Gavin Howe
Canada is a country with a diverse range of laws that vary across its provinces. While some laws are consistent across the country, such as criminal law, which falls under the federal government's exclusive jurisdiction, other legal areas differ between provinces. For instance, family law, including marriage and divorce procedures, falls under provincial jurisdiction, with each province having its own set of rules and regulations. Similarly, while human rights are constitutionally protected by the Canadian Charter of Rights and Freedoms, both federal and provincial statutes play a role in safeguarding these rights. Each province also has the authority to create courts, and their decisions, particularly those made by the highest court, hold persuasive value for other provinces, even if they are not binding. This results in a dynamic legal landscape where each province contributes to the broader Canadian legal framework.
| Characteristics | Values |
|---|---|
| Criminal law | Falls under the exclusive jurisdiction of the federal government, but provinces are responsible for administration of justice and criminal trials within their provinces |
| Tort law | Excludes Quebec, which is covered by the law of obligations |
| Family law | Federal government has exclusive jurisdiction over substance of marriage and divorce, while provinces have exclusive jurisdiction over procedures surrounding marriage and laws dealing with marital property and family maintenance |
| Human rights | Constitutionally protected by the Canadian Charter of Rights and Freedoms, which applies to federal and provincial governments |
| Court hierarchy | Lower courts must follow decisions of higher courts in their province, but not in other provinces; decisions of provincial Courts of Appeal are considered persuasive but not binding on other provinces; only the Supreme Court of Canada can bind all lower courts in the country |
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Criminal law
However, the provinces also have some powers. They are responsible for the administration of justice, including criminal trials within their respective provinces, and can set regulations to create quasi-criminal or regulatory offences. For example, the Canada Evidence Act, an Act of the Parliament of Canada, regulates the rules of evidence in court proceedings under federal law, but each province has its own courts, such as the Ontario Court of Appeal and the British Columbia Court of Appeal, which are the highest courts of the province. Decisions made by a province's highest court are often considered "persuasive" but are not binding on other provinces. The provinces also hire prosecutors, appoint provincial court judges, and are responsible for most criminal law prosecutions.
There are two levels of crime in Canada. The first level includes federal-level crimes such as murder, assault, theft, fraud, and property crimes. The second level includes provincial or municipal regulatory offences, such as speeding, not licensing a pet, or serving liquor without a license.
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Family law
Marriage ceremonies are governed by provincial law, but Parliament has jurisdiction over marriage requirements, such as the minimum age, laws prohibiting certain marriages, and divorce. The Divorce Act grants the federal government jurisdiction over child custody, access, and spousal and child support during or after divorce, but it does not govern property issues.
Provinces have exclusive jurisdiction over the solemnization of marriage and related procedures. They also have laws addressing marital property division and spousal support. The scope of divisible matrimonial assets varies among provinces, with some excluding business assets and inheritances.
Child custody jurisdiction is determined by each province's statutory or common law. Most provinces have enacted legislation defining custody jurisdiction, while others adhere to common law rules. For example, Ontario's Children's Law Reform Act outlines specific conditions under which its courts can exercise jurisdiction over child custody and access.
In summary, while marriage and divorce are federally regulated in Canada, family law varies across provinces, particularly in areas such as adoption, matrimonial property, and child custody, resulting in a diverse legal landscape across the country.
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Property law
Canada's property law deals with a wide range of rights and obligations owed by individuals and governments. While the country has federal statutes like the Investment Canada Act and Competition Act, each province also has its own laws.
Real Property Law
Real property law, which concerns land and buildings, is largely a matter of provincial legislation. In Quebec, French civil law forms the basis of property law, while in the other provinces, English common law rules apply.
Each province has its own rules for registering land ownership. For example, in Alberta, a beneficial owner can split the property and register a caveat to show interest in the property rather than whole ownership.
Personal Property Law
Personal property law is also governed by provincial legislation, such as the provincial Sale of Goods Acts.
Property Division
Property division laws vary across the provinces. For example, in Ontario, property division legislation does not apply to common-law couples, who must rely on common-law principles like unjust enrichment to settle disputes. In contrast, provinces like British Columbia and Saskatchewan treat common-law couples the same as married couples, granting them similar rights and obligations regarding property division.
In British Columbia, legislation also considers the best interests of pets during property division, treating them more like family members.
Commercial Property
Commercial leases vary between provinces, with some offering gross (monthly fixed rent) or let (full amount) leases.
Buying and Selling Property
The buying and selling of property are normally done through a real estate agent. The transaction needs to be registered with the registry office to be completed. While property is considered private in Canada, the government can force an owner to sell their land through expropriation, with compensation based on market value.
Foreign Ownership
Canada has also enacted laws prohibiting foreigners from acquiring residential areas in the country. The Prohibition on the Purchase of Residential Property by Non-Canadians Act stipulates that non-Canadians who purchase residential property in the country are guilty of an offence and liable for a fine of up to $10,000.
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Tort law
Canada's tort law is composed of two systems: a common law framework outside Québec and a civil law framework within Québec. This makes the Canadian legal system bijural, as it is used throughout the provinces except for Québec, which uses private law. In Canada, tort law is primarily based on common law principles developed through court decisions and legal precedents. While there is no single federal law for torts, they are generally derived from the law of England and Wales, although they have developed independently since the Canadian Confederation in 1867.
Common law torts in Canada encompass various types of torts, including negligence, assault, trespass, nuisance, defamation, and more. Each tort has its own specific criteria, and while there is no official comprehensive list, new torts are constantly being recognised and created by the courts. For example, in a personal injury claim for product liability, the plaintiff must prove that the defendant's duty of care was breached due to a defective product or instructions, and that the plaintiff suffered injury due to the defendant's negligence.
Negligence is a fundamental concept in Canadian common law and is the primary tort used to address cases involving unintentional harm or damage caused by negligence. It holds individuals or entities accountable for their careless actions or omissions that result in harm to others. While the basic elements of negligence remain consistent across Canada, specific applications and interpretations may vary among provinces and territories.
In addition to common law torts, Canada also has statutory torts, which are established by provincial statutes. These include privacy torts, such as the unauthorised use of one's name, likeness, or voice, as well as torts related to defamation, invasion of privacy, and vexatious litigation.
Furthermore, tort law in Canada allows for settlement between parties in a personal injury claim, and plaintiffs in such claims should be mindful of the provincial and territorial statute of limitations, which is typically two years.
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Provincial power to create courts
Canada's court system forms the judicial branch of the federal, provincial, and territorial governments. The Constitution Act, 1867, provides for the establishment and operation of Canada's judiciary, including its courts of law. The Act gives the federal government exclusive lawmaking powers over criminal law and criminal procedure, but not over the establishment of criminal courts.
The provinces have exclusive power over the administration of justice in each province, including the power to create courts under Section 92(14) of the Constitution Act, 1867. This includes organizing and maintaining the civil and criminal provincial courts and civil procedure in those courts. Each province has three levels: provincial and territorial, or lower, courts; superior courts; and appeal courts. Provincial courts try most criminal offences, money matters, and family matters. Provincial courts may also include specialized courts, such as youth courts, family courts, and small claims courts. Each provincial government appoints the judges for its own courts, except for superior court judges, who are appointed and paid by the federal government.
The superior courts from the provinces and territories are courts of inherent jurisdiction, which means their jurisdiction is more than just what is conferred by statute. They can hear any matter unless there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to another court or tribunal.
The federal government has also established several courts, including the Supreme Court of Canada, the Federal Court, the Federal Court of Appeal, and the Tax Court. These courts have jurisdiction over matters such as federal taxes, intellectual property, maritime law, and federal-provincial disputes.
The power to create courts is shared between the federal and provincial governments in Canada, with the provinces having a more extensive power to create courts and administer justice within their respective jurisdictions.
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Frequently asked questions
Yes, Canada has different laws per province. Under the Constitution Act, 1867, both the federal Parliament and the provincial legislatures have the authority to create courts.
The provincial legislatures have the power to create courts and administer justice, including criminal trials, within their respective provinces. They also have exclusive jurisdiction over procedures surrounding marriage and laws dealing with marital property and family maintenance.
No, criminal law falls under the exclusive jurisdiction of the federal government. However, the provinces can promulgate quasi-criminal or regulatory offences and have done so with various rules and regulations.
Yes, in the case of tort law, Quebec is covered by the law of obligations instead of the common law of torts that applies in the other provinces.
No, the decisions of a province's highest court, or provincial Court of Appeal, are not binding on other provinces. However, they are often considered persuasive and may be looked to for guidance on legal matters outside the province.
