Cecily Zamora
Canada's legal system is a complex blend of common law, civil law, and Indigenous legal traditions. The country's laws are influenced by its history as a British colony, with the Statute of Westminster (1931) granting full autonomy and the Constitution Act (1982) severing legislative ties to Britain. The Canadian legal system is characterised by federalism, with both federal and provincial laws coexisting. Common law prevails in most provinces, except Quebec, where civil law takes precedence. Criminal law is a federal matter, with a uniform Criminal Code across the country. The Canadian judiciary plays a crucial role in interpreting laws, and the Supreme Court of Canada, led by the Chief Justice, is the highest court with the authority to bind all lower courts. The Canadian Charter of Rights and Freedoms guarantees fundamental rights and freedoms, which are protected by the judiciary's power to strike down Acts of Parliament that violate the constitution.
| Characteristics | Values |
|---|---|
| Basis of laws | Common law, except in Quebec where civil law predominates |
| Criminal law | Federal responsibility and uniform throughout Canada |
| Law enforcement | Provincial responsibility, conducted by provincial and municipal police forces |
| Indigenous law | Recognises certain rights to land and traditional practices for Indigenous groups |
| Legislative ties | Ended with Britain in 1982 with the addition of the Canadian Charter of Rights and Freedoms |
| Judiciary | Interprets laws and can strike down Acts of Parliament that violate the constitution |
| Highest court | The Supreme Court of Canada |
| Superior and appellate judges | Appointed after consultation with non-governmental legal bodies |
| Provincial highest courts | Decisions are considered "persuasive" but not binding on other provinces |
| Single ruling to bind lower courts | Only the Supreme Court of Canada has this authority |
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What You'll Learn
Indigenous Law
Canada was founded on the original territories of over 900 different Indigenous groups, each with its own distinct Indigenous legal traditions. These include the Cree, Blackfoot, Mi'kmaq, numerous other First Nations, Inuit, and Métis, who continue to apply their own legal traditions in daily life, including in the creation of contracts, ecological management, and criminal proceedings.
Canadian Aboriginal law provides constitutionally recognized rights to land and traditional practices for Indigenous groups. It enforces and interprets treaties between the Crown and Indigenous peoples, such as the Royal Proclamation of 1763, which created special land rights for Indigenous peoples, and the Treaty of Niagara of 1764, which established a familial relationship between the Crown and the Indigenous peoples of the Great Lakes basin.
Aboriginal law is based on a variety of written and unwritten legal sources, including the Constitution Act, 1867, which gives the federal parliament exclusive power over matters related to "Indians and Lands reserved for the Indians," and the Indian Act, which created a definitive national policy on this topic. Part II of the Constitution Act, 1982, recognizes Aboriginal treaty and land rights, with Section 35 being particularly important in this regard.
Indigenous self-government refers to proposals to grant greater powers to governments representing Indigenous peoples in Canada, ranging from powers similar to those of local governments to demands for recognition as sovereign nations capable of "nation-to-nation" negotiations with the Crown.
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Criminal Law
The Criminal Code of Canada (1869) is the country's main source of substantive and procedural criminal law. Offences are divided into two main categories: indictable offences and offences punishable by summary conviction. Indictable offences are serious acts such as murder, kidnapping, and robbery. For most indictable offences, the accused can choose one of three trial procedures: trial by magistrate, trial by judge without a jury, or trial by judge and jury. Treason, sedition, piracy, and murder must be tried before a judge and jury. Defendants must be personally present at the trial for indictable offences, and maximum prison terms, including life, may be imposed.
Summary conviction offences are the most minor offences and are punishable by a fine of up to $5,000 and/or six months in jail. Common assault and public disturbance are examples of offences punishable by summary conviction, for which defendants do not have to be present at the summary proceedings.
For a person to be found guilty of a criminal offence, the Crown must prove that there was criminal conduct (actus reus) accompanied by a criminal state of mind (mens rea) beyond a reasonable doubt. The accused may present a defence, such as duress, automatism, intoxication, or necessity, which may provide a partial or complete justification or excuse for committing the criminal act. If the accused is found guilty, the trial judge will determine a fitting sentence, taking into account aggravating and mitigating circumstances.
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Common Law
Canada's legal system is based on a combination of common law and civil law. Common law, in general, is law that is not written down as legislation but evolves from precedent. It is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones. In Canada, common law prevails everywhere except in Quebec, which follows civil law, based on the French Code Napoléon (Napoleonic Code). The rest of Canada uses the common law system.
In the context of Canadian family law, common law refers to a person living with someone they are not legally married to, but are in a conjugal relationship with. Common-law relationships are recognised in certain situations, and the criteria vary by province and legal context. For federal tax purposes, 'living common-law' means couples have been living together for 12 continuous months or share a child by birth or adoption. This definition includes any period of separation that is less than 90 days due to a breakdown in the relationship. The 12-month timeline also applies in the context of immigration.
Most provinces recognise common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together. In Quebec, common-law relationships are referred to as de facto unions, and they are recognised for tax purposes after two years of continuous cohabitation. Without a will, common-law partners may not automatically inherit, and their rights vary depending on provincial laws. For example, in Quebec, a common-law spouse is not entitled to anything unless specified in a will. In contrast, in BC, Manitoba, Saskatchewan, and the Northwest Territories, common-law partners have the same inheritance rights as married spouses.
In the Canadian legal system, common law also refers to the development of law through judicial precedent. Lower courts in Canada are bound by the decisions of higher courts, and the Supreme Court of Canada has the authority to bind all lower courts in the country with a single ruling. Judges develop common law by setting precedents, interpreting, and applying statutes, and adapting legal doctrines to changing circumstances.
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The Canadian Charter of Rights and Freedoms
The Charter guarantees rights equally to males and females, and it must be interpreted in a way that preserves and enhances the multicultural heritage of Canadians. It does not abrogate or derogate from any aboriginal, treaty, or other rights or freedoms pertaining to the aboriginal people of Canada. It also does not affect rights or privileges guaranteed by or under the Canadian Constitution regarding denominational, separate, or dissentient schools.
The Charter guarantees the right to equality, democracy, and mobility. It ensures freedom of conscience, religion, and peaceful assembly. It also protects the right to freedom of thought, belief, opinion, and expression, including freedom of the press and other means of communication. The right to gather and act in peaceful groups is protected, as is the right to belong to an association like a trade union. These freedoms are set out to ensure that Canadians can freely create and express their ideas, gather to discuss them, and communicate them widely.
The rights and freedoms in the Charter are not absolute and can be limited to protect other rights or important national values. For instance, freedom of expression may be restricted by laws against hate propaganda or child pornography. Section 1 of the Charter states that these rights can be limited by law, provided that the limits are reasonable in a free and democratic society. The Charter also gives certain rights exclusively to Canadian citizens, such as the right to vote and the right to enter, remain in, and leave Canada.
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Federal and Provincial Laws
Canada's legal system is a complex mix of federal and provincial laws, with the Constitution as the supreme law of the country. The Constitution Act of 1867, previously known as the British North America Act, affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The federal government has jurisdiction over areas such as criminal law, trade and commerce, banking, and immigration, while matters like property and civil rights, natural resources, hospitals, and education fall under provincial jurisdiction.
The Revised Statutes of Canada is the federal statutory consolidation of statutes enacted by the Parliament of Canada. Each province also has its own consolidation of statutes, which include major topic areas and most of the statutes enacted by their respective governments. Notably, criminal law is under the exclusive jurisdiction of the federal Parliament, and it is uniform across the country. Law enforcement, including criminal courts, is a provincial responsibility, carried out by provincial and municipal police forces. However, in many rural and some urban areas, the Royal Canadian Mounted Police assume policing duties.
Canada's judiciary is tasked with interpreting laws and ensuring they adhere to the Constitution. The Supreme Court of Canada, the highest court in the country, serves as the final arbiter. It is led by the Chief Justice of Canada, and its members are appointed by the governor general based on the advice of the prime minister and minister of justice. The Supreme Court has the authority to strike down Acts of Parliament that violate the Constitution and has clarified that the list of supporting principles and rules within it is not exhaustive.
The federal and provincial laws often operate concurrently, and courts must continually assess the competing powers of both levels of government. While lower courts follow the decisions of higher courts within their respective provinces, the Supreme Court of Canada's rulings bind all lower courts in the country. This dynamic showcases the interplay between federal and provincial laws in Canada, with the Constitution serving as the ultimate guide and safeguard.
Additionally, it is worth noting that Canada was founded on the original territories of over 900 Indigenous groups, each with their own legal traditions. Many Indigenous groups continue to apply their legal traditions in various aspects of daily life, and these traditions hold significance alongside federal and provincial laws.
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Frequently asked questions
The Constitution of Canada is the supreme law of the country. It consists of written text and unwritten conventions.
The Canadian legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems.
The judiciary interprets laws and has the power to strike down Acts of Parliament that violate the constitution. The Supreme Court of Canada, led by the Chief Justice of Canada, is the highest court and final arbiter.
The Canada Gazette is the official newspaper of the Government of Canada, where you can find information on new statutes, regulations, and government notices. You can also refer to the Justice Laws Website, which provides access to federal Acts and regulations.
When the federal government makes changes, it often creates "amending" Acts or regulations that modify specific sections of existing laws. These consolidated Acts or regulations are then updated versions that incorporate the amendments.
