Kara Sears
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 into a system of rules based on precedent. Civil law, on the other hand, is based on a civil code and is used in Quebec, the only province with a civil code. Acts passed by the Parliament of Canada and provincial legislatures are the primary sources of law in Canada. The Revised Statutes of Canada is the federal statutory consolidation of statutes enacted by the Parliament of Canada, with each province having its own consolidation of statute law. Canada's constitution, which includes the Charter of Rights and Freedoms, is the supreme law of the country, and any law passed by any government that is inconsistent with it is invalid.
| Characteristics | Values |
|---|---|
| Number of sources of law in Canada | 2 |
| The two sources of law | Common law and civil law |
| Common law | Law that is not written down as legislation |
| Common law provinces | Rest of Canada except Quebec |
| Civil law | Based on the French Code Napoléon (Napoleonic Code) |
| Civil law province | Quebec |
| Criminal law | Exclusive jurisdiction of the federal Parliament |
| Primary sources of law | Acts passed by the Parliament of Canada and by provincial legislatures |
| Federal statutory consolidation of statutes | Revised Statutes of Canada |
| Provincial statutory consolidation of statutes | Revised Statutes of British Columbia, Alberta, Statutes of Manitoba, Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island, Consolidated Statutes of Newfoundland and Labrador, Ontario, and Quebec |
| Official online source for federal legislation | Justice Laws Canada |
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What You'll Learn
Common law vs civil law
Canada's legal system is founded on a combination of common law and civil law, with the former prevailing across the country except in Quebec, where civil law is predominant. Common law is not written down as legislation but is instead based on precedent, guiding judges in making decisions in similar cases. This flexibility allows judges to adapt to changing circumstances by announcing new legal doctrines or changing old ones. Common law is developed by judges who refer to and set precedents, interpret statutes, and apply them to societal complexities.
Civil law, on the other hand, is based on a civil code that contains a comprehensive statement of rules, often framed as broad, general principles to address any dispute. In a civil-law system, courts first refer to the code and then look at previous decisions to ensure consistency. Quebec's civil code is based on the French Code Napoléon (Napoleonic Code), reflecting its historical roots in the French Empire.
The distinction between common and civil law in Canada is not based on the division of powers outlined in the Constitution Act of 1867. Instead, the interpretation of legislation in matters of public law, such as the Code of Penal Procedure, follows the common law tradition. Conversely, matters of private law, such as the Divorce Act, are interpreted following the civil law tradition in harmony with the Civil Code of Quebec.
Canada's legal system also recognises Aboriginal rights, which refer to the historical occupancy and use of land by Indigenous peoples, as well as treaty rights outlined in agreements between the Crown and specific Aboriginal groups. These rights are recognised and protected by the Constitution, which serves as the supreme law of the country.
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Federal and provincial laws
Canada is a federation of several provinces and territories with a central government. It has a federal parliament in Ottawa that makes laws for the entire country and a legislature in each of the ten provinces and three territories that deals with laws in their respective areas. The laws enacted at either level are called statutes, legislation, or acts.
The Constitution of Canada is the supreme law of the country and consists of written text and unwritten conventions. The Constitution Act, 1867 affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The federal government has the power to make laws necessary for Canada's "peace, order, and good government". The major areas of provincial jurisdiction include property and civil rights, which gives them the power to enact laws related to property law, contract law, and family law. Provincial jurisdiction also includes natural resources, hospitals, municipalities, and education.
The federal list of legislative powers includes the regulation of trade and commerce, criminal law, and the general power to make laws in all matters not assigned to the provinces. The provincial legislatures have the power to make laws related to property and civil rights within the province, local works and undertakings, and all matters of a private nature in the province.
The courts must continually assess the competing federal and provincial lists of powers against one another when interpreting the constitution. In doing so, the courts have attempted to define mutually exclusive spheres for federal and provincial powers. However, where mutual exclusion did not seem feasible or proper, the courts have implied the concurrent operation of federal and provincial laws.
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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 has evolved into a system of rules based on precedent. Civil law, on the other hand, is based on a comprehensive statement of rules, usually framed as broad, general principles. Quebec is the only province with a civil code, which is based on the French Code Napoléon (Napoleonic Code).
The rest of Canada uses common law, which includes the Criminal Code. The Aboriginal and treaty rights of Indigenous Peoples in Canada are protected under Section 35 of the Canadian Constitution Act, 1982. This section protects the remaining Aboriginal title to certain lands in Canada, as well as Aboriginal rights to use lands for traditional purposes such as hunting, fishing, or trapping. It also protects the rights conferred on Indigenous Peoples under historical and modern treaties.
Canadian Aboriginal law is the body of law concerning issues related to Indigenous peoples in Canada. It is different from Canadian Indigenous law, which refers to the legal traditions, customs, and practices of Indigenous peoples and groups. Canadian Aboriginal law enforces and interprets treaties between the Crown and Indigenous people and manages much of their interaction. It is based on a variety of written and unwritten legal sources, including the Royal Proclamation of 1763, which recognised Indigenous title, and the Treaty of Niagara of 1764, which bound the Crown and the Indigenous peoples of the Great Lakes basin in a familial relationship.
Many agreements signed before the Confederation of Canada are recognised in Canadian law, such as the Peace and Friendship Treaties, the Robinson Treaties, and the Douglas Treaties. However, many First Nations still have no treaty with the Crown recognising their title, such as the Mikmaq, the Anishnaabe, and several northern British Columbia nations.
The Indian Act is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876, it is still in force with amendments and defines how the Government of Canada interacts with the 614 First Nation bands in Canada and their members.
Indigenous or Aboriginal self-government refers to proposals to give governments representing Indigenous peoples in Canada greater powers. These proposals range from giving Aboriginal governments powers similar to those of local governments in Canada to demands that Indigenous governments be recognised as sovereign and capable of "nation-to-nation" negotiations as legal equals to the Crown.
The government has a duty to consult and, if appropriate, accommodate Indigenous Peoples to avoid or mitigate any impacts a proposed activity may have on treaty or Aboriginal rights and title. This duty falls under the federal and provincial governments ("Crown") and can be delegated to companies and other proponents. However, there is no requirement to obtain consent on lands where Aboriginal title has not been established through a judicial declaration or a treaty.
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Primary sources of 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 into a system of rules based on precedent. Civil law, on the other hand, is based on a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute.
The primary sources of Canadian law include:
The Constitution
The Constitution is the highest law in Canada, and all other laws must be consistent with it to be valid. It defines and limits legislative authority, executive authority, judicial power, and the rights and freedoms of Canadian citizens. The Constitution includes documents such as the Canadian Charter of Rights and Freedoms, which outlines Canadians' rights and freedoms regarding speech, religion, democratic rights, mobility rights, equality, language, and legal rights.
Legislation and Statutes
Canada's federal parliament and provincial legislatures have the power to make and change laws, which are called statutes, legislation, or acts. These laws take precedence over common law and precedents dealing with the same subject. Statutes can be found in official online sources such as Justice Laws Canada and CanLII, a free database of current consolidated statutes, regulations, and case law for Canadian jurisdictions.
Case Law and Precedents
Common law is developed by judges who set precedents and interpret and apply statutes. Reported judgments that have an impact on the law are published in case reports, and their citations include the year of the decision. Unreported judgments are also available through online legal databases such as LexisNexis/Quicklaw and Westlaw Canada, which provide full-text searchable judgments.
Treaties and Aboriginal Rights
Treaty rights are set out in treaties between the Crown and Aboriginal peoples, recognising their historical occupancy and use of the land. These rights are an essential aspect of Canadian law, and case law from other Commonwealth jurisdictions can also have persuasive authority in Canada.
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Online sources of law
Canada has a federal parliamentary democracy with three distinct elements: The Crown, the Senate, and the House of Commons. The country's legal system is based on a combination of common law and civil law. Acts can be federal or provincial/territorial. Statutes start their lives as bills and must be approved by the legislature to become laws. Federal bills may originate in either the House of Commons or the Senate and must be read three times by both chambers.
There are several online sources of law in Canada, including:
Justice Laws Website
The Justice Laws Website, from the Department of Justice, is an online source of the consolidated Acts and Regulations of Canada. It includes past (i.e., point-in-time) consolidated statutes from January 1, 2003, and regulations from March 22, 2006. The website also provides a Table of Public Statutes and Responsible Ministers, which tracks the history of each statute and its amendments.
CanLII
The Canadian Legal Information Institute (CanLII) is a free database of current consolidated statutes, regulations, and case law for Canadian jurisdictions. While the statutes are provided by the respective federal and provincial justice departments, they are not official. However, CanLII allows users to compare different versions of statutes side by side.
Legisinfo
Legisinfo is a website provided by the Parliament of Canada. It is a good source of federal bills, allowing users to track their progress and find related documents such as major speeches in Parliament and recorded votes.
Canada Gazette
The Canada Gazette is a federal government newspaper published regularly, including new statutes and regulations. Laws passed by the federal Parliament are initially published in the Canada Gazette, and regulations made under the authority of a federal statute must be published in the Canada Gazette Part II. The Canada Gazette Part III is also available in print and online, providing information on the "Proclamations of Canada and Orders in Council Relating to the Coming into Force of Acts."
World Constitutions Illustrated
The World Constitutions Illustrated database, part of HeinOnline, provides access to the most up-to-date English and French versions of Canada's Constitution.
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Frequently asked questions
There are two sources of law in Canada: common law and civil law.
Common law is 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 cannot be found in any code or body of legislation but only in past decisions.
Civil law is based on a civil code, such as the French Code Napoléon (Napoleonic Code) in Quebec. Civil codes contain a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute that may arise.
Canada is a federation with a central government and legislatures in each of its ten provinces and three territories. Laws are created by the federal parliament in Ottawa or by the legislatures in each province and territory. All laws require royal assent from the Governor General or Lieutenant Governor.
