Keith Mack
Canada's legal system was created by the British North America Act 1867, which became the Constitution Act, 1867. This Act united the provinces of Canada, Nova Scotia, and New Brunswick and created the federal and provincial governments. 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 Parliament of Canada makes criminal laws, which apply in all provinces and territories of Canada. Criminal laws help protect people and ensure peace and order in society. These laws apply to everyone 12 years old or older. Federal laws, also known as federal acts, are laws passed by the Parliament of Canada that regulate or control something under the constitutional authority of Canada's national government, such as national security, the military, and currency. Common law prevails everywhere except in Quebec, which has a hybrid legal system.
| Characteristics | Values |
|---|---|
| Country founded by | England |
| Fundamental principles | Similar to those governing the legal system of Great Britain, the United States, and other countries with a history of British rule |
| Basis of laws | Common law, a collection of precedents or age-old understandings that define important legal concepts |
| Criminal law | Regulate and maintain public safety, social order, and morality |
| Criminal law applicability | Applies to everyone 12 years or older |
| Criminal law violations | Criminal offence, often carrying imprisonment as the maximum punishment |
| Federal laws | Passed by the Parliament of Canada, regulating matters under the constitutional authority of Canada's national government, including national security, the military, currency, airports, and businesses operating nationally or internationally |
| Provincial laws | Passed by Canada's 10 provincial governments, regulating matters under provincial constitutional authority, including property rights, natural resources, education, social services, housing, health law, and family law |
| Provincial jurisdiction | Property and civil rights, natural resources, hospitals, municipalities, and education (except on First Nation reserves) |
| Municipal laws | Passed by municipal governments, also known as bylaws, regulating minor matters like garbage collection or pet licenses |
| Law applicability | All Quebec and Canadian laws must respect the Canadian Charter of Rights and Freedoms |
| Judiciary | Supreme Court of Canada, led by the Chief Justice of Canada, with nine members appointed by the governor-general on the advice of the prime minister and minister of justice |
| Aboriginal law | Provides constitutionally recognized rights to land and traditional practices for Indigenous groups |
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What You'll Learn
Criminal law
Criminal offences require the Crown to prove that there was criminal conduct (actus reus or "guilty act") accompanied by a criminal state of mind (mens rea or "guilty mind") beyond a reasonable doubt. The specific elements of each offence can be found in the wording of the offence and the case law interpreting it. The mental or fault elements of an offence are typically determined by the use of words within the text of the offence or by case law. Mens Rea in Canada typically focuses on the actual or 'subjective' state of mind of the accused.
True defences, which can provide a partial or complete justification or excuse for committing a criminal act, include duress, automatism, intoxication, or necessity. There is also a partial defence of provocation, which reduces what would otherwise be murder to manslaughter. In rare cases, ignorance of a law other than the one under which the accused is charged can be a defence if knowledge of that law is a relevant circumstance required to be proven as part of the actus reus and/or mens rea.
If the accused is found guilty, the trial judge must determine a fitting sentence. The Crown may appeal against a verdict of acquittal on a question of law alone, and the accused may appeal on a question of law, fact, or mixed law and fact. Either party may appeal a sentence unless it is fixed by law.
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Federal and provincial laws
Canada's legal system was established by the British North America Act 1867, which became the Constitution Act 1867. This Act united the provinces of Canada, Nova Scotia, and New Brunswick and created the federal and provincial governments.
Federal laws, also known as federal acts, are laws passed by the Parliament of Canada that regulate or control something under the constitutional authority of Canada’s national government. This includes matters such as national security, the military, currency, airports, and any business or industry that operates nationally or internationally. Criminal law is a federal responsibility and falls under federal jurisdiction, along with trade and commerce, banking, and immigration.
Provincial laws, on the other hand, are passed by Canada's 10 provincial governments to regulate matters under provincial constitutional authority. This includes property rights, natural resources, education, social services, housing, health law, and family law. Provincial jurisdiction also covers hospitals, municipalities, and education (except on First Nation reserves). While most laws are passed by elected politicians, some laws originate from the federal, provincial, or municipal bureaucracy to which politicians have delegated authority.
In terms of law enforcement, this is generally a provincial responsibility, carried out by provincial and municipal police forces. However, in many rural areas and some urban areas, policing responsibilities are contracted to the federal Royal Canadian Mounted Police.
Canada's judiciary plays a crucial role in interpreting the laws and ensuring they align with the Constitution. The Supreme Court of Canada, led by the Chief Justice of Canada, is the highest court and has the power to strike down Acts of Parliament that violate the Constitution. The federal Cabinet also appoints justices to superior courts in the provincial and territorial jurisdictions.
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Common law
Canada's legal system is based on a combination of common law and civil law. Common law is a collection of precedents or age-old understandings that define important legal concepts in the English-speaking world. It is not written down as legislation but evolves as a system of rules based on precedent. This means that judges refer to past decisions to guide them in making later decisions in similar cases.
In Canada, common law status typically 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. Most provinces recognise common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together.
For federal tax purposes, 'living common-law' refers to couples who have been living together for 12 continuous months or who share a child by birth or adoption. 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.
It is important to note that common-law spouses are not treated the same as legally married spouses in most places in Canada. Common-law partners may not automatically inherit their partner's estate, and the process involves filing a claim with no guarantee of approval.
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Indigenous law
Canada's legal system is founded on English common law, which continues to apply in the country today. This common law system is based on a collection of precedents and age-old understandings that define important legal concepts.
Canada's Indigenous laws refer to the legal traditions, customs, and practices of Indigenous peoples and groups. These laws are developed by Indigenous groups to govern their relationships, manage their natural resources, and resolve conflicts.
The Aboriginal and treaty rights of Indigenous Peoples in Canada are protected under Section 35 of the Canadian Constitution Act, 1982. This section recognises Aboriginal title to certain lands, the right to use lands for traditional purposes, and rights under historical and modern treaties. The duty to consult and accommodate Indigenous Peoples is also a key part of Canadian law, with the federal and provincial governments having a constitutional obligation to do so when considering actions that may adversely affect Indigenous rights.
The Indian Act is a Canadian Act of Parliament that concerns registered Indigenous Peoples, their bands, and the system of Indigenous reserves. It is the primary document that defines the Canadian government's interaction with Indigenous bands and their members.
In recent years, there have been calls for greater recognition of Indigenous self-government, with proposals ranging from granting powers similar to those of local governments to recognising Indigenous governments as sovereign, capable of "nation-to-nation" negotiations with the Crown.
In June 2021, the federal government introduced Bill C-15, which aims to implement UNDRIP as a framework for reconciliation in Canada. An Action Plan is being developed in consultation with Indigenous Peoples to align federal laws with UNDRIP, with a focus on addressing injustices, promoting mutual respect, and eliminating discrimination against Indigenous Peoples.
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The Canadian judiciary
Canada's judiciary interprets and applies the law of Canada. The judiciary is a separate and independent branch of government with constitutional status. The federal and provincial and territorial governments are all responsible for the judicial system in Canada. The federal government appoints and pays for the judges of the federal courts and the superior appellate and trial level courts of each province. The federal government can also establish a general court of appeal and other courts. For example, it has established the Supreme Court of Canada, the Federal Court, the Federal Court of Appeal, and the Tax Court. The Supreme Court of Canada is Canada's final court of appeal. It hears appeals from decisions of the appeal courts in all the provinces and territories, as well as from the Federal Court of Appeal.
The provinces administer justice in their jurisdictions, including organizing and maintaining the civil and criminal provincial courts and civil procedure in those courts. Each province has the authority over the administration of justice within that province. Most cases are heard in provincial and territorial courts. Provincial and territorial superior courts have inherent jurisdiction over civil and criminal cases. Provincial and territorial lower courts try most criminal offences, small civil claims, and some family matters. The Constitution Act, 1867 provides for the establishment and operation of Canada’s judiciary, including its courts of law. It gives the federal government exclusive law-making power over criminal law and criminal procedure, but not over the establishment of criminal courts. The provinces have exclusive power over the administration of justice in each province.
The court system of Canada has four levels of court: the Supreme Court of Canada; the Federal Court and the Federal Court of Appeal, as well as provincial and territorial courts of appeal; provincial and territorial superior courts; and provincial and territorial (lower) courts. The lower provincial and territorial courts are of inferior jurisdiction. Their presiding officers are appointed by the province or territory in which they sit. All courts in Canada, except those in Quebec, enforce the common law. In Quebec, the source of civil or non-criminal law is the civil law.
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Frequently asked questions
The Canadian legal system was created by the British North America Act 1867, which became the Constitution Act 1867. This Act united the provinces of Canada, Nova Scotia, and New Brunswick and created the federal and provincial governments. The Constitution Act 1867 assigns powers to the provincial and federal governments. Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration.
As Canada was founded by England, the fundamental principles of Canadian law are similar to those governing the legal system of Great Britain, the United States, and other countries with a history of British rule. This means that laws must be clear and rational, that all accused persons are innocent until proven guilty, that incriminating evidence must meet very high standards, and that the law’s power over the individual is limited by precedent and the Constitution.
Federal laws, also known as federal acts, are laws passed by the Parliament of Canada that regulate or control something under the constitutional authority of Canada’s national government, such as national security, the military, currency, and airports. Provincial laws (or acts) are laws passed by Canada’s 10 provincial governments to regulate or control matters under provincial constitutional authority, which includes property rights, natural resources, education, social services, housing, health law, and family law. Municipal or city governments can also pass laws, sometimes called bylaws, that regulate minor matters like garbage collection or pet licenses.
