Law

• Canada has both a national government and individual provincial and territorial governments, as set out in the Canadian Constitution.
• Elected officials in the federal and provincial governments create laws which govern Canadians' lives.
  • The federal legislature (called Parliament) is in Ottawa, Ontario: it has both an elected House of Commons and an appointed Senate.
  • BC's Legislative Assembly is in Victoria.
• Laws created by governments are referred to as legislation; they may also be called 'statutes', or 'acts', or 'regulations'.

Learn more about legislation

• Laws which contradict the Constitution can be declared unconstitutional (invalid and unenforceable) by the courts.
• The Constitution Act, 1867 sets out which level of government (federal or provincial) can make make laws on different matters; this is called the division of powers .
• Federal government laws (e.g. the Criminal Code) apply to all Canadians while provincial laws only affect people in a specific province (e.g. BC's Motor Vehicle Act).

Learn more about the Canadian Constitution

• All Canadians have specific rights under the Charter of Rights & Freedoms which cannot be unreasonably infringed by government.
• The Charter was established about 40 years ago in the Constitution Act, 1982 which supplements the Constitution Act, 1867.
• Government laws or actions which contravene the Charter can be challenged in court; many cases which go to the Supreme Court of Canada involve alleged breaches of Charter rights.

Learn more about the Canadian Charter of Rights and Freedoms

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• Common law is law that is not written down in the form of legislation.
• It is the collected record of court decisions, and is often called "judge-made law".
• Common law systems are based on a British tradition of resolving disputes before judges (and sometimes juries) in courts. Judges' decisions are based on applying precedents established in previous cases from equivalent or higher-level courts which dealt with similar facts and legal issues. This is known as the principle of stare decisis: "to stand by things decided".
• It is an adversarial system, with two "sides" (usually represented by laywers) presenting their arguments to the court:
  • a plaintiff and a defendant in a civil trial;
  • a Crown prosecutor and an accused person in a criminal trial;
  • an appellant and a respondent in an appeal case.
• In some areas of law, such as contracts and torts, there is very little legislation and decisions are based entirely on the common law. However, most cases require judges to interpret how to apply both relevant legislation as well as common law in specific disputes.
• Judges must explain the rationale for their decisions either orally or in writing. These "reasons for judgment" are called case law.

*Exception: Quebec uses the civil law system for provincial matters of private law, based on the French tradition of written legal codes.

• Judges must explain the reasoning for their decision in a given dispute. They usually do this by writing a form of an extended argumentative essay (in a highly structured format) which records several things:
  • the outcome or decision made by the judge(s)
  • the reasons for the decision
  • sources such as relevant legislation, precedents in previous cases, etc. upon which the decision is based.
• These written or oral "reasons for judgment" of the courts are called case law.
• Because of the principle of stare decisis -- following binding precedents from equivalent or higher courts -- judges must consult previous case law to identify which precedents may apply to a given situation.
• Jury trials will not have a written case because the verdict is not made by the judge, but by the jury which is sworn to secrecy. The judge may provide reasons for their subsequent sentencing decision in the case, however.
• Case law is also called judge-made law in contrast to legislation which is government-made.

Learn more about case law

• Each province has several levels of court, including trial, superior and appeal courts.
• Lower courts conduct trials and higher courts hear appeals from the lower courts.
• A higher court may reverse (overturn) a decision if a serious error was made by the lower court's judge(s).
• The highest court in Canada is the Supreme Court of Canada (SCC).
• Trials usually have one sitting judge and sometimes a jury as well.
• Appeal courts have more than one judge, always in an odd number to avoid tied votes.
• In cases heard by more than one judge, the majority opinion rules. One judge generally writes the majority decision with input from the other judges.
• If the decision is not unanimous:
  • Judges on the panel who agree with the verdict (meaning the outcome: e.g. to allow the appeal and overturn the lower court's decision), but disagree with the reasoning underlying the verdict may write a concurring opinion which will be included after the majority opinion.
  • Judges who disagree with both the verdict and reasoning will write a dissenting opinion which is included after the other opinions.
• A single dispute could go through multiple appeals up to the SCC. At each court level, a separate written "case" would be published, explaining that court's decision. There will then be several "cases" with the same name. You need to carefully check that you are reading the decision from the court level that you intended which is usually the highest level of court.

Canada was created in 1867 as a colony of Great Britain. The British monarch -- currently King Charles III -- is still Canada's head of state even though Canada now governs its own affairs. While largely a ceremonial tradition, this relationship is evident in Canada's legal system in several ways:

Image source:Justice Education Society of BC

• All legislation must receive Royal Assent before becoming law.
• Crimes are considered to be offences against the state, not only an individual victim, and the monarch is the head of state. Hence, the case against a person accused of a crime is led by the Crown Prosecution.
• Because the case is brought by the Crown Prosecution on the monarch's behalf, the name of a criminal case will almost always be R v [the surname of the accused person]. The letter R is short for Regina (Latin for Queen) or Rex (Latin for King), depending on who is on the throne.

• Primary sources are those which are binding in a court of law:
  • the Constitution and Charter of Rights & Freedoms
  • legislation
  • case law
• Secondary sources -- also called commentary -- are those which explain the primary law, including:
  • dictionaries
  • legal encyclopedias
  • books
  • journal articles

TIP: It is almost always best to start your research with a secondary source!

• You need to understand what your instructor expects you to do, and whether they want you to use particular types of sources. This will help you to plan which search tools to use. For example:
  • Are you trying to answer a specific legal question? You may want to start with a legal encyclopedia
  • Are you writing a case brief? You may want to start by finding a "case comment" article and then noting up the case to see how courts have treated it 
  • Are you writing an essay? You will likely need to consult a wide range of commentary sources, including journal articles.
• Almost every assignment will involve identifying the most important pieces of primary law (legislation and cases) related to your topic. Secondary sources like legal encyclopedias and books are usually the best place to start. But before you can start searching, you need to think about what you are looking for.

• Try to identify the key facts, legal concepts and areas of law. Circle useful terms in your assignment and brainstorm similar terms. You will use these terms as a starting point to search for relevant information.
• It might help to think about these things:
  • Who is involved? (the category of person)
  • What actions (or inactions) led to the dispute?
  • What areas of law might be involved?
  • What offence or legal issues are involved?
  • What possible defences could be raised?
• As you start searching, you will likely find that certain legal phrases (which might be in Latin) are used to describe the legal issues related to your topic. This is an important step in your research process: to find the legal language that is likely to be used by the courts. You will have much better success locating relevant information if you use the correct legal terms. Make a note of these terms and look up the meaning of any that you don't understand.

These guides provide tips on selecting effective keywords for your legal searches:

• Generating Search Terms in CanLII
  • From the CanLII Primer, starting at the bottom of page 25.
• Developing Keyword Search Terms
  • From Humber Libraries' Legal Research Guide for WRIT 215 course.
• Frame the Legal Issues and Identify Keywords
  • From Queen's University's Legal Research Guide. Scroll down the guide to see two suggested approaches to generating search terms.
• Keywords: Defining Legal Concepts
  • From the University of Ottawa's Principles of Legal Research guide.

Use the KPU Library's  Summon search tool to look for different types of sources in the library's collection, all at once.
TIP: Use the "Content Type" filter for Book/Ebook in Summon to limit your results just to books.

Learn more about finding legal books at KPU Library

The Canadian Encyclopedic Digest is an encyclopedia of Canadian law.

• It's a great place to get a concise understanding of current Canadian law on a vast range of topics.
• If you are looking for the answer to a specific legal question, this is the place to start.
• You can search the CED by keywords or browse from broad to narrower areas of law.
• You'll find short statements of law, arranged in numbered paragraphs, with live links to leading cases and relevant legislation.

The CED can seem a bit overwhelming at first, but here are some videos to help:

• How to Start Your Research with the CED (6 min)
• Research Scenario, Part One: Secondary Source (CED segment starts at 4:09)

Charterpedia is an encyclopedia about the Canadian Charter of Rights and Freedoms

• If you are researching the Charter, this is the place to start.
• It is arranged by Charter section. You'll find an explanation of the purpose of the section, and a discussion of leading cases which have tested that section.

Articles published in legal journals tend to be very long, and are written for people who already know a lot about the law. You may find them overwhelming. However, they can be more up-to-date than books, and you can often find articles analyzing one specific legal case (called a case comment) which could be helpful if you're writing a case brief.

• CanLII Journals Collection
• LawSource Legal Journals Collection

Learn more about finding legal journals at KPU Library

CanLII has a growing collection of commentary which includes books and legal journals as well as other secondary sources. I recommend searching the whole CanLII commentary collection and then filtering your results by type of source if you find too many. Click on the drop-down menu beside the "All Contents" filter to view the types of sources available in your result list.

Of particular note is the CanLII Connects collection which features case comments by leading lawyers and experts. This is especially helpful for recent cases.

Here is a quick introduction to the Commentary collection in CanLII  which is a great place to start!

Video credit: David H. Michels from the Canadian Association of Law Libraries for CanLII on YouTube

Noting Up a Case in CanLII: 3-minute video from Osgoode Hall Law School.