Kara Sears
Canada has three distinct legal traditions: common law, civil law, and Indigenous law. Unlike most countries, Canada does not operate under one set of laws. Common law, derived from English law, is based on judicial precedent and custom. It is distinct from statutory law, which is the written law established by enactments expressing the will of the legislature. Civil law, on the other hand, is based solely on codified law, such as the Civil Code of Quebec. Quebec, with its history as a French colony, is the only province with a civil code, while the rest of Canada follows common law.
| Characteristics | Values |
|---|---|
| Number of Legal Systems | 3 |
| Legal Systems | Common law, Civil law, and Aboriginal law |
| Basis of Common Law | Judicial precedent and custom |
| Basis of Civil Law | Codified law, such as the Civil Code of Quebec |
| Criminal Law Basis | Federal statutes, with the exception of contempt of court, which is based on common law |
| Number of Provinces with a Civil Law System | 1 (Quebec) |
| Basis of Quebec's Civil Law System | The Coutume de Paris and the Code Napoleon (Napoleonic Code) |
| Jury Usage in Civil Law System | Rare, typically absent in private disputes |
| Jury Usage in Common Law System | More prevalent, can be a factor in any trial |
| Aboriginal Law | Concerns Indigenous legal traditions and rights |
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What You'll Learn
Quebec's hybrid legal system
Canada has three distinct legal traditions: common law, civil law, and Indigenous law. Common law, derived from English law, is based on judicial precedent and custom. Civil law, on the other hand, is based solely on codified law, such as the Civil Code of Quebec. Quebec is the only province with a civil code and it is the result of a unique blend of historical influences.
In 1763, after the Seven Years' War, France ceded sovereignty over Quebec to Britain in the Treaty of Paris. The British government then enacted the Royal Proclamation of 1763, which set out the principles for the British colony. This replaced the civil law system with common law, as per the Royal Proclamation of 1774.
Today, Quebec's legal system is a blend of both civil and common law traditions. At the federal level, Quebec follows Canadian federal law, with criminal law being a uniform federal responsibility throughout Canada. In areas of public law, Quebec courts operate under common law traditions, like other Canadian provinces. However, in matters of private law, Quebec follows the civil law tradition, with the Civil Code of Quebec serving as the primary source of law. This code covers a range of subjects, including persons, family, successions, property, obligations, evidence, and private international law.
The distinction between civil and common law in Quebec can lead to some complexities, with occasional overlaps and contradictions between the two systems. For example, while marriage ceremonies are solemnized according to the Civil Code of Quebec, divorce proceedings may apply federal laws and common law concepts. Additionally, advocates in Quebec must be educated in civil law and meet specific requirements to practise, including obtaining a bachelor's degree in civil law and being called to the Quebec bar.
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Common law vs civil law differences
Canada has three distinct legal traditions: common law, civil law, and Indigenous law. Common law is derived from English law and is based on judicial precedent and custom. It is distinct from statutory law, which is the written law established by the legislature. Civil law, on the other hand, is based solely on codified law, such as the Civil Code of Quebec. Quebec is the only province in Canada with a civil code, as the rest of the country operates under common law.
The differences between common law and civil law can be traced back to their respective origins. Common law, prevalent in former British colonies like the United States, emphasizes judicial precedent, where decisions of the highest court are generally binding. It allows for greater flexibility in granting different types of security over assets and recognizes the concept of trusts, which is absent in civil law. Civil law, practiced in much of Europe and elsewhere, is primarily based on comprehensive written codes that provide broad principles to address disputes. In civil law, unless a contract specifies arbitration, it will be enforced by administrative courts, whereas common law countries may not have such a structure.
The appointment of judges is another notable difference between the two systems. In common law jurisdictions, judges are typically appointed after successful legal careers, whereas civil law systems tend to appoint recent law graduates. This can influence a judge's worldview and approach to legal disputes. Additionally, common law countries generally follow the principle that everything is permitted unless expressly prohibited by law, whereas civil law countries may have more explicit restrictions.
Canada's legal system is pluralistic, influenced by its colonial history and the diverse Indigenous legal traditions of over 900 Indigenous groups. While common law predominates in most provinces, Quebec's unique hybrid system combines civil law for private law matters and common law for public law. This blend of legal traditions showcases the complexity of Canada's legal landscape, shaped by its historical roots and the ongoing evolution of its legal systems.
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Indigenous law systems
Canada has three distinct legal traditions: common law, civil law, and Indigenous law. Indigenous law refers to the specific legal orders of Indigenous Nations, such as Cree, Blackfoot, Mi'kmaq, First Nations, Inuit, and Métis 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 law in Canada has a long history and has survived the impacts of colonization and efforts by Canadian governments to suppress and criminalize its existence. Despite these challenges, Indigenous Peoples have continued to exercise their own jurisdiction and decision-making authority pursuant to their own legal systems. This includes creating contracts, working with governmental and corporate entities, ecological management, criminal proceedings, and family law.
The recognition and implementation of Indigenous law within the Canadian legal system is an ongoing process. One challenge is that Indigenous laws are often passed down through oral stories and traditions, which may be misunderstood or reduced when translated into the format of the Canadian legal system. There are also concerns that implementing Indigenous law within the existing legal structure perpetuates the inherent power imbalance of Canada as a colonial state.
Despite these challenges, there is a growing demand for meaningful recognition and respect for Indigenous rights under Canadian law. The Canadian Constitution, the United Nations Declaration on the Rights of Indigenous Peoples, and the findings of the Truth and Reconciliation Commission all provide a framework for recognizing and incorporating Indigenous law into the Canadian legal system.
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Criminal law in Canada
Canada has three distinct legal traditions: common law, civil law, and Aboriginal law. Common law is derived from English law and is based on judicial precedent and custom. Civil law, on the other hand, is based solely on codified law, such as the Civil Code of Quebec. Canada's criminal law falls under the exclusive legislative jurisdiction of the federal government and is uniform throughout the country. The criminal law of Canada is codified in the Criminal Code, which was established in 1869 and outlines substantive and procedural criminal law. The Code's structure categorises offences into indictable offences and offences punishable by summary conviction. Indictable offences are serious acts such as murder, kidnapping, and robbery, which are tried before a judge with or without a jury or before a magistrate. Offences punishable by summary conviction, such as common assault and public disturbance, are tried without a jury and have a lower maximum punishment of a $500 fine or up to 6 months' imprisonment.
Criminal offences require the Crown to prove beyond a reasonable doubt that there was a criminal act (actus reus) accompanied by a criminal state of mind (mens rea). The specific elements of each offence, including any external circumstances or consequences, can be found in the offence's wording and the case law interpreting it. Mens rea in Canada focuses on the accused's actual or 'subjective' state of mind. A defence may arise if there are circumstances that justify or excuse the criminal act, such as duress, automatism, intoxication, or necessity. These defences are similar to those found in other common law jurisdictions like the UK, Australia, and the US.
Criminal law enforcement in Canada falls under the responsibility of provincial and municipal police forces. The Supreme Court of Canada is the highest court and final arbiter, with the power to strike down Acts of Parliament that violate the constitution. The nine members of the Supreme Court are appointed by the governor general, with input from the prime minister and minister of justice. The federal Cabinet also appoints justices to superior courts in the provincial and territorial jurisdictions.
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Canada's judiciary
The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some courts are federal, while others are provincial or territorial. The Constitution of Canada gives the federal Parliament of Canada exclusive jurisdiction in criminal law, while the provinces have exclusive control over much of civil law. Each province has authority over the administration of justice within that province. Most cases are heard in provincial and territorial courts.
The court system is roughly the same across Canada. Except for Nunavut, each province has three levels: provincial and territorial, or lower, courts; superior courts; and appeal courts. The Nunavut Court of Justice has a single-level trial court. Provincial courts try most criminal offences, money matters and family matters. In private-law cases involving breach of contract or other claims of harm, the courts apply common-law principles in nine provinces and the territories. In Quebec, courts apply the Quebec Civil Code.
Canada has three distinct legal traditions: common law, civil law, and Indigenous law. Common law, derived from English law, is based on judicial precedent and custom. Civil law is based solely on codified law, such as the Civil Code of Quebec. Quebec is the only province with a civil code. Indigenous law concerns the First Nations, Métis, Inuit and other Indigenous people.
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Frequently asked questions
Under common law, the law is set through precedent, a doctrine called stare decisis, meaning judges are obliged to abide by previous rulings. In common law, legal research skills are paramount. Civil law, on the other hand, is based on a fixed system of laws, and justices make decisions according to that code. Precedent can be used to help guide decisions, but it is not binding.
Quebec is the only province in Canada that predominantly uses civil law, which it inherited from its history as a French colony. All other provinces in Canada inherited the common law system from the British.
Canada's third legal system is Indigenous law, practised by Canada's Indigenous Peoples.
