Medicine Hat Lawyers
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Common Law & Civil Law in Canada Canada is a common law based legal system, which it inherited from United Kingdom when it used to be one of the colonies of the UK. As per the common law doctrine of stare decisis, the lower courts of Canada are bound by the decisions of those courts above them, i.e. higher in hierarchy to them. This is one of the most firmly embedded principles of common law based legal system. By way of example, all the decisions of Court of Appeal would prevail and be binding on the lower courts of the concerned territory and in respect of that territory only; hence the lower courts of one territory will not be bound by the decisions of the higher courts of some other territory of Canada.
Be that as it may, the judicial pronouncements of the Court of Appeal of one territory may hold persuasive authority for the lower courts of other territory, albeit not binding in nature. It is only the Supreme Court of Canada which is legally authorized to prevail over the decision making of all other courts within the hierarchy of courts on a single ruling. Moreover, Court of Appeal of various territories are looked upon for their guidance and assistance on a case to case basis, on points of law, particularly and commonly on matters such as evidence and crime. There may be instances where a particular case at hand is not covered by a legal precedent or case law on point (whether factually or on legal aspects). In such instances, it becomes imperative to look or refer to legal authorities or references outside Canada and most commonly such legal references or case laws are relied upon from jurisdictions such as English or United States courts.
It is no surprise to those who are well aware of the historical significance and evolution of Canada from United Kingdom, which eventually led to the development and adoption of a lot of legal aspects, systems and theories in Canada. It is in this context that the ratio decidendi or decided cases of English Court of Appeal and House of Lords (the Supreme Court of England) are commonly relied upon and deemed to be of persuasive authority. Having said that, there are certain areas of law where the case law is much developed and discussed at greater lengths in the United States courts rather than the English courts, for example, areas such as administrative or constitution matters or privacy law issues.
As a matter of day to day practice, the lawyers practicing in different territories of Canada will have to weigh the substance and plethora of law developed on a specific subject in one of these âpersuasive jurisdictionsâ and advise their clients accordingly on such basis. Moreover, the list of persuasive jurisdictions in not limited to the above discussed two, but there are several other Commonwealth member countries, whose legal systems can be relied upon for guidance and assistance, as and when required.
