Harry Wombat
More from the "Justice Policy Development Branch" (don't look at me, i don't make this shit up). :)
Have fun boys and girls. :P
Thank you for your follow-up correspondence about �the common law� in Canada. You ask if the common law can be accurately described as �the law of the land�.
My own reaction is that this would not be a useful description of the common law. �The law of the land� suggests to me a rule of law or a set of laws that must be obeyed. It would be mandatory and of general application.
The common law is not such a law. It is more of an underlying, private, gap-filling collection of rules of law that allow relations among the people who live here to be conducted in predictable and fair ways - at least in principle. When the common law does not meet that expectation, governments often step in and change it by statute. The example I used in my earlier correspondence was consumer protection legislation. Occupiers� liability legislation is another example.
It is certainly fair to say that the Constitution of Canada is the law of the land, and other laws must conform to it in order to be valid. But the Constitution is not the common law, it is a statute. Not only must other statutes conform to the Constitution, but courts must interpret the common law in accordance with it.
Once again, thank you for contacting the Ministry.
John D. Gregory General Counsel Justice Policy Development Branch Policy Division Ministry of the Attorney General
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