Cecily Zamora
Canada's legal system is pluralist, drawing from the English common law system, the French civil law system, and Indigenous law systems. The country's constitution is the supreme law, consisting of written text and unwritten conventions. Acts passed by the Parliament of Canada and by provincial legislatures are the primary sources of law in Canada. These include statutes, regulations, and bylaws. Canada's judiciary plays an important role in interpreting laws, and the Supreme Court of Canada is the highest court and final arbiter.
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What You'll Learn
The Constitution is the highest law
Canada has two fundamental forms of law: Common Law and Civil Law. Common law prevails everywhere in Canada except in Quebec, where civil law predominates. In the common law system, judges help shape the law through their rulings and interpretations, a practice known as applying precedence. This body of past decisions is known as case law, which is used by judges to inform their own rulings.
The Constitution is the foundation of Canada's system of government and is the highest law in the country. It sets out the rules and processes for how federal, provincial, and territorial governments are elected and operate, and how they interact with each other. It also defines the rights and responsibilities of citizens.
The Constitution Act, 1982 stipulates that Canada's constitution includes that act, a series of thirty Acts and orders referred to in a schedule to that Act (the most notable of which is the Constitution Act, 1867), and any amendment to any of those Acts. The Constitution Act, 1982 also contains the Charter of Rights and Freedoms, which grants individual rights that may not be contravened by any provincial or federal law.
Section 35 of the Constitution Act, 1982 recognizes and affirms the rights of Indigenous peoples in Canada. It states that these rights must be recognized and respected by all levels of government. The Canadian Constitution also recognizes Aboriginal and treaty rights as legally binding, and Indigenous laws can be incorporated into these rights.
Any law passed by any federal, provincial, or territorial government that is inconsistent with the constitution is invalid. 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 the final arbiter.
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Common law and civil law
Canada's legal system is based on a combination of common law and civil law. Common law is a system of rules based on precedent, guiding judges in making decisions in similar future cases. It is not written down as legislation but is instead found in past decisions. Common law is flexible, allowing judges to announce new legal doctrines or change old ones to adapt to changing circumstances. Outside of Quebec, common law prevails throughout Canada.
Civil law, on the other hand, refers to a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute. In Canada, the term "civil law" is used in two distinct ways. Firstly, it is used in contrast to "common law" to refer to a legal system based on a civil code, such as the Civil Code of Quebec, which is based on the French Code Napoléon. Quebec is the only province with a civil code, and it follows civil law, except in matters of public law, which follow the common law tradition. Secondly, civil law refers to matters of private law, particularly concerning harm to individuals, as opposed to public law and criminal law, which concern harm to society.
Common law evolved from English common law, which was introduced during Canada's time as a colony of the British Empire. After the Battle of Quebec in 1759, Canada fell under English common law, except for Quebec, which was previously part of New France and thus followed civil law. Quebec's public law was replaced with that of the conquering British nation, while its private law, originally expressed in the Coutume de Paris, remained based on civil law and was eventually codified in the Civil Code of Quebec.
The common law system is dynamic and flexible, allowing judges to adapt legal doctrines to changing circumstances. This flexibility is a key advantage of common law, enabling judges to interpret and apply the law in a manner that is responsive to societal changes. However, the lack of a codified, easily accessible body of law may be seen as a disadvantage, requiring legal professionals to refer to past decisions and precedents to understand the full scope of the law.
In contrast, civil law provides a clear and comprehensive statement of rules in the form of civil codes. These codes offer a structured framework for resolving disputes and provide certainty and predictability in legal matters. The Civil Code of Quebec, based on the Napoleonic Code, serves as a foundational text for private law in the province, providing a consistent reference for legal professionals and citizens alike. However, civil law may be perceived as less adaptable than common law, as changes to codified laws typically require a more formal amendment process.
Canada's legal system, with its blend of common law and civil law traditions, reflects the country's historical influences and unique provincial contexts. This hybrid system contributes to the complexity and richness of Canada's legal landscape.
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Indigenous law
Canadian Aboriginal law enforces and interprets treaties between the Crown and Indigenous peoples, and manages much of their interaction. It is based on a variety of written and unwritten legal sources, including the Royal Proclamation of 1763, which recognised Indigenous title, and the Treaty of Niagara of 1764, which bound the Crown and the Indigenous peoples of the Great Lakes basin together in a familial relationship.
The Aboriginal and treaty rights of Indigenous peoples in Canada are protected under Section 35 of the Canadian Constitution Act, 1982. Section 35 protects remaining Aboriginal title to certain lands in Canada, Aboriginal rights to use lands for certain traditional purposes (such as hunting, fishing, or trapping), and rights conferred on Indigenous peoples under historical and modern treaties.
To reconcile Section 35 Rights with the sovereignty of the Crown, the federal and provincial governments have a constitutional duty to consult Indigenous peoples if their actions may adversely affect these rights. For example, decisions to grant surface tenures over public lands, issue new permits, or modify existing permits. The Crown may delegate procedural aspects of consultation to companies and other proponents. However, there is no requirement to obtain consent on lands where Aboriginal title has not been established through a judicial declaration or treaty.
Indigenous or Aboriginal self-government refers to proposals to give governments representing Indigenous peoples greater powers. These proposals range from giving Aboriginal governments powers similar to those of local governments to demands that Indigenous governments be recognised as sovereign and capable of "nation-to-nation" negotiations as legal equals to the Crown.
In recent years, the landscape has shifted significantly, with major developments in case law. The federal government has brought into force Bill C-15 in response to calls to implement UNDRIP as a framework for reconciliation in Canada. An Action Plan is being developed in consultation with Indigenous peoples, which will include measures to address injustices, combat prejudice, and eliminate all forms of violence, racism, and discrimination against Indigenous peoples.
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Federal and provincial governments
Canada is a federal state with a federal system of government. The Constitution Act, 1982, outlines how federal, provincial, and territorial governments are elected and operate, and how they interact with each other. The Constitution Act, 1867, assigns powers to the provincial and federal governments.
The federal government regulates matters that extend across Canada, such as banking, trade and commerce, criminal law, and immigration. The Constitution Act, 1982, created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial legislatures.
The provincial governments regulate local matters such as education and law enforcement, including criminal courts, which are conducted by provincial and municipal police forces. The provincial legislatures also have the power to pass acts, which are primary sources of law in Canada.
The federal and provincial governments share governing and law-making powers, with some overlap between federal and provincial laws for those areas not defined in the Constitution. The Constitution defines and limits legislative authority, executive authority, and judicial power, and the rights and freedoms of Canadian citizens.
Acts passed by the federal Parliament are initially published in the Canada Gazette, a federal government newspaper published regularly, which includes new statutes and regulations. To have the force of law, most regulations made under the authority of a federal statute must be published in the Canada Gazette Part II. The Canada Gazette consolidated index of federal statutes is published four times a year.
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The role of the Supreme Court
Canada's judiciary plays a significant role in interpreting laws, and the Supreme Court of Canada is the highest court and final arbiter. The Supreme Court is the only court in Canada with the authority to bind all lower courts in the country with a single ruling. However, it cannot bind itself. The Supreme Court's decisions are crucial in shaping the country's legal landscape and providing guidance to lower courts.
The Supreme Court of Canada is composed of nine members, including the Chief Justice of Canada, who are appointed by the governor general on the advice of the prime minister and minister of justice. The Court's role extends beyond merely interpreting laws; it also has the power to strike down Acts of Parliament that violate the Constitution. This power underscores the Court's role in safeguarding the constitutional validity of laws and ensuring they align with the values and principles enshrined in Canada's supreme law, the Constitution.
The Constitution Act, 1982, serves as the legal basis for Canada's laws and regulations. It establishes the rights and responsibilities of citizens and outlines the rules for federal, provincial, and territorial governments' operations and interactions. The Supreme Court has recognised the existence of constitutional conventions, which are practices or agreements developed by political actors that influence the interpretation and application of constitutional law. While these conventions are not enforceable by the courts, they may be recognised in their rulings.
The Supreme Court also plays a pivotal role in recognising and upholding the rights of Indigenous peoples in Canada. Section 35 of the Constitution Act, 1982, affirms the rights of Indigenous peoples, and the Supreme Court ensures that these rights are respected by all levels of government. Additionally, the Court has identified unwritten elements of the Constitution, including supporting principles and rules, that further shape the country's legal framework.
In summary, the Supreme Court of Canada serves as the highest judicial authority, interpreting laws, striking down unconstitutional Acts, and shaping legal principles. Its decisions are binding on lower courts, and it plays a pivotal role in upholding the Constitution and protecting the rights of all Canadians, including Indigenous peoples. The Court's rulings and interpretations significantly influence the country's legal landscape and contribute to the development of common law and civil law traditions in Canada.
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