Criminology 135 Notes

Chapter 2: Sources of Canadian Law

Early Sources: Rethinking Plains of Abraham
Magna Carta significant in bringing democracy to England but now entirely democratic

Reinstatement of classic feudalism and benefitted mainly barons

Feudalism abolished in 1606, by the time Britain and France were established in Quebec and
Ontario

Canada was territory of the two competing nations of Britain and France
Aboriginal claims being extinguished

Battle of Plains of Abraham would spawn Royal Proclamation Act, British North America Act,
and the Constitution Act
Royal Proclamation established governor and council to run Quebec until conditions could be
met to permit an elected assembly; English laws and courts; and Aboriginal self-government

Quebec Act allowed Roman Catholics to participate in government and use of French
civil law

Constitution Act of 1791established Quebec into Upper and Lower Canada, each with its own
executive and legislative branch
Executive branch comprised of lieutenant governor and an appointed council
Legislative branch had Legislative Council appointed by British Parliament, and Legislative
Assembly to which landowners could be elected
Executive branch loyal to Britain and its parliament

Lower Canada executive council run by English speaking minority, leading to armed
rebellion

Report by Lord Durham led to the 1840 Act of Union, creating the United Province of Canada

Was allowed self-government with Britain managing public lands and foreign interests

Fear of invasion by the United States led to the union of Upper and Lower Canada, Nova
Scotia, and New Brunswick

Other provinces joined Confederation with Newfoundland joining in 1949

o Because FUCKING NEWFIES

British North America Act divided the powers of the federal and provincial governments and
set out a strategy for legal governance
Conceptual Divisions of Law
International law is ideally common to every nation state is typically mediated by the UN
Domestic law concerns itself with a single nation state

Canadian domestic law divided as private or public, and substantive or procedural

Substantive law: prohibits murder
Procedural law: defines trial procedures

Distinctions between private, public, substantive, and procedural law has limitations

Certain private agreements have vested public interest, etc.

Classifications of private and public law dependent on issue of public as opposed to private
interest
Classification of family law as private problematic as there is a strong legal interest in the
definition of family
Law of wills and trusts and property can define collective economic, social, and political
character of a nation
Classifications are arbitrary to a degree
Canadas Legal History
Sources of Canadian Law
Canadian law mainly influenced by British, French, and US legal systems
Two principle sources: legislation and case law

Written law

Two subsidiary sources: customs and books of authority

Unwritten law

Much of judicial decisions amount to written law, but are not statutes so are technically unwritten
Sources of Canadian law date back to 1867 before Confederation and inherited from British
common law
Canada given legal identity with BNAA and Constitution Act of 1987
Legal dispute over Canadas legal identity is central within Quebec culture and aboriginal culture

Statute Law
Statute law accorded dominance due to traditions of parliamentary supremacy

Other sources such as case law, custom, and books of authority are not directly
accountable to democratic system

Judicial decisions provide measure of control of meaning and operation over statute law

Provides focus for understanding and reconstruct meaning and operation of statute law

House of Commons and legislative assemblies are the source of statute laws
Legislative process for creation of statute
1. First Reading
a. Introduce bill to House of Commons and legislative assembly
b. Passed to second reading without debate
c. Most bills die here
2. Second reading
a. Minister responsible for bill sets out purpose of bill
b. Full debate
c. Bill sent to committee of House or Assembly of both government and opposition
3. Further debate with possibility of a public hearing
a. Committee of House or Assembly may travel the country to receive opinions on
bill
4. Third reading
a. Bill comes back with amendments or provisions
5. Bill is passed
Federal legislation requires same process in the senate before passed on to governor general for
approval
Provincial or territorial legislation passed and approved by lieutenant governor
Governor General and lieutenant governor positions are simply formality and represent the
monarchy
Statutes published every year
Case Law
Established by decisions from specific court cases
Subsequent courts must follow judicial precedent
Continuous interpretation of statutes renders legal system dynamic rather than static

Two problems with judicial precedent

1. Courts and counsel may make illogical distinctions an may lose contact with intentions of
the legislators
2. Courts can reverse previous decisions
Reporting Case Law
Though judiciary decisions are reported through different sources, not all are reported

Supreme Court Reports carries all important judgements from Supreme Court of Canada

Editor of reporter chooses which cases to report typically by selecting decisions from superior
courts
Editor writes headnote before each decision

Summary containing facts of the case, issues in dispute, and reason for decision
o Ratio decidendi: judges determination of law
o Court may issue obiter dicta: legal pronouncements on issues not directly
relevant to case

Custom
Most forms of law originate from different customs
Custom did not have as significant effect as form of law in contemporary Canada
Canadian law often has pre-eminence over custom

Constitutional law

Books of Authority
Application of books of authority has increased in breadth and volume during the past three
decades
Guidance from early scholars and current academics
Use of expert witnesses in court
Use of books of authority increases in construction of judicial precedent

Further Sources of Law

Certain laws change over time due to provisions and amendments
Each statute leaves a paper trail
Important to study judicial decisions relating to various statutes
History of judicial decisions provides history of law overtime

Conflicts between law, judicial decisions, and books of authority

Judicial changes to statutes over time
Custom or convention in certain circumstances
Occasional influence of books of authority

Does not provide critical connecting threads for events or sources

No narratives to make sense of intentions and consequences of law
Law represents political compromise

Little need for statutory laws or judicial decisions if social consensus existed

It is necessary to build consensus in order to maintain law and order

Predominant ideology constructed and maintained over time

In reality, clashing world views sometimes find expressions in same piece of legislation
Description of sources of law must account for conflict, compromise, and consensus
Criminalization of Illegal Drug Use and Distribution
Criminalization of certain drugs in Canada started with the 1908 act to prohibit sale,
manufacture, and importation of opium for other than medical use
Canadian narcotics laws are a product of the twentieth century and cannot be traced back to late
nineteenth century England or other jurisdictions
Original 1908 Statute
First source to look at can be Hansard: recorded proceedings of debates in house of commons

Other sources such as archival papers and newspapers provide insight

Not much public clamour for the law

Certain cities in BC actually hosted licensed opium factories and major news outlets
advertised for opium
Okay, lets call this shit for what it actually isHEROIN

Different businesses sold opium based products and black-tar opium was sold equally to the
whites and the Chinese
Opium smoking businesses mainly operated by Chinese and other Asian groups

Negative sentiment to Asians was huge during the 1900s

1907 Vancouver race riots

William ASSHOLE Lyon Mackenzie DOUCHBAG King declared that smoking opium should
be banned

Opium based tonics, cocaine, and other products of white patent medicine industry were
not affected
o Regulated by Patent or Proprietary Medicine act
Douchebag wanted to get some good out of the riots
o What a fucking asshole

Opium laws had roots in racially motivated labour confrontations

Canada used to REALLY FUCKING SUCK

Legal positivist would say that scrutiny of the law is irrelevant as it was validly enacted and is a
valid source for the Controlled Drugs and Substances Act, 1997
Opium and Drug Act of 1911
Proposed to make changes to original 1908 legislation by prohibiting cocaine and making
possession punishable by imprisonment
Legislation modified as it was difficult for law enforcement to take action against consensual
transactions of importation, manufacture, and sale

Legislation not modified out of informed debate, but for the ease of law enforcement

Original 1911 legislation contained proposal allowing federal Cabinet to add prohibited drugs to
the Act without Parliamentary debate or approval
Opium and Narcotic Drug Act of 1922
Provided for:

Minimum six months imprisonment for possession

Whipping of the convicted
Deportation of immigrants convicted of drug offences
Enabling police officers with reasonable suspicion to search without warrant any premise
other than a house

Influenced by The Black Candle, which outlined a drug trade monopolized by Blacks and Asians

Claimed a conspiracy against bright-browned races of the world

Marijuana added to schedule of prohibited drugs

Penalties for distributing opiates, cocaine, or marijuana rises to seven year maximum
imprisonment
Anti-narcotics police given sweeping powers of search and seizure
Judicial decisions in line with Opium and Narcotic Drug Act

Very little case law as a result

Quebec court indicated that no mens rea was required for cases of possession in R. v. Sung Lung
Little case law or legislation in regards to narcotics up until the early 60s
Narcotic Control Act of 1961
Remained in place until the 1997 Controlled Drugs and Substances Act
Set terms for life imprisonment for trafficking narcotics

Usage increased in part because of marijuana distribution and consumption

Amendment made to allow for summary conviction for possession due to rising marijuana usage

Widely opposed by the young due to the prominence of pot in counter-culture

Commission gathered data in response to challenge of authority

Commission advocated abolition of criminal offence of possession of marijuana

Advocated for change in thinking from criminal enforcement to allowing freedom of
choice

Amendments made to allow absolute or conditional discharges

20 percent of those convicted of marijuana possession received discharge during the late
70s

Narcotics act subject to very little legislative debate

Primary source of law has been judiciary

Case and common law has been predominant source of laws controlling narcotics

Despite lack of change to legislation, judiciary decisions reflected increasing leniency towards
marijuana possession and distribution

Extended to heroin and cocaine use

Controlling Cannabis Cultivation: Safe Streets and Communities Act, 2011

Marijuana distribution shifted from import-export to domestically grown operation, especially in
BC

Grow ops have started springing out of the ground fucking everywhere
Law enforcement doing little to impose strict penalties

Conservative government chose to reverse trend towards leniency with the Safe Streets and
Communities Act

Minimum 6 months jail term for growing five marijuana plants or more