Gavin Howe
Canada's legal system is founded on the rule of law, freedom under the law, democratic principles, and respect for others. The country's laws are divided into two classifications: public law and private law. Public law refers to the relationship between the state and the people within it and includes constitutional laws, criminal laws, and administrative laws. It governs the relationship between legal persons and the government, between different institutions within a state, and between different branches of governments. It also includes relationships between persons that are of direct concern to society.
| Characteristics | Values |
|---|---|
| Relationship | Between the state and the people within it |
| Includes | Constitutional laws, criminal laws, and administrative laws |
| Criminal law concerns | Crimes and their punishments |
| Constitutional law | Defines the relationship between governments (federal and provincial governments primarily) and the limits of governmental power over individuals |
| Administrative law concerns | The actions and operations of the government |
| Other examples | Environmental law and tax law |
| Theft law | If someone steals items from a store, the criminal action is a violation of public law |
| Distinction | Public law is about the state, private law is about individuals |
| Rule of law | Freedom under the law, democratic principles, and respect for others |
| Application | Applies to everyone equally, including the police, governments, and public officials |
| Social policies | Allow systems to be put in place for governments to provide |
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What You'll Learn
Public law and the state
In Canada, laws are divided into two classifications: public law and private law. Public law refers to the relationship between the state and the people within it, and it includes constitutional law, criminal law, and administrative law.
Constitutional law defines the relationship between governments (federal and provincial) and the limits of governmental power over individuals. It lays out the foundations of the state, including the form of government, how its different branches work, and how they are elected or appointed. It also sets out the division of powers and responsibilities between them, and the fundamental borders of what any government must and must not do. For example, in Canada, the Charter of Rights and Freedoms is a part of the Constitution that limits the exercise of governmental power over individuals by protecting human rights and fundamental freedoms.
Criminal law concerns crimes and their punishments. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people, including oneself. Theft, for instance, violates public law because it affects other people and the community.
Administrative law refers to the body of law that regulates bureaucratic managerial procedures and defines the powers of administrative agencies. These laws are enforced by the executive branch of a government rather than the judicial or legislative branches. This body of law deals with the actions and operations of government, regulating international trade, manufacturing, pollution, taxation, and the like.
Public law also includes other areas of law such as environmental law and tax law. It governs the relationships between different branches of governments and between different institutions within a state. The relationships that public law governs are asymmetric and unequalized. Government bodies can make decisions about the rights of persons, but as a consequence of the rule-of-law doctrine, authorities may only act within the law.
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Constitutional law
Public law in Canada sets the rules for the relationship between individuals and society. It includes criminal law, which deals with crimes and their punishments, and constitutional law, which defines the relationship between the various branches of government and between federal and provincial governments.
The Canadian Constitution also includes provisions related to the judicial branch, which is composed of federally appointed judges. The judiciary interprets and applies the law and the Constitution, providing impartial judgments in cases involving public and private law. While the Parliament of Canada can make laws for the entire country, it is limited to matters assigned to it by the Constitution. On the other hand, provincial legislatures can only make laws about matters within their respective province's borders.
The Canadian Constitution recognises and protects the rights of Indigenous peoples, including Aboriginal rights and treaty rights. Section 35 of the Constitution Act acknowledges the historical occupancy and use of the land by Indigenous peoples, including Indian, Inuit, and Métis communities. The Constitution also includes provisions for the establishment of a general court of appeal and additional courts for the administration of Canadian laws.
In terms of case law, most situations involve provincial laws encroaching on federal matters. The Supreme Court has expressed caution in employing the doctrine of interjurisdictional immunity, which is a narrow premise that may create legislative "no-go" zones. In rare cases, courts have developed substantive rules of constitutional law that are implied by various principles rather than being expressly set out in constitutional texts. For example, in Hunt v T&N plc, the Supreme Court of Canada interpreted the Constitution within the context of society to ensure its adaptability and reflection of societal changes.
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Criminal law
Public law in Canada sets the rules for the relationship between individuals and society. Criminal law is a type of public law, as criminal acts are considered wrongs against society. Criminal law in Canada is under the exclusive legislative jurisdiction of the Parliament of Canada, with the power to enact criminal law derived from section 91(27) of the Constitution Act, 1867. The Criminal Code (1869) is Canada's main source of substantive and procedural criminal law. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act, and several other peripheral statutes.
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 elect one of 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 the trial for indictable offences, and maximum prison terms, including life, can be imposed. Fines may be imposed in addition to or instead of imprisonment.
Summary conviction offences are the most minor offences and are defined as "summary" within the Act. Unless otherwise stated, they are punishable by a fine of no more than $5,000 and/or six months in jail. Common assault and public disturbance are examples of offences punishable by summary conviction, for which jury trials are not allowed. Defendants do not have to be present at summary proceedings.
If the accused is found guilty, the trial judge must determine a fitting sentence. In a trial by judge alone, the judge will determine all proven facts and allow the parties to adduce additional evidence concerning disputed facts, which may form the basis for finding 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.
To prove that a criminal offence has occurred, the Crown must demonstrate criminal conduct (actus reus or "guilty act") accompanied by a criminal state of mind (mens rea or "guilty mind") on a standard of "beyond a reasonable doubt". The specific elements of each offence can be found in the offence's wording and the case law interpreting it. The external elements typically require an "act" within certain "circumstances" and sometimes a specific "consequence" caused by the action. True defences, such as duress, automatism, intoxication, or necessity, can provide a partial or complete justification or excuse for committing the criminal act. In rare cases, ignorance of a law other than the one under which the accused is charged can be a defence if knowledge of that law is a relevant circumstance required to be proven as part of the actus reus and/or mens rea.
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Administrative law
Canadian public law can be divided into three basic areas: constitutional law, criminal law, and administrative law. Administrative law deals with the relationship between the government and its citizens. It ensures that government actions are authorised by Parliament or provincial legislatures and that laws are implemented and administered fairly and reasonably.
Administrative agencies must follow proper procedures in arriving at their decisions. Where a statute establishes procedures, these must be followed; where no procedures are established, common-law principles apply. These principles of natural justice ensure that all persons subjected to government action are treated fairly. They guarantee the right to participate in the decision-making process and ensure that any decisions made by tribunals are impartial.
Citizens can challenge administrative decisions in court, depending on the availability of an appeal or judicial review. Where a statute provides for an appeal from an administrative decision to a court, the court must apply appellate standards of review. This means that the court will apply the standard of correctness to questions of law, and the standard of "palpable and overriding error" to questions of fact. The reviewing court must refrain from deciding the issue themselves, and instead consider whether the decision was unreasonable. A reasonable decision is one that is based on a coherent and rational chain of analysis and justified in relation to the relevant facts and legal constraints.
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Public law and individual rights
Laws in Canada can be divided into two main classifications: public law and private law. Public law refers to the relationship between the state and the people within it, and it includes constitutional law, criminal law, and administrative law.
Constitutional law defines the relationship between governments (federal and provincial) and the limits of governmental power over individuals. It lays out the foundations of the state, the form of government, and the basic human rights that must be protected for every person. In doing so, it sets the fundamental borders of what any government must and must not do. For example, in Canada, laws carry out social policies and ensure that society is orderly. They also recognise and protect basic individual rights and freedoms, such as liberty and equality.
Criminal law deals with crimes and their punishments. It prescribes conduct that is perceived as threatening, harmful, or otherwise endangering to people's property, health, safety, and welfare. Theft, for instance, violates public law because it affects the entire community, not just the store owner, and the crime is defined in public legislation.
Administrative law refers to the body of law that regulates bureaucratic managerial procedures and defines the powers of administrative agencies. These laws are enforced by the executive branch of a government. This body of law deals with international trade, manufacturing, pollution, taxation, and other areas that concern regulation and public institutions.
Private law, on the other hand, governs the relationships between individuals. It is also called civil law and settles disputes among groups of people, compensating victims. For example, if someone backs their car into someone else's fence, they could be violating the other person's right to enjoy their property. This would fall under private law.
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Frequently asked questions
Public law in Canada refers to the relationship between the state and the people within it. It includes constitutional law, criminal law, and administrative law.
Some examples of public law include environmental law, tax law, and criminal law. For example, theft is a violation of public law because it affects the entire community, not just the store owner.
Public law deals with the relationship between individuals and the state, while private law governs the relationship between individuals. Private law also settles disputes among groups of people and compensates victims.
If someone backs their car into someone else's fence, they could be violating the other person's right to enjoy their property. This would fall under private law.
