Cecily Zamora
Canada's legal system is based on a mix of common law and civil law traditions, with the Canadian legal system respecting individual rights and ensuring a peaceful society. The country's Constitution Act of 1867 establishes a similar constitutional framework to that of the United Kingdom, recognising constitutional conventions and an uncodified constitution. Canada's laws are divided into public law, which governs the relationship between individuals and society, and private law, which sets the rules between individuals. The Canadian Charter of Rights and Freedoms, enacted in 1982, guarantees fundamental rights and freedoms, including equality, democracy, mobility, freedom of conscience, religion, and peaceful assembly. The Supreme Court of Canada has the authority to bind all lower courts, except itself, to its rulings.
| Characteristics | Values |
|---|---|
| Type of law | Common law (except Quebec, which has a hybrid system) |
| Legal system | Respects individual rights and ensures an orderly society |
| Application | Applies to everyone, including police, governments and public officials |
| Law creation | Federal statutes are published in the annual Statutes of Canada; laws passed by provinces follow a similar practice |
| Criminal law | Exclusive jurisdiction of the federal Parliament, enacted in the Criminal Code |
| Court rulings | Only the Supreme Court of Canada can bind all lower courts with a single ruling |
| Outside influence | When there is little Canadian legal authority on an issue, English and American courts are often used as a reference |
| Constitution | Uncodified, with supporting principles of federalism, democracy, constitutionalism, the rule of law, and respect for minorities |
| Rights | Equality, democracy, mobility, freedom of speech and the press, freedom of religion, assembly, privacy, due process, an attorney, a speedy trial, trial by jury, freedom of expression |
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What You'll Learn
The Canadian Charter of Rights and Freedoms
Canada is a constitutional monarchy with a democratic, federal, and parliamentary form of government. Canada's constitution is based on the Constitution Act, 1867, which was initially called the British North America Act, 1867. The Constitution Act, 1982, which includes the Canadian Charter of Rights and Freedoms, sets out Canada's system of government and the rights of citizens and is the supreme law in Canada.
The Charter guarantees the right to equality, democracy, and mobility. It also guarantees freedom of conscience, religion, and peaceful assembly. It applies to the Parliament and the Canadian government regarding all matters within the Parliament's authority, including all matters relating to the Yukon and Northwest Territories. It also applies to provincial legislatures and governments concerning all matters within their authority.
The Charter protects the rights of official language minorities and has led to the recognition and enforcement of the rights of several minority and disadvantaged groups. In criminal matters, the Charter has clarified the state's powers concerning the rights of the accused.
The Charter guarantees the right to freedom of speech and the press, peaceably assemble, travel, due process, privacy, an attorney, and a speedy trial in criminal cases, and trial by jury in certain cases. It also guarantees the right to life, liberty, and security. No one can be deprived of these rights except in accordance with the principles of fundamental justice.
The Charter ensures that all Canadians are equal before and under the law and have the right to equal protection and equal benefits of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It also guarantees the rights of persons who are deaf or hearing-impaired or do not understand or speak the language in which court proceedings are conducted to be assisted by an interpreter.
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Federal statutes
Canada's constitution is based on the Constitution Act of 1867, which states that it should be "similar in principle to that of the United Kingdom". Canada's constitution is considered uncodified, and the country's laws adhere to the doctrine of stare decisis, meaning lower courts must follow the decisions of higher courts. The only court with the authority to bind all lower courts with a single ruling is the Supreme Court of Canada.
The Canadian Charter of Rights and Freedoms outlines the rights and freedoms of all Canadians, which are considered essential to preserving Canada as a free and democratic country. The Charter applies to all governments – federal, provincial, and territorial. It includes protection of fundamental freedoms, such as freedom of thought, belief, opinion, and expression, as well as freedom of the press and other media of communication. It also guarantees equality for all, regardless of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
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Provincial laws
Canada's legal system is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. The Constitution of Canada is the supreme law of the land, and it 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.
Canada's judiciary plays a crucial role in interpreting laws and has the authority to strike down Acts of Parliament that violate the constitution. While the Supreme Court of Canada is the highest court and the final arbiter, lower courts are bound by the decisions of higher courts. Provincial laws in Canada are enacted by each province's legislature and cover various areas, including property and civil rights. These statutes do not include criminal law, which is under federal jurisdiction.
Each province has its own set of statutes, known as Provincial Statutes or Revised Statutes, which are published annually and consolidated periodically. These statutes include public and private acts passed by the provincial governments. For example, the Revised Statutes of British Columbia, Alberta, and Ontario, and the Statutes of Manitoba and Saskatchewan.
The provincial laws cover areas such as property law, contract law, and family law. Additionally, they have jurisdiction over natural resources, hospitals, municipalities, and education (except for education on First Nation reserves). Provincial law enforcement, including criminal courts, is conducted by provincial and municipal police forces.
In Quebec, the legal system is a hybrid of civil law and common law. Private law follows the civil law tradition, while public law follows the common law tradition. The Code of Penal Procedure of Quebec and the Provincial Offences Act of Ontario are examples of provincial legislation in this province.
The Canadian Charter of Rights and Freedoms, added to the Constitution in 1982, guarantees the fundamental rights and freedoms of all Canadians. It applies to all governments, including provincial ones, and includes protection for language rights, equality rights, freedom of expression, freedom of religion, and freedom of thought, belief, and opinion.
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Common law
Canada's legal system is based on a combination of common law and civil law. Common law is a system of law that is not written down as legislation but has evolved as a set of rules based on precedent. It is only found in past decisions and not in any code or body of legislation. This makes it flexible, as judges can announce new legal doctrines or change old ones to adapt to changing circumstances.
It is important to note that common-law spouses are generally not treated the same as legally married spouses in matters of inheritance under succession laws. Outside of a few provinces, common-law partners do not have the same inheritance rights as married spouses and may have to file a claim to receive a share of their partner's estate, which is not guaranteed. Therefore, creating a will is important to ensure that a common-law partner inherits according to one's wishes.
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Criminal law
Canada's criminal law is under the exclusive legislative jurisdiction of the federal Parliament, which has enacted the Criminal Code. This code is included in the Revised Statutes of Canada, the federal statutory consolidation of statutes enacted by the Parliament of Canada.
The Criminal Code (1869) is Canada's main source of substantive and procedural criminal law. Offences are divided into two main categories: indictable offences and offences punishable by summary conviction. The most minor offences are summary conviction offences, which are punishable by a fine of no more than $5,000 and/or six months in jail. Indictable offences are more 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.
Criminal offences require the Crown to prove that there was criminal conduct (actus reus) accompanied by a criminal state of mind (mens rea) on a standard of beyond a reasonable doubt. Exceptions to the mens rea requirement exist for strict and absolute liability offences. The specific elements of each offence can be found in the wording of the offence, as well as the case law interpreting it. The mental or fault elements of an offence are typically determined by the use of words within the text of the offence or by case law. Mens Rea in Canada typically focuses on the actual or 'subjective' state of mind of the accused.
In Canada, defences are generally similar to those of other common law jurisdictions such as the U.K., Australia, and the United States. True defences include duress, automatism, intoxication, or necessity. There is also a partial defence of provocation, which reduces what would otherwise be murder to manslaughter. This partial defence is provided by s. 232 of the Criminal Code. Some defences are provided for by statute, while others are provided for solely by common law. In some cases, common law defences are superseded by statutory enactment, for example, duress, self-defence, and extreme intoxication.
If the accused is found guilty, the trial judge must determine a fit sentence. The Crown may appeal against a verdict of acquittal on a question of law alone. The accused may appeal on a question of law, fact, or mixed law and fact. Either party may appeal a sentence unless it is fixed by law. Either party is entitled to a further appeal to the Supreme Court of Canada against a conviction or acquittal if a judge of the court of appeal dissented on a question of law or if the court of appeal allowed an appeal on a question of fact.
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Frequently asked questions
The Canadian legal system is called the Canadian Charter of Rights and Freedoms.
The Canadian legal system respects individual rights and ensures that Canadian society is orderly. It applies the same law to everybody, including the police, governments, and public officials.
The sources of Canadian law are public law and private law. Public law sets the rules for the relationship between the individual and society. Private law, also called civil law, sets the rules between individuals.
The Canadian legal system guarantees the rights and freedoms of all Canadians that are considered essential to preserving Canada as a free and democratic country. This includes the right to equality, democracy, and mobility, as well as the right to freedom of speech and the press, peaceably assemble, travel, due process, privacy, an attorney, and a speedy trial in criminal cases.
