Keith Mack
Canada's legal system is pluralist, with foundations in English common law, French civil law, and Indigenous law. The Constitution of Canada is the country's supreme law and comprises written and unwritten conventions. The process of creating federal laws involves all three parts of Parliament: the House of Commons, the Senate, and the Monarch (represented by the Governor General). Ideas for new laws often originate outside of Parliament, reflecting the desires of Canadian citizens. These proposals are then introduced as bills in the House of Commons or the Senate, where they undergo a rigorous process of debate, review, and voting. After passing through both chambers in identical form, a bill receives Royal Assent from the Governor General and becomes Canadian law. The timing and place of introduction are decided by the Cabinet, and the law-making process is guided by directives and frameworks to ensure informed decision-making. Canada's judiciary, led by the Supreme Court, plays a crucial role in interpreting laws and safeguarding the Constitution.
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What You'll Learn
The Canadian Constitution
The Constitution of Canada includes the Constitution Act, 1867 (formerly the British North America Act, 1867), and the Canadian Charter of Rights and Freedoms. The Constitution Act, 1867, provides for a constitution "'similar in principle' to the largely unwritten constitution of the United Kingdom". It recognises Canada as a constitutional monarchy and federal state and outlines the legal foundations of Canadian federalism. The Act also affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration. The federal government also has the residual power to make laws necessary for Canada's "peace, order and good government".
The Constitution Act, 1982, ended all legislative ties to Britain and included the Canadian Charter of Rights and Freedoms. The Charter guarantees basic rights and freedoms that usually cannot be overridden by any government. It also codified many previously oral constitutional conventions and made amending the constitution in general significantly more difficult. The Constitution Act, 1982, includes Section 35, which recognises and affirms Aboriginal rights, which are rights related to the historical occupancy and use of land by Indigenous peoples. It also recognises and affirms treaty rights, set out in agreements between the Canadian Crown-in-Council and specific Indigenous groups.
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The role of the judiciary
The judiciary in Canada is collectively the judges of the courts of law. It is a branch of the government that is independent of the legislative and executive branches. The judiciary's role is to interpret and apply the laws of Canada and help mould the social fabric governing daily life.
Canada's judiciary plays a crucial role in interpreting laws and ensuring they align with the Constitution. The Supreme Court of Canada, the highest court in the land, is the final arbiter. It hears appeals from decisions of appeal courts in the provinces and territories, as well as from the Federal Court of Appeal. The Supreme Court also decides on significant constitutional questions and complex areas of private and public law. The federal government established the Federal Court, the Tax Court, and the Federal Court of Appeal. The Federal Court deals with intellectual property, maritime law, disputes between the federal government and provinces, and civil cases related to terrorism.
The judiciary's independence is a cornerstone of the Canadian judicial system. The Constitution guarantees that the judiciary operates separately from the executive and legislative branches of government. This independence ensures that judges can make impartial decisions based solely on facts and laws without external influence. Judicial independence encompasses three key principles: security of tenure, financial security, and independence in court administration.
Judges in Canada are appointed by the Governor in Council, which includes the Governor General acting on the advice of the Prime Minister and Minister of Justice. The federal government appoints judges to the Supreme Court, Federal Court, Federal Court of Appeal, and the Tax Court. The federal government also appoints judges to the higher courts of the provinces and territories, known as ""Section 96 judges." These judges preside over superior trial courts and courts of appeal in the provinces. Each jurisdiction in Canada has a judicial council that oversees professional standards and conduct for judges.
The composition of the judiciary has evolved over time, with an increasing number of women, younger people, and visible minorities appointed to the bench. As of 2017, four out of nine Supreme Court justices were women, including Chief Justice Beverley McLachlin. While progress has been made towards gender balance, there are ongoing calls for greater representation of Indigenous and Black judges.
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Provincial and federal powers
Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. All eleven governments derive their authority from the Constitution of Canada. There are also three territorial governments in the far north, which exercise powers delegated by the federal parliament, and municipal governments, which exercise powers delegated by the province or territory. Each jurisdiction is generally independent in its realm of legislative authority.
The Constitution Act, 1867 (known as the British North America Act before 1982), affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The Act assigns powers to the provincial and federal governments. Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration. The federal government also has the residual power to make laws necessary for Canada's "peace, order and good government".
One of the major areas of provincial jurisdiction is property and civil rights, which includes broad power to enact laws of a civil nature, such as property law, contract law, and family law. Provincial jurisdiction includes other matters, such as natural resources, hospitals, municipalities, and education (except education on First Nation reserves). Provincial legislatures also establish their own superior courts, but the federal government appoints their judges.
Amendments to the division of powers have been made over the years. For example, the Constitution Act, 1930 gave the provinces of Manitoba, British Columbia, Alberta, and Saskatchewan jurisdiction over crown lands, other public lands, and/or natural resources. The Constitution Act, 1940 saw the provinces yield some of their power over social policy to the Federal Parliament, allowing the establishment of a national program of employment insurance.
The content and scope of the federal and provincial legislative powers have been further clarified, defined, limited, or expanded through the process of judicial review. For example, the federal Trade and Commerce power has been interpreted to mean that Parliament can regulate trade generally in Canada, as well as the flow of trade across provincial or international borders, but cannot regulate the operation of particular industries, businesses, or professions within provinces.
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Indigenous law and rights
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 Act of 1982 stipulates that Canada's constitution includes that act, a series of thirty Acts and orders, and any amendments to those Acts.
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. It enforces and interprets treaties between the Crown and Indigenous peoples and manages their interactions.
Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group, over which the group has a native historic attachment. The Indian Act, enacted by the federal parliament, is a Canadian Act of Parliament concerning registered Indians, their bands, and the system of Indian reserves.
Indigenous law in Canada refers to the legal traditions, customs, and practices of Indigenous Nations and communities. Indigenous Peoples are actively engaged in revitalizing their own legal systems and implementing their laws on their own terms in a variety of ways across the country.
In recent years, there has been a resurgence of Indigenous law across Canada, along with a growing demand for meaningful recognition and respect for Indigenous rights under Canadian law. Courts have been increasingly called upon to recognize and implement Indigenous laws within the Canadian legal system.
The Government of Canada is committed to achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government, and Inuit-Crown relationship based on recognition of rights, respect, cooperation, and partnership. The government recognizes that Indigenous self-government and laws are critical to Canada's future and that Indigenous perspectives and rights must be incorporated into all aspects of this relationship.
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The legislative process
Canada's legislative process involves all three parts of Parliament: the House of Commons, the Senate, and the Monarch (represented by the Governor General).
Once the Cabinet approves a bill, the Department of Justice drafts it in collaboration with the relevant government department's or agency's policy development and legal services teams. The bill is then introduced in either the House of Commons or the Senate. The timing and place of introduction are decided by the Cabinet, upon the recommendation of the Leader of the Government in the House of Commons, or by the Leader of the Government in the House of Commons under authority delegated by the Cabinet.
The bill undergoes several stages of debate, review, and voting. The first reading is the initial step in a bill's progress through Parliament, where a brief explanation or summary may be provided without debate. The second reading stage involves debating the bill's principles, after which it is referred to a committee for further scrutiny and amendment. During the report stage, members may propose further amendments, and debate focuses on these changes. The third reading is the final stage a bill must pass in the House of Commons, where members decide whether to adopt the bill, with debate focusing on its final form.
Once a bill has passed the third reading in the House of Commons, it is sent to the Senate, which follows a similar legislative process. If the Senate adopts the bill without amendment, a message is sent to the House of Commons, and royal assent is normally granted shortly thereafter.
For a bill to become Canadian federal law, it must be approved in identical form by both houses of Parliament – the Senate and the House of Commons, in both official languages. After passing both houses, the bill is given to the Governor General, who grants Royal Assent, at which point the bill becomes a law.
The approved draft regulations are published in the Canada Gazette, Part I, which is the official newspaper of the Government of Canada. The final regulations are then published in the Canada Gazette, Part II, and come into force on the day or days set out therein.
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Frequently asked questions
The Supreme Court of Canada is the highest court and final arbiter.
The nine members of the Supreme Court are appointed by the governor general on the advice of the prime minister and minister of justice.
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 is a constitutional monarchy. Its legislative process involves three parts of Parliament: the House of Commons, the Senate, and the Monarch (represented by the Governor General).
A bill must be approved in identical form by both houses of Parliament (the Senate and the House of Commons). After a bill is passed by both chambers, the Governor General grants Royal Assent, and the bill becomes a law.
