MODULE 1 – INTRODUCTION TO THE LEGAL SYSTEM

WHAT IS THE LAW

Laws are the official rules of a society that tell people how they can or cannot act. Breaking a law can result in a penalty, such as a fine or imprisonment. Laws can exist on different levels; they may apply to a whole country, a province or state within a country, or an even smaller community, like a city or village. Laws may also apply only to specific industries or apply only in a particular set of circumstances.

The main purposes of laws are to provide order in society (for example, highway traffic legislation), to provide a peaceful way to settle disputes (for example, small claims court legislation), and to express the values and beliefs of a society (for example, election laws).

WHERE DO LAWS COME FROM?

Laws may either be statutory, or a part of the common law. The basic difference between the two is that statutory laws are laws written by legislators such as Members of Parliament, Senators, or members of a provincial legislative assembly. The common law is made when judges interpret the law.

STATUTORY LAWS

Statutory laws are called acts or statutes. These laws start out as bills in Parliament or in a province’s Legislature. These bills go through a long process of debate, and sometimes changes are made. After being debated, legislators vote on whether the bill should pass. If it passes, it becomes law.

Many acts and statutes also contain regulations, which allow the government to work out some of the finer details of the law. Regulations can be changed or amended much more quickly than bills or statutes, because they do not need to be debated. Federal regulations can be made by the Prime Minister or their cabinet, and provincial regulations can be made by the Premier or their cabinet.

There may also be policies to consider. Policies are not really law in themselves; they are more like the rules that explain how certain aspects of the law will be carried out. Policies are usually made by administrators or officials within an organization. Here is an example to show how statutes, regulations, and policies work together on the same
topic.

The Employment Standards Code is a statute that governs many aspects of employment in Manitoba, including wages. The Code says that you must be paid at least minimum wage for your work, and sets out a formula for determining minimum wage. It also says that an employer must pay an employee at least twice a month, and within a certain timeframe of the work period. The Code also sets out some specific exceptions to these general rules.

In the Regulations to the Employment Standards Code, there are some additional laws about wages. For example, the regulations set out certain types of jobs that have a different minimum wage, and explain what that minimum wage is. The regulations also set restrictions on what type of deductions an employer can take from your wages.

Workplace policies would handle matters like your wage amount, how often you are paid, and the actual day of the week you are paid. However, keep in mind that these policies are still subject to the statute and the regulations. For example, a workplace policy could say that you will get paid more often than twice a month, but it could not say that you would only be paid once a month, because this would go against the statutory requirement to be paid at least twice a month.

IMPORTANT STATUTES

The most important statutory law in Canada is the Constitution. The Constitution is the supreme law of Canada. Any other laws that are not consistent with the Constitution are considered invalid. The Constitution is not one statute, but a group of several statutes. The Constitution Act, 1867 is the act that created Canada as a nation and set out its government structure and the powers of the provincial and federal governments.

The chart shows what is under federal and provincial jurisdiction

FederalProvincial
Trade & CommerceAdministration of Justice
TaxationProperty
BankingPrisons
DefenceEducation
Criminal LawSolemnization of Marriage
PenitentiariesHospitals
Postal ServicesLocal Matters
Divorce & Marriage

The Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms, which sets out fundamental freedoms and other important rights. The Constitution Act, 1982 also affirms the rights of Canada’s Indigenous peoples.

Another important statute is the Criminal Code of Canada, which sets out criminal offences throughout the entire country.

THE COURT SYSTEM

This is the basic structure of the Canadian court system.

THE COURT SYSTEM chart

There are special branches of the court system that deal with military matters, (shown in green), taxes (shown in yellow), and specific federal matters, like intellectual property, immigration, and national security (shown in blue). The most common court process is shown in orange.

Each province and territory has a provincial or territorial court, a superior court, and a court of appeal. The only exception is Nunavut, which has a combined territorial and superior court. Each province or territory may also have several administrative tribunals, which have the power to make decisions about certain specific types of matters, such as tenancy or human rights. These tribunals and courts appeal to the superior court for the province or territory. The superior court appeals to the court of appeal for the province or territory, which can appeal to the Supreme Court of Canada.

Trials in provincial and superior courts are heard by one judge, or in some cases in superior court, a judge and jury. Appeals at the Court of Appeal or Supreme Court are heard by a panel of justices. If the justices decide differently from one another, the majority’s opinion will become the decision of the court.

APPEALS

An appeal is a request for a higher court to review a decision made by a lower court. A request for an appeal can only be made after the judge hearing the case has made a final decision. If either of the parties involved in the dispute feel that the judge decided wrongly, they can request to have an appeal heard.

There are two types of appeals. Most of the time, a higher court has to give permission for an appeal from a lower court to be heard. This is called an appeal by leave of the court.

In some rare cases, this permission is not needed. This is called an appeal as of right. For example, if a case appears in a provincial Court of Appeal and one of the justices disagrees with the others on a point of law, the Supreme Court of Canada must hear the appeal, if requested.

An appeal is not just a chance to have another trial if one party is unhappy with the result; there must be a valid reason for reviewing the lower court’s decision. Some common reasons include the judge making an error about the facts in the case, the judge making an error about the law, the appearance of bias in the trial—for example, bias from the judge or jury members—and incompetent counsel, meaning the lawyer failed to properly represent their client.

A court does not need to hear every appeal that is requested. If they feel there is no valid reason to review the decision, they can deny leave, meaning they will not hear the appeal and the lower court’s decision will remain in effect. There are also many procedural rules concerning appeals, and a court may reject a request for an appeal if these rules are not met. If a court does decide to take an appeal, it will review materials submitted by both parties explaining why they think the lower court’s ruling should or should not stay in effect. There may be an oral hearing at which lawyers for each side will make their case and answer questions from the justices.

An appeal hearing is similar to a trial, except there are no witnesses and the lawyers must limit their argument to the grounds of appeal. After arguments have been made, the court will make a decision to uphold the lower court’s decision, reverse the lower court’s decision, or send the matter back to the lower court for a new trial.

MANITOBA’S COURT SYSTEM

Here is a closer look at Manitoba’s court system.

The lowest level of court is the Provincial Court of Manitoba. This is where trials are held for most criminal matters. It is also where provincial offences such as traffic tickets appear. Matters in provincial court are heard by a judge, or in some cases a Justice of the Peace.

The next level of court is the superior court, which in Manitoba is called the Court of Queen’s Bench.

In Manitoba, the Queen’s Bench is divided into a Family division and a General Division. There is also a Small Claims court, where court officers can hear civil claims up to $15,000.

The Family Division deals with all family and child protection matters. The General Division hears trials for civil matters over $15,000, and certain serious criminal matters.

MANITOBA'S COURT SYSTEM chart

Some serious offences, like murder, must be tried in Queen’s Bench instead of Provincial Court. Matters in Queen’s Bench may be heard by a judge, or in some cases, a judge and jury. Some matters in the family division may be heard by a master.

The General Division also functions as an appeals court. It can hear appeals from small claims court, administrative tribunals, and trials held in provincial court.

Appeals from the Court of Queen’s Bench go to the Manitoba Court of Appeal. The Court of Appeal only hears appeals; it does not hold any trials of its own. Both the family and general division of Queen’s Bench appeal to the Court of Appeal. Hearings at the Court of Appeal are heard by a panel of justices—usually three.

If a matter is appealed from the Court of Appeal, it is heard by the Supreme Court of Canada. The Supreme Court is the highest appeals court in Canada, meaning a case cannot be appealed any further once the Supreme Court has made a ruling. Cases at the Supreme Court are heard by a panel of five to nine Justices.

PRECEDENT

When making decisions about cases, judges are expected to follow the precedents set by other cases. A precedent means a previous decision that should be used as a guide. The idea behind precedent is to make sure the law is being applied consistently.

There are two types of precedent: binding and persuasive.

Binding precedent means the court must follow a precedent and interpret the law in the same way another court has. A decision of a court is always binding on any courts below it in the same branch of the court system. For example, the Manitoba Provincial Court must follow the decisions made by Manitoba Queen’s Bench, and the Manitoba Court of Appeal. Since the Supreme Court is the highest court in Canada, all of its decisions are binding on every court in the country.

Persuasive precedent means the court can look to other courts to see how they have interpreted the law, but they do not necessarily need to decide in the same way. For example, any Manitoba court can look to the decisions made by any other province’s courts, but they do not have to decide in the same way. The higher the level of court is, the more persuasive it will be. For example, decisions from the Saskatchewan Court of Appeal are more persuasive than decisions from the Saskatchewan provincial court.

In some cases, a judge may decide to overturn an existing precedent. This does not happen very often, but it may be reasonable in certain circumstances. For example, if a certain topic has not been addressed by the court in a long time, and attitudes toward the topic have changed over the years, a court may decide in a way that ignores the ruling in the earlier decision