Keith Mack
Canada's highest law of the land is its Constitution, which consists of written text and unwritten conventions. The Constitution Act of 1867 (formerly known as the British North America Act) affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The Constitution is the supreme law of Canada, and all other laws must be consistent with the rules set out in it. It defines and limits legislative authority, executive authority, judicial power, and the rights and freedoms of Canadian citizens.
| Characteristics | Values |
|---|---|
| The highest law of the land | The Constitution of Canada |
| The basis of the Constitution | The English common law system, the French civil law system, and Indigenous law systems |
| The contents of the Constitution | Written text and unwritten conventions |
| The purpose of the Constitution | Defines and limits legislative, executive, and judicial power, and outlines the rights and freedoms of Canadian citizens |
| The components of the Constitution | The Canadian Charter of Rights and Freedoms, the Constitution Act 1867, the Statute of Westminster 1931, and the Constitution Act 1982 |
| The function of the Charter | Guarantees basic rights and freedoms, including freedom of thought, belief, opinion, expression, and religion, and the right to vote and move between provinces |
| The limitations of the Charter | Rights and freedoms can be limited to protect other rights or important national values, e.g., freedom of expression is limited by laws against hate propaganda and child pornography |
| The enforcement of the Charter | Courts can rule that a law violating Charter rights is invalid |
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What You'll Learn
The Constitution is the highest law in Canada
The Constitution Act of 1867, previously known as the British North America Act, affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The federal Parliament and provincial legislatures were both granted the constitutional authority to create courts. However, the federal power to create courts is more limited compared to the provincial power. The Statute of Westminster in 1931 granted full autonomy to Canada, further solidifying its constitutional foundation.
The Constitution is a living document that can be amended, and it serves as the foundation for the country's legal system. It reflects the country's pluralist legal system, influenced by the English common law system, the French civil law system, and Indigenous law systems. The Constitution is supreme, and all other laws in Canada must be consistent with it to be valid.
The Canadian Charter of Rights and Freedoms, being a part of the Constitution, holds significant weight in the legal system. It has been a driving force for change and progress, ensuring that Canadian laws align with the values and principles of Canadian society. The Charter protects the rights of official language minorities and has contributed to the recognition and enforcement of rights for minority and disadvantaged groups.
While the rights and freedoms outlined in the Charter are extensive, they are not absolute. They can be limited to protect other rights or important national values. For instance, freedom of expression may be restricted by laws against hate propaganda or child pornography. These limitations aim to balance individual rights with the broader interests of a free and democratic society.
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The Canadian Charter of Rights and Freedoms
The Charter guarantees the rights and freedoms set out within it, subject to reasonable limits prescribed by law. These rights include equality, democracy, and mobility, while freedoms include conscience, religion, and peaceful assembly. The Charter applies to the Parliament and Canadian government regarding matters within Parliament's authority, including the Yukon and Northwest Territories. It also applies to provincial legislatures and governments concerning matters within their authority. However, Parliament or a province's legislature may expressly declare that an act may operate despite a provision in the Charter regarding fundamental freedoms or legal rights.
The rights and freedoms in the Charter are not absolute and can be limited to protect other rights or important national values. For instance, freedom of expression may be restricted by laws against hate propaganda or child pornography. Section 1 of the Charter states that Charter rights can be limited by law, provided these limits are reasonable in a free and democratic society. The Charter guarantees these rights equally to males and females and must be interpreted in a way that preserves and enhances the multicultural heritage of Canadians.
The Charter protects the freedom of conscience, religion, thought, belief, opinion, and expression, including freedom of the press and other means of communication. It also safeguards the right to peaceful assembly and association, such as joining a trade union. These freedoms are essential for individuals to create and express their ideas, gather to discuss them, and communicate them widely. They are fundamental to individual liberty and the success of a democratic society, enabling citizens to discuss public policy, criticise governments, and propose solutions to social issues.
The Charter has been instrumental in driving change, progress, and the affirmation of Canadian society's values. It has reinforced the rights of official language minorities and led to the recognition and enforcement of the rights of minority and disadvantaged groups. The Charter also recognises the rights of Aboriginal Peoples of Canada to protect their culture, customs, traditions, and languages.
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Criminal law is a federal responsibility
The Constitution of Canada is the supreme law of the country. It is a set of laws that outlines the basic rules governing the country's operations. The Constitution consists of written text and unwritten conventions, and it was established under the Constitution Act of 1867, which affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
Criminal law in Canada is a federal responsibility, with the Parliament of Canada having exclusive jurisdiction over it. The federal government creates and enforces laws through the Criminal Code of Canada, which was enacted in 1892. This code defines criminal offences, including murder, assault, theft, fraud, and property crimes. The provinces, however, also have a role in the criminal justice system. They appoint judges, manage correctional facilities, and handle aspects of law enforcement. Additionally, they can create and enforce provincial offences, such as traffic violations.
The Criminal Code is not the sole source of criminal law in Canada. It has been expanded upon by other federal statutes, such as the Canada Evidence Act, the Controlled Drugs and Substances Act, the Narcotic Control Act, the Food and Drugs Act, and the Young Offenders Act. These statutes supplement the Criminal Code by addressing specific areas of criminal activity and ensuring that the law adapts to changing circumstances, such as technological advancements.
While law enforcement is officially a provincial responsibility, the federal and provincial governments collaborate to ensure effective justice. The federal Royal Canadian Mounted Police, for instance, have policing responsibilities in most rural areas and some urban areas. This collaboration between the federal and provincial levels demonstrates a unified effort to uphold criminal law and maintain justice across Canada.
In summary, criminal law in Canada falls under federal jurisdiction, with the Parliament of Canada having the authority to create and enforce laws through the Criminal Code and other federal statutes. The provinces play a supporting role by managing specific aspects of the criminal justice system and enforcing provincial offences. The interplay between the federal and provincial levels ensures the effective administration of criminal justice throughout the country.
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Common law vs. civil law
The Canadian legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. Common law prevails across Canada except in Quebec, which follows civil law. Common law is not written down as legislation but evolves into a system of rules based on precedent. Judges can adapt common law to changing circumstances by announcing new legal doctrines or changing old ones. Civil codes, on the other hand, contain a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute.
In a civil-law system, courts first refer to a civil code and then to previous decisions to check consistency. Quebec's civil code is based on the French Code Napoléon (Napoleonic Code). The rest of Canada uses common law, except for Indigenous nations and their associated territories. The Criminal Code is also considered a code and is used throughout Canada.
Common law is developed by judges who refer to and set precedents, as well as interpret and apply statutes. Common law countries, like Canada, adhere to the doctrine of stare decisis, where lower courts must follow the decisions of higher courts. For example, all Ontario lower courts must follow the decisions of the Ontario Court of Appeal. Common law can be flexible and adapt to changing circumstances.
Civil law, in the context of Canada, refers specifically to the French civil law system inherited from its French colonial past. It is a system of law that is based on a civil code, such as the Civil Code of Quebec. This code is a comprehensive set of rules and principles that guide the resolution of legal disputes.
The Constitution of Canada is the supreme law of the country and consists of written text and unwritten conventions. The Constitution Act of 1867 affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The Canadian Charter of Rights and Freedoms, added in 1982, guarantees basic rights and freedoms that usually cannot be overridden by any government. The Charter is the most important law in Canada, and all other laws must be consistent with it.
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Provincial vs. Federal courts
The Canadian legal system is pluralistic, with foundations in the English common law system, the French civil law system, and Indigenous law systems. The Constitution of Canada is the country's supreme law, and it consists of written text and unwritten conventions. The Constitution outlines the powers of the federal, provincial, and territorial governments, and any law that violates it may not be valid.
The court system of Canada is made up of several courts that differ in legal superiority and jurisdiction. Some are federal, while others are provincial or territorial. The Constitution grants the federal Parliament of Canada exclusive jurisdiction over criminal law, and the provinces have exclusive control over most civil law. Each province has the authority to administer justice within its borders. Most cases are heard in provincial and territorial courts, which have jurisdiction over civil and criminal cases. Provincial and territorial lower courts handle most criminal offences, small civil claims, and some family matters. Provincial courts may also include specialised courts, such as youth courts, family courts, and small claims courts.
The federal government appoints and pays the judges for the superior appellate and trial-level courts in each province, while the provincial governments appoint the judges for the lower provincial courts. The superior courts serve as the first appeal court for the provincial and territorial courts. The provinces can also establish courts of limited jurisdiction, which are often called "Provincial Courts." These courts have extensive criminal jurisdiction under the Criminal Code and limited civil jurisdiction in matters under provincial jurisdiction, such as small claims and some family matters.
The Federal Court system consists of the Federal Court, the Federal Court of Appeal, and the Tax Court. The jurisdiction of the Federal Court and Federal Court of Appeal is limited to cases within federal jurisdiction and regulated by federal law. These matters include immigration, intellectual property, federal taxation, and national security. The Federal Court also specialises in areas such as maritime law and federal-provincial disputes.
The Supreme Court of Canada is the final court of appeal for all levels of court in the country. It hears appeals from decisions of the appeal courts in all provinces and territories, as well as from the Federal Court of Appeal. The Supreme Court's judgments are final, and it decides on important constitutional questions and complex areas of private and public law.
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Frequently asked questions
The Constitution of Canada is the highest law of the land. It is a set of laws that outline the basic rules about how the country operates.
The Constitution of Canada consists of written text and unwritten conventions. It includes the Canadian Charter of Rights and Freedoms, which defines Canadians' rights and freedoms with respect to speech, religion, democratic rights, mobility rights, equality rights, language rights, and legal rights.
The rights and freedoms outlined in the Canadian Charter of Rights and Freedoms are not absolute and can be limited to protect other rights or important national values. On the other hand, the rights and freedoms outlined in the Constitution of Canada serve as the supreme law of the country, and all other laws must be consistent with the rules set out in it.
