Cecily Zamora
Canada's legal system is based on a combination of common law and civil law. Common law is not written down as legislation but is instead based on precedent, where judges rely on previous rulings in similar cases to inform their decisions. Civil law, on the other hand, refers to matters of private law, particularly criminal law, which deals with harm to society at large. While common law prevails in most of Canada, the province of Quebec follows a civil code based on the French Code Napoléon. In addition to common and civil law, Canada also has a body of administrative law, which deals with the relationship between the government and its citizens and ensures that government actions are authorized by Parliament or provincial legislatures and implemented fairly and reasonably.
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What You'll Learn
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 unwritten rules based on precedent. Judges develop common law by referring to and setting precedents, as well as interpreting and applying statutes. This means that judges rely on previous court rulings on similar cases when determining the ruling in their own cases. Common law is flexible, as judges can announce new legal doctrines or change old ones to adapt to changing circumstances. It is important to note that common law prevails in Canada, except in the province of Quebec, where civil law is followed.
Civil law, in the context of Canada, specifically refers to the civil code of Quebec Law, which is based on the French Code Napoléon (Napoleonic Code). In a civil-law system, laws are contained in a comprehensive legislative document referred to as a code. Judges in civil law jurisdictions refer to this code first and then consider previous decisions to see if they are consistent. While civil law in Quebec deals with matters of private law, it is distinct from common law in that precedent is not a required element.
The distinction between common law and civil law can be further illustrated by the process of lawmaking in Canada. When Parliament or a provincial or territorial legislature passes a statute, it takes the place of common law or precedents dealing with the same subject. This statute-making process involves government ministers or senior public servants examining an issue, suggesting solutions, and drafting a proposed law. The law must then be approved by the cabinet, which is composed of members of Parliament chosen by the prime minister. Once approved, the proposed law is presented to Parliament as a bill to be studied and debated. For the bill to become law, it must be approved by a majority in both the House of Commons and the Senate.
In addition to the federal Parliament's role in creating laws, Canada's judiciary plays a crucial role in interpreting laws. 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. All judges at the superior and appellate levels are appointed after consultation with non-governmental legal bodies. The federal Cabinet also appoints justices to superior courts in provincial and territorial jurisdictions.
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Criminal law
To prove a criminal offence, the Crown must demonstrate criminal conduct (actus reus or "guilty act") and a criminal state of mind (mens rea or "guilty mind") beyond a reasonable doubt. Exceptions to the mens rea requirement exist for strict and absolute liability offences. The specific elements of each offence are found in the offence's wording and the case law interpreting it. The external elements typically require an "act", "circumstances", and sometimes a specific "consequence" caused by the action.
Defences in Canadian criminal law are generally similar to those in other common law jurisdictions, such as the UK, Australia, and the US. True defences include duress, automatism, intoxication, or necessity. 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 are superseded by statutory enactment, as in the case of duress, self-defence, and extreme intoxication.
Criminal offences in Canada 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 between 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 these trials, and maximum prison terms, including life, may be imposed. Fines may be imposed in addition to or instead of imprisonment. Summary conviction offences are minor crimes 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 there are no jury trials or preliminary hearings. Defendants do not need to be present at these summary proceedings.
If the accused is found guilty, the trial judge determines the sentence. The judge will determine the proven facts and allow the parties to present additional evidence concerning disputed facts, which may form the basis for aggravating or mitigating circumstances. The Crown must prove an aggravating fact beyond a reasonable doubt, while the accused bears the burden of proving a mitigating fact. Either party may appeal a sentence unless it is fixed by law.
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Indigenous law
Canadian Aboriginal law is the body of law concerning a variety of issues related to Indigenous Peoples in Canada. It enforces and interprets treaties between the Crown and Indigenous Peoples, and manages much of their interaction. It also provides certain constitutionally recognized rights to land and traditional practices, such as hunting, fishing, or trapping. Section 35 of the Canadian Constitution Act, 1982, protects the Aboriginal and treaty rights of Indigenous Peoples in Canada. It protects remaining Aboriginal title to certain lands in Canada, as well as Aboriginal rights to use these lands for certain traditional purposes.
In recent years, the landscape has shifted significantly, with major developments in case law. The federal government brought into force Bill C-15 in June 2021 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 align existing and future federal laws with UNDRIP.
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Administrative law
In Canada, elected politicians may pass any laws they please, as long as they do not infringe upon the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms. Administrative authorities are subject to these constitutional limitations and are inferior bodies with only the authority that has been granted to them. Delegated legislation defines the powers given to an agency or minister and outlines the rules for exercising those powers.
Administrative agencies must follow proper procedures in their decision-making processes. These procedures may be set out in statutes or regulations, or, in the absence of these, common-law principles apply. The principles of natural justice ensure that all persons subjected to government action are treated fairly. These principles include the right to take part in the process before a decision is taken and the right to an impartial decision from a tribunal.
Citizens can challenge administrative decisions in court through an appeal or judicial review, depending on the availability of these options and the status of the individual. The reviewing court considers the reasonableness of the decision, including its rationale and outcome, by evaluating its justification, transparency, intelligibility, and relevance to the relevant factual and legal constraints.
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Constitutional law
One of the critical aspects of Canadian constitutional law is federalism, which involves the division of powers between the federal government and the provincial governments. The Constitution Act of 1867 assigns specific areas of jurisdiction to each level of government. For example, criminal law, trade, commerce, banking, and immigration fall under federal authority, while property and civil rights, natural resources, hospitals, and education are primarily provincial matters. The federal government also holds residual powers to make laws necessary for Canada's "peace, order and good government."
The judiciary plays a crucial role in interpreting and applying constitutional law. The Supreme Court of Canada, led by the Chief Justice of Canada, is the highest court in the land. It has the power to strike down Acts of Parliament that violate the Constitution. In cases such as Hunt v T&N plc, the Supreme Court has interpreted the Constitution within the context of societal changes, demonstrating its adaptability. The Court has also recognized the existence of constitutional conventions and unwritten principles, such as federalism, democracy, and respect for minorities, which are enforceable but confined to "filling gaps" in the written Constitution.
The Canadian Charter of Rights and Freedoms, enacted in 1982 as part of the Constitution, guarantees fundamental rights and freedoms to all Canadians. These include the right to equality, democracy, mobility, life, liberty, security, and freedom of conscience, religion, and peaceful assembly. The Charter applies to the Parliament and the Canadian government, as well as provincial legislatures and governments, ensuring that laws respect and uphold these rights. The Charter also recognizes and affirms the rights of Indigenous peoples, including Aboriginal rights related to land and traditional practices.
In summary, constitutional law in Canada establishes the framework for governance, delineates the powers of federal and provincial governments, and safeguards the rights of citizens and Indigenous peoples through the interpretation and application of the Constitution and the Canadian Charter of Rights and Freedoms. It forms the foundation upon which Canada's legal system operates and evolves.
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Frequently asked questions
Canada's legal system is based on a combination of common law and civil law. Administrative law is one of three basic areas of public law, the other two being constitutional and criminal law.
Common law is law that is not written down as legislation. It is a system of rules based on precedent, which guides judges in making decisions in similar cases. Common law is followed in all provinces and territories in Canada except Quebec.
Civil law refers to matters of private law as opposed to public law, particularly criminal law, which deals with harm to society. The civil code of Quebec Law is followed in the province of Quebec and is based on the French Code Napoléon (Napoleonic Code).
Administrative law deals with the relationship between the government and its citizens. It ensures that government actions are authorised by Parliament or by provincial legislatures and that laws are implemented and administered fairly and reasonably.
Criminal law is solely a federal responsibility and is uniform throughout Canada. It is one of the basic areas of public law, alongside administrative and constitutional law.
