Law of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law. Both legal systems are subject to the Constitution of Canada.
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.[1]
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.[2] 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.[3] 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".[4]
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 unwritten 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.[5]
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, and property and civil rights.[6] 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.[7] 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.[8]
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.[9] It also created the Charter of Rights and Freedoms, which grants individual rights which may not be contravened by any provincial or federal law.[10]
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.[11][12] 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.[13] 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.
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 within the Criminal Code of Canada or other federal/provincial laws, with the exception that contempt of court is the only remaining common law offence in Canada.[14]
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. 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
Aboriginal Law
Administrative Law
Civil and Human Rights Law
Contract Law
Constitutional Law
- Constitution Act, 1867
- Canadian federalism
- Constitution Act, 1982
Copyright Law
Criminal law
The enactment of criminal law is within the exclusive jurisdiction of the federal government. The Canadian Criminal Code is applicable uniformly throughout the entire country. Provinces cannot enact criminal legislation and any attempt to do so will be deemed ultra vires (outside its jurisdiction) pursuant to sections 91 and 92 of the Constitution Act, 1982.
The provinces, are responsible for the administration of courts, including criminal courts, with their respective provinces, despite their inability to enact criminal laws. So, even though there are provincial criminal courts, this is not to be confused with provincial criminal laws, which do, in fact, exist.
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.
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.
Evidence Law
- Canada Evidence Act
- General Evidence Law
Family Law
Immigration and Refugee Law
Labour and Employment Law
Patent Law
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
Tort Law
Trade-mark Law
Judicial system
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 appellate 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. Provincial courts deal primarily with criminal matters. The most serious criminal matters, such as murder, are heard by superior courts. Civil litigation over contract and tort disputes, also begins in superior courts. 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 Trial Division 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 give certain advantages to a party.
Notes
- ↑ Craik 114
- ↑ Craik 94
- ↑ Craik 96
- ↑ Craik 98
- ↑ Craik 105
- ↑ Craik 125
- ↑ Craik 127
- ↑ Craik 127–128
- ↑ Craik 131
- ↑ Craik 119
- ↑ Statutory Instrument Act
- ↑ Canada Gazette - About Us
- ↑ Legislation Revision and Consolidation Act
- ↑ A Compendium of Law and Judges
See also
- The Canadian Crown and Aboriginal peoples
- Legal systems of the world
- Statutes of Canada
- List of Acts of Parliament of Canada
- At Her Majesty's pleasure
- Human rights in Canada
References
- Craik, Neil; Forcese, Craig; Bryden, Philip et al., eds (2006). Public Law: Cases, materials, and commentary. Toronto: Emond Montgomery Publications Limited. ISBN 1-55239-185-X.
External links
- Consolidated Statutes and Regulations of Canada.
- Canada's Justice System - Department of Justice
- CanLII Canadian Legal Information Institute
- Legal Information
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