NCA Legal Research and Writing in Canadian Context 3 — Questions and Answers
Question 1: In Canadian legal research, what is the difference between 'primary sources' and 'secondary sources'?
- Primary sources are academic textbooks; secondary sources are official government publications
- Primary sources are the law itself (statutes, regulations, case law, treaties); secondary sources are commentary and analysis (textbooks, articles, encyclopedias) that help locate and understand primary sources (Correct answer)
- Primary sources are federal law; secondary sources are provincial law
- Primary sources require subscription databases; secondary sources are freely available
Correct answer: Primary sources are the law itself (statutes, regulations, case law, treaties); secondary sources are commentary and analysis (textbooks, articles, encyclopedias) that help locate and understand primary sources
Primary sources are authoritative sources of law: legislation, regulations, case law, and international agreements. Secondary sources (textbooks, law review articles, Halsbury's Laws of Canada, CED) explain, organize, and analyze the primary sources. Research typically begins with secondary sources to understand the framework and identify key primary sources.
Question 2: When a Canadian statute has bilingual versions (English and French), which version prevails if there is a discrepancy?
- The English version always prevails as the original
- The French version always prevails in Quebec
- Both versions are equally authoritative; courts interpret the statute using the version that best reflects the common meaning of both (Correct answer)
- The version that was debated in Parliament in the majority language prevails
Correct answer: Both versions are equally authoritative; courts interpret the statute using the version that best reflects the common meaning of both
Under the federal Official Languages Act and interpretive principles established in R v. Daoust [2004] and Medovarski v. Canada [2005], both the English and French versions of a bilingual federal statute are equally authoritative. Where they differ, courts look for the meaning common to both versions.
Question 3: What is the function of headnotes in Canadian law reports?
- They are part of the court's official reasons and may be cited as authoritative
- They are summaries prepared by editors to assist readers in identifying the key facts, issues, and holdings; they are not part of the judgment and are not authoritative (Correct answer)
- They replace the need to read the full judgment for research purposes
- They are required by court rules in all Canadian provinces
Correct answer: They are summaries prepared by editors to assist readers in identifying the key facts, issues, and holdings; they are not part of the judgment and are not authoritative
Headnotes are editorial summaries prepared by law report editors. They are not part of the court's reasons and have no legal authority. While useful for quickly identifying cases, lawyers must read the full text of the judgment for accurate understanding and citation.
Question 4: In Canadian public law research, the 'Canada Gazette' serves what purpose?
- It publishes consolidated versions of all federal statutes
- It is the official government publication for federal regulations, orders-in-council, and government notices; Part II contains statutory instruments (regulations) (Correct answer)
- It is the official record of parliamentary debates
- It contains all federal court decisions
Correct answer: It is the official government publication for federal regulations, orders-in-council, and government notices; Part II contains statutory instruments (regulations)
The Canada Gazette is the official newspaper of the Government of Canada. Part I publishes proposed regulations and government notices for public comment. Part II publishes statutory instruments (regulations, orders in council) that have been officially enacted. Part III publishes newly enacted federal Acts.
Question 5: In preparing a legal memorandum on a constitutional issue for an NCA exam, which analytical step should come first?
- Identify the applicable Charter right
- Characterize the law using the pith and substance doctrine to identify the relevant head of power and whether the enacting body has jurisdiction (Correct answer)
- Determine whether the law is justified under s. 1 of the Charter
- Identify the remedy under s. 24 of the Charter
Correct answer: Characterize the law using the pith and substance doctrine to identify the relevant head of power and whether the enacting body has jurisdiction
In constitutional analysis, the first step is always to determine whether the enacting body had jurisdiction under the division of powers (ss. 91/92). If the law is validly enacted (within jurisdiction), then the analysis moves to Charter compliance. Remedies are only reached after a finding of invalidity.
Question 6: The principle of 'legal writing clarity' in Canadian legal practice requires that drafting avoid which common error?
- Using plain English instead of legal terminology
- Nominalizations (turning verbs into nouns), excessive passive voice, and unclear pronoun references that obscure the actor and action (Correct answer)
- Using numbered lists in legal memoranda
- Including citations in the body of legal opinions
Correct answer: Nominalizations (turning verbs into nouns), excessive passive voice, and unclear pronoun references that obscure the actor and action
Effective Canadian legal writing requires clear, direct prose. Common errors include nominalizations ('make a determination' instead of 'determine'), excessive passive voice ('it was decided by the court' instead of 'the court decided'), and unclear pronoun references. Plain language principles are increasingly required in Canadian legal documents.
NCA Legal Research and Writing in Canadian Context 3
In Canadian legal research, what is the difference between 'primary sources' and 'secondary sources'?