ON THE HIERARCHY OF WRITTEN LAWS

Not all laws are created equal.  This statement sounds counterintuitive, so let me explain.   First, there is a distinction between the common law or, as it is sometimes called, "judge-made law" and written law, often referred to generally as "statute law".  And written law may be further subdivided into the following categories:

  1. Constitutional laws
  2. Statute laws
  3. Regulations, Orders in Council, and municipal bylaws.

Constitutional Law

Constitutional law ranks as the highest form of written law in that it governs the very functioning of the nation, and shapes what sorts of statute law both legislatures and the courts can make and the constitution and composition of the courts (those who will make the judge-made law referred to above).   The Charter of Rights and Freedoms is part of the Canadian constitution and it prevents, for instance, a legislature from enacting laws that would arbitrarily interfere with people's voting rights. And, as any Canadian who reads a newspaper or watches T.V. knows,  constitutional law can be an epic challenge to write or amend, primarily due to the highly politically-charged atmosphere that surrounds it.  Americans know how passionately constitutional amendments are debated and how carefully the amendments are parsed for meaning. 

Once in place, however, Constitutional law governs, and trumps in court if it comes to that, every other kind of law. Metaphorically speaking, constitutional law is both the foundation and the roof of the national house, while statute law and common law make up the interior walls, floors, plumbing, electrical wiring, and so on that make a house liveable day by day.

Statute Law

Statute law is generally the product of Parliament (in the Commonwealth) or of one of the Provincial legislatures (in Canada), and can govern virtually any aspect of the nation's or a province's affairs, as long as it doesn't contradict any constitutional document. Canada, being a federal state, allows some powers to the federal government (e.g. banking) and some powers to the provincial government (e.g. property matters). Sections 91 and 92 of the Constitution Act set out the federal and provincial powers.

Regulations

Regulations are typically laws that are made under the authority given in a statute. Thus, parliament may enact the Canada Shipping Act, which will provide the law on how shipping is to be carried out in Canada. But shipping (and many other areas) are highly complicated fields, and Regulations that deal with the nitty-gritty of these areas become necessary if the broader laws stated in the statute are to be carried out effectively. Very generally speaking, regulations or delegated legislation can only be made if it is expressly authorized by some statute law passed by the legislature, and only those areas expressly outlined in the statute may be regulated.

Hierarchy of written law

So our hierarchy of written law winds up looking something like this:

  • Constitutional law
  • Statute law
  • Regulations/delegated legislation
  • Municipal by-laws

Let’s take a closer look at a particular type of law – municipal by-laws. As municipal by-laws are a type of delegated legislation, they are governed by statute law. Typically a Municipal Act of some sort, whatever its particular name in its jurisdiction, provides a structure for municipal government. Excerpted below is an example from a small Canadian municipality. It tells the reader (one of whom will be the by-law drafter) the sorts of laws the municipality may (and in some cases must) write. It reads, in part:

A council may make bylaws that are considered expedient and are not contrary to this or any other Act or regulations for the peace, order and good government of the municipality, the provision of municipal services and any other matter within the jurisdiction of the municipality.

Without prejudice to section 57, a council may make bylaws concerning the services it is authorized to provide under this Act and where so authorized

  1. With respect to matters of municipal administration and in particular
    1. prescribing procedure for meetings of the council, committees, public hearings and annual or special meetings of residents,
    2. for the management of municipal property,
    3. respecting the appointment, remuneration, benefits and functions of employees of the municipality,
    4. the duties of municipal officers and staff;
  2. with respect to fire protection and in particular
    1. fire prevention programs,
    2. fire protection services and equipment,
    3. the management of municipal fire departments;
  3. with respect to garbage collection and disposal services and in particular
    1. disposal sites for garbage and offensive wastes,
    2. temporary storage,
    3. municipal clean-up programs;
  4. with respect to the control of surface water flow, storm drainage and the installation and operation of drainage systems;
  5. with respect to the construction and use of sewerage systems and in particular,
  6. with respect to the construction and use of sewerage systems and in particular
    1. controlling discharge into sewerage systems
    2. setting standards and requirements for connections to sewerage systems,
    3. establishing procedures and cost- sharing formulae for sewer trunk line and lateral line extensions,
    4. setting sewerage user rates,
    5. establishing a mandatory maintenance system for septic tanks and tile fields, entering upon private property for inspection and maintenance purposes, limiting the liability of the municipality for damage to private property in the course of inspection and maintenance and setting user rates;
  7. with respect to the use of sidewalks and driveways, providing for cost-sharing of installation and maintenance, requiring snow clearing, and prohibiting obstruction;
  8. with respect to the installation, operation and maintenance of piped water systems, and setting standards and cost-sharing formulae for connections and extensions;
  9. with respect to minimum building and site development standards providing for development agreements pertaining to site development and servicing;
  10. with respect to the installation, operation, maintenance and cost-sharing of street lights;
  11. with respect to the construction of fences and planting of hedges, and establishing height restrictions and traffic safety sight lines at intersections;
  12. with respect to unsightly properties and in particular
    1. setting out the responsibilities of property owners for maintenance of their property and specifying minimum standards for such maintenance,
    2. prohibiting property owners from allowing or causing trash, junk, weeds, derelict vehicles and machines and their parts and other waste materials to accumulate,
    3. requiring action to clear up property and setting out the responsibilities of property owners,
    4. requiring the repair or removal of dilapidated structures and setting out the responsibilities of property owners,
    5. concerning temporary storage of materials;
  13. with respect to the maintenance of order, in the municipality and in particular for regulating noise, loitering, public assembly, disturbances and public nuisances, and for setting curfews for minors;

What a lot of powers a municipality has! And the list above isn’t exhaustive.

 

Authority for by-laws

Every municipality is governed a piece of legislation that gives the municipality the power to enact law. Only within those bounds will a municipality's laws be found valid in a court of law. A necessary first step, then, in any drafting assignment, it to determine that there is legal authority for the policy that the drafter is trying to enact, and this power must be found in the governing legislation. Rogers, in The Law of Municipal Corporations, outlines the necessary requirements for a valid bylaw:

(1) there must be a valid municipal corporation;
(2) the by-law must be passed by a duly convened meeting of the council at which the majority of a quorum (not disqualified by interest) concur;
(3) it must be authenticated in the manner required by law;
(4) it must be within the express or implied powers of the local authority;
(5) it must not be repugnant to the law of the province or the Dominion;
(6) it must be made bona fide in the interests of the inhabitants and not to serve a private interest;
(7) it must not discriminate or create a monopoly and it must be reasonable;
as allowed by the Courts of this Province.
(8) it must have certainty of meaning;
(9) all conditions precedent to its enactment must be observed; and
(10) it must be duly promulgated and published if required by law.

If any one of these essentials is lacking, the by-law may still be a de facto by-law which is not to be regarded as utterly void and in fact no law at all, since all regulations adopted which are in the form requisite for a by-law are by-laws whether valid or invalid in law. Confused? You are forgiven if you are! My point is to illustrate that drafting is not done in a vacuum, and that the context for drafting law is -- law. Woe betides the would-be drafter that either is ignorant of this fact or does not recognize its importance.

Policy

Finally, just because a by-law may be enacted doesn't mean it ought to be. There is the possibility that a by-law, once enacted by a municipality, may be a source of liability to that municipality if the municipality neglects to enforce the by-law and a tax-payer takes exception to the failure to enforce. Further, there is little point in expending the time and effort in creating a by-law if it is only going to "clutter the books". There should be a clear policy, decision, driven by necessity, behind the enactment and continued existence of every by-law.

Conclusion

And really, the same conclusion applies to all our laws – if we don’t need them, why are they there? If, for instance, we don’t need a municipal by-law that requires pool hall owners to provide one spittoon for every ten customers of the pool hall, then why is it there? Would it be better addressed as a public health issue in another set of regulations, or should we leave the whole issue for pool hall operators and their customers to work out, based on notions of necessity and common sense? And while our answer to questions about spittoons and pool halls may not be earth shaking to most folks, they may still be important to some, and they may reveal a good deal about our own attitudes to laws of a more general application and urgency.

(This note is excerpted and condensed from a presentation given to municipal administrators in 1993. Particulars of the law may have changed – the lessons for policy makers and legislative drafters have not.)