Cecily Zamora
Canada's legal system is a combination of common law and civil law. Common law, which is based on precedent, prevails across the country except in Quebec, which follows a civil law system based on the French Code Napoléon. Canada's legal system has its roots in the English and French legal traditions, introduced by European explorers and colonists in the 17th and 18th centuries. While Canada's legal system is federal, with laws enacted at the federal and provincial levels, the common law is developed by judges who refer to and set precedents.
| Characteristics | Values |
|---|---|
| Common law practiced | Everywhere except Quebec |
| Civil law practiced | Quebec |
| Common law definition | Law that is not written down as legislation, based on precedent |
| Common law relationships | Recognized in certain situations, with varying definitions depending on context |
| Common law inheritance | Common-law partners may not automatically inherit, depending on provincial laws |
| Criminal law | Federal responsibility, uniform throughout Canada |
| Criminal offences | Found in the Criminal Code and other federal statutes, except for contempt of court |
| Indigenous law | Recognized rights to land and traditional practices for Indigenous groups |
| Constitution | Supreme law, with any inconsistent laws passed by federal, provincial, or territorial governments being invalid |
| Federal parliament | Located in Ottawa, with power to make laws for all of Canada |
| Provincial legislatures | Present in ten provinces, with power to make laws for their respective areas |
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What You'll Learn
Common law in Canada excludes Quebec
Canada's legal system is based on a combination of common law and civil law. Common law is law that is not written down as legislation but has evolved into a system of rules based on precedent. Civil law, on the other hand, refers to a civil code that contains a comprehensive statement of rules. Quebec is the only province in Canada with a civil code, which is based on the French Code Napoléon (also known as the Napoleonic Code). The rest of Canada uses common law.
Quebec's legal system is unique within Canada, as it is the only province to have a juridical legal system where civil matters are regulated by French-heritage civil law. Quebec law can be divided into two spheres: private law and public law. Private law concerns the relations between individuals, while public law deals with the rules that govern the Québécois government. Private law in Quebec is mostly exercised under a civil tradition, and case law is also a strong source. Quebec's legal system was established when New France was founded in 1663. In 1664, Louis XIV decreed that French colonial law would be primarily based on the Custom of Paris, the variant of civil law in force in the Paris region.
Public law in Quebec is largely derived from the common law tradition. Quebec constitutional law, which governs the rules surrounding the Quebec government, the Parliament of Quebec, and Quebec's various courts, is governed by the Constitution of Canada, in particular, the Constitution Act, 1867. Quebec administrative law governs relations between individuals and the Quebec public administration. Quebec also has some jurisdiction over criminal law, but this is limited as the Parliament of Canada is responsible for criminal law.
In Quebec, common law relationships are referred to as de facto unions. To be considered a de facto union, a couple must live together for at least two years, or three years for pension purposes. De facto partners are not considered heirs and do not inherit anything if their partner dies without a will (intestate). Legal rights for common-law couples in Quebec are different from those of married spouses or those in a civil union. For example, married spouses have specific rights to the family or matrimonial home, regardless of whose name is on the title, while couples in de facto unions do not have the same automatic rights to the family home or any other property acquired during the relationship.
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Common law and civil law
Canada's legal system is based on a combination of common law and civil law. Common law is not written down as legislation but has evolved as a system of rules based on precedent. Judges use past decisions to guide them in making later rulings in similar cases. Common law is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones.
Civil law, on the other hand, refers to a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute that may arise. In Canada, Quebec is the only province with a civil code, which is based on the French Code Napoléon (Napoleonic Code). The rest of Canada uses the common law system.
The term "civil law" can be confusing as it is used to mean two different things. Firstly, it can be used in contrast to "common law" to refer to a legal system based on a civil code, such as the Justinian Code or the Civil Code of Quebec. Secondly, in another context, civil law refers to matters of private law as opposed to public law, especially criminal law, which deals with harm to society at large.
Canada's legal system has evolved from the English and French systems, introduced by explorers and colonists in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which follows civil law.
In Canada, common law status typically refers to a person living with someone they are not legally married to but are in a conjugal relationship with. Common-law relationships are recognized in certain situations, and the criteria vary by province. For example, in federal tax law, 'living common-law' refers to couples who have lived together for 12 continuous months or share a child, while in other contexts, each province may have its own definition.
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Common law relationships
Canada's legal system is based on a combination of common law and civil law. Common law is a system of rules based on precedent, guiding judges in making decisions in similar cases. It is not written down as legislation but is flexible, adapting to changing circumstances. Common-law relationships, also known as common-law marriages, refer to a type of legal union between two people who live together in a marriage-like relationship without being legally married.
Across Canada, the definition and recognition of common-law partners vary, with two main approaches. The first approach, prevalent in most provinces, involves establishing a timeline after which couples sharing a life and living together are considered common-law partners. These partnerships often carry similar benefits to those enjoyed by married couples. However, the specific timeframe for qualification as common-law partners varies across provinces, typically ranging from one to three years.
The second approach, observed in Ontario, currently lacks a specific legal framework for common-law partnerships. Nevertheless, common-law partners in Ontario may still have certain rights and obligations similar to those of married couples. These rights and obligations can include property rights, support obligations, benefits and entitlements, and parental rights and responsibilities.
To be considered common-law partners in most provinces, couples must meet specific criteria. These typically include cohabitation, duration of living together, and exclusivity. Simply dating or having a romantic relationship without cohabitation does not qualify as a common-law partnership. Common-law partners may have rights to property acquired during the relationship, depending on the province's laws. In some provinces, like British Columbia, common-law partners have equal property rights as married couples after living together for a certain period.
In terms of support obligations, common-law partners may have similar responsibilities to spousal support in a formal marriage. Factors contributing to these obligations include the length of the relationship, financial dependency, and the roles each partner played, such as one partner pausing their career to raise children. Common-law partners also have rights and obligations regarding their children, including child custody, child support, and visitation rights. Additionally, they may be eligible for benefits such as health care coverage, pension benefits, and survivor benefits, depending on specific program or employer policies.
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Common law and criminal offences
Canada's legal system is based on a combination of common law and civil law. Common law is not written down as legislation but evolves into a system of rules based on precedent, guiding judges in making decisions in similar future cases. Common law adapts to changing circumstances as judges can announce new legal doctrines or modify old ones.
Outside of Quebec, most of Canada's law is common law. Quebec, being a civil law jurisdiction, has its own law of obligations. Common law prevails everywhere except in Quebec, where civil law predominates.
In Canada, the consolidation of criminal law in the Criminal Code, enacted in 1953, involved the abolition of all common-law offences except contempt of court, preserved by Section 9 of the Code. Contempt of court is the only remaining common-law offence in Canada.
Criminal offences are found only within the Criminal Code and other federal statutes. Criminal law in Canada falls under the exclusive legislative jurisdiction of the federal government. The power to enact criminal law is derived from Section 91(27) of the Constitution Act, 1867. 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.
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Common law and Indigenous law
Canada's legal system is based on a combination of common law and civil law. Common law is not written down as legislation but evolves as a system of rules based on precedent. It is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones. Common law prevails everywhere in Canada except in Quebec, which follows a civil law jurisdiction.
Indigenous law in Canada refers to the specific legal orders of Indigenous Nations, such as Mi’kmaq law. These laws are based on the legal traditions, customs, and practices of Indigenous communities. They are among Canada's founding legal orders and continue to govern affairs in Indigenous communities today.
In its landmark decision in Tsilhqot’in Nation, the Supreme Court confirmed that Aboriginal title includes the right to decide how lands are to be used and managed, including through the exercise of Indigenous Peoples’ own laws. The Court also confirmed that common law and Indigenous law perspectives “bear equal weight in evaluating a claim for Aboriginal title.”
However, in the same decision, the Court found that excluding provincial regulation of forestry activities on Aboriginal title land could result in a “legislative vacuum,” demonstrating a reluctance to acknowledge the authority of Indigenous law on the same basis as federal and provincial legislation. This decision represents a conflict between the recognition of Indigenous law within the Canadian legal system and the endorsement of the use of force against Indigenous Peoples by appealing to the “rule of law.”
There is a growing call from Indigenous and non-Indigenous people for the Canadian government to acknowledge the role of Indigenous law in the formation and existence of Canada and to respect and be accountable to Indigenous laws on Indigenous lands. Presenting Indigenous laws in a format cognizable to the Canadian legal system risks reducing, misunderstanding, or extracting them from their own legal systems.
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Frequently asked questions
Yes, Canada's legal system is based on a combination of common law and civil law.
Common law is law that is not written down as legislation. It evolved into a system of rules based on precedent, guiding judges in making decisions in similar future cases.
Common law prevails everywhere in Canada except in Quebec, which operates under civil law.
Civil law first looks to a civil code, then refers to previous decisions to check consistency. Common law, on the other hand, is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones.
In Canada, common law status typically refers to a person living with someone they are not legally married to but are in a conjugal relationship with. Common-law relationships are recognized in certain situations, and rights vary depending on the context and province.
