The Canadian legal system has its foundation in the English common law system with some influence from Scots Law, inherited from being a former colony of the United Kingdom and later a Commonwealth Realm member of the Commonwealth of Nations. The legal system is bi-jurisdictional, as the responsibilities of public (includes criminal) and private law are separated and exercised exclusively by Parliament and the provinces respectively. Quebec, however, still retains a civil system for issues of private law (as this domain falls within the exclusive jurisdiction of the provinces). Both legal systems are subject to the Constitution of Canada. Criminal prosecutions are conducted in the style of the British common law, as this jurisdiction falls exclusively to the federal government. The federal government also has jurisdiction over certain exclusive domains which are regulated exclusively by Parliament, as well as all matters and disputes between provinces. These generally include interprovincial transport (rail, air and marine transport) as well as interprovincial trade and commerce (which generally concerns energy, the environment, agriculture).
Constitution of Canada
Canada's constitution is its supreme law, and any law passed by any federal, provincial, or territorial government that is inconsistent with the constitution is invalid.
The Constitution Act, 1982 stipulates that Canada's constitution includes that act, a series of thirty acts and orders referred to in a schedule to that act (the most notable of which is the Constitution Act, 1867), and any amendment to any of those acts. However, the Supreme Court of Canada has found that this list is not intended to be exhaustive, and in 1998's Reference re Secession of Quebec identified four "supporting principles and rules" that are included as unwritten elements of the constitution: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. While these principles are an enforceable part of Canada's constitution, Canadian courts have not used them to override the written text of the constitution, instead confining their role to "filling gaps".
Because the Constitution Act, 1867 provides that Canada's constitution is "similar in Principle to that of the United Kingdom", which is considered to be an uncodified constitution, the Supreme Court has also recognized the existence of constitutional conventions. In 1981's Reference re a Resolution to amend the Constitution, the Court provided three factors necessary for the existence of a constitutional convention: a practice or agreement developed by political actors, a recognition that they are bound to follow that practice or agreement, and a purpose for that practice or agreement. It also found that, while these conventions are not law and are therefore unenforceable by the courts, courts may recognize conventions in their ruling.
The Constitution Act, 1867 assigns powers to the provincial and federal governments. Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration. The federal government also has the residual power to make laws necessary for Canada's "peace, order and good government". Matters under provincial jurisdiction include hospitals, municipalities, education (except education on First Nation reserves), and property and civil rights. The Constitution Act, 1867 also provides that, while provinces establish their own superior courts, the federal government appoints their judges. It also gives the federal Parliament the right to establish a court system responsible for federal law and a general court of appeal to hear appeals of decisions of both federal and provincial courts. This last power resulted in the federal Parliament's creation of the Supreme Court of Canada, which is, despite its role as supreme arbiter of all Canadian law, a creation of simple, rather than constitutional, statute.
The Constitution Act, 1982 created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial governments; prior to 1982, it could be amended only by the Parliament of the United Kingdom. It also created the Charter of Rights and Freedoms, which grants individual rights which may not be contravened by any provincial or federal law.
Legislation
Acts passed by the Parliament of Canada and by provincial legislatures are the primary sources of law in Canada. Sections 91 and 92 of the Constitution Act, 1867 enumerate the subject matters upon which either level of government (federal and provincial) may legitimately enact legislation.
Laws passed by the federal government are initially announced in the Canada Gazette, a regularly published newspaper for new statutes and regulations. Federal bills that receive Royal Assent are subsequently published in the Annual Statutes of Canada. From time to time, the federal government will consolidate its current laws into a single consolidation of law known as the Revised Statutes of Canada. The most recent federal consolidation was in 1985.
Laws passed by the provinces follow a similar practice. The Acts are announced in a provincial gazette, published annually and consolidated from time to time.
Legal traditions
Common law
All provinces and territories within Canada, excluding Quebec, follow the common law legal tradition. Equally, courts have power under the provincial Judicature Acts to apply equity.
As with all common law countries, Canadian law adheres to the doctrine of stare decisis. Lower courts must follow the decisions of higher courts by which they are bound. For instance, all Ontario lower courts are bound by the decisions of the Ontario Court of Appeal and, all British Columbia lower courts are bound by the decisions of the British Columbia Court of Appeal. However, no Ontario court is bound by decisions of any British Columbia court and no British Columbia court is bound by decisions of any Ontario court. Nonetheless, decisions made by a province's highest court (provincial Courts of Appeal) are often considered as "persuasive" even though they are not binding on other provinces.
Only the Supreme Court of Canada has authority to bind all courts in the country with a single ruling. The busier courts, such as the Court of Appeal for Ontario, for example, are often looked to for guidance on many local matters of law outside the province, especially in matters such as evidence and criminal law.
When there is little or no existing Canadian decision on a particular legal issue and it becomes necessary to look to a non-Canadian legal authority for reference, decisions of English courts and American courts are often utilized. In light of the long-standing history between English law and Canadian law, the English Court of Appeal and the House of Lords are often cited as and considered persuasive authority, and are often followed. If the legal question at issue relates to matters of constitutional or privacy law, however, decisions of United States courts are more likely to be utilized by Canadian lawyers because there is a much greater body of jurisprudence in U.S. law than English law in these areas.
Decisions from Commonwealth nations, aside from England, are also often treated as persuasive sources of law in Canada.
A major difference between U.S. and Canadian common law is that Canada does not follow the doctrine of Erie Railroad Co. v. Tompkins (1938), and this is so taken for granted that the Supreme Court of Canada has never needed to actually rule upon the question. In other words, there is no distinction in Canada between federal and provincial common law, and the Supreme Court can and does dictate common law directly to the provinces on all matters traditionally encompassed by common law (to the extent not superseded by legislation). From the American perspective, Canadian federalism is thus relatively incomplete, since Canada continues to operate as a unitary state with respect to common law.
Due to Canada’s historical connection with the United Kingdom, decisions of the House of Lords before 1867 are technically still binding on Canada unless they have been overturned by the Supreme Court of Canada, and Canada is still bound by the decisions of the Privy Council before the abolishment of appeals to that entity in 1949. In practice, however, no court in Canada has declared itself bound by any English court decision for decades, and it is highly unlikely that any Canadian court will do so in the future.
Criminal offences are found only within the Criminal Code of Canada and other federal statutes; an exception is that contempt of court is the only remaining common law offence in Canada.
Civil law
For historical reasons, Quebec has a hybrid legal system. Private law follows the civil law tradition, originally expressed in the Coutume de Paris as it applied in what was then New France. Today, the jus commune of Quebec is codified in the Civil Code of Quebec. As for public law, it was made that of the conquering British nation after the fall of New France in 1760, that is the common law. It is important to note that the distinction between civil law and common law is not based on the division of powers set out in the Constitution Act, 1867. Therefore, legislation enacted by the provincial legislature in matters of public law, such as the Code of Penal Procedure, should be interpreted following the common law tradition. Likewise, legislation enacted by the federal Parliament in matters of private law, such as the Divorce Act, is to be interpreted following the civil law tradition and in harmony with the Civil Code of Quebec.
Areas of law
Aboriginal law
Aboriginal law is based on a variety of sources. Section 91(24) of the Constitution Act, 1867 gives the federal parliament exclusive power to legislate in matters related to Aboriginals.
Administrative law
Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies.
Human rights in Canada
There are currently four key mechanisms in Canada to protect human rights: the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canadian Human Rights Commission, and provincial human rights laws and legislation.
Contract law
Individual provinces have codified some principles of contract law in a Sale of Goods Act, which was modeled on early English versions. Outside of Quebec, most contract law is still common law, based on the rulings of judges in contract litigation over the years. Quebec, being a civil law jurisdiction, does not have contract law, but rather has its own law of obligations.
Constitutional law
Constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the Courts. This is represented in the Constitution Act, 1867, Constitution Act, 1982 and Canadian Charter of Rights and Freedoms
Copyright law
Copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada.
Criminal law
Criminal law in Canada falls under the exclusive legislative jurisdiction of the federal government. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code of Canada, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act, and several other peripheral Acts.
The provinces are responsible for the administration of justice, including criminal trials within their respective provinces, despite their inability to enact criminal laws. Provinces do have the power to promulgate quasi-criminal or regulatory offences in a variety of administrative and other areas, and every province has done so with myriad rules and regulations across a broad spectrum.
Evidence law
Canada Evidence Act is an Act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law. Each province also has its own evidence statute, governing the law of evidence in civil proceedings in the province.
Family law
Family law in Canada concerns the body of Canadian law dealing with family relationship, marriage, and divorce. The federal government has exclusive jurisdiction over the substance of marriage and divorce. Provinces have exclusive jurisdiction over the procedures surrounding marriage. Provinces also have laws dealing with marital property and with family maintenance (including spousal support).
Immigration and refugee law
Canadian immigration and refugee law' concerns the area of law related to the admission of foreign nationals into Canada, their rights and responsibilities once admitted, and the conditions of their removal. The primary law on these matters is in the Immigration and Refugee Protection Act
Inheritance law
Inheritance law in Canada is constitutionally a provincial matter. Therefore, the laws governing inheritance in Canada are legislated by each individual province.
Labour and employment law
Canadian labour law is that body of law which regulates the rights, restrictions obligations of trade unions, workers and employers in Canada. Canadian employment law is that body of law which regulates the rights, restrictions obligations of non-unioned workers and employers in Canada. Most labour regulation in Canada is conducted at the provincial level by government agencies and boards. However, certain industries under federal regulation are subject solely to federal labour legislation and standards.
Patent law
Canadian patent law is the legal system regulating the granting of patents for inventions within Canada, and the enforcement of these rights in Canada.
Procedural law
The functioning of the Courts is regulated by the laws of civil procedure which are codified in each province's civil procedures rules.
Property law
Property law in Canada is the body of law concerning the rights of individuals over land, objects, and expression within Canada. It encompasses personal property, real property, and intellectual property.
Tort law
Tort law in Canada concerns the treatment of the law of torts within the Canadian jurisdiction excluding Quebec, which is covered by the law of obligations.
Trade-mark law
Canada's trademark law provides protection for distinctive marks, certification marks, distinguishing guises, and proposed marks against those who appropriate the goodwill of the mark or create confusion between different vendors' goods or services.
Judicial system
Under the Constitution Act, 1867, the federal Parliament and the provincial legislatures both have the constitutional authority to create courts: Parliament under s. 101, and the Provinces under s. 92(14). However, the federal power to create courts is much more limited than the provincial power. The provincial courts have a much more extensive jurisdiction, including the constitutionally entrenched power to determine constitutional issues.
The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. Parliament created it by Act of Parliament in 1875, as a "general court of appeal for Canada". Prior to 1949, cases could be appealed to the Judicial Committee of the Privy Council in the United Kingdom, and some cases bypassed the Supreme Court of Canada entirely.
Other than the Supreme Court, the Canadian court system is divided into two classes of courts: superior courts of general jurisdiction, and courts of limited jurisdiction, sometimes referred to as inferior courts. The superior courts, created and maintained by the provinces, are divided into superior courts of original jurisdiction and superior courts of appeal. These courts are sometimes also referred to as "Section 96" courts, in reference to s. 96 of the Constitution Act, 1867, which grants the federal government the power to appoint the judges of these courts. As courts of general jurisdiction, the provincial superior courts of original jurisdiction have jurisdiction over all matters, under both federal and provincial law, unless the matter has been assigned to some other court or administrative agency by a statute passed by the appropriate legislative body. The superior courts of original jurisdiction have an extensive civil jurisdiction, under both federal and provincial laws. Under the Criminal Code, a federal statute, they have jurisdiction over the most serious criminal offences, such as murder. They also hear appeals from the Provincial Courts in criminal matters and some civil matters. A further appeal normally lies to superior court of appeal, the highest court in each province.
The provinces also can establish courts of limited jurisdiction, whose jurisdiction is limited solely to what is included in the statutory grant of jurisdiction. These courts are often called "Provincial Courts", even though the superior courts established by the provinces are also provincial courts. The Provincial Courts have an extensive criminal jurisdiction under the Criminal Code, a federal statute, and also typically have a limited civil jurisdiction in matters under provincial jurisdiction, such as small claims and some family matters. The judges of the Provincial Courts are appointed by the provincial governments.
There are also additional federal courts established by Parliament, which have a specialised jurisdiction in certain areas of federal law. These courts are the Federal Court of Appeal, the Federal Court, the Tax Court of Canada, and the Court Martial Appeal Court of Canada.
See also
- At Her Majesty's pleasure
- Canadian Legal Information Institute (aka CanLII)
- Human rights in Canada
- Legal systems of the world
- List of Acts of Parliament of Canada
- Statutes of Canada
- The Canadian Crown and Aboriginal peoples
References
Bibliography
Further reading
External links
- Canadian Criminal Law Information Site
- Consolidated Statutes and Regulations of Canada.
- Canada's Justice System - Department of Justice
- CanLII Canadian Legal Information Institute
- Legal Information