Cecily Zamora
Canada's legal system is based on the rule of law, which is a fundamental principle of its democracy. The rule of law in Canada is enforced by the courts and protects individual rights and freedoms. It ensures that everyone is treated equally under the law, regardless of their personal characteristics, and that the government enacts laws in a transparent manner. Canada's laws are created through a combination of legislation passed by parliament or provincial legislatures, known as statutory law, and decisions made by judges, known as common law. The country's Constitution Act, 1982, also recognised the rule of law in the Canadian Charter of Rights and Freedoms.
| Characteristics | Values |
|---|---|
| Nature of the Rule of Law | A collection of ideas that govern how people relate to each other |
| Who enacts the law | The government enacts the law in an open and transparent manner |
| Nature of the law | The law is clear and known, and it is applied equally to everyone |
| Whom does the law govern | The law governs the actions of both the government and private persons, and their relationships with each other |
| Court's role | Courts apply the law independently, without any political or outside influence |
| Equality before the law | The same laws apply to everyone, regardless of their occupation, level of wealth, race, colour, sexual orientation, gender or other personal characteristics |
| Impartiality of the judiciary | The judiciary is impartial and independent |
| Democracy | The rule of law is a cornerstone of Canada's constitutional democracy |
| Adherence to the rule of law | The rule of law is a fundamental principle of Canada's democracy |
| Equality | The rule of law seeks to treat all persons fairly and equally |
| Individual rights | The rule of law protects individual rights |
| Social policies | Laws in Canada also carry out social policies |
| Public law | Public law sets the rules for the relationship between the individual and society |
| Criminal law | Criminal law deals with crimes and their punishments |
| Constitutional law | Constitutional law defines the relationship between various branches of the government and between federal and provincial governments |
| Administrative law | Administrative law deals with the actions and operations of the government |
| Private law | Also called civil law, private law settles disputes among groups of people and compensates victims |
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What You'll Learn
Canada's democracy and constitution
Canada's legal system is based on the principle of democracy, with laws being passed by federal Parliament or provincial legislatures. This is referred to as "statutory law". In addition, Canada's common law jurisdictions mean that law is also influenced by decisions made by judges, as the interpretation and application of legislation and legal concepts can evolve over time through case law.
Canada's Constitution Act, 1867, provides that Canada's constitution is "similar in principle to that of the United Kingdom", which is considered an uncodified constitution. The Supreme Court of Canada has also recognised the existence of constitutional conventions, which are not written into the constitution but are enforceable. These include federalism, democracy, constitutionalism, the rule of law, and respect for minorities.
Canada's Constitution Act, 1982, recognised the Rule of Law in the Canadian Charter of Rights and Freedoms, which is a fundamental principle of Canada's democracy. The Rule of Law requires that the courts apply the law independently and impartially, without influence from political or outside forces. It also ensures that all people are treated equally under the law, regardless of their personal characteristics.
Canada's democracy is further reflected in its system of justice, which includes public law and private law. Public law sets the rules for the relationship between individuals and society, including criminal law, constitutional law, and administrative law. Criminal law falls under the exclusive jurisdiction of the federal government, and most criminal laws are codified in the Criminal Code. Provinces are responsible for the administration of justice, including criminal trials, and have the power to promulgate quasi-criminal or regulatory offences. Private law, also known as civil law, settles disputes among individuals and compensates victims.
Canada's democratic values are also reflected in its commitment to federalism, with nine of the provinces and the federal territories following the common law legal tradition. The Supreme Court of Canada has played a significant role in upholding Canada's democratic values, as seen in the case of Roncarelli v. Duplessis, where the Court ruled against the arbitrary suspension of a liquor licence.
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Equality and fairness
Canada's Constitution Act of 1982 recognised the Rule of Law in the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has also played a role in upholding the Rule of Law, ruling against arbitrary actions by the Premier of Quebec, for example, in the case of Roncarelli v. Duplessis.
Canada's commitment to the Rule of Law is a cornerstone of its constitutional democracy, setting it apart from countries where citizens are not protected by an impartial and independent judiciary. The Rule of Law is also a key component of federalism, democracy, constitutionalism, and respect for minorities, as identified by the Supreme Court in the Reference re Secession of Quebec case.
Canadian law is divided into public law and private law. Public law sets the rules for the relationship between the individual and society, including criminal law, constitutional law, and administrative law. Criminal law deals with crimes and their punishments, while constitutional law defines the relationship between different levels of government and protects human rights and fundamental freedoms. Administrative law addresses the actions and operations of the government. Private law, also known as civil law, settles disputes among individuals and groups and compensates victims.
Canada's legal system, with its adherence to the Rule of Law, ensures that all citizens are treated equally and fairly, regardless of their background or characteristics, and that the government and its citizens are bound by and subject to the law.
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Impartial and independent judiciary
Canada's judiciary is collectively the judges of the courts of law and is independent of the legislative and executive branches of government. The judiciary is responsible for interpreting and applying the laws of Canada, resolving disputes, and defending the Constitution, including the Canadian Charter of Rights and Freedoms.
Judicial independence is a cornerstone of the Canadian judicial system and is essential to the rule of law and the effective functioning of Canada's democracy. It is guaranteed by the Constitution, which sets out the basic principles of democracy by defining the three branches of government: the executive, legislative, and judicial. The judiciary falls under the third branch and is tasked with interpreting the law and resolving disputes.
Judges are appointed by the attorney general or minister of justice of the province or territory, in consultation with the cabinet. They are eligible to serve until retirement, which is typically at age 75 for federally appointed judges and 70 in some provincial or territorial jurisdictions. Judges can be removed by a joint address of Parliament or a provincial legislature, but only after an independent and impartial investigation shows good reason. The Canadian Judicial Council (CJC) is responsible for investigating complaints and allegations of misconduct by federally appointed judges and promoting efficiency, consistency, and quality judicial service. The CJC has developed Ethical Principles for Judges to help them maintain their independence, integrity, and impartiality.
The Supreme Court of Canada has affirmed that the relationship between the judiciary and the other branches is depoliticized, meaning the legislature and executive cannot exert political pressure on the judiciary, and the judiciary should refrain from commenting on issues likely to come before the courts. The judiciary's independence is crucial for upholding the rule of law, ensuring that government actions and laws comply with the Constitution, and protecting citizens' fundamental rights and freedoms.
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Federal and provincial governments
Canada is a parliamentary democracy with three levels of government: federal, provincial, and municipal. The Constitution Act, 1867, assigns powers to the provincial and federal governments. The federal government has exclusive jurisdiction over criminal law, trade and commerce, banking, and immigration. The provinces are responsible for the administration of justice, including criminal trials within their respective provinces, and have the authority to make laws about education, property, civil rights, hospitals, municipalities, and other local or private matters within the provinces.
The Parliament of Canada and the provincial and territorial legislatures both have the authority to make laws. Parliament can make laws for all of Canada, but only about matters that the Constitution assigns to it. A provincial legislature can only make laws about matters within the province's borders. Laws passed by the federal Parliament are initially published in the Canada Gazette, while laws passed by the provinces are pronounced in a provincial gazette.
The provincial legislation duplicates the federal legislation; it does not contradict it. In the event of a conflict between federal and provincial laws, the Supreme Court of Canada has established principles to determine the constitutionality of legislation, including examining the pith and substance of the laws in question.
Canadian labour law, which regulates the rights and obligations of trade unions, workers, and employers, is primarily regulated at the provincial level by government agencies and boards. However, certain industries under federal regulation are subject solely to federal labour legislation. Similarly, property law, which concerns the rights of individuals over land, objects, and expression, is generally a provincial matter, but there may be overlap with federal laws in certain cases.
The Canadian Constitution includes provisions relating to the judicial branch of government, composed of federally appointed judges. The judiciary must interpret and apply the law and the Constitution, giving impartial judgments in all cases, regardless of whether they involve public or private law. The requirement that courts follow the rule of law is a fundamental principle of Canada's democracy, ensuring that all people are treated equally under the same standards.
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Criminal law and justice
Canada's criminal law and justice system is based on the English common law system inherited from its colonial past, the French civil law system from its French Empire past, and Indigenous law systems developed by various Indigenous Nations. The Constitution Act of 1867 divides powers between the federal and provincial governments, with criminal law falling under federal jurisdiction. The federal Parliament has enacted the Criminal Code, which is included in the Revised Statutes of Canada and applies uniformly across the country. Common law prevails in all provinces except Quebec, which follows the French Code Napoléon.
The Supreme Court of Canada is the highest court and has the authority to strike down Acts of Parliament that violate the constitution. The Court is led by the Chief Justice of Canada, Richard Wagner, and its nine members are appointed by the governor general on the advice of the prime minister and minister of justice. While the Supreme Court can bind all lower courts with its rulings, it cannot bind itself. Lower courts, such as the Court of Appeal for Ontario, are often looked to for guidance on criminal law matters.
Criminal law in Canada deals with crimes and their punishments. It is seen as a wrong against society when an individual breaks a criminal law. Law enforcement and criminal courts are the responsibility of the provincial and municipal police forces, who keep people safe and enforce the law. The police in Canada ensure that laws are applied equally to everyone. If an individual breaks the law, they may face consequences such as paying a fine, compensating for damages, or imprisonment.
The Canadian legal system provides access to justice through courts and legal professionals. Each province and territory has a legal aid society that offers services to help individuals find a lawyer or obtain legal aid based on income. Courts in Canada aim to help people resolve disputes fairly and within the framework of the law. The rule of law, freedom under the law, democratic principles, and respect for others are fundamental to Canada's legal heritage.
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Frequently asked questions
Yes, the rule of law is a fundamental principle of Canada's democracy.
The rule of law is a collection of ideas that govern how people relate to each other. It includes principles such as transparency in law-making, equality before the law, and an independent judiciary.
In Canada, laws are passed by the federal Parliament and published in the Canada Gazette. These laws apply across the country, including in the provinces, though each province has its own civil procedures rules. The provinces are responsible for the administration of justice, including criminal trials.
The rule of law is significant in Canada as it ensures that everyone is subject to the same laws and treated fairly and equally. It also distinguishes Canada from countries without an independent judiciary, where citizens may be subject to the arbitrary power of tyrants or majorities.
The rule of law requires that Canadian courts act independently and impartially when applying the law. It ensures that judges are not influenced by political or outside factors and that they interpret and apply the law consistently and fairly.
