Cecily Zamora
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 as a system of rules based on precedent. Judges play a key role in developing common law by setting and referring to these precedents, interpreting and applying statutes, and adapting the law to changing circumstances. Canada's judiciary has the power to strike down Acts of Parliament that violate the constitution. Common law prevails across Canada except in Quebec, which follows civil law. Canada's legal system has foundations in the English common law system, the French civil law system, and Indigenous law systems.
| Characteristics | Values |
|---|---|
| Type of country | Federation, a union of several provinces and territories with a central government |
| Legal system | Pluralist, based on English common law, French civil law, and Indigenous law systems |
| Law-making bodies | Federal parliament in Ottawa and a legislature in each province and territory |
| Law-making process | Laws are proposed by government ministers or senior public servants, drafted, and approved by the cabinet |
| Law interpretation | Judges interpret and apply statutes, developing common law by setting precedents |
| Law enforcement | Provincial and municipal police forces |
| Highest court | The Supreme Court of Canada |
| Common law applicability | Prevails in all provinces and territories except Quebec |
| Criminal law | Sole responsibility of the federal government, uniform throughout Canada |
| Common law recognition | Varies by province, generally recognized after 1-3 years of continuous cohabitation or if the couple has a child |
| Common law rights | May differ from legally-married spouses, especially in areas like inheritance and property ownership |
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What You'll Learn
Canada's legal system history
Canada's legal system is pluralist, with foundations in English common law, French civil law, and Indigenous law systems. Explorers and colonists brought the English and French systems to Canada in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which follows a civil law system. Common law is not written down as legislation but evolves as a system of rules based on precedent, guiding judges in making decisions in similar cases. It adapts to changing circumstances as judges can announce new legal doctrines or modify old ones.
Canada is a federation with a central government and a federal parliament in Ottawa that makes laws for the entire country. There are also legislatures in each of the ten provinces and three territories that deal with laws specific to their areas. Laws enacted at either level are called statutes, legislation, or acts, and they supersede common law or precedents on the same subject. To address the complexity of modern society, Parliament and provincial and territorial legislatures often pass laws that delegate authority to departments or other government organizations to create specific regulations with the force of law.
The Constitution of Canada is the country's supreme law and 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 federal and provincial governments. The Statute of Westminster in 1931 granted Canada full autonomy, and the Constitution Act of 1982 severed all legislative ties to Britain, adding a constitutional amending formula and the Canadian Charter of Rights and Freedoms. The Charter guarantees basic rights and freedoms that cannot be overridden by any government.
Canada's judiciary plays a crucial role in interpreting laws and can strike down Acts of Parliament that violate the constitution. The Supreme Court of Canada, led by the Chief Justice of Canada, is the highest court and final arbiter. It has the authority to bind all lower courts in the country with a single ruling, except for itself. The country's legal system adheres to the doctrine of stare decisis, where lower courts must follow the decisions of higher courts. When there is little or no Canadian legal authority on an issue, decisions from English and American courts are often referenced, given the historical connection with English law.
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Common law and civil code
Canada's legal system is founded on a combination of common law and civil law, influenced by its history and the English and French legal systems. After the Battle of Quebec in 1759, Canada came under English common law, with the exception of Quebec, which follows civil law. Common law refers to an uncodified system of laws based on precedents set by judges' rulings in similar cases. It is flexible, allowing judges to adapt legal doctrines to changing circumstances. In contrast, civil law, as exemplified by the Civil Code of Quebec, provides a comprehensive set of rules and principles to address disputes.
Common law, as a cornerstone of Canada's legal tradition, is prevalent in nine provinces and the federal territories, excluding Quebec. It is characterised by its evolution through judicial decisions rather than statutory codification. Judges play a pivotal role in shaping common law by interpreting statutes, applying them to specific cases, and setting precedents that guide future rulings. This adherence to stare decisis means that lower courts follow the decisions of higher courts, creating a hierarchical structure within the legal system.
While common law provides a framework for interpreting and applying the law, it does not encompass all areas of Canadian law. Criminal law, for instance, falls under federal jurisdiction and is uniform throughout the country. The federal government holds exclusive authority over criminal law, with the federal Parliament enacting the Criminal Code. This separation ensures consistency in criminal justice across Canada.
The Canadian legal system also recognises Indigenous law systems developed by various Indigenous Nations. The Constitution of Canada, the supreme law of the country, acknowledges and protects Aboriginal rights and treaty rights. These rights encompass historical occupancy, land use, and agreements between Indigenous peoples and the Crown. The Constitution Act, 1982, further strengthened the constitutional framework by adding the Canadian Charter of Rights and Freedoms, safeguarding fundamental rights and freedoms for all Canadians.
In conclusion, Canada's legal landscape is shaped by the interplay between common law, civil law, and Indigenous legal traditions. Common law, as the predominant system in most provinces and territories, is dynamic and adaptable, evolving through judicial decisions and precedents. Civil law, exemplified by Quebec's civil code, provides a comprehensive framework for dispute resolution. Meanwhile, Indigenous law systems are integral to recognising and protecting the rights of Aboriginal peoples. Together, these legal traditions form the foundation of Canada's pluralistic legal system, reflecting the country's diverse historical and cultural influences.
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The role of judges
Canada's judiciary plays a crucial role in interpreting laws and ensuring they adhere to the Constitution. The country's legal system is based on a combination of common law and civil law, with common law being the prevailing system across all provinces and territories except Quebec, which follows the civil law system.
Canada's judiciary is structured with the Supreme Court of Canada as the highest court and the final arbiter of the land. The decisions made by this court are binding on all lower courts in the country. The Supreme Court of Canada is led by the Chief Justice of Canada, who, along with eight other members, is appointed by the governor general based on the advice of the prime minister and minister of justice.
Lower courts in Canada's judicial system, such as provincial and territorial courts, follow the decisions of higher courts within their respective jurisdictions. For example, Ontario lower courts adhere to the rulings of the Ontario Court of Appeal, while British Columbia lower courts follow the decisions of the British Columbia Court of Appeal. This hierarchical structure ensures consistency in legal interpretations and applications within each province or territory.
In situations where there is limited or no Canadian legal precedent on a specific issue, judges may refer to non-Canadian legal authorities, particularly decisions from English and American courts. The historical connection between English common law and Canadian law means that decisions from the English Court of Appeal and the House of Lords are often considered persuasive. Additionally, decisions from other Commonwealth nations are also treated as influential sources of law in Canada.
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The Supreme Court of Canada
The Supreme Court is bilingual, hearing cases in both official languages of Canada (English and French). It is also bijural, hearing cases from two major legal traditions: common law and civil law. The Court sits in three sessions each calendar year, with hearings taking place in Ottawa and open to the public. The Court determines the length of each session, hearing two appeals per day. A quorum consists of five members for appeals, but a panel of nine justices hears most cases.
The Supreme Court hears appeals from the provincial courts of last resort, usually the provincial or territorial courts of appeal, and the Federal Court of Appeal. In some matters, appeals come straight from the trial courts, such as publication bans and other orders that are not appealable to the higher courts. Permission to appeal must first be obtained from the Court, with motions for leave to appeal heard by a panel of three judges. The Court typically hears cases of national importance or those that allow it to settle significant legal issues.
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Common law relationships
Canada's legal system is based on a combination of common law and civil law. Common law, in contrast to civil law, is unwritten and based on precedent. It is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones. Common law prevails in Canada except in Quebec, which follows civil law.
In the context of relationships, common-law partnerships are recognized and governed by certain laws in Canada. Common-law partnerships, also known as common-law marriages or common-law relationships, refer to a type of legal union between two people who live together in a marriage-like relationship without being formally married. To be considered common-law partners, couples must meet specific criteria, which can vary slightly among provinces and territories. The following are usually required for qualification:
- Cohabitation: The couple must live together in a conjugal or romantic relationship. Simply dating or having a romantic relationship without living together would not qualify as a common-law partnership.
- Duration: There is usually a minimum duration of living together required to be considered common-law partners. The specific timeframe varies across provinces, ranging from one to three years.
- Exclusivity: The couple must live together exclusively, meaning they do not have a formal marriage or civil partnership with anyone else.
Common-law partners may have rights and obligations similar to those of married couples in some areas, such as property rights, support obligations, benefits and entitlements, and parental rights and responsibilities. However, it is important to note that the legal recognition and rights associated with common-law partnerships can vary by province or territory in Canada. For example, in Ontario, there is currently no specific legal framework for common-law partnerships.
Ending a common-law relationship can be a difficult and emotional process, similar to divorce. Common-law couples who separate can create a separation agreement to outline how they will divide their assets, establish child custody, and address other issues related to their separation.
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Frequently asked questions
Common law in Canada is a law that is not written down as legislation. It evolved into a system of rules based on precedent.
Judges make common law in Canada by referring to and setting precedents. They also interpret and apply statutes.
Common law is flexible and adapts to changing circumstances because judges can announce new legal doctrines or change 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 that may arise.
Canada's legal system is based on the English and French legal systems, inherited from its past as a colony of the British and French Empires.
Common-law spouses are not treated the same as legally married spouses in most places in Canada. Common-law partners may not automatically inherit property unless they have a will, and the laws regarding this vary across provinces.
