Keith Mack
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. Canada's constitution, which includes the Charter of Rights and Freedoms, is the country's supreme law. The law-making process in Canada involves all three parts of Parliament: the House of Commons, the Senate, and the Monarch, represented by the Governor General. The federal government, led by the Prime Minister, introduces new legislation or updates existing laws by tabling bills in Parliament. These bills are then subjected to a detailed process of review, debate, examination, and amendment before receiving final approval and becoming law. While Canada's law-making process has checks and balances, it is not perfect and reflects its colonial heritage.
| Characteristics | Values |
|---|---|
| Legal System | Pluralist |
| Foundation | English common law system, French civil law system, and Indigenous law systems |
| Constitution | Sets out the powers of the government and the rights of the people |
| Legislative Process | Involves the House of Commons, the Senate, and the Monarch |
| Federal Government | Makes laws on criminal law, trade, commerce, banking, immigration, and the environment |
| Provincial Government | Makes laws on property and civil rights, natural resources, hospitals, municipalities, and education |
| Indigenous Laws | First Nations, Métis, and Inuit communities have their own legal traditions |
| Human Rights | Protected by the Canadian Charter of Rights and Freedoms |
| Law-making Process | Cabinet creates a policy proposal, introduces it to the House of Commons or the Senate, and then it is debated and voted on |
| Royal Assent | Governor General signs off on a bill, turning it into law |
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What You'll Learn
The Canadian Constitution
The Constitution Act, 1867, affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. It assigns powers to both levels of government, with matters under federal jurisdiction including criminal law, trade and commerce, banking, and immigration. The federal government also has residual powers to make laws necessary for Canada's "peace, order and good government". Provincial jurisdiction includes property and civil rights, natural resources, hospitals, municipalities, and education (except on First Nation reserves).
The Canadian Charter of Rights and Freedoms, enacted in 1982, protects the human rights of Canadians in the written Constitution. It guarantees basic rights and freedoms that cannot be overridden by the government and includes the rights of Indigenous peoples (Indian, Inuit, and Métis) of Canada.
The process of lawmaking in Canada involves the introduction of a policy proposal, known as a "public bill", by the Cabinet, which consists of the Prime Minister and other ministers. Once the Cabinet signs off on a bill, it is introduced to either the House of Commons or the Senate. Alternatively, an MP who is not a member of the Cabinet can introduce a "private Member's bill" to the House of Commons. Once a bill is passed by both chambers, it receives Royal Assent, where the Governor General, as a representative of the Crown, signs off on the bill, turning it into law.
Canada's Constitution has evolved over time, with the country achieving full sovereignty from the United Kingdom in 1982 through the Canada Act 1982, which included the Constitution Act, 1982. This act ended all legislative ties to Britain and provided a constitutional amending formula. The Constitution also includes pre-confederation acts and unwritten components, reflecting Canada's dual legal system of common and civil law.
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Federal and provincial laws
Canada is a federal state with a parliamentary democracy based on the British system of government. There are three levels of government in Canada: federal, provincial, and municipal. Each level of government sets certain types of laws and is responsible for different issues.
The Constitution of Canada is the supreme law of the country. The Constitution Act, 1867 affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The federal government has the residual power to make laws necessary for Canada's "peace, order and good government". The Constitution Act, 1982 stipulates that Canada's constitution includes that act, a series of thirty Acts and orders, and any amendments to those Acts.
Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration. The federal list also includes a general power to make laws in all matters not assigned to the provinces. Examples from the provincial list include property and civil rights in the province, local works and undertakings, and all matters of a local or private nature in the province. Provincial jurisdiction includes other matters, such as natural resources, hospitals, municipalities, and education (except education on First Nation reserves).
Municipal governments are given their authority by the provincial government. Municipalities are responsible for property taxes, property standards, zoning, business licenses, and local bylaws.
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Indigenous legal traditions
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. The Indigenous law systems are developed by various Indigenous Nations, including Cree, Blackfoot, Mi'kmaq, First Nations, Inuit, and Métis. These legal traditions are applied in daily life, including in contracts, ecological management, and criminal proceedings.
Indigenous communities did not have a centralized enforcement agency like the contemporary Canadian criminal justice system. Instead, law enforcement was decentralized, with Elders and respected community leaders involved in weighing evidence and judging the truth of an incident.
The distinction between Aboriginal law and Indigenous law is important. Aboriginal law refers to the laws of the Canadian state concerning Indigenous peoples, while Indigenous law describes the laws and legal traditions of Indigenous peoples themselves. Recognizing the validity of Indigenous law is crucial, as seen in conflicts such as the Wet'suwet'en First Nation's opposition to the Coastal GasLink pipeline.
The appointment of Michelle O'Bonsawin, a member of the Odanak First Nation, as a justice of the Supreme Court of Canada in 2022, is a significant step towards recognizing and safeguarding Indigenous legal systems within the Canadian legal framework.
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Lawmaking process
Canada's legal system is pluralistic, with foundations in the English common law system, the French civil law system, and Indigenous law systems. The Constitution of Canada is the supreme law of the country, consisting of written text and unwritten conventions. The Constitution Act of 1867 (initially known as the British North America Act) affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
The law-making process in Canada can be initiated through two main avenues. The first avenue involves the Cabinet, which includes the Prime Minister and other ministers, creating a policy proposal known as a "public bill". Once the Cabinet approves a bill, it is introduced to either the House of Commons or the Senate, marking the start of the legislative process. The second avenue is through an MP who is not a member of the Cabinet or a parliamentary secretary, introducing a "private member's bill" to the House of Commons.
Once a bill is proposed, it undergoes a series of steps, including debate, review, and voting. The bill is first introduced and explained without debate. In the second reading stage, members debate the bill's principles, after which it is referred to a committee. The committee studies the bill, invites witnesses, proposes amendments, and reports back to the House. Members may propose further amendments and debate these changes during the report stage. The bill then proceeds to the third reading and adoption stage, where the debate centres on the final version. After this, the bill is voted on. If it passes, it is sent to the other chamber (Senate or House of Commons), where it undergoes the same process.
Once a bill is passed by both chambers in identical form, it receives Royal Assent, where the Governor General, as a representative of the Crown, signs off, officially turning the bill into law. This assent completes the legislative process, and the law comes into force immediately or on a specified date.
The law-making process in Canada is designed to ensure that the purpose and effects of bills are carefully considered, and Canadians are consulted and informed. Ideas for new laws often originate outside of Parliament, with citizens indicating desired changes through petitions, meetings, and sharing their perspectives.
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Human rights and freedoms
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. The Canadian Constitution is the supreme law of the country, and it includes the Canadian Charter of Rights and Freedoms, which applies to the federal, provincial, and territorial governments. The Charter guarantees the rights and freedoms that Canadians believe are necessary in a free and democratic society.
The Charter protects the fundamental freedoms of Canadians, including freedom of expression, religion, association, and peaceful assembly, as well as the right to life, liberty, and security of the person. Other rights protected by the Charter include those related to participation in elections, mobility, legal processes, equality, language usage, and minority-language education. The Charter also guarantees that "every individual is equal before and under the law" and has the right to equal protection and benefit of the law without discrimination, especially on the basis of race.
The rights and freedoms outlined in the Charter are not absolute and can be limited to protect other rights or important national values. For example, freedom of expression may be restricted by laws against hate propaganda or child pornography. The Charter also includes some rights that are exclusive to Canadian citizens, such as the right to vote and the right to enter, remain in, and leave Canada.
Canada has addressed a range of progressive rights issues, including assisted suicide rights, patient rights, parents' rights, children's rights, LGBTQ rights, abortion rights, minority rights, rights of the disabled, Indigenous rights, tenant rights, and economic, social, and political rights.
Human rights claims in Canada are typically investigated by a human rights commission, such as the Canadian Human Rights Commission or a provincial commission. If a claim goes to adjudication, it may be heard by a specialised tribunal, such as the Canadian Human Rights Tribunal for federal claims, or a provincial tribunal for provincial law claims.
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Frequently asked questions
The Constitution of Canada is the supreme law of the land. It consists of written text and unwritten conventions. The Constitution Act of 1867 affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
Canada's legislative process involves all three parts of Parliament: the House of Commons, the Senate, and the Monarch (represented by the Governor General). The proposed policy is developed by the Government and presented to the Cabinet for approval to draft a new bill. Once the Cabinet approves, the Department of Justice drafts the bill in collaboration with legal teams. The bill is then introduced in either the House of Commons or the Senate, where it is debated and voted on. If the bill passes the vote, it is sent to the other Chamber, where the process is repeated. After passing both Chambers, it goes to the Governor General for Royal Assent and becomes law.
Federal laws in Canada include those concerning criminal law, trade and commerce, banking, immigration, and the environment. For instance, there are laws requiring the federal government to meet carbon emission targets and protect endangered species.
