 This is the Dalhousie Health Law Institute's Health Law Primer's electronic module series. These first modules, which are broken down into two parts, are an overview of the Canadian legal system. In this first part, we will cover sources of law in Canada. This module is intended to outline some basic but important concepts in the Canadian legal system, and to provide you with the background you need to navigate and understand the more complex topics in the rest of the e-module series. My name is Jonathan Shapiro, and I am an instructor at the Shuliff School of Law at Dalhousie University. My email and telephone number are provided. Please do not hesitate to contact me if you have any questions about the content of the module. In this first module, we will cover four sources of law. The Constitution, legislation, which includes both statutes and regulations, the common law, and administrative bodies. Let's begin with the Constitution. The most important thing to know about the Constitution is that it is the supreme law of Canada. This simple idea is fundamental because it means if a law is inconsistent with the Constitution, it is no law at all. This is contained in section 52 of the Constitution Act 1982, the text of which is reproduced here. This means that the Constitution is used to challenge other, lesser laws. While the Constitution is a complex collection of documents and non-written principles, for our purposes, there are two parts of the Constitution we need to discuss, contained in two separate documents. First, the Division of Powers from the Constitution Act 1867, and second, the Charter of Rights and Freedoms, which came along much later in the Constitution Act of 1982. The Division of Powers is contained in the Constitution Act of 1867, which is the document that first created Canada when the four colonies of Nova Scotia, New Brunswick, and Upper and Lower Canada came together on July 1, 1867. Those colonies became provinces, and you probably know that Canada is a federal state with both a federal and various provincial governments. The most important part of that document is the separation of legislative powers, which sets out which level of government gets to pass what kind of laws. Those powers are set out in section 91 and 92 of the Constitution Act 1867. For example, the federal government gets to make criminal laws, laws about who gets to come into the country, and laws about our national currency, while the provinces get to make laws about roads, liquor and driver's licensing, and the maintenance of hospitals. This is not a complete list. You can see the complete list by looking up section 91 and section 92 online. So which level of government gets to pass laws about healthcare? Isn't the provincial government or the federal government? Actually, it's both. It's mostly provincial because under section 92-7 of the Constitution Act, the provinces get to control the establishment and maintenance of hospitals in the province. However, the federal government does have some influence through its spending power. The federal government has a much larger tax base than the provinces, as the tax is all 33 million Canadians. While it cannot pass laws directly relating to health, the federal government does offer to pay for healthcare services if the provinces agree to certain conditions. Because of the cost of healthcare, all the provinces agree, which is why we have a Canada Health Act that establishes these basic criteria. The next important part of the Constitution is the Charter of Rights and Freedoms, usually referred to just as the Charter. It is the first part of the Constitution Act, 1982. It is important because it guarantees many individual and some collective rights. It's not that Canadians didn't have rights before 1982. We did, in things like the Federal Bill of Rights. But those laws were just statutes, which we will talk about shortly. What makes these rights guaranteed is their constitutional status, because as we discussed regarding section 52, any law that breaches a Charter right is no law at all. Also, a Constitution is extremely difficult to change, giving these rights much more permanency. Two other important things you must know about the Charter is that it applies only to government actors. So it is used to challenge laws and government actions, but does not guarantee rights against private citizens. The Charter will never be invoked, for example, in a private lawsuit over a car accident or negligent medical treatment, but might form the basis of a challenge to a policy that denies certain treatments to groups of people. Secondly, Charter rights are not absolute. Governments in Canada can infringe your rights if they can justify their action as being a reasonable limit in a free and democratic society. That is the very first section of the Charter, section 1. For example, while the Charter guarantees free speech, it is still reasonable for the government to pass laws preventing someone from yelling fire in a crowded theater. Very briefly, the structure of the Charter is as follows. After section 1, the reasonable limits clause is section 2. Section 2 sets out basic fundamental freedoms, like freedom of speech or freedom of choice of or from religion. Section 3 to 5 set out basic democratic rights, like the right to vote, and the right of citizens to run for election to public office. Section 6 sets out the rights of Canadians to live, move, and work throughout the country. Section 7 to 14 contain general and specific legal rights, such as the right to a lawyer upon arrest, or the right to be free from unreasonable search and seizure. It also contains the general right to life, liberty, and security of the person, in accordance with the fundamental principles of justice in section 7. You may encounter section 7 again in the course of the rest of these modules, as it is frequently the basis for legal challenges to laws. Finally, section 15 entrenched the equality guarantee, which is the right to be free from discrimination in Canadian laws or by Canadian governmental actors. This is only a basic outline. The full charter and its actual text is widely available online if you're interested. The next source of law is legislation, sometimes called statutes or acts, though as you will see, the concept is much broader than that. This is what most people think of as a law. It's a series of rules created by government and written down and published in a public forum, both in the dusty old books in the law library and on government websites. A statute is created when a member of the elected body of government imposes a draft rule or series of rules called a bill, which is then debated, amended, and eventually, if approved by majority of vote, is published and becomes a law. Statutes are very flexible in what they can do, subject to constitutional limits, and they do many things, such as create prohibitions of the form, you shall not do something, as in the criminal code of Canada. Impose obligations of the form, you must do something, which is requiring you to file your income taxes under the Income Tax Act. Create benefits stating you can have something, such as in the Employment Insurance Act. Provide rights and protections of the form, others shall not do these things to you, as in the various human rights codes, and regulate professions, saying here are the rules for doing something, as in the Nova Scotia Medical Act. Each level of government, federal and provincial, has passed laws within their spheres of power set out in the division of powers we previously discussed. This is why you see both federal and provincial statutes. So for example, the federal government has created the criminal code under its constitutional power over criminal law, in section 9127 of the Constitution Act 1867. Here you can see a few samples of statutes, which might affect the medical profession, passed by each level of government. This is only a small sampling. The list of statutes from all levels is very, very long. As you encounter statutes in the remainder of the E-Module series, try to identify whether the act is a federal one, or one created by the provincial government. However, statutes are not the only sources of law created by government. There is a second category of legislation called regulations. Statutes are the primary form of laws passed by government, but as you saw above, there is a complex and often lengthy process which must take place to make a draft bill become a law. This makes statutes not very responsive to change. For example, what if the government wants to institute a small service fee increase, say for performing blood tests or doctors' record production? If the medical act had to be amended for this small change, it could take months or longer. In-step regulations. The statute creates the general framework for rules in an area and makes the major rules, and then usually allows for another authority to make small rules that flesh out the details. We call these small rules regulations. Usually, though as you'll see not exclusively, the authority delegated to make regulations is the government executive, cabinet, or a member of the cabinet, such as the minister. In our example above, likely the minister of health. So, for example, the medical act authorizes the creation of regulations about doctors practicing fees, and those fees themselves are set out in section 29 of the College of Physicians and Surgeons regulations. Regulations can be created and changed much quicker than statutes because they only require executive action, not democratic debate. It is important to remember, however, that regulations are subordinate, meaning that a statute must authorize their creation. If an authority tries to make a regulation that is not authorized by the parent statute, or if a regulation is made that is in conflict with the parent statute, the regulation is of no force and effect. Regulations can always be overridden by the terms of a statute. For simplicity's sake, in the hierarchy, you can think of statutes as being greater than regulations. The next source of law is the common law. Most people think of the law as statutory, single written documents made by government like the Constitution and the acts described above, and a lot of it is. But that's not the only source of law in Canada. Many areas of law important to medical practices are governed by the common law, a series of rules that come out of precedence created by judges, which is why the common law is sometimes called judge-made law. We inherited the common law system from England, and it dates back as least as far as the Norman conquest in 1066 AD. Back then, there were fewer no-statutes, and the law was made by the king. People took disputes between themselves directly to the king for justice. As you can imagine, the king could not personally deal with a sheer number of cases that arose, and so he appointed magistrates to hear cases on his behalf. Those judges decided cases, and in order to be consistent and fair, they tried to rule consistently with each other and their previous similar decisions. Over time, a body of precedence was developed. In this way, the common law tries to maintain consistency in its outcomes. Predictability. If you know how a similar case has been decided, you know if you have a good case or not. But, because few cases are exactly alike, judges must reason by analogy, looking for similarities and differences between cases. Also, because few cases are exactly alike, there is some room to choose what previous rules and cases will apply, a term that is often called judicial discretion. There are many areas of law where government has not acted to put in place statutes. These areas are still governed primarily by the common law, including fundamental ones for the practice of medicine. This includes both contracts and torts, which is where one person causes an injury to another, which we will discuss in detail in the second module of this overview series. You can usually tell when the common law covers an area, because judges will refer to cases, such as the rule in Smith v. Jones, rather than a statute, such as section 29 of the Medical Act, in describing the law. Just like regulations are subordinate to statutes, it is important to understand the common law's place in the hierarchy of sources as well. The common law, made by judges, is always subject to being specifically overridden by the elected government by statute. You can think of the hierarchy of sources as follows. The pinnacle of the hierarchy is the Constitution, which is the supreme law of the land. It is greater than and sets the boundaries for legislation created by the elected levels of government. In turn, legislation is greater than the common law made by unelected judges. Here is a simplified example of the interaction between legislation and the common law. Touching a patient, such as delivering an injection without their consent, is the tort of battery at common law, something we will cover in more depth in the second module of this series. However, every province has passed a statute that allows doctors to treat patients against their will for certain communicable diseases. This means that what would have been against the rules of the common law has been overridden by the statutes in question, and the common law of battery is not effective in those limited circumstances. The final source of law you need to know about are administrative bodies. Sometimes, there is an area where the legislature or parliament is not the best suited to regulating, and they want to delegate their authority. With regulations, they delegate that authority to a member of the cabinet. In administrative law, they delegate that authority to a completely separate entity, called an administrative body. The legislature might want to do this because as lawmakers they might lack expertise in an area, or the area might be very complex and require special knowledge or skills, such as the practice of medicine, or the area might require a lot of regular administration, minor rule changes, and oversight, which the elected law-making body is not well equipped to handle. Instead, government authorizes the creation of a body that is authorized to regulate an area of law on its behalf. For example, licensing and regulating drivers. You don't want every suspension to have to be approved and then lifted by passing a new law. Instead, we have the Department of Motor Vehicles to manage it. All administrative bodies are created by statute, called their enabling statute or parent statute. Usually, the enabling statute has a provision that allows the administrative body to make rules and policies which are similar in force to regulations. The administrative body is semi-independent. While it depends on the government and the enabling statute for its creation and the scope of its powers and abilities, it does not have to be directly supervised or regularly returned to government for direction or for permission to carry out its mandate. Here's an example of an administrative body with which you should all be familiar, the Nova Scotia College of Physicians and Surgeons. This is the body that is authorized to govern the regulation of doctors. It is created by statute, the Medical Act of Nova Scotia. That act both creates the college as an entity and then also authorizes the college to make the rules and regulations and policies that govern the practice of medicine in Nova Scotia, including ethical guidelines and the ability to discipline doctors and handle public complaints. The college itself then exercises that mandate and actually creates and enforces those rules. In that way, the college is itself a source of law in Nova Scotia. That concludes Part 1 of the overview of the Canadian legal system. In Part 2, the second module in this series, I will introduce you to four areas of law that might affect your life as a medical practitioner, including contract, tort, criminal, and administrative law. I look forward to seeing you there. Please note that this module is not intended as legal advice and is for educational purposes only. Development of this module was made possible by the generous support of Dalhousie University's Health Law Institute.