Keith Mack
Canada has a complex legal system, with a variety of codes of law. The Criminal Code of Canada is the main source of criminal law and procedure in the country, and it includes most criminal laws, such as the Controlled Drugs and Substances Act and the Youth Criminal Justice Act. In addition, each province has its own consolidation of statute law, which covers major topic areas and most statutes enacted by the provincial governments. These do not include criminal law, as this is under the exclusive jurisdiction of the federal parliament. Quebec has a hybrid legal system, with private law following the civil law tradition and public law following the common law tradition.
| Characteristics | Values |
|---|---|
| Main source of criminal law and procedure | Criminal Code |
| Primary source of law for youth offenders | Youth Criminal Justice Act |
| Other important criminal laws | Firearms Act, Controlled Drugs and Substances Act, Canada Evidence Act, Food and Drugs Act, Contraventions Act |
| Federal statutory consolidation of statutes enacted by Parliament | Revised Statutes of Canada |
| Provincial statutory consolidation of statutes | Revised Statutes of [province name] |
| Provincial courts | Courts of limited jurisdiction established by the provinces |
| Federal courts | Federal Court of Appeal, Federal Court, Tax Court of Canada, Court Martial Appeal Court of Canada |
| Legal traditions | Indigenous legal traditions, common law, civil law |
| Constitutional law | Constitution Act (1867, 1982), Canadian Charter of Rights and Freedoms |
| Copyright law | Governs legally enforceable rights to creative and artistic works |
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Criminal Code
The Criminal Code of Canada is a federal law that includes definitions of most criminal offences enacted by the Parliament of Canada. It was made law in 1892, in accordance with section 91(27) of the Constitution Act, 1867, which grants the federal government the power to enact criminal laws. The Criminal Code is regularly updated to reflect changes in society and improvements to the Canadian criminal justice process.
The Criminal Code covers a wide range of crimes, including murder, assault, theft, and fraud. It defines the conduct that constitutes criminal offences and sets out rules for complicity, corporate liability, defences, and punishments. It also describes the powers and procedures for investigation and prosecution. While it includes most of Canada's criminal law, it does not contain all of it. Important criminal laws outside of the Code include the Firearms Act, the Controlled Drugs and Substances Act, the Youth Criminal Justice Act, and the Contraventions Act.
The Criminal Code has undergone several revisions, including a major one in 1954 that came into force in 1955. In 2018 and 2019, the Trudeau government repealed numerous unconstitutional or archaic offences. The Code also provides that no person can be convicted of a crime unless it is specifically outlined and stated in a statute.
The Criminal Code is a fundamental part of Canada's legal system, influencing other legal acts and laws, such as the Controlled Drugs and Substances Act. It plays a crucial role in maintaining public safety, security, peace, and order in Canadian society. The federal government shares responsibility for criminal justice with provincial and territorial governments, with the latter primarily responsible for enforcement, including investigation and prosecution.
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Provincial laws
Canada's criminal law falls under the exclusive jurisdiction of the federal government, which has enacted the Criminal Code. The provinces are responsible for the administration of justice, including criminal trials within their provinces, but they do not have the power to enact criminal laws.
Each Canadian province has its own consolidation of statute law, which contains all of the major topic areas and most of the statutes enacted by the governments in each province. These include the Revised Statutes of British Columbia, the Revised Statutes of Alberta, the Statutes of Manitoba, the Revised Statutes of Saskatchewan (1978), the Revised Statutes of New Brunswick, the Revised Statutes of Nova Scotia, the Statutes of Prince Edward Island, the Consolidated Statutes of Newfoundland and Labrador, the Revised Statutes of Ontario, and the Revised Statutes of Quebec. These statutes do not include criminal law.
The province of Quebec has a hybrid legal system. Private law follows the civil law tradition, and public law follows the common law tradition. The Civil Code of Quebec is the province's civil code, and it is important to note that the distinction between civil and common law is not based on the division of powers set out in the Constitution Act of 1867.
Provincial courts, also known as courts of limited jurisdiction, are established by the provinces. These courts have extensive criminal jurisdiction under the Criminal Code and limited civil jurisdiction over matters under provincial jurisdiction, such as small claims and some family matters. The judges of these courts are appointed by the provincial governments.
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Civil law
Canada's legal system is a mix of common law and civil law traditions, with the former being the basis of public law and the latter of private law. Quebec has a hybrid legal system, with private law following the civil law tradition, originally expressed in the Coutume de Paris as it applied in what was then New France. Today, the jus commune of Quebec is codified in the Civil Code of Quebec.
The distinction between civil law and common law is not based on the division of powers set out in the Constitution Act, 1867. Therefore, legislation enacted by the provincial legislature in matters of public law, such as the Code of Penal Procedure, should be interpreted following the common law tradition.
In matters of private law, such as the Divorce Act, the civil law tradition and the Civil Code of Quebec must be followed. This is in contrast to criminal law, which falls under the exclusive jurisdiction of the federal government and is outlined in the Criminal Code.
It is important to note that Canada was founded on the original territories of over 900 different Indigenous groups, each with its own legal traditions. Many of these groups, such as the Cree, Blackfoot, Mi'kmaq, and numerous other First Nations, continue to apply their own legal traditions in daily life, including in areas such as contract creation, ecological management, and criminal proceedings.
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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 system of rules based on precedents set by judges in previous cases. It is not written down as legislation but evolves through the process of judges referring to past decisions to guide them in making new rulings. This makes common law flexible, as judges can adapt to changing circumstances by announcing new legal doctrines or changing old ones.
In Canada, common law evolved from the English and French legal systems brought by explorers and colonists in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country fell under English common law, with the exception of Quebec, which has a hybrid legal system. Quebec's private law follows the civil law tradition, while its public law follows the common law tradition of the conquering British nation. The Civil Code of Quebec is based on the French Code Napoléon (Napoleonic Code), and it is the only province with a civil code.
The rest of Canada uses the common law system, which forms the basis of the country's criminal law. Criminal offences are found within the Criminal Code and other federal statutes, and the power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, including the Controlled Drugs and Substances Act and the Youth Criminal Justice Act. The provinces are responsible for administering justice, including criminal trials, but they do not have the power to enact criminal laws.
In addition to criminal law, common law in Canada also applies to other areas such as family law and estate planning. The definition of common law in these contexts varies by province, as family law falls under provincial law. For example, in the context of taxes and immigration, "living common-law" refers to couples who have lived together for 12 continuous months or share a child, but the specific criteria for a common-law relationship differ across provinces.
It is important to note that common-law spouses are generally not treated the same as legally married spouses when it comes to inheritance under succession laws. Common-law partners may not automatically inherit their partner's estate, and while they may have a claim to it, the process can be complex and may not guarantee approval. Creating a will is crucial for common-law partners to ensure their wishes are carried out after their death.
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Indigenous legal traditions
Canada was founded on the original territories of over 900 different Indigenous groups, each with its own distinct Indigenous legal traditions. Cree, Blackfoot, Mi'kmaq and numerous other First Nations, Inuit, and Métis peoples continue to apply their own legal traditions in daily life, including in the creation of contracts, dealings with governmental and corporate entities, ecological management, criminal proceedings, and family law.
Indigenous communities had to create laws that could prevent or minimize conflict arising when people live together. These laws were enforced through decentralized kinship networks, with Elders and other respected community leaders playing a role in weighing evidence and judging the truth of an incident. Sanctions were not necessarily punitive or retributive but were motivated by notions of healing, reconciliation, and reintegration.
While there might be different sources of law within each Indigenous legal tradition, such as creation stories, oral traditions, customs, and positive/man-made law, these laws are deeply interconnected. Most Indigenous groups maintain their laws through traditional governance alongside elected officials and federal laws. The legal precedents set millennia ago are kept alive through stories and continuous interpretation by Elders and law-keepers, a process similar to how common laws and civil codes in other legal traditions are formed.
The distinction between Aboriginal law and Indigenous law is important to understand. Aboriginal law refers to the laws of the Canadian state concerning Indigenous peoples, while Indigenous law describes the laws and legal traditions of Indigenous peoples themselves. The Constitution Act, 1982 (Section 35) recognized Aboriginal and treaty rights, which are now widely recognized as including inherent, constitutionally protected rights to self-government. However, the imposition of Western law, such as the Indian Act of 1876, disrupted traditional Indigenous governance and imposed strict rules on Indigenous peoples' lives.
Efforts are being made to address the problematic aspects of the current relationship between restorative justice and Indigenous legal traditions in Canada. The appointment of Michelle O'Bonsawin, an Abenaki member of northern Ontario's Odanak First Nation, as the first Indigenous justice on the Supreme Court of Canada in 2022, is a significant step towards better reflecting and safeguarding Indigenous legal systems within the Canadian legal framework.
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Frequently asked questions
The Criminal Code of Canada is the main source of criminal law and procedure in Canada. It first became law over a hundred years ago and has been regularly updated to reflect changes in society. It sets out the defences that a person can raise if charged, the kind and degree of punishment that may be imposed, and the procedures to be followed for investigation and prosecution of an offence.
The Revised Statutes of Canada is the federal statutory consolidation of statutes enacted by the Parliament of Canada. Each province has a similar consolidation of the statute law of the province. Other important Canadian criminal laws include the Canada Evidence Act, Contraventions Act, Firearms Act, and Food and Drugs Act.
The distinction between civil law and common law is not based on the division of powers set out in the Constitution Act, 1867. For historical reasons, Quebec has a hybrid legal system. Private law follows the civil law tradition, and public law follows the common law tradition.
The Criminal Code is the primary source of criminal law in Canada. The Youth Criminal Justice Act is the main source of law and procedure for youth offenders. The Controlled Drugs and Substances Act, the Firearms Act, and the Food and Drugs Act are also important sources of criminal law.
