Cameron Miranda
Canada's constitution is the supreme law of the country, and any law passed by the federal, provincial, or territorial government that goes against it is invalid. Provincial laws, also known as statutes, are made by the Legislature and can create or modify existing laws. These laws are then enforced by provincial and municipal police forces. While criminal law is a federal responsibility, each province has its own criminal code and federal statutes. Quebec is an exception, with a hybrid legal system due to historical reasons.
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What You'll Learn
Provincial vs. federal responsibilities
Canada is a federal state, which means that legislative powers are distributed between two orders of government: the federal government and provincial governments. The federal government has a bicameral legislature, meaning it has two houses of parliament: the lower house, known as the House of Commons, and the upper house, known as the Senate. The federal government legislates on matters of national interest, such as criminal law, trade and commerce, and national social policy.
The provincial governments, on the other hand, have a unicameral legislature, meaning they only have one body of politicians who are elected by registered voters in a certain area of the province. The provincial legislatures are responsible for passing laws that fall within their provincial jurisdiction, which typically includes matters of a local nature, such as property and civil rights, local works and undertakings, and local by-laws. Each province or territory has its own government, and voters in provinces elect members to sit in the provincial legislature.
The Constitution Acts, 1867 to 1982, outline the distribution of legislative powers between the federal and provincial governments. Sections 91 and 92 of the Constitution Acts enumerate the powers of the federal and provincial legislatures, respectively. The federal government, for example, has the power to regulate trade and commerce, while the provincial governments have authority over property and civil rights within their respective territories.
Over time, the content and scope of federal and provincial legislative powers have evolved through judicial review. For instance, while the federal government has the power to regulate trade across provincial borders, it cannot regulate the operation of particular industries within provinces. Similarly, while abortion is carried out in publicly-funded hospitals and is thus under provincial jurisdiction, the federal government can criminalize or restrict it in the Criminal Code.
In conclusion, Canada's federal and provincial governments have distinct responsibilities, with the federal government focusing on matters of national interest and the provincial governments addressing local concerns. However, as governmental activities expand, there is an increasing overlap and interdependence between federal and provincial laws, requiring ongoing judicial and political decisions to navigate the complex distribution of powers.
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Provincial legislatures and the Constitution
Canada is a constitutional monarchy and a parliamentary democracy, with a federal system of government. The country's Constitution sets out the basic principles of democratic government, outlining the nature, functions, and limits of Canada's federal and provincial systems.
The Constitution Act, 1867 (previously known as the British North America Act, 1867), and the Constitution Act, 1982, form the basis of Canada's Constitution. The 1982 Act ended all legislative ties to Britain and included the Canadian Charter of Rights and Freedoms, which guarantees basic rights and freedoms that cannot be overridden by any government.
The Parliament of Canada and the provincial and territorial legislatures have the authority to make laws. The federal Parliament can make laws for all of Canada, but only about matters assigned to it by the Constitution. These typically concern Canada as a whole, such as trade between provinces, national defence, criminal law, money, patents, and the postal service. The Constitution Acts, 1867 to 1982, s. 91, confer on the Federal Parliament the power "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces".
Provincial legislatures, on the other hand, can only make laws about matters within their province's borders. These include education, property, civil rights, the administration of justice, hospitals, municipalities, and other local or private matters. The exclusive powers of Provincial legislatures are enumerated in ss. 92, 92(A), and 93 of the Constitution Acts, 1867 to 1982.
Municipal governments are established by the provincial legislatures, which delegate some of their powers to them. These municipal governments can then make bylaws regulating various local matters, such as zoning, smoking, pesticide use, parking, business regulations, and construction permits.
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Provincial statutes and regulations
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. Canada's constitution includes the Constitution Act of 1982, a series of thirty Acts and orders referred to in a schedule to that Act, and any amendments to those Acts.
Provincial statutes are laws made by a Legislature and are also known as Acts. They may create a new law or modify an existing one. Provincial statutes in Canada contain public and private acts passed by Canadian provincial governments. The Provincial Statutes of Canada include Provincial Statutes for ten of the Canadian provinces. The Canadian Legal Information Institute (CanLII) provides free online access to provincial legislation, as do provincial legislative websites. Statutes can be searched by name, version, keywords, or scopes.
Regulations are the rules that address the details and practical applications of the law. They have the full force of law, and the authority to make regulations related to an Act is assigned within that Act. Consolidated regulations are those currently in force, incorporating any subsequent amendments made to the original regulations. The Canada Gazette publishes federal regulations in chronological order. The Canada Regulations Index is an index to regulations published in the Canada Gazette, which can be used for historical research.
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Provincial policing of criminal law
In Canada, criminal law is solely a federal responsibility and is uniform throughout the country. While law enforcement, including criminal courts, is officially a provincial responsibility, each province has its own set of standards that police services must meet.
There are six provincial police services in Canada, maintained by four provinces, although only three are involved in frontline policing. The Ontario Provincial Police and Sûreté du Québec provide provincial police services to Ontario and Quebec, respectively. The Royal Newfoundland Constabulary provides community and provincial police services to select urban communities in Newfoundland and Labrador, the only province besides Newfoundland that does not delegate this responsibility to municipalities. The Organized Crime Agency of British Columbia, the Unité permanente anticorruption, and the Bureau des enquêtes indépendantes provide specialized criminal law enforcement services in British Columbia and Quebec. The Ontario Provincial Police and Sûreté du Québec are responsible for both provincial police services, such as the policing of provincial highways, investigation of major crimes, and protection of provincial leaders, and the delivery of local police services to municipalities that do not maintain their own police forces, usually under contract.
In several provinces, such as Ontario, police services must be able to provide 24/7 coverage, investigate all criminal matters, and provide for specialized units such as police dogs. Other provinces, such as Quebec, authorize several tiers of police forces based on the size of the municipality, with the lowest tiers providing only basic patrol and law enforcement functions and the highest tiers responsible for all law enforcement, investigations, and policing in their jurisdiction. In most rural areas and some urban areas, policing responsibilities are contracted to the federal Royal Canadian Mounted Police, which provides federal criminal law enforcement and contract police services to provinces and municipalities that do not maintain their own police forces.
Criminal investigations are conducted by police services, which maintain specialized criminal investigation units in addition to their mandate for emergency response and general community safety. An efficient, effective, and fair criminal justice system depends on the successful coordination of federal, provincial/territorial, and municipal jurisdictions in a number of separate but interrelated parts. These include legislatures (which enact the laws), law enforcement, legal services and courts (e.g. prosecution, defence, legal aid), victim services, correctional services, various stakeholders, service providers, community members and groups, and other social support systems, such as health, education, and social services.
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Indigenous law and rights
Indigenous law in Canada refers to the legal traditions, customs, and practices of Indigenous peoples and groups. There are over 900 different Indigenous groups in Canada, each with its own legal traditions. For example, Cree, Blackfoot, Mi'kmaq, and numerous other First Nations; Inuit; and Métis will apply their own legal traditions in daily life, including creating contracts, working with governmental and corporate entities, ecological management, criminal proceedings, and family law.
Most Indigenous groups maintain their laws through traditional governance alongside elected officials and federal laws. The legal precedents set millennia ago are known through stories and derived from past actions and responses, as well as through continuous interpretation by elders and law-keepers.
Indigenous law refers to Indigenous Peoples' own legal systems, including the laws and legal processes developed by Indigenous Peoples to govern their relationships, manage their lands and waters, and resolve conflicts within and across legal systems.
Canadian Aboriginal law, on the other hand, is the body of law concerning various issues related to Indigenous peoples in Canada. It provides certain constitutionally recognized rights to land and traditional practices, and it enforces and interprets treaties between the Crown and Indigenous peoples.
The Canadian Constitution recognizes three distinct groups of Indigenous peoples: Indians (referred to as First Nations), Métis, and Inuit. The Constitution Act, 1982, recognizes Aboriginal and treaty rights and holds the promise that Indigenous nations will become partners in Confederation on the basis of a fair and just reconciliation with the Crown.
In recent years, there has been a resurgence of Indigenous law across Canada, along with a growing demand for meaningful recognition and respect for Indigenous rights under Canadian law. The Supreme Court of Canada has also confirmed that Aboriginal title includes the right to decide how lands are used and managed, and that Indigenous law perspectives bear equal weight in evaluating a claim for Aboriginal title.
The Government of Canada has developed the United Nations Declaration on the Rights of Indigenous Peoples Act, which received Royal Assent and came into force on June 21, 2021. This legislation advances the implementation of the Declaration and provides a framework for reconciliation, healing, and cooperative relations with Indigenous peoples. The Act requires the Government of Canada to take all measures necessary to ensure Canadian laws are consistent with the Declaration and to prepare and implement an action plan to achieve its objectives.
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Frequently asked questions
Provincial laws in Canada are made by the provincial legislature. These laws are also known as statutes or acts and they can create or modify existing laws. The authority to make regulations related to an act is assigned within that act.
Some examples of provincial laws in Canada include the Provincial Offences Act of Ontario, the Summary Offences Procedure Act of Saskatchewan, and the Victims of Crime Act of Saskatchewan.
Federal laws in Canada are uniform throughout the country and cover areas such as criminal law, which is the responsibility of the federal Parliament. Provincial laws, on the other hand, are specific to each province and cover areas such as proceedings in respect of offences created by provincial laws.
Information about provincial laws in Canada can be found on federal and provincial websites, as well as on subscription research platforms such as Lexis and Westlaw. The Canadian Legal Information Institute (CanLII) also provides free online access to provincial legislation.
