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

See also: 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 (except education on First Nation reserves), 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

Main article: Law in Quebec

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

Main article: Canadian aboriginal law

Administrative Law

Main article: Canadian administrative law

Civil and Human Rights Law

Main article: Civil rights law in Canada

Contract Law

Main article: Canadian contract law

Constitutional Law

Main article: Canadian constitutional law

• Constitution Act, 1867
  • Canadian federalism
• Constitution Act, 1982
  • Canadian Charter of Rights and Freedoms

Copyright Law

Main article: Canadian copyright law

Criminal law

Main article: Criminal law in Canada

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, 1867.

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
• [[evidence (law)|General Evidence Law]

Family Law

Main article: Canadian family law

Immigration and Refugee Law

Main article: Canadian immigration and refugee law

Inheritance Law

Main article: Inheritance law in Canada

Labour and Employment Law

Main article: Canadian labour and employment law

Patent Law

Main article: Canadian 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

Main article: Canadian property law

Tort Law

Main article: Tort law in Canada

Trade-mark Law

Main article: Canadian trade-mark law

Judicial system

See also: Court system of Canada

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

Canada portal

• 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

1. ^ Craik 114
2. ^ Craik 94
3. ^ Craik 96
4. ^ Craik 98
5. ^ Craik 105
6. ^ Craik 125
7. ^ Craik 127
8. ^ Craik 127–128
9. ^ Craik 131
10. ^ Craik 119
11. ^ Statutory Instrument Act
12. ^ "Canada Gazette - About Us". Gazette.gc.ca. 2010-06-09. http://www.gazette.gc.ca/cg-gc/about-sujet-eng.html. Retrieved 2011-02-28. 
13. ^ Legislation Revision and Consolidation Act
14. ^ A Compendium of Law and Judges^{[dead link]}

• 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. 

Further reading

• Baudouin, Jean-Louis; Allen M. Linden (2010), Tort Law in Canada, Wolters Kluwer, ISBN 9789041133731, http://books.google.ca/books?id=Afq10h3zOA4C&lpg=PA15&dq=law%20in%20%20Canada&pg=PA2#v=onepage&q&f=true 
• Black-Branch, Jonathan L (1995), Making sense of the Canadian Charter of Rights and Freedoms, Canadian Education Association ISBN 092031578X
• Borrows, John (2002), Recovering Canada: the resurgence of Indigenous law, University of Toronto Press, ISBN 0802036791, http://books.google.ca/books?id=3c0x55W22qoC&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true 
• Casey, Brian; Janet Mills, Arbitration law of Canada: practice and procedure, Juris Pub, ISBN 9781929446681, http://books.google.ca/books?id=7BPDTYb5hWoC&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true 
• Greene, Ian (1989),The Charter of Rights, James Lorimer and Company, ISBN 1550281852
• Michelle G. Grossman; Julian V. Roberts (2011). Criminal Justice in Canada. Cengage Learning. ISBN 978-0-17-650228-7. http://books.google.com/books?id=uXjCtKObHGQC&pg=PP1. 
• Kronby, Malcolm C (2010), Canadian Family Law (10th ed.), J. Wiley, ISBN 9780470736821, http://books.google.ca/books?id=X3mmgbMJ_SEC&lpg=PP1&dq=Canadian%20law&pg=PP2#v=onepage&q&f=true 
• Dahlitz, Julie (2003). Secession and international law: conflict avoidance – regional appraisals. The Hague: T.M.C. Asser Press. ISBN 90-6704-142-4. http://books.google.ca/books?id=nECFiV3slksC&lpg=PP1&dq=Secession%20and%20international%20law%3A%20conflict%20avoidance&pg=PP1#v=onepage&q&f=true. 
• Goldman, Calvin S; John D. Bodrug (2002), Competition Law of Canada, Volume 1, Juris Pub, ISBN 426248502, http://books.google.ca/books?id=hqtjVdcc1h8C&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true 
• Morton, Frederick Lee (2002). Law, politics, and the judicial process in Canada. University of Calgary Press. ISBN 1552380467. http://books.google.ca/books?id=dj_4_H35nmYC&lpg=PP1&dq=Law%20of%20Canada&pg=PP1#v=onepage&q&f=true. 
• McRae, Donald M (2006), The Canadian yearbook of international law, University of British Columbia Press, http://books.google.ca/books?id=QhCuC4I2W3YC&lpg=PP1&dq=Canadian%20law&pg=PP1#v=onepage&q&f=true 
• Moon, Richard (2008), Law and religious pluralism in Canada, UBC Press, ISBN 9780774814973, http://books.google.ca/books?id=ah66SQsk4hAC&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true 
• McCormick, Peter (2000), Supreme at last: the evolution of the Supreme Court of Canada, J. Lorimer, ISBN 1550286935, http://books.google.ca/books?id=7Ohg2iK7Q90C&lpg=PP1&dq=Supreme%20Court%20of%20Canada&pg=PP1#v=onepage&q&f=true 
• Wilkinson, Margaret Ann (2010), Genealogy and the Law in Canada, Ontario Genealogical Society, ISBN 9781554884520, http://books.google.ca/books?id=bNZWyI8fHFAC&lpg=PA1&dq=law%20in%20%20Canada&pg=PA1#v=onepage&q&f=true 

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