Cecily Zamora
Canada's legal system is a mix of common law, which applies everywhere except Quebec, and civil law, which predominates in Quebec. The country's judiciary plays an important role in interpreting laws and has the power to strike down Acts of Parliament that violate the constitution. Canada's constitution is its supreme law, and any law passed by any federal, provincial, or territorial government that goes against it is invalid. The Constitution Act of 1982, which ended all legislative ties to Britain, includes the Canadian Charter of Rights and Freedoms, guaranteeing basic rights and freedoms that the government usually cannot override. The federal government has the power to make laws necessary for Canada's peace, order and good government, while provincial jurisdiction includes property and civil rights, natural resources, hospitals, municipalities, and education.
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What You'll Learn
The Constitution Act, 1982
The Act was introduced as part of Canada's process of patriating the constitution, which involved transferring the power to amend Canada's constitution from the British Parliament to Canada itself. This was a significant step towards full sovereignty for Canada. The Constitution Act, 1982, introduced several amendments to the British North America Act, 1867, including renaming it the Constitution Act, 1867.
In addition to patriating the Constitution, the Constitution Act, 1982, had several other key effects. Firstly, it enacted the Canadian Charter of Rights and Freedoms, which guarantees certain political, legal, and human rights for people in Canada. The Charter also seeks to unify Canadians around a set of shared principles. Secondly, it guaranteed the rights of Indigenous peoples in Canada, including recognizing and affirming their existing Aboriginal and treaty rights. Thirdly, it entrenched provincial jurisdiction over natural resources and set out procedures for amending the Constitution in the future.
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Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982, which ended all legislative ties to Britain and added a constitutional amending formula. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982.
The Charter guarantees certain political rights to Canadian citizens and guarantees the civil rights of everyone in Canada. It is designed to unify Canadians around a set of principles that embody those rights. It sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society. The Charter is one part of the Canadian Constitution, which is a set of laws containing the basic rules about how the country operates. The Constitution is the supreme law of Canada; all other laws must be consistent with the rules set out in it.
While the Canadian Charter of Rights and Freedoms was adopted in 1982, it was not until 1985 that the main provisions regarding equality rights came into effect. The delay was meant to give the federal and provincial governments an opportunity to review pre-existing statutes and strike potentially unconstitutional inequalities. The Charter has been amended since its enactment. Section 25 was amended in 1983 to explicitly recognize more rights regarding Aboriginal land claims, while section 16.1 was added in 1993.
The rights and freedoms in the Charter are not absolute. They can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography. Section 1 of the Charter states that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society. Any person in Canada – whether they are a Canadian citizen, a permanent resident, or a newcomer – has the rights and freedoms contained in the Charter. There are some exceptions. For example, the Charter gives some rights only to Canadian citizens, such as the right to vote (section 3) and the right “to enter, remain in and leave Canada” (section 6).
Sections 3, 4, and 5 of the Charter contain rules that guarantee Canadians a democratic government. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Another basic democratic principle is that a government must explain its actions to the people. Section 5 of the Charter makes it clear that Parliament and the legislative assemblies must hold a session at least once a year. This guarantees that elected members and the public have a chance to question government actions on a regular basis.
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Criminal law
To prove criminal conduct, the Crown must demonstrate that there was a "'guilty act' (actus reus) accompanied by a 'guilty mind' (mens rea) on a standard of "beyond a reasonable doubt". The specific elements of each offence can be found in the wording of the offence and the relevant case law. The "guilty mind" requirement can be refined or adjusted in light of the Charter; for instance, the Supreme Court of Canada has ruled that murder convictions require proven intent to kill, as murder is such a serious crime that it would be fundamentally unjust to convict someone who did not have a murderous state of mind at the time of the killing.
Defences in Canadian criminal law are generally similar to those in other common law jurisdictions like the UK, Australia, and the United States. These include true defences such as duress, automatism, intoxication, or necessity, which offer a complete or partial justification or excuse for committing the criminal act. There is also a partial defence of provocation, which reduces what would otherwise be murder to manslaughter. Some defences are provided for by statute, while others are based solely on common law. In some cases, common law defences may be superseded by statutory enactments, as in the case of duress.
Canadian criminal law is subject to change and amendment in response to evolving social values and technical advancements. For example, amendments have been made to the Criminal Code regarding sexual offences, abortion, pornography, and the punishment for murder, reflecting shifts in societal values. Similarly, advancements in technology have prompted updates to laws concerning telecommunications theft, credit card fraud, and wiretap surveillance.
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Provincial jurisdiction
Canada is a country that operates under a federal system, which means that while the Canadian government has control over certain areas, each province has its own jurisdiction over specific matters. This allows for the creation and implementation of laws and regulations that are tailored to each province's unique needs and characteristics.
The provincial jurisdiction in Canada covers a wide range of areas, including property and civil rights, the administration of justice, and education. This means that each province has the power to create and enforce laws related to these areas, which can result in significant differences between provinces. For example, each province may have different curricula, teaching methods, and policies regarding education. Similarly, the administration of justice, including the establishment of provincial courts and the regulation of legal professions, may vary across provinces.
Another critical aspect of provincial jurisdiction is the ability to regulate matters related to property and civil rights. This includes the authority to establish laws governing the ownership, use, and transfer of property, as well as the ability to create and enforce contracts and other civil matters. This allows each province to implement laws that align with its specific economic, social, and cultural landscape.
Furthermore, provincial jurisdiction also extends to matters of a local or private nature. This grants provinces the autonomy to create and enforce laws that are specific to their unique circumstances and may not be applicable or relevant to other parts of the country. This level of autonomy ensures that provinces can effectively address challenges and concerns that are distinct to their respective communities.
In addition to the areas mentioned, provincial jurisdiction in Canada also encompasses the management of natural resources, the structure of municipal governments, and the provision of social services. Provinces have the authority to regulate the exploration and development of natural resources within their boundaries, ensuring practices that align with their specific needs and priorities.
Provinces also play a pivotal role in shaping municipal governments, including the establishment, amalgamation, or dissolution of municipalities, and the determination of their powers and responsibilities. This enables the creation of responsive and effective local governance structures. Moreover, the design and delivery of social services, such as social assistance and healthcare, also fall under the purview of provincial jurisdiction, allowing for services that cater to the unique demographics and needs of each province's population.
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Indigenous law
Canada's legal system is based on a mix of common law and civil law, with the former prevailing except in Quebec, where civil law is the norm. However, Indigenous law, which is
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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 Constitution Act, 1867 affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject to reasonable limits prescribed by law. These include freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. It also guarantees democratic rights, such as the right of every citizen of Canada to vote in an election of members of the House of Commons or of a legislative assembly.
The judiciary plays an important role in interpreting laws and has the power to strike down Acts of Parliament that violate the Constitution. The Supreme Court of Canada is the highest court and final arbiter, with nine members appointed by the governor general on the advice of the prime minister and minister of justice.
Canada has multiple legal systems. Most of the country follows laws rooted in English common law, while the province of Quebec follows civil law, which originated in France. Additionally, Indigenous laws exist and operate simultaneously with common and civil law.
