutional principle recognized in the preamble to the Charter and affirmed by the SCC in cases like Reference re Secession of Quebec. It requires that: (1) the law is supreme over government and individuals; (2) the law must be created and maintained to create a framework of order; and (3) the relationship between the state and the individual must be regulated by law. No one is above the law.

What are the sources of Canadian law?

Answer: Constitutional law, statute law (federal and provincial), common law (judicial decisions), and in Quebec, the Civil Code as a source of private law

Canadian law draws from multiple sources: (1) the Constitution (supreme law, including the Charter); (2) federal and provincial statutes (legislation); (3) common law (judicial precedent, derived from English common law); (4) in Quebec, the Civil Code (derived from French civil law tradition); (5) subordinate legislation (regulations); and (6) Indigenous legal traditions, increasingly recognized. Canada's bijuralism (common law + civil law) is a distinctive feature.

What is 'stare decisis' and how does it operate in the Canadian judicial hierarchy?

Answer: It is the principle that courts are generally bound by previous decisions of courts at the same or higher level in the judicial hierarchy, providing certainty and consistency, while the SCC can depart from its own previous decisions

Stare decisis (Latin: 'to stand by things decided') requires courts to follow the ratio decidendi (legal reasoning) of binding precedents from higher courts. Provincial superior courts are bound by SCC decisions. The SCC, as Canada's final court of appeal, can depart from its own precedents when justified. Courts may distinguish precedents on their facts. This doctrine provides predictability and consistency in the law.

What is the significance of the 'reception date' in Canadian common law provinces?

Answer: The date on which English common law and statute law as it existed at that time was received into the colony, establishing the baseline body of law that continues to apply unless subsequently changed by local legislation

The reception date varies by province (e.g., Ontario — 1792, BC — 1858) and determines which English statutes and common law principles were received into that jurisdiction. English law as it existed on the reception date became part of the colony's law. Post-reception English legislation does not automatically apply. This is why some pre-reception English statutes may still technically be in force in certain provinces.

What is 'Parliamentary sovereignty' and how is it modified in Canada?

Answer: While Parliament has broad legislative power, it is subject to the Constitution (including the Charter and the division of powers), unlike the traditional British doctrine of absolute Parliamentary supremacy

In the British tradition, Parliamentary sovereignty means Parliament can make or unmake any law. In Canada, this principle is modified by constitutional supremacy: section 52 of the Constitution Act, 1982 states that the Constitution is the supreme law of Canada and any law inconsistent with it is of no force or effect. Parliament's power is also constrained by the federal division of powers (ss.91-92).

What is the legal significance of the Royal Proclamation of 1763 in Canadian law?

Answer: It recognized Aboriginal land rights, established principles for the treatment of Indigenous peoples, and created a process for Crown acquisition of Indigenous lands — it is considered a foundational document of Aboriginal rights in Canada

The Royal Proclamation of 1763 is recognized as a foundational document for Aboriginal rights in Canada. It reserved large tracts of land for Indigenous peoples and prohibited private purchase of Indigenous lands, requiring any land acquisition to be made through the Crown following a public meeting with the affected nation. It has been described as an 'Indian Bill of Rights' and continues to inform Aboriginal title claims.