Cecily Zamora
Canada's legal system is a combination of common law and civil law. Post the Battle of Quebec in 1759, the country came under English common law, except for Quebec, which follows civil law. The term civil law is used in two different contexts. In the first context, it is used in contrast to common law to refer to a legal system based on a civil code. In the second context, civil law refers to matters of private law as opposed to public law and criminal law. Quebec's private law is based on civil law, and its public law is based on common law.
| Characteristics | Values |
|---|---|
| Legal System | A combination of common law and civil law |
| Common Law | Law that is not written down as legislation but evolves from rules based on precedent |
| Civil Law | Based on civil codes that contain a comprehensive statement of rules |
| Criminal Law | Federal responsibility and uniform throughout Canada |
| Law Enforcement | Provincial responsibility, conducted by provincial and municipal police forces |
| Federal Structure | Federation of provinces and territories with a central government |
| Law-making | Federal parliament and legislatures in each province and territory |
| Law Approval | Requires approval from the cabinet and a majority in the House of Commons and Senate, as well as royal assent |
| Judiciary | Supreme Court of Canada is the highest court, with judges appointed by the governor general |
| Indigenous Law | Recognizes and protects Aboriginal rights and treaty rights |
| Official Languages | English and French |
| Constitution | Consists of written text and unwritten conventions, guaranteeing basic rights and freedoms |
| Historical Influence | English common law, French civil law, and Indigenous law systems |
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What You'll Learn
Quebec's hybrid legal system
Canada's legal system is a combination of common law and civil law. While all provinces except Quebec inherited the system of common law from the British, Quebec has a hybrid legal system. This is because Quebec was established as a French colony in 1663, and in 1664 Louis XIV decreed that French colonial law would be primarily based on the Custom of Paris, a variant of civil law in force in the Paris region. Justice was administered according to the "Code Louis", consisting of the 1667 ordinance on civil procedure and the 1670 ordinance on criminal procedure.
In 1763, France ceded sovereignty over Quebec to Britain in the Treaty of Paris, and the British Government enacted the Royal Proclamation of 1763, which set out the principles for the British government of the colony. However, Quebec's legal system remained a hybrid of British common law and the civil law and Napoleonic Code from France.
The official versions of Quebec's legal and parliamentary publications are published in both French and English. The Civil Code of Quebec is in ten sections: Persons, Family, Successions, Property, Obligations, Prior Claims and Hypothecs, Evidence, Prescription, Publication of Rights, and Private International Law. To practise law in Quebec, advocates must have a bachelor's degree in civil law, complete an articled clerkship, pass the professional bar course, and be called to the Quebec bar.
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Common law vs civil law
Canada's legal system is based on a combination of common law and civil law. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which follows civil law.
Common Law
Common law is a system of rules based on precedent. It is not written down as legislation but can be found in past decisions. It is flexible, adapting to changing circumstances as judges can announce new legal doctrines or change old ones. Common law is primarily contrasted with civil law, which influenced the legal traditions of English-speaking countries. Common law systems place great weight on precedent, and decisions of the highest court can generally only be overturned by that same court or through legislation. Common law is less prescriptive than civil law, and there are extensive freedom of contract provisions.
Civil Law
Civil law is a legal system rooted in the Roman Empire, with modern codification appearing in the Justinian Code. It is characterised by reliance on legal codes that function as the primary source of law. Civil codes contain a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute that may arise. Civil law is generally more prescriptive than common law, and there are a number of provisions implied into a contract. In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
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Indigenous law systems
Canada's legal system is based on a combination of common law and civil law. While common law is not written down as legislation, civil law is based on civil codes that contain a comprehensive statement of rules.
Indigenous law refers to the specific legal orders of Indigenous Nations, such as the Mi’kmaq law. These laws are developed by Indigenous Peoples to govern their relationships, manage their lands and waters, and resolve conflicts within and across legal systems.
Indigenous societies had unique systems in place to manage political, economic, and social life, including human violence, transgressions, and the “general messiness of collective life”. Important elements of Indigenous laws include accessing and distributing resources, resource management, and conservation of lands and waters.
Indigenous laws can be traced back to oral histories and stories with multiple sources. For example, the Secwépemc nation's laws are based on seven sacred laws passed down from Chief Coyote. These laws served as a basis for examining and interpreting Secwépemc laws from a multitude of sources, including traditional stories, oral histories, pictographs, and petroglyphs.
There have been recent efforts to recognize and implement Indigenous laws within the Canadian legal system. However, there are concerns that presenting Indigenous laws in a format cognizable to the Canadian legal system may result in a reduction or misrepresentation of these laws. Additionally, implementing Indigenous law within the existing legal structure may perpetuate the inherent power imbalance and the violence of colonization.
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Canada's legal pluralism
Canada's legal system is defined by its legal pluralism, which reflects the diversity of its multiple sources of law and legal systems that coexist and interact with each other. This pluralism is a result of Canada's history and the combination of different legal traditions within the country.
The Canadian legal system is based on a combination of common law and civil law. Common law is an unwritten, flexible system of rules based on precedent, which guides judges in making decisions in similar cases. It adapts to changing circumstances as judges can announce new legal doctrines or modify old ones. Civil law, on the other hand, refers to a legal system based on a civil code, such as the Civil Code of Quebec. It is usually framed as broad, general principles to address any dispute.
The coexistence of these two legal traditions was formalised in 1774 with the Quebec Act, which restored the rules and principles of civil law in matters of property and civil rights within the province. As a result, Quebec follows a civil law system, while the rest of Canada operates under common law, with the exception of certain territories that may have their own legal traditions.
In addition to these legal traditions, Canada also recognises Indigenous legal orders and constitutional traditions, which further contribute to the country's legal pluralism. The survival and resurgence of these Indigenous legal systems disrupt the normative hegemony of the liberal state and articulate a constitutionalism that accounts for a plurality of laws. This recognition of Indigenous legal orders is an important aspect of Canada's legal landscape and reflects the country's commitment to reconciliation and the protection of Aboriginal rights.
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Interpreting Canadian 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 civil codes that contain a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute.
Canada is a federation with a central government and several provinces and territories, each with its own legislature. This means that laws are enacted at both the federal and provincial levels, and they are called statutes, legislation, or acts. When a law is passed at either level, it takes the place of common law or precedents dealing with the same subject. The process of passing a law involves government ministers or senior public servants examining the issue and drafting a proposed law. This proposed law then needs to be approved by the cabinet, which is made up of members of Parliament chosen by the prime minister. The proposed law is then presented to Parliament as a bill to be studied and debated. For the bill to become a law, it must be approved by a majority in both the House of Commons and the Senate and receive royal assent from the Governor General.
Canada's judiciary plays an important role in interpreting laws. Judges develop common law by setting precedents and interpreting and applying statutes. They have the power to strike down Acts of Parliament that violate the Constitution, which is the supreme law of the country. The Constitution consists of written text and unwritten conventions and includes the Constitution Act, 1867, the Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms. The Charter guarantees basic rights and freedoms that cannot be overridden by any government, and it is to be interpreted in a manner that preserves and enhances Canada's multicultural heritage.
In terms of the distinction between civil law and common law, civil law is followed in matters of private law, while common law is applied in matters of public law. For example, the Divorce Act, which is a federal law, is interpreted following the civil law tradition and in harmony with the Civil Code of Quebec. On the other hand, the Code of Penal Procedure, enacted by the provincial legislature, is interpreted following the common law tradition.
It is important to note that Canada was founded on the original territories of over 900 different Indigenous groups, each with its own legal traditions. Canadian Aboriginal law recognises certain constitutionally protected rights to land and traditional practices for Indigenous groups, and various treaties and case laws mediate relations between Europeans and Indigenous peoples.
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Frequently asked questions
Canada's legal system is based on a combination of common law and civil law. Common law is in place across Canada except in Quebec, which follows a hybrid system of civil law and common law.
Civil law is a system of law that is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century. It is characterised by its reliance on legal codes as its primary source of law. Common law, on the other hand, relies heavily on judicial precedent and is uncodified, arising from judicial decisions and recognising prior court decisions as legally binding precedent.
Quebec's legal system is a hybrid of civil law and common law. Its private law follows the civil law tradition, and its public law follows common law.
