Keith Mack
Canada's legal system is pluralist, with foundations in English common law, French civil law, and Indigenous law. The country's classifications of law include public law, which regulates relationships between persons and all levels of government, and criminal law, which is a federal responsibility and uniform throughout Canada. Additionally, Canada's legal system includes civil law, which can refer to a legal system based on a civil code or private law matters, and common law, which is not written down as legislation but evolves from precedents. The Constitution Act of 1867 and the Canadian Charter of Rights and Freedoms also play significant roles in the country's legal framework, with the former dividing powers between federal and provincial governments and the latter guaranteeing basic rights and freedoms.
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What You'll Learn
Common law vs civil law
Canada's legal system is founded on the English common law system, the French civil law system, and Indigenous law systems. Common law is not written down as legislation but is instead based on precedent, guiding judges in making decisions in similar cases. It is flexible, adapting 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. Civil codes contain a comprehensive statement of rules, often framed as broad, general principles to deal with any dispute. In a civil-law system, judges first refer to the civil code and then to previous decisions to see if they are consistent.
Quebec is the only province in Canada with a civil code, with the rest of the country following common law. Quebec's private law follows the civil law tradition, while public law follows the common law tradition. Common law prevails in most contract law outside of Quebec, while Quebec has its own law of obligations.
The Constitution of Canada is the supreme law of the land and consists of written text and unwritten conventions. It guarantees basic rights and freedoms that cannot be overridden by the government. The Constitution Act, 1867, affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
Canada is a federation with a central government and a federal parliament 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, and they take precedence over common law or precedents on the same subject.
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Provincial vs federal laws
Canada is a federation, meaning it is a union of several provinces and territories with a central government. The country'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 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 federal government has jurisdiction over matters of national interest, including criminal law, trade and commerce, banking, and immigration. It also has the residual power to make laws necessary for Canada's "peace, order and good government". On the other hand, provincial jurisdiction includes property and civil rights, allowing provinces to enact laws related to property law, contract law, and family law. Other areas under provincial jurisdiction include natural resources, hospitals, municipalities, and education (except for education on First Nation reserves).
The federal and provincial governments also share concurrent powers in certain areas, such as the environment and health, where both levels of government have a role to play in legislation and administration. The interpretation of laws and the resolution of conflicts between federal and provincial laws fall to the judiciary, with the Supreme Court of Canada serving as the highest court and final arbiter.
The process of judicial review has played a significant role in clarifying, defining, limiting, and expanding the powers of both the federal and provincial governments over time. This dynamic legal landscape ensures that Canada's legal system can adapt to the evolving needs and priorities of its diverse society.
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Criminal law
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 criminal law falls under federal jurisdiction. Criminal law in Canada is uniform throughout the country and 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 primary source of criminal law, outlining offences and their classifications. Offences 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, and carry maximum prison terms, including life imprisonment, and fines may be imposed in addition to or instead of imprisonment. Defendants must be personally present at the trial for indictable offences, and most indictable offences allow the accused to 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.
Offences punishable by summary conviction are minor offences, including common assault and public disturbance, and are punishable by a fine of up to $5000 and/or six months in jail. Defendants do not need to be present at summary proceedings, and these offences do not allow for jury trials or preliminary hearings.
To prove that a criminal offence has occurred, the Crown must demonstrate criminal conduct (actus reus) accompanied by a criminal state of mind (mens rea) beyond a reasonable doubt. The specific elements of each offence can be found in the wording of the offence and the relevant case law. The mental or fault elements of an offence are 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.
Defences in Canadian criminal law are generally similar to those in other common law jurisdictions, such as the UK, Australia, and the United States. True defences include duress, automatism, intoxication, or necessity, and these defences may provide a complete or partial justification or excuse for committing the criminal act. For example, the partial defence of provocation can reduce what would be murder to manslaughter. Some defences are provided for by statute, while others are based solely on common law. In some cases, common law defences are superseded by statutory enactments, such as in the case of duress.
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Indigenous law
Canadian Aboriginal law is the body of law concerning issues related to Indigenous peoples in Canada. It provides constitutionally recognized rights to land and traditional practices for Indigenous groups. Section 35 of the Canadian Constitution Act, 1982, protects the Aboriginal title to certain lands in Canada, as well as the rights to use these lands for traditional purposes, such as hunting, fishing, or trapping. It also protects rights conferred under historical and modern treaties.
The Royal Proclamation of 1763 is a foundational document that created special land rights for Indigenous peoples within Canada. The Indian Act, First Nations Land Management Act, Indian Oil and Gas Act, and other legislation also concern registered Indigenous peoples, their bands, and the system of Indigenous reserves.
The government has a duty to consult and accommodate Indigenous Peoples when developing or financing projects related to natural resources, mining, energy, or real estate to avoid or mitigate any impacts on treaty or Aboriginal rights. This has resulted in the need for appropriate engagement with Indigenous Peoples to successfully move forward with major projects or transactions, which has become increasingly important in recent years with developments in case law.
In June 2021, the federal government brought into force Bill C-15, which aims to implement UNDRIP as a framework for reconciliation in Canada. An Action Plan is being developed in consultation with Indigenous Peoples, which will include measures to address injustices, combat prejudice, and eliminate all forms of violence, racism, and discrimination against Indigenous peoples.
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Public law
Criminal law is solely a federal responsibility and is uniform throughout Canada. Law enforcement, including criminal courts, is a provincial responsibility, carried out by provincial and municipal police forces. If someone breaks a criminal law, it is seen as a wrong against society. For example, theft violates public law because it affects other people.
Constitutional law limits the exercise of governmental power over individuals through the protection of human rights and fundamental freedoms. 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 guarantees basic rights and freedoms that usually cannot be overridden by any government. However, a notwithstanding clause allows Parliament to override these rights in certain circumstances. The Supreme Court of Canada is the highest court and final arbiter of the constitution, with the power to strike down Acts of Parliament that violate it.
In addition to criminal and constitutional law, public law in Canada also includes Aboriginal law, which provides certain constitutionally recognized rights to land and traditional practices for Indigenous groups. Various treaties and case laws were established to mediate relations between Europeans and Indigenous peoples. These treaties are agreements between the Canadian Crown-in-Council and Indigenous Nations, with the duty to consult and accommodate.
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Frequently asked questions
The Constitution of Canada is the supreme law of the country. It consists of written text and unwritten conventions.
The legal system of Canada is pluralist. Its foundations lie in the English common law system, the French civil law system, and Indigenous law systems.
Canada has both federal laws that apply to the entire country and provincial laws that are specific to each province or territory. Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration. Provincial jurisdiction includes property and civil rights, natural resources, hospitals, municipalities, and education.
The Canadian judiciary interprets laws and has the power to strike down Acts of Parliament that violate the constitution. The Supreme Court of Canada is the highest court and final arbiter.
