Nova Scotians are subject to laws set out in legislation and case law. Legislation is made be legislatures. When a case comes to court, a judge interprets what the law means and how it applies, and these court decisions are called "case law". For example, the Canadian Charter of Rights and Freedoms says that an accused is entitled to a trial within a reasonable time. Judges have interpreted what a “reasonable time” means - the Supreme Court of Canada did so in a 2016 case called R v. Jordan. As the Supreme Court of Canada is the highest court in Canada, the legal principles set out in the Jordan decision are law and now govern how that Charter right is to be interpreted and applied.
There are three types of legislation in Nova Scotia:
- Statutes of Canada, which are laws passed by the Canadian Parliament;
- Statutes of Nova Scotia, which are laws passed by the Nova Scotia Legislature;
- By-laws, which are laws passed by municipalities that have law-making powers given to them by the provincial law. By-laws deal with local issues such a parking and zoning.
Acts or Statutes usually include a section appointing a person or body to make regulations in relation to that law. Regulations provide details about how the Act is applied. They are part of the law and have as much force as the Act itself. For example, Nova Scotia’s Consumer Protection Act has regulations outlining specific rules about gift cards, payday lenders and online shopping contracts.
When a regulation is passed, it must be filed and published. At the federal level, the regulation is filed with the Clerk of the Privy Council and is published in the Canada Gazette. Exceptions to this rule are listed in Part II – Consolidated Index of the Canada Gazette. At the provincial level, regulations must be filed with the Registrar of Regulations. In Nova Scotia, regulations are published in the Royal Gazette, Part II.
See the section on Legal Research for resources on doing legal research and finding legislation.
Case law is also known as common law, judge-made law or case reporting. It mainly comprises all previous decisions and judgments made by all levels of court across Canada. The development of case law is an ongoing process.
In Canada, with the exception of Quebec, laws have their origin in English common law. William the Conqueror developed common law in England after the Norman conquest in 1066. At the time, there were few written laws in England, and William sought to establish a uniform system of law. The King’s court travelled around England and selected the best local customs, common traditions accepted as binding on all members of the community. These customs were made law, and this new legal system became known as the common law.
Eventually the common law evolved into a formal system based on the rule of precedent. The rule of precedent is the custom of judges standing by previous judges’ decisions. It is also known as stare decisis (which means to stand by things decided). When making a decision, judges refer to the principles and decisions made by judges in previous cases. These are called “precedents”. Precedents are examples of how laws or by-laws have been interpreted and applied.
The authority or importance of a particular precedent depends on the level of court and the jurisdiction in which the original decision was made. A precedent-making decision can only be changed by a court higher than the court which made the original decision. The higher the court, the more weight will be given to its decisions. However, courts are not bound by the decision of the following courts:
- Other courts lower than the supreme court of a province;
- Courts outside the jurisdiction or province (the exception is Supreme Court of Canada decisions);
- Courts of equal jurisdiction (for example, a judge of the Nova Scotia Court of Appeal will not be bound by a previous decision of a judge sitting on the same court - but he or she may be persuaded by it).
In all cases, the court’s decision can still be persuasive, even if it does not follow the precedent.
A judge may also consider decisions from other countries, in particular, other common law jurisdictions such as Britain and the United States. Different decisions on the same subject matter may conflict. In reaching a decision, a judge may have to choose which previous decision or principle to follow. In doing so, he or she may either overrule one of the decisions as being bad law or may distinguish one of the cases based on the case facts.
Case law is contained in law reports, in print or electronic format. See the section on Legal Research for resources on doing legal research and finding legislation.
The Constitution and Charter of Rights
A constitution is a document that sets out a country's system of government and the civil rights of its residents and citizens. In Canada, the Constitution Act was proclaimed on April 17, 1982. This Act consolidated the British North America Act of 1867 and 30 other constitutional Acts, and forms the core of the Canadian Constitution. The Constitution can be altered, but it is a long and complicated procedure.
The Constitution Act contains the Charter of Rights and Freedoms, which sets out the rights and freedoms to be enjoyed by all Canadian citizens, and extends some of these rights and freedoms to all Canadian residents. These rights and freedoms are not absolute or limitless. As indicated in Section 1 of the Charter, they are subject to reasonable limits laid down by law which can be shown to be justified in a free and democratic society. The courts must decide what amounts to “reasonable limits”. They must strike a balance between individual rights and the needs of society.
Charter rights only apply to federal, provincial and municipal government actions; they do not apply to the actions of private individuals, such as a dispute between neighbours, or between a homeowner and a contractor. The Charter also protects Canadians from the actions of agencies regulated and/or funded by government, such as the Royal Canadian Mounted Police (RCMP).
The federal Parliament, provincial legislatures and municipal governments have the power to declare, within clearly defined limits, that a piece of legislation is not subject to some provisions of the Charter. This power is rarely used.
The Charter is a reminder to all governments and legislators that their powers are limited and must be exercised with respect for the rights of individual citizens. The courts must see that legislation or government actions do not violate the rights and freedoms set out in the Charter. The courts also play an important role in deciding the provisions of the Charter, for example by interpreting what the rights and freedoms in the Charter mean, what they cover, and how far they extend.
Legal authority, or Jurisdiction, is set out in Sections 91 and 92 of the Constitution Act, and list areas in which only the federal or the provincial government may make laws. For example, under section 91 (27), only the federal Parliament may make criminal laws and set the criminal procedure for the courts. Or, section 92 (14) says that only a province may make laws for the purpose of administering courts in that province.
In general, the federal government has the power to make laws for the peace, order and good government of Canada, and laws regulating trade and commerce. Provinces have the authority to make law with respect to property and civil rights within their province, in matters of a local or private nature.
Some of the powers set out in sections 91 and 92 are narrowly defined. For example, section 91 (9) makes it clear that the federal Parliament may make legislation about Sable Island off the east coast of Nova Scotia. However, most of the powers referred to in sections 91 and 92 are so broad that courts have been asked many times to decide whether the federal or provincial government has jurisdiction over a particular area.
The publication How Canadians govern themselves, written by former Senator Eugene Forsey, provides more information on the Constitution and our system of government.
Policy is a set of rules or procedures that guide how decisions should be made with regards to public affairs. Policy is not law. If a policy is contrary to the statute or regulations, it can be challenged.
For example, the work of income assistant caseworkers is governed by Nova Scotia’s Employment Support and Income Assistance Act. The Employment Support and Income Assistance Policy Manual details practical procedures caseworkers use in carrying out their work.
Government policies are often available to the public, either online or in paper format at government offices. If a policy is not already available, you can make an access to information request, at the federal or provincial level, depending on the policy. Requests to federal departments are made under the Access to Information Act. Requests to Nova Scotia’s provincial departments are made under the Freedom of Information and Protection of Privacy (FOIPOP) Act.