Cameron Miranda
Canada's judiciary plays an important role in interpreting laws and has the power to strike down Acts of Parliament that violate the constitution. The Constitution Act, 1982, stipulates that 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. Provincial laws in Canada include public and private acts passed by Canadian provincial governments. Criminal law is a federal responsibility and is uniform throughout Canada, while law enforcement is a provincial responsibility, conducted by provincial and municipal police forces.
| Characteristics | Values |
|---|---|
| Criminal law jurisdiction | Exclusive to federal Parliament |
| Criminal law code | Criminal Code of Canada |
| Common law legal tradition | Nine provinces and federal territories |
| Civil law tradition | Quebec |
| Indigenous law | Rights to land and traditional practices for Indigenous groups |
| Power to strike down Acts of Parliament | Supreme Court of Canada |
| Number of Supreme Court members | Nine |
| Appointment of Supreme Court members | Governor general on the advice of the prime minister and minister of justice |
| Appointment of superior court justices | Federal Cabinet |
| Federal statutes | Include criminal offences |
| Provincial statutes | Include public and private acts |
| Provincial statutes availability | Alberta, British Columbia, New Brunswick, Nova Scotia, and Ontario |
| Provincial statutes availability (historical and revised) | Manitoba, Newfoundland and Labrador, Prince Edward Island, Quebec, and Saskatchewan |
| Provincial statutes database | Lexis |
| Provincial statutes database | Westlaw |
| Provincial statutes database | Canadian Legal Information Institute (CanLII) |
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What You'll Learn
Provincial laws and the Constitution Act, 1982
The Constitution Act, 1982, is a significant piece of legislation in Canada, as it ended all legislative ties with Britain and established Canada's constitution as the supreme law of the land. This act includes the Canadian Charter of Rights and Freedoms, which protects the fundamental rights and freedoms of Canadians and serves as a unifying force across the nation.
Prior to the Constitution Act, 1982, the British North America Act, 1867 (now known as the Constitution Act, 1867) was the supreme law in Canada. The new act, however, provided for amendments to the division of powers, specifically regarding natural resources. Sections 92A and the Sixth Schedule granted exclusive jurisdiction to the provinces to regulate the development of non-renewable natural resources and electrical generation.
The Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982, plays a crucial role in safeguarding the rights of Canadians. It was drafted through collaboration between the federal and provincial governments, and it ensures that policies and actions of all levels of government respect the rights of individuals. The Charter is explicit in guaranteeing rights and outlining the role of judges in enforcing them, empowering the courts to strike down any statutes or parts thereof that violate Charter rights.
The Constitution Act, 1982, also includes provisions for amending the Constitution of Canada and addresses the rights of Indigenous peoples. It is worth noting that while the Charter guarantees basic rights, a notwithstanding clause allows Parliament and provincial legislatures to override certain sections for a limited period. Nonetheless, any law passed by a federal, provincial, or territorial government that contradicts the constitution is deemed invalid.
In summary, the Constitution Act, 1982, is a pivotal piece of legislation in Canada's history, solidifying its independence from Britain and establishing the Canadian Charter of Rights and Freedoms as the supreme law of the land. This act expanded judicial review, empowered the courts, and ensured the protection of fundamental rights and freedoms for all Canadians.
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Provincial statutes and their sources
Provincial statutes in Canada contain public and private acts passed by Canadian provincial governments. These statutes do not include criminal law, as criminal law in Canada is exclusively under federal jurisdiction. The federal territories follow common law, but Indigenous nations and their associated territories do not.
The Provincial Statutes of Canada include Provincial Statutes for ten of the Canadian provinces. These statutes can be accessed via online sources such as Lexis, Westlaw, and the Canadian Legal Information Institute (CanLII). Lexis provides access to an alphabetical list of statutes and regulations for various provinces, including Alberta, British Columbia, and Manitoba. Westlaw, on the other hand, offers the British Columbia Statutes (BC-ST) database. CanLII provides free online access to provincial legislation, including the Statutes and Regulations of Nunavut in multiple languages.
Provincial statutes are also available through official government websites, such as the Ontario e-Laws site, which offers a searchable database of Ontario's statutes and regulations. Similarly, the Quebec government provides access to its laws and regulations, including the Revised Statutes and Regulations and Annual Statutes.
In addition to these sources, some universities maintain guides and resources for researching Canadian provincial legislation. For example, the Justice Institute of British Columbia provides access to Saskatchewan Public and Private Acts, Bills, Regulations, and the Saskatchewan Gazette. It also offers weekly issues of the Ontario Gazette in PDF format and information on the statutes of Nova Scotia and Newfoundland and Labrador.
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Criminal law and federal statutes
Canada's criminal law is a federal responsibility and is uniform throughout the country. Criminal offences are found only within the Criminal Code and other federal statutes. The criminal code is included in the Revised Statutes of Canada. The federal parliament has exclusive jurisdiction over criminal law, and it has enacted the Criminal Code.
Nine of the provinces, excluding Quebec, and the federal territories follow the common law legal tradition. Quebec has a hybrid legal system due to historical reasons. Private law follows the civil law tradition, while public law follows the common law tradition. The Code of Penal Procedure of Quebec applies to proceedings concerning offences created by a law of that province.
The Provincial Statutes of Canada include Provincial Statutes for ten of the Canadian provinces. These statutes do not include criminal law. The Provincial Offences Act of Ontario and the rules of court made under the Courts of Justice Act of Ontario are examples of provincial regulations.
Canadian law adheres to the doctrine of stare decisis, where lower courts must follow the decisions of higher courts. The Supreme Court of Canada is the highest court and plays a crucial role in interpreting laws and striking down Acts of Parliament that violate the constitution. The Constitution Act, 1982, stipulates that Canada's constitution is the supreme law, and any law passed by any level of government that contradicts it is invalid.
Sources of information on Canadian federal and provincial laws include Lexis, Westlaw, and the Canadian Legal Information Institute (CanLII), which offer access to federal and provincial statutes and regulations.
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Common law and civil law
Canada has three legal systems, unlike most countries, which have one. Nine of the provinces and federal territories follow the common-law legal tradition, while Quebec has a hybrid system. Quebec's private law follows the civil law tradition, and its public law follows the common law tradition.
Common law is a legal system where past precedents inform future rulings. In common law, academic work can be a “secondary source” to precedent, helping judges make new decisions, but it does not outweigh clear precedent. At the provincial level, juries can be a factor at any trial in the common-law system.
Civil law, on the other hand, is a system of laws that is not the same as "civil law" in the context of "public law". In the latter case, "civil law" is a synonym for "private law", describing the legal relationships between people, as opposed to between a person and the state. In Quebec's civil law system, judges have more freedom to interpret the civil code as they see fit, and academic commentary has more weight than in common-law jurisdictions. Juries are also much rarer and don't usually come into play in private disputes.
Criminal law is not affected by the common/civil law split, as criminal law and procedure are federal and uniform throughout Canada. The criminal code is included in the Revised Statutes of Canada.
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Indigenous law
Canadian Aboriginal law, on the other hand, is the body of law in Canada that specifically concerns issues related to Indigenous peoples. It provides certain constitutionally recognized rights to land and traditional practices. It enforces and interprets treaties between the Canadian Crown-in-Council and Indigenous peoples and manages much of their interaction.
Many agreements signed before the Confederation of Canada are recognized in Canadian law, such as the Peace and Friendship Treaties, the Robinson Treaties, and the Douglas Treaties. The Indian Act, first passed in 1876, is the primary document that defines how the Government of Canada interacts with the First Nation bands in Canada and their members. It has been amended numerous times due to its controversial nature and varying interpretations.
The interaction between Indigenous law and Canadian courts is complex and has faced criticism. One drawback is the risk of misrepresenting or misunderstanding Indigenous law when "translating" it into a format that fits the Canadian legal system. However, courts have affirmed that the Constitution Act of 1867 did not extinguish the continued existence of Indigenous powers of self-government, and this right is protected by Section 35 of the Constitution Act of 1982.
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Frequently asked questions
Provincial laws in Canada are made by the provincial legislatures.
Provincial laws in Canada are derived from public and private acts passed by the provincial governments. These acts are compiled into provincial statutes, which are available online through sources such as Lexis, Westlaw, and the Canadian Legal Information Institute (CanLII).
The process of making a provincial law in Canada typically involves the introduction of a bill in the provincial legislature, which is then debated, amended, and voted on. If the bill passes, it is sent to the provincial governor or lieutenant governor for royal assent, after which it becomes law.
In Canada, federal laws are enacted by the Parliament of Canada and apply uniformly across the country. On the other hand, provincial laws are made by the provincial legislatures and apply only within the respective province. Federal laws cover areas such as criminal law, while provincial laws cover areas like property and civil rights.
