The 'Canadian legal system' has its foundation in the British
common law system, inherited from being a part of the
Commonwealth.
Quebec, however, still retains a
civil system for issues of private law. Both legal systems are subject to the
Constitution of Canada, from which all laws formally derive their power.
Constitution of Canada
The '
Constitution of Canada' is the supreme law in Canada. It is an amalgam of codified
acts and
uncodified traditions and
conventions. The core parts are found in the ''
Constitution Act, 1867'' (formerly the British North America Act), which outlines the
system of government and the powers of the federal and provincial governments, among other matters. The Constitution also includes the ''
Constitution Act, 1982'', which contains the ''
Charter of Rights and Freedoms'', an entrenched
bill of rights.
Legislation
Acts of law passed by the
Parliament of Canada and the provincial legislatures are the primary sources of law in Canada. The power of each government to create legislation is found in the ''
Constitution Act, 1867'' which enumerates the valid subject matter that either government may create.
Laws passed by the federal government are initially announced in the
Canada Gazette, a regularly published newspaper for new laws and regulations. They are then published annually as the Annual Statutes of Canada. From time to time the government will consolidate all current laws into a single consolidation of law known as the
Revised Statutes of Canada. The most recent consolidation was in 1985.
Laws passed by the provinces follow a similar practice. The laws 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, English-Canadian law follows the system of
stare decisis. All courts must follow the decisions of the more senior courts. The inferior and superior courts of the provinces are not bound by the courts of any other provinces. However, their decisions are treated as a persuasive source of law and are often followed as if binding; only the Supreme Court of Canada has authority to bind all courts in the country with a single ruling. The busier courts, such as
Ontario Court of Appeal, 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, English court decisions, especially those of England's Court of Appeal and the House of Lords, are almost always used. The exception comes for questions involving certain legal fields such as constitutional law and privacy law where United States court decisions are more favoured because historic American judges were the legal pioneers of these specialized areas where England's judiciary had made little or no comment. Decisions from other Commonwealth nations are also treated as persuasive sources of law, as well as decisions from the United States.
Due to Canada’s historical connection with the
United Kingdom, decisions of the
House of Lords before 1867 are still binding on Canada unless they have been overturned by the Supreme Court of Canada. Equally, Canada is still bound by the decisions of the
Privy Council before the abolishment of appeals in 1949. Nonetheless, decisions from both of these bodies, even after sovereignty, are still held in high esteem and are considered very persuasive by the courts.
Quebec's civil law system
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. Because of Quebec's unique legal system, lawyers trained in either common law or civil law may not practice in Quebec without undergoing further training in one or the other legal system.
Areas of law
Criminal law
The enactment of
criminal law is under the exclusive jurisdiction of the federal government, a situation which contrasts to that in the
United States, and which is a notable reversal of the usual pattern of strong Canadian provinces and weak
American states; this means that Canada has one
Criminal Code that is applicable throughout the country. The provinces separately promulgate "quasi-criminal" or regulatory offences in a variety of administrative and other areas. The administration of justice and penal matters are under the jurisdiction of the provinces, so each province administers most of the criminal and penal law via provincial and municipal police forces.
Prior to the enactment of the
Canadian Charter of Rights and Freedoms in 1982, it was fairly common for a provincial law to be challenged on the grounds that it was a criminal statute, and thus ultra vires or beyond the province's legislative authority. For example, several provincial acts attempting to restrict pornography, prostitution, and abortion procedures were struck down as being enactments of criminal law.
Civil law
The area of
civil law in Canada encompasses numerous areas of law that involve disputes between parties, which includes individuals, corporations, and government. Parties will seek
remedies from the court in
contractual matters,
tort disputes, and
property law cases, among others.
Procedural law
Procedural law in Canada encompasses several aspects of the justice system. The
laws of evidence regulate the admissibility of
evidence in courts and tribunals. The level of government which sets these rules depends on who has jurisdiction over the particular area of law. The functioning of the Courts is regulated by the laws of
civil procedure which are codified in each province's civil procedures rules.
Courts in Canada
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.
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.
Criminal trial courts (often called "superior" courts) and apellate courts are referred to as "Section 96" courts, in reference to the Constitution Act, 1867, s. 96, which grants the federal government the power to appoint the judges of these courts. By contrast, judges in courts that only exercise the jurisdiction of the province (sometimes called "inferior" courts and often called "provincial" courts) are appointed by the province. Typically, appeals from provincial courts go to the superior court of the province. Further appeals would go to the appeal court, and then in limited circumstances on to the Supreme Court of Canada. Each province has an appellate court, as does each territory. While the judges in Section 96 courts are appointed through a federal process, the courts are administered (and paid for) by the provinces.
The
Federal Court of Canada and
Federal Court of Appeal, unlike other superior courts, were created by statute and have jurisdiction over a small number of issues that fall under the federal constitutional scope (for example, immigration, admiralty (maritime law), patents and copyright). Notably, the bulk of the Federal Court and Federal Court of Appeal's work involves
judicial review of federal tribunals, boards, and commissions. In some cases, the Federal Courts' jurisdiction is made exclusive by statute. In other areas, the superior courts may exercise concurrent jurisdiction over the underlying subject matter, and proceeding in either court may provide certain advantages to a party.
See also
★
Legal systems of the world
★
Legal education in Canada
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Statutes of Canada
★
List of Acts of Parliament of Canada
★
At Her Majesty's Pleasure
External links
★
Consolidated Statutes and Regulations of Canada
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Canada's Justice System - Department of Justice
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CanLII Canadian Legal Information Insitute
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