Kara Sears
Canada has three distinct legal traditions: common law, civil law, and aboriginal law. Common law, which is derived from English law, is based on judicial precedent and custom. All provinces except Quebec inherited the system of common law from the British. Quebec, on the other hand, has a hybrid legal system, inheriting both common law and civil law, as well as the French civil code. The existence of these three distinct legal traditions in modern Canada can be traced back to Canadian history, Indigenous Peoples, and the country's colonial roots.
| Characteristics | Values |
|---|---|
| Creation | The common law system in Canada was created by the British North America Act 1867, which became the Constitution Act 1867. |
| Legal Traditions | There are three distinct legal traditions in Canada: common law, civil law, and aboriginal law. |
| Basis | Common law is based on judicial precedent and custom, derived from English law. |
| Provinces | All provinces except Québec inherited the system of common law from Britain. |
| Québec's Legal System | Québec has a hybrid legal system, inheriting both common law and civil law, as well as the French civil code. |
| Language | Federal legislation and decisions of the Supreme Court of Canada are published in both English and French, reflecting Canada's two official languages. |
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What You'll Learn
The British North America Act 1867
The Canadian legal system was created by the British North America Act 1867, which later became the Constitution Act 1867. This Act united the provinces of Canada, Nova Scotia, and New Brunswick and created the federal and provincial governments.
The Act established the Dominion of Canada by uniting the North American British "Provinces" (colonies) of Canada, New Brunswick, and Nova Scotia. It also divided the former Province of Canada into two subdivisions: Canada West and Canada East, which were renamed Ontario and Quebec, respectively, and became full provinces.
The composition of the Commons, under Section 37, consists of 308 members: 106 for Ontario, 75 for Quebec, 11 for Nova Scotia, 10 for New Brunswick, 14 for Manitoba, 36 for British Columbia, 4 for Prince Edward Island, 28 for Alberta, 14 for Saskatchewan, 7 for Newfoundland and Labrador, 1 for Yukon, 1 for the Northwest Territories, and 1 for Nunavut. The House is summoned by the governor-general under Section 38.
Section 91(24) of the Act provides that the federal government has legislative jurisdiction for "Indians and lands reserved for the Indians". This empowered the Canadian government to act as if the treaties between the Indigenous peoples and the British Crown preceding Confederation did not exist.
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Common law vs statutory law
Canada has three distinct legal traditions: common law, civil law, and Aboriginal law. Common law, derived from English law, is based on judicial precedent and custom. It is distinct from statutory law, which is the written law established by enactments expressing the will of the legislature.
Common law, also known as "case law", is uncodified and relies on precedent. It is based on past judicial opinions and is interpreted and applied by judges through previous judicial decisions. It is built gradually, focusing on individual cases rather than the big picture. Common law is flexible and subject to interpretation.
Statutory law, on the other hand, is codified and encompasses compiled legislation passed at the local, state, or federal level. It is based on current statutes or written laws. Statutory law is strict in its application and is not subject to interpretation like common law. It is subject to being overturned or changed if deemed unconstitutional. Statutory laws include traffic laws, drug laws, and other laws passed by legislative bodies.
In Canada, the civil law system was replaced by the common law system in 1774, following the transfer of New France from France to Britain. Quebec is the only province in Canada with a civil code. The Aboriginal law, meanwhile, is practised by Indigenous Peoples and includes treaty and other legal rights, as well as traditions and customs.
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Québec's hybrid legal system
The hybridity of Québec's legal system is a result of its history. As a former French colony, Québec adopted the legal practices imposed on it by colonial rule. When Canada became a British colony, Québec resisted the imposition of common law, preserving its civil law system. This resistance shaped the unique legal landscape of Québec, allowing it to maintain its civil law traditions alongside the common law system prevalent in the rest of Canada.
The coexistence of multiple legal systems in Québec and similar jurisdictions has significant implications for comparative law and legal theory. It challenges legal nationalism, positivism, centralism, and monism. Additionally, the study of legal and normative hybridity can lead to more accurate, useful, and accessible understandings of the law.
The hybrid legal system in Québec grants more authority to courts to decide on legal matters, such as allowing or managing class actions. The courts play a crucial role in interpreting and applying the diverse legal traditions within the hybrid system, ensuring that the rights and interests of all parties are protected.
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Indigenous law
The Canadian legal system was established by the British North America Act of 1867, which became the Constitution Act of 1867. This Act united Canada, Nova Scotia, and New Brunswick, creating a federal and provincial government. All provinces except Quebec inherited the common-law system from the British, while Quebec has a hybrid legal system, inheriting both common and civil law, as well as the French civil code.
Canadian Aboriginal law, on the other hand, refers to the laws developed by Canadian legislators and courts that apply to Indigenous Peoples and their relationship with the Canadian state. This includes the recognition and enforcement of Aboriginal and treaty rights, as protected by Section 35 of the Constitution Act, 1982. Section 35 acknowledges Aboriginal title to certain lands and their rights to use these lands for traditional purposes, such as hunting, fishing, or trapping. It also protects rights established under historical and modern treaties.
The Royal Proclamation of 1763 is a foundational document that recognised Indigenous land rights and established a nation-to-nation relationship between the Crown and Indigenous peoples. This relationship was further strengthened by the Treaty of Niagara in 1764. However, after Confederation, Canada adopted a paternalistic approach, imposing Canadian law on Indigenous Peoples and disregarding their nation-to-nation status.
Today, the Canadian government has a duty to consult and accommodate Indigenous Peoples when their actions may adversely affect Section 35 rights. This includes decisions related to land tenure, permits, and environmental assessments. The government may delegate these consultations to companies, but there is no requirement to obtain consent on lands without established Aboriginal title.
Efforts towards reconciliation are ongoing, with the federal government introducing Bill C-15 in June 2021 to align federal laws with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). An Action Plan is being developed in consultation with Indigenous Peoples to address injustices, combat discrimination, and promote mutual respect and understanding.
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The common law's colonial roots
Canada's common law system has its roots in the country's colonial past. Canada inherited the common law system from the British Empire, which ruled over what was then called British North America. The common law system was introduced to the region after the foundation of Halifax in 1749, which marked the beginning of British colonisation in the region.
The British North America Act of 1867, now known as the Constitution Act, united the provinces of Canada, Nova Scotia, and New Brunswick and created the federal and provincial governments. This Act also formalised the common law system in Canada, which was inherited from Britain. All provinces except Québec inherited the system of common law, while Québec has a hybrid legal system, a combination of common law and civil law, with its private law based on civil law and public law based on common law.
The common law system provided a ready-made template for the resolution of legal problems in the early colonial period, allowing settler societies to adopt different solutions to those in Britain. For example, British North American colonies rapidly got rid of primogeniture and entail but extended dower rights for married women, even as they were being cut back in England. This flexibility allowed the common law system to accommodate the needs of millions of immigrants from diverse lands and, more recently, to recognise aspects of indigenous legal traditions.
However, the common law system also marginalised the legal traditions of indigenous peoples, which were often ignored or criminalised during the colonial period. The rights and interests of racialised individuals were also frequently ignored in the name of liberty. While this has improved in recent decades, the work of reconciling indigenous traditions with Canadian common law is ongoing.
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