Kara Sears
Canada's legal system is based on British common law traditions, with Canadians' legal rights protected by a written constitution and a Charter of Rights and Freedoms. The country's legal system is pluralist, with foundations in the English common law system inherited from its colonial past, the French civil law system, and Indigenous law systems. While the Canadian federal government has the sole authority to create criminal laws, other types of laws are divided between federal, provincial, and municipal governments.
| Characteristics | Values |
|---|---|
| Number of basic areas of public law | Three |
| Examples of public law | Administrative law, constitutional law, criminal law |
| Matters under federal jurisdiction | Criminal law, trade and commerce, banking, and immigration |
| Matters under provincial jurisdiction | Inheritance law |
| Matters under municipal jurisdiction | None, but municipal authorities share responsibilities with federal and provincial governments for other types of law |
| Matters under exclusive jurisdiction of the Canadian Parliament | Bankruptcy and insolvency |
| Legal traditions that form the foundation of the Canadian legal system | English common law, French civil law, Indigenous law |
| Number of Indigenous legal traditions | Over 900 |
| Types of law followed by Indigenous groups | Cree, Blackfoot, Mi'kmaq and numerous other First Nations; Inuit; and Métis law |
| Type of law that common-law couples in Canada are subject to | Common-law unions are subject to many of the same legal, parental, and financial rights and obligations as married couples |
| Type of law that deals with civil liberties | Civil law |
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What You'll Learn
Civil law vs common law
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. Canada is generally considered a common-law country, but Quebec is the only province with a civil code, based on the French Code Napoléon (Napoleonic Code). The rest of Canada uses common law.
Civil law, also known as the Napoleonic Code, is a system of law that evolved from the Roman law compilations of Emperor Justinian in around 600 C.E. It is found in countries of continental Europe, their former colonies, and Quebec in Canada. In civil law countries, the constitution is generally based on a code of laws or codes applying to specific areas, such as tax law or corporate law. Civil codes contain a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute that may arise. In civil law systems, judges first refer to a civil code and then to previous decisions to check consistency. Lawyers in civil law countries advise clients on legal proceedings, write legal pleadings, and help provide favourable evidence.
Common law, also known as case law or precedent, is a system of law that evolved from English law. It is found in countries that were once subjects or colonies of Great Britain, such as the United States, Canada, England, India, and Australia. Common law countries may not always follow a constitution or a code of laws. Instead, past legal precedents or judicial rulings are used to decide cases. Common-law systems refer extensively to statutes, but judicial cases are considered the most important source of law, allowing judges to be proactive. Freedom of contract is extensive in common-law countries, meaning very little or no provisions are implied in contracts by law.
In Canada, legislation enacted by the provincial legislature in matters of public law, such as the Code of Penal Procedure, should be interpreted following the common law tradition. On the other hand, legislation enacted by the federal Parliament in matters of private law, such as the Divorce Act, is to be interpreted following the civil law tradition and in harmony with the Civil Code of Quebec.
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Criminal law
Canada's criminal law is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws are codified in the Criminal Code, which is Canada's main source of substantive and procedural criminal law. The Criminal Code outlines the structure and offence classifications, dividing offences into two main categories: indictable offences and offences punishable by summary conviction. Indictable offences are serious acts such as murder, kidnapping, and robbery. Offences punishable by summary conviction include common assault and public disturbance, and are defined as "summary" within the Act. Unless otherwise stated, these are punishable by a fine of no more than $5,000 and/or six months in jail.
For an act to be considered criminal, it must be proven that there was criminal conduct (actus reus or "guilty act") accompanied by a criminal state of mind (mens rea or "guilty mind") beyond a reasonable doubt. The specific elements of each offence can be found in the wording of the offence and the case law interpreting it. The external elements typically require an act, circumstances, and sometimes a specific "consequence" caused by the action.
Defences to criminal charges include duress, automatism, intoxication, or necessity. There is also a partial defence of provocation, which can reduce what would otherwise be murder to manslaughter. In rare cases, ignorance of a law other than the one under which the accused is charged can be a defence if knowledge of that law is a relevant circumstance required to be proven as part of the actus reus and/or mens rea.
If the accused is found guilty, the trial judge must determine a sentence. The judge will determine the facts that were proven and allow the parties to present additional evidence concerning disputed facts, which may form the basis for finding aggravating or mitigating circumstances. The Crown must prove an aggravating fact beyond a reasonable doubt, while the accused bears the burden of proving a mitigating fact. Both the Crown and the accused have the right to appeal the verdict and sentence in most cases.
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Immigration and refugee law
Canada's legal system is pluralist, 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 and consists of written and unwritten conventions. The Constitution Act of 1867 affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
Canadian immigration and refugee law concerns the admission of foreign nationals into Canada, their rights and responsibilities once admitted, and the conditions of their removal. The primary law on these matters is the Immigration and Refugee Protection Act. This Act also covers refugee protection policies and programs, as well as the rights of permanent residents and Canadian citizens.
The Immigration and Refugee Protection Act defines a foreign national as a person who is not a Canadian citizen or permanent resident, including stateless individuals. A foreign national may be selected as a member of the family class based on their relationship as a spouse, common-law partner, child, or parent of a Canadian citizen or permanent resident. They may also be selected as a member of the economic class if they can demonstrate their ability to become economically established in Canada.
Additionally, the Act allows for the sponsorship of foreign nationals by Canadian citizens or permanent residents, subject to certain regulations. In some cases, a right of appeal may be granted to sponsors if their applications are rejected due to failing to meet financial criteria. This appeal process can be pursued unless humanitarian and compassionate grounds are involved.
The Immigration and Refugee Protection Act also references international agreements such as the United Nations Convention Relating to the Status of Refugees and the Convention Against Torture. These agreements provide a framework for protecting refugees and upholding their rights.
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Administrative law
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. Administrative law is one of the three basic areas of public law, alongside constitutional law and criminal law. It deals with the relationship between the government and its citizens, ensuring that government actions are authorised by Parliament or provincial legislatures, and that laws are implemented and administered fairly and reasonably.
Delegating legislation defines the powers given to an agency or minister and outlines the rules for exercising those powers. Where administrative action depends on interpreting a statute, the legislation may require a hearing before a board or administrative tribunal. Administrative agencies must follow proper procedures in their decision-making processes, such as providing notice of hearings, the right to counsel, and the right to call evidence and cross-examine witnesses. In the absence of statutory procedures, common-law principles apply, ensuring that all persons subjected to government action are treated fairly.
Citizens can challenge administrative decisions in court through an appeal or judicial review, depending on the availability of these options and the individual's status. Judicial reviews involve the "superior" courts reviewing the actions of "inferior" administrative bodies. When a statute provides for an appeal from an administrative decision to a court, the court scrutinises the decision using appellate standards of review. The court considers questions of law using the standard of correctness and questions of fact using the standard of "palpable and overriding error". The reviewing court assesses the decision's rationale and outcome against contextual considerations, such as the governing statutory scheme, common law, and the evidence before the decision-maker.
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Indigenous law
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. The latter 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. These include the Cree, Blackfoot, Mi'kmaq, First Nations, Inuit, and Métis peoples.
The Royal Proclamation of 1763 is a foundational document that created special land rights for Indigenous peoples in Canada. The Treaty of Niagara of 1764 also bound the Crown and the Indigenous peoples of the Great Lakes basin in a relationship that exists to this day. Post-Confederation Canada, however, imposed Canadian law on Indigenous peoples, ignoring the nation-to-nation relationship.
Today, the federal and provincial governments have a constitutional duty to consult with Indigenous Peoples when contemplating actions that may adversely affect their Section 35 Rights. This duty to consult and accommodate is a major area of Aboriginal law. The government may delegate some of these obligations to industry, and companies often seek to obtain consent for projects affecting lands subject to Aboriginal rights and title claims.
Indigenous or Aboriginal self-government proposals aim to give greater powers to governments representing Indigenous peoples, ranging from powers similar to local governments to demands for recognition as sovereign nations capable of "nation-to-nation" negotiations with the Crown. In June 2021, the federal government brought Bill C-15 into force to implement UNDRIP as a framework for reconciliation in Canada. An Action Plan is being developed in consultation with Indigenous Peoples to align federal laws with UNDRIP.
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Frequently asked questions
Canada's legal system is based on British "common law" traditions, and Canadians' legal rights are protected by a written constitution and a Charter of Rights and Freedoms. The country's laws can be broadly categorized into three types: civil law, common law, and Indigenous law. Civil law, which is in force in Quebec, generally regulates things like employment contracts, building leases, marriages, divorces, wills, and child custody agreements. Common law, on the other hand, is a collection of precedents or age-old understandings that define important legal concepts. Indigenous law, meanwhile, is made up of the various legal traditions of the over 900 Indigenous groups in Canada.
Common law in Canada includes the concept of a common-law union, where two people live together in a conjugal relationship for at least a year, and have many of the same legal, parental, and financial rights as married couples. Another example is the understanding of the definition of "libel" and what it means to be "unfit to stand trial."
Canada has specific laws in various areas, including immigration and refugee law, inheritance law, and bankruptcy law. Administrative law, constitutional law, and criminal law are also important areas of focus in the Canadian legal system.
