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2 Systems & Sources of Law

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Jen Rinaldi

on 17 September 2018

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Transcript of 2 Systems & Sources of Law

Systems & Sources of Law
Case/Common Law
First Nations Legal Traditions
British Common Law System
Quebec Civil Law
Childs v Desormeaux, [2006] 1 SCR 643
1) Explain the citation
2) Locate the facts & history
3) Locate the issue & decision
4) Locate the ratio and obiter dicta
Systems of Law
Quebec Civil Law
Control over Quebec was transferred to Britain following French defeat
Quebec resisted assimilationist measures, leading to The Quebec Act, 1774
Quebec's private law follows French civil tradition
Quebec's public law follows a common law approach, and courts follow British system
Quebec judges are not bound to follow previous decisions, but tend to refer to them
British Common Law System
Courts interpret and apply law, but also develop legal principle
Precedent-based system, according to principle of stare decisis
Wide variation, but tend to share the following characteristics:
Connection to the ecosystem
Law intertwined with community practice
Practice/articulation embedded in ceremony
Sources include creation teachings, observations from nature, proclamation, deliberation, local custom
01:02:13-01:05:35: https://www.nfb.ca/film/trick_or_treaty/
First Nations Legal Traditions
Course Outline Overview
Discussion of Expectations
Law's Definitions & Functions
Next Time
Making the Law:
Canadian Government & Courts
Systems of Law
Canadian Systems of Law
Sources of Law
Chthonic Legal Tradition
"Centred around the earth and natural world"
Communal process, with no singular authority
Canadian Legal Systems
Civil Law System
Rules developed from abstract principle reflected in code
Codes aim to create a regulatory framework for a given area of law
Roman Emperor Justinian codified law in sixth century CE
Common Law System
Reliance on judicial decisions as the primary method of law creation
Judges gradually departed from applying local custom and developed common rules
Precedent - a seventeenth century concept
Sources of Law
Body of written rules produced by state institutions according to formally set process
Takes two forms:
Statutes: set framework of regulation, enacted by federal and provincial legislative bodies
Subordinate Legislation: regulations, rules, bylaws passed by government bodies to which legislatures delegated power
What is Legislation?
Finding/Citing Legislation
Immigration and Refugee Protection Act, SC 2001, c 27

Accessibility for Ontarians with Disabilities Act, SO 2005, C 11

Immigration and Refugee Protection Regulations, SOR/2002-227

Integrated Accessibility Standards, OReg 191/11
What is Case/Common Law?
Body of judicial decisions produced by courts
Key parts: facts, history, issues, decision, legal reason (ratio decidendi), other reasons (obiter dicta)
The ratio serves as precedent. Precedents can be binding or persuasive
Finding/Citing Case Law
Suzuki v Munroe, [2009] BCJ No 2019

R v Latimer, [2001] 1 SCR 3
Full transcript