Keith Mack
Canada's legal system is a combination of common law and civil law, with the former prevailing everywhere except in Quebec, which follows the civil law system. Canada's legal system has evolved from its historical connection with the United Kingdom and France, with explorers and colonists bringing these systems to Canada in the 17th and 18th centuries. Canada is a federation with a federal parliament in Ottawa that makes laws for the entire country, and a legislature in each of the ten provinces and three territories that deals with laws specific to their regions. The process of making laws is complex and involves the federal government, provincial governments, and various legal bodies and courts.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law and civil law |
| Basis of the legal system | English and French systems |
| Criminal law | Federal responsibility |
| Law enforcement | Provincial responsibility |
| Indigenous law | Recognises legal traditions, customs, and practices of Indigenous Nations and communities |
| Constitution | Supreme law of Canada |
| Federal structure | Federation of provinces and territories with a central government |
| Law-making process | Majority approval in the House of Commons and the Senate, assent by the Governor General |
| Common-law unions | Recognised with similar rights and obligations as married couples |
| Influence of Commonwealth nations | Decisions of Commonwealth nations treated as persuasive sources of law |
| Civil law | Based on the French Code Napoléon |
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What You'll Learn
- Canada's legal system is a mix of common law and civil law
- Common law is based on precedent and is flexible
- Civil law is based on the French Code Napoléon
- Criminal law is uniform across Canada and is a federal responsibility
- Indigenous law in Canada refers to the legal traditions and customs of Indigenous communities
Canada's legal system is a mix of common law and civil law
Canada's federal structure further adds to the complexity of its legal system. While the federal parliament in Ottawa creates laws for the entire country, each of the ten provinces and three territories also has its legislature to deal with laws specific to their region. These laws are called statutes, legislation, or acts. When a new law is passed, it supersedes any existing common law or precedents on the same subject. The process of law-making involves the approval of a majority in both the House of Commons and the Senate, as well as the assent of the Governor General, representing the Queen.
The Criminal Code is an example of federal legislation that applies uniformly across Canada. However, law enforcement, including criminal courts, is a provincial responsibility, carried out by provincial and municipal police forces. In some areas, especially rural regions, policing duties are contracted to the federal Royal Canadian Mounted Police. Additionally, Canada's Aboriginal law recognises specific rights to land and traditional practices for Indigenous groups, further contributing to the country's diverse legal landscape.
The influence of both common law and civil law traditions in Canada can be seen in the concept of a "common-law union." This term refers to unmarried couples living together in a conjugal relationship, and it grants them similar legal, parental, and financial rights as married couples. This demonstrates how Canada's legal system has evolved to accommodate diverse societal needs and relationships.
In conclusion, Canada's legal system is a unique blend of common law and civil law traditions, shaped by its historical ties and provincial diversity. This hybrid system allows for both flexibility in common law and the structure provided by civil codes, ensuring that the country's legal framework can adapt to the needs of its diverse population.
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Common law is based on precedent and is flexible
Canada's legal system is a mix of common law and civil law. Common law is practised in all provinces and territories except Quebec, where civil law is predominant. Common law, also known as judicial precedent, judge-made law, or case law, is deeply rooted in the principle of stare decisis ("to stand by things decided"). This means that past judicial decisions serve as case law to guide future rulings, promoting consistency and predictability. The presiding judge decides which precedents to apply when deciding each new case.
Common law is flexible because it is based on precedent, which allows for the evolution of the law over time. The doctrine of precedent developed during the 12th and 13th centuries, rooted in tradition, custom, and precedent. While common law may incorporate certain statutes, it is primarily based on previous judicial rulings in similar cases. This flexibility allows judges to consider the contemporary world and make decisions that are just and reasonable in the circumstances, rather than being bound by strict rules.
For example, in R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge considered the economic consequences of a judgment that put legal principle before pragmatism. The judge's decision to deviate from established legal principles in this case demonstrated the flexibility of common law and the ability to prioritise justice and equity.
In Canada, due to its historical connection with the United Kingdom, decisions of the House of Lords before 1867 are technically still binding unless overturned by the Supreme Court of Canada. However, in practice, Canadian courts have not declared themselves bound by English court decisions for decades. Common law in Canada includes criminal offences found in the Criminal Code and other federal statutes, with contempt of court as the only remaining common law offence.
The flexibility of common law allows for the development of new legal doctrines to address contemporary problems. For instance, conspiracy, often pleaded in fraud cases, was invented by courts in the 19th century to address perceived contemporary issues. The constitutional conventions recognised by the Supreme Court of Canada, despite not being enforceable by courts, further contribute to the flexibility of common law by allowing for the adaptation of practices and agreements outside of strict legal rulings.
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Civil law is based on the French Code Napoléon
Canada's legal system is based on a combination of common law and civil law. Common law is not written down as legislation but evolves from past decisions and precedents. It is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones.
Civil law, on the other hand, refers to a civil code, such as the Civil Code of Quebec, which is based on the French Code Napoléon (also known as the Napoleonic Code). Quebec is the only province with a civil code, while the rest of Canada uses common law. The French Code Napoléon was established in 1804 and is still in force in France, although it has been heavily and frequently amended. It was drafted by a commission of four eminent jurists, although Napoleon, who chaired many of the commission's sessions, was crucial to its enactment.
The Napoleonic Code was the first modern legal code to be adopted with a pan-European scope, and it influenced the law of many countries formed during and after the Napoleonic Wars. It was founded on the premise that a purely rational law should be created, free from past prejudices and deriving its content from "sublimated common sense". Its moral justification was not found in ancient custom or monarchical paternalism but in its conformity to the dictates of reason. The code stressed clearly written and accessible law and was a major milestone in the abolition of the previous patchwork of feudal laws.
The civil law system in Quebec operates differently from the common-law courts. Courts in a civil-law system first refer to a civil code and then refer to previous decisions to see if they are consistent. The Criminal Code is also considered a code and is used throughout Canada.
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Criminal law is uniform across Canada and is a federal responsibility
Canada's legal system is based on a combination of common law and civil law. Common law is prevalent everywhere except in Quebec, which follows civil law, similar to the French Code Napoléon. Common law is not written down as legislation but evolves into a system of rules based on precedent. Civil law, on the other hand, is based on a comprehensive statement of rules, often framed as broad, general principles to address any dispute.
Criminal law in Canada is a federal responsibility and falls under the exclusive legislative jurisdiction of the federal government. This means that criminal law is uniform across the country, with the Parliament of Canada having exclusive jurisdiction over criminal law and being the source of the Criminal Code. The Criminal Code of Canada was enacted in 1892 and codifies criminal offences in the country. It is often updated to reflect changes in society and includes a wide range of crimes such as murder, assault, theft, and fraud. The Code also defines the conduct that constitutes criminal offences, sets out rules for guilt by association, and establishes the kind and degree of punishment that may be imposed.
While criminal law is a federal responsibility, the provinces also have important powers associated with its administration. The provinces are responsible for enforcing criminal law, including investigating and prosecuting most offences, and providing services and assistance to victims of crime. They have the power to set regulations to create quasi-criminal or regulatory offences and have their own courts and enforcement mechanisms for these. For example, speeding on the highway, not licensing your pet, or serving liquor without a licence are usually provincial or municipal regulatory offences.
In most rural areas and some urban areas, policing responsibilities are contracted to the federal Royal Canadian Mounted Police. However, law enforcement, including criminal courts, is officially a provincial responsibility, conducted by provincial and municipal police forces.
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Indigenous law in Canada refers to the legal traditions and customs of Indigenous communities
Canada is a federation with a central government and a mix of common law and civil law systems. Common law prevails everywhere except in Quebec, which follows a hybrid legal system of civil law and common law. Common law is based on precedent and is flexible, adapting to changing circumstances. Civil law, on the other hand, is based on a comprehensive set of rules and principles found in civil codes, such as the French Code Napoléon in the case of Quebec.
Indigenous law in Canada refers to the legal traditions, customs, and practices of Indigenous Nations and communities. It is a relatively untapped body of law with a rich history that is independent of Western legal systems. Each Indigenous nation has its own unique laws and teachings, which are often passed down orally through stories, songs, dances, art, and place names.
The Indian Residential Schools Settlement of 2007 and the subsequent Truth and Reconciliation Commission marked a significant turning point in the recognition of Indigenous law in Canada. The tragic discovery of unmarked children's graves at Indian Residential Schools in 2021 further ignited a sense of urgency to address the impacts of these events on Indigenous communities.
Indigenous legal traditions are now being considered and applied by courts, judges, lawyers, and governments in areas such as Aboriginal title, treaty interpretation, self-government, and co-management. The Supreme Court of Canada has been dealing with cases involving Indigenous treaty rights, Aboriginal title, and the status of Indigenous legal traditions in relation to Canadian common law for over three decades.
Aboriginal law, as distinct from Indigenous law, refers to the constitutional protection of the rights of Indigenous Peoples under the Canadian constitution, governing Aboriginal-Crown relationships. It provides constitutionally recognized rights to land and traditional practices for Indigenous groups in Canada.
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Frequently asked questions
Canada's legal system is based on a combination of common law and civil law. Common law is not written down as legislation but evolves from precedent, adapting to changing circumstances as judges can announce new legal doctrines or change old ones. Civil law, on the other hand, refers to a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute that may arise.
Canada is a federation with a central government and a federal parliament in Ottawa that makes laws for the entire country. Each of the ten provinces and three territories also has a legislature that deals with laws specific to their areas. Laws enacted at either level are called statutes, legislation, or acts.
In a common-law system, judges develop the law by referring to and setting precedents, interpreting and applying statutes. In a civil-law system, like in Quebec, courts first refer to a civil code (in this case, based on the French Code Napoléon) and then look to previous decisions to see if they are consistent.
