Keith Mack
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. The rule of law is a fundamental aspect of Canada's social structure and is recognised in its Constitution, which is the supreme law of the country. The rule of law in Canada means that no one is above the law and that it will be applied fairly and evenly to all persons, regardless of their status. The Supreme Court of Canada has concluded that the rule of law is a fundamental part of the country's constitutional structure, binding on all levels of government and enforceable by the courts.
| Characteristics | Values |
|---|---|
| Canada's constitution | The supreme law of the country, consisting of written text and unwritten conventions |
| Rule of law | Expresses an agreement to be bound by and subject to the law, with no one above it |
| Judiciary | Interprets laws and can strike down Acts of Parliament that violate the constitution |
| Supreme Court | The highest court and final arbiter |
| Common law | Prevails everywhere except Quebec, where civil law predominates |
| Criminal law | Solely a federal responsibility and uniform throughout Canada |
| Law enforcement | A provincial responsibility, conducted by provincial and municipal police forces |
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What You'll Learn
The Canadian Constitution and the Rule of Law
Canada's Constitution is the supreme law of the country, and it consists of written text and unwritten conventions. The Constitution Act of 1982 stipulates that Canada's constitution includes that act, a series of thirty Acts and orders, and any amendments to those Acts. Section 52 of the Constitution Act, 1982, further emphasises the supremacy of the Constitution, stating that any law passed by any federal, provincial, or territorial government that conflicts with the Constitution is invalid.
The Constitution Act, 1867, affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. This Act also recognised that Canada's constitutional order was "similar in principle to that of the United Kingdom," where the rule of law is well-established. The Supreme Court of Canada has concluded that the rule of law is a fundamental aspect of Canada's constitutional structure and is binding on all levels of government.
The rule of law is a principle that recognises that everyone, regardless of their status, is subject to the law. It ensures that laws are applied fairly and evenly, regardless of an individual's position or power. The rule of law is integral to Canada's social structure and is recognised in the Constitution Act, 1982, which states that "Canada is founded upon principles that recognise the supremacy of God and the rule of law."
Canadian courts, particularly the Supreme Court of Canada, play a crucial role in interpreting the laws and upholding the rule of law. They have the power to strike down Acts of Parliament that violate the Constitution. For example, in the case of Roncarelli v. Duplessis (1959), the Supreme Court held that Premier Duplessis' actions violated the rule of law as it constituted an abuse of power.
While the rule of law is a fundamental principle in Canada's legal and social order, it does not guarantee that violations will never occur. Violations of the rule of law can happen, whether intentional or unintentional, and it is important to remain vigilant in upholding this principle.
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Human rights and freedoms
The Charter includes rights such as freedom of expression, religion, association, and peaceful assembly, as well as the right to life, liberty, security of the person, and equality before the law. It also covers participation in elections, mobility, legal process, language usage, and minority-language education. The rights of official language minorities and minority and disadvantaged groups have been reinforced through the Charter.
While the rights and freedoms in the Charter are not absolute, any limitations must be reasonable and justifiable in a free and democratic society. For example, freedom of expression may be limited by laws against hate propaganda or child pornography.
Canada's commitment to human rights and freedoms is also reflected in its ranking among the highest globally in measurements of civil rights and its signing of multiple international human rights treaties.
The country's legal system, with foundations in English common law, French civil law, and Indigenous law systems, also plays a role in upholding human rights. The Supreme Court of Canada, as the highest court, has the power to strike down Acts of Parliament that violate the Constitution and has done so in cases involving religious freedom and the abuse of powerful positions.
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Indigenous law systems
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 has been developed by various Indigenous Nations and has always been subject to the laws and legal systems of Indigenous Peoples.
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 are 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. The Secwépemc nation, for example, has a set of seven sacred laws passed down from Chief Coyote that demonstrate the foundational values embedded in Indigenous law. These laws are used as a basis and guide when interpreting Secwépemc laws from a multitude of sources, including traditional stories, oral histories, pictographs, and petroglyphs.
Indigenous law survived the arrival of Europeans and the impacts of colonization, as well as decades-long efforts by Canadian governments to suppress, criminalize, and deny its existence. In recent years, there has been a resurgence of Indigenous law across Canada, along with a growing demand for meaningful recognition and respect for Indigenous rights under Canadian law.
There are clear reasons why it is important for federal and provincial governments to recognize and “make space” for Indigenous law. These include the Crown’s obligations under the Canadian Constitution, the United Nations Declaration on the Rights of Indigenous Peoples, and the findings of the Truth and Reconciliation Commission.
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The role of the Supreme Court
The Supreme Court of Canada is the country's highest court and final arbiter, led by the Chief Justice of Canada, Richard Wagner, since 2017. It is the final court of appeal and decides on legal issues of public importance, contributing to the development of all branches of law in Canada. The Court's jurisdiction is derived mainly from the Supreme Court Act and other Acts of Parliament, such as the Criminal Code. It hears cases in all areas of law, including constitutional law, administrative law, criminal law, and private law.
The Supreme Court's role is critical in interpreting laws and ensuring the rule of law in Canada. It can strike down Acts of Parliament that violate the constitution, demonstrating its power in upholding the supreme law of the country. The Court's jurisdiction covers both the civil law of Quebec and the common law of the other nine provinces and three territories. The Court is bilingual, working in English and French, and is bijural, deciding cases from Canada's two major legal traditions: common law and civil law.
The Supreme Court sits at the pinnacle of Canada's court system, hearing appeals from various lower courts. These include the federal court system, the Court Martial Appeal Court, the Federal Court of Appeal, and the provincial and territorial court systems. To have their cases heard by the Supreme Court, parties typically need to obtain permission or leave to appeal, which is granted for cases of public importance. The Court consists of nine members, appointed by the governor general on the advice of the prime minister and minister of justice.
The Supreme Court of Canada has played a pivotal role in significant rulings. For instance, in the case of Roncarelli v. Duplessis (1959), the Court upheld the rule of law by ruling against Premier Duplessis, whose cancellation of Roncarelli's liquor licence was deemed an abuse of power. This ruling demonstrated that even the most powerful individuals are subject to the same laws as everyone else, a cornerstone principle of the rule of law.
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Equality before the law
The Canadian legal system is founded on the rule of law, which is a fundamental part of the country's legal and social order. The rule of law in Canada is based on the principle that everyone is equal before the law and has the right to equal protection and benefit from it without discrimination. This is enshrined in Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees equality rights and prohibits discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
The Canadian judiciary plays a crucial role in interpreting laws and ensuring that they adhere to the rule of law. The Supreme Court of Canada, as the highest court in the land, has affirmed the centrality of the rule of law in Canadian society and has struck down Acts of Parliament that violate it. For instance, in Roncarelli v. Duplessis (1959), the Supreme Court held that Premier Duplessis' cancellation of Roncarelli's liquor licence violated the rule of law as it constituted an abuse of power. The Court emphasised that the rule of law prohibited Duplessis from relying on his position or personal assessment of the public interest to justify his actions.
Canada's commitment to the rule of law is also reflected in its recognition and enforcement of the rights of minority and disadvantaged groups. The Supreme Court has repeatedly emphasised addressing the broader context in substantive equality analyses. For instance, in Ontario v. G., the Court found that a law infringed on equality rights without requiring historical discrimination to be demonstrated. Additionally, in Withler, the Court rejected the "mirror comparator" group approach, which compared claimants to others who were similar in all ways except for the characteristics related to the alleged discrimination. Instead, it confirmed that claimants must establish distinctive treatment based on prohibited grounds, such as race, religion, or sex.
Canada's Constitution also plays a vital role in upholding the rule of law. According to the Constitution Act, 1982, Canada's constitution is the supreme law of the land, and any law passed by federal, provincial, or territorial governments that contradicts it is invalid. The Constitution includes written texts, such as the Constitution Act, 1867, and unwritten elements, such as federalism, democracy, constitutionalism, and respect for minorities. The Supreme Court has interpreted the Constitution as implicitly demonstrating respect for the rule of law, as constitutions are inherently intended to establish a social order that both governments and citizens must follow.
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Frequently asked questions
Yes, the rule of law is a fundamental aspect of Canada's legal and social order. The Supreme Court of Canada has concluded that the rule of law is a "fundamental postulate of our constitutional structure".
The rule of law is a single, overarching rule that expresses an agreement to be bound by and subject to the law as individuals and as a collective community. It means that everyone, regardless of their status, is subject to the same laws, and that the laws will be applied fairly and evenly, without considering hierarchies, privilege, power, or wealth.
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, which includes written and unwritten elements, is the supreme law of the country. The rule of law is recognised in Canada's constitution, which stipulates that "Canada is founded upon principles that recognize the supremacy of God and the rule of law". The Canadian judiciary plays a crucial role in interpreting laws and ensuring they align with the constitution.
