NCA Foundations of Canadian Law

Question 1

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

Accepted 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

Answer

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.

Question 2

What are the sources of Canadian law?

Accepted Answer

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

Answer

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.

Question 3

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

Accepted 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

Answer

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.

Question 4

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

Accepted 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

Answer

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.

Question 5

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

Accepted 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

Answer

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).

NCA Exam Practice Test

NCA Exam Practice Test

NCA Foundations of Canadian Law