Keith Mack
The Canadian legal system is pluralist, with foundations in English common law, French civil law, and Indigenous law. The Constitution of Canada is the country's supreme law and consists of written and unwritten conventions. The Constitution Act of 1867 divides powers between the federal and provincial governments, with the federal government holding jurisdiction over areas such as criminal law, trade, commerce, banking, and immigration. Federal laws in Canada are enacted by Parliament and interpreted by the judiciary, with the Supreme Court of Canada serving as the highest court and final arbiter. These laws cover a range of topics, including criminal law, tobacco regulations, and Aboriginal rights, and can be accessed through the Justice Laws Website, which provides consolidated Acts and regulations in both official languages.
| Characteristics | Values |
|---|---|
| Legal System Foundation | English common law, French civil law, and Indigenous law systems |
| Supreme Law | The Constitution of Canada |
| Governance | Based on parliamentary precedent with divided powers between federal and provincial governments |
| Criminal Law | Under federal jurisdiction and uniform throughout Canada |
| Provincial Jurisdiction | Property and civil rights, natural resources, hospitals, municipalities, education (except on First Nation reserves) |
| Federal Jurisdiction | Criminal law, trade and commerce, banking, immigration |
| Federal Power | Residual power to make laws for "peace, order and good government" |
| Judiciary | Supreme Court of Canada is the highest court and final arbiter |
| Federal Acts | Tobacco Act, Non-smoker's Health Act, Tobacco Regulations |
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What You'll Learn
The Constitution Act, 1867
The Act established the Dominion of Canada by uniting the North American British "Provinces" (colonies) of Canada, New Brunswick, and Nova Scotia. It also provided that Canada shall be divided into four provinces: Ontario, Quebec, Nova Scotia, and New Brunswick. The Act established that the union would take effect within six months of its passage and confirmed "Canada" as the name of the country.
The Act has been the subject of various interpretations and criticisms. Some have argued that since the United Kingdom had freedom of expression in 1867, the preamble extended this right to Canada even before the enactment of the Canadian Charter of Rights and Freedoms in 1982. In contrast, political scientist Rand Dyck criticised the preamble in 2000, claiming that the act "lacks an inspirational introduction". The anniversary of the act's entry into force and the creation of the Dominion of Canada on 1 July 1867 is observed annually as Canada Day.
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Federal and provincial powers
Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. The country's Constitution is the supreme law and consists of written text and unwritten conventions. The Constitution Act, 1867 (known as the British North America Act before 1982), affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
The powers of Parliament, outlined in Sections 91 and 92 of the Constitution Acts, 1867 to 1982, concern matters of national interest. These include criminal law, trade and commerce, banking, immigration, and works connecting provinces or beyond the boundaries of a single province. The federal government also has the residual power to make laws for Canada's "peace, order, and good government", meaning that any matter not within the power of provincial legislatures falls within the power of the federal Parliament.
The exclusive powers of Provincial legislatures, outlined in Sections 92, 92(A), and 93 of the Constitution Acts, 1867 to 1982, concern matters of a local nature. These include property and civil rights, local works and undertakings, and matters of a private nature within the province. Provincial jurisdiction also covers natural resources, hospitals, municipalities, and education (except on First Nation reserves).
The Constitution Act, 1982, created a mechanism for amending Canada's constitution through joint action by federal and provincial legislatures. Sections 94A and 95 of the Constitution Acts outline areas of concurrent federal and provincial jurisdiction.
The content and scope of federal and provincial legislative powers have been clarified, defined, limited, or expanded over time through judicial review. For example, while Parliament can regulate trade across provincial or international borders, it cannot regulate the operation of particular industries, businesses, or professions within provinces. The interpretation of the distribution of powers is constantly evolving, adapting to new situations and social realities.
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Criminal law
The Canadian legal system is pluralist, with foundations in English common law, French civil law, and Indigenous law. Criminal law is a federal responsibility, applying uniformly across Canada. It falls under the exclusive jurisdiction of the Parliament of Canada, deriving its power from Section 91(27) of the Constitution Act, 1867.
The Criminal Code, enacted in 1892, is a federal law that defines most criminal offences. It includes a wide range of crimes, such as murder, assault, theft, and fraud. It also outlines the rules for complicity, corporate liability, defences, and punishments. While the Criminal Code encompasses most criminal laws, other federal laws like the Firearms Act, Controlled Drugs and Substances Act, and Youth Criminal Justice Act also contain criminal provisions. These laws are regularly updated to reflect societal changes and improve the criminal justice process.
Criminal offences require the Crown to prove both the actus reus ("guilty act") and the mens rea ("guilty mind") beyond a reasonable doubt. Exceptions to the mens rea requirement exist for strict and absolute liability offences. Defences in Canadian criminal law are similar to those in other common law jurisdictions, including duress, automatism, intoxication, and necessity. Section 232 of the Criminal Code provides for a partial defence of provocation, reducing murder to manslaughter.
In terms of procedure, a police officer or private individual prepares an Information, swearing under oath the facts supporting a charge. A Justice of the Peace then decides whether to issue a summons or an arrest warrant. The trial judge determines the sentence, considering aggravating and mitigating circumstances. Both the Crown and the accused have the right to appeal, with the Supreme Court of Canada serving as the final arbiter.
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Indigenous law
Federal laws of Canada are those that apply across the country and within federal jurisdiction. They are distinct from provincial laws, which apply within provincial jurisdiction and vary across provinces.
In recent years, there has been a growing recognition of Indigenous laws in Canada and their importance in reconciliation and self-governance. The Canadian government has committed to upholding and respecting Indigenous legal traditions as part of the reconciliation process. This includes supporting Indigenous law-making and ensuring that federal laws respect the rights and autonomy of Indigenous communities.
Efforts to incorporate Indigenous laws into the Canadian legal framework include the development of Indigenous legal institutes and the integration of Indigenous laws into legal education and the court system. By recognising and valuing Indigenous laws, Canada aims to address historical injustices and foster reconciliation and self-governance for Indigenous peoples.
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The Supreme Court of Canada
The Supreme Court is the final arbiter, hearing appeals from the provincial courts of last resort, usually the provincial or territorial courts of appeal, and the Federal Court of Appeal. Permission to appeal must first be obtained from the Court, with a panel of three judges deciding on the motion for leave to appeal. The Court grants permission to between 40 and 75 litigants each year. In some matters, appeals come straight from the trial courts, such as in publication bans and other orders that are not appealable to the provincial courts.
The Supreme Court is bijural, hearing cases from two major legal traditions: common law and civil law. It is also bilingual, hearing cases in both official languages of Canada: English and French. The effects of any judicial decision can be nullified by legislation, unless the decision involves the application of the Canadian Constitution, in which case it is binding on the legislative branch.
The nine members of the Supreme Court are appointed by the governor general on the advice of the prime minister and minister of justice. The Court's creation was provided for by the British North America Act, 1867, which was renamed the Constitution Act, 1867, in 1982. The first bills for its creation were introduced in 1869 and 1870 but were withdrawn. It was not until April 8, 1875, that a bill was passed for the Court's establishment. The Supreme Court formally became the court of last resort for criminal appeals in 1933 and for all other appeals in 1949.
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Frequently asked questions
Federal laws in Canada are those that apply across the entire country, as opposed to provincial laws, which are specific to each province. The Constitution Act of 1867 divided powers between the federal and provincial governments and is considered the supreme law of the country.
Some matters under federal jurisdiction in Canada include criminal law, trade and commerce, banking, and immigration. An example of a federal law is the Tobacco Act, which governs tobacco products and their use.
The enforcement of federal laws in Canada varies depending on the specific law. For example, law enforcement, including criminal courts, is generally a provincial responsibility carried out by provincial and municipal police forces. However, in rural and some urban areas, policing responsibilities fall to the federal Royal Canadian Mounted Police.
Yes, the Supreme Court of Canada plays a crucial role in interpreting laws and can strike down Acts of Parliament that violate the constitution. Additionally, the Constitution Act, 1982, includes the Canadian Charter of Rights and Freedoms, which guarantees basic rights and freedoms that usually cannot be overridden by any government.
