The
legal system
The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...
of
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
is
pluralist: its foundations lie in the English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
system (inherited from its period as a colony of the
British Empire
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
), the
French civil law
The Law of France refers to the legal system in the French Republic, which is a civil law legal system primarily based on legal codes and statutes, with case law also playing an important role. The most influential of the French legal codes is t ...
system (inherited from its
French Empire past),
and
Indigenous law systems developed by the various
Indigenous Nations.
The
Constitution of Canada
The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...
is the supreme law of the country, and consists of written text and unwritten conventions.
The ''Constitution Act, 1867'' (known as the
British North America Act
The British North America Acts 1867–1975 are a series of Acts of Parliament that were at the core of the constitution of Canada. Most were enacted by the Parliament of the United Kingdom and some by the Parliament of Canada. In Canada, some ...
prior to 1982), affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.
The
Statute of Westminster 1931
The Statute of Westminster 1931 is an act of the Parliament of the United Kingdom that sets the basis for the relationship between the Commonwealth realms and the Crown.
Passed on 11 December 1931, the statute increased the sovereignty of the ...
granted full autonomy, and the ''
Constitution Act, 1982
The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
'' ended all legislative ties to Britain, as well as adding a constitutional amending formula and the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
''.
The ''Charter'' guarantees basic rights and freedoms that usually cannot be over-ridden by any government—though a
notwithstanding clause
Section 33 of the ''Canadian Charter of Rights and Freedoms'' is part of the Constitution of Canada. It is commonly known as the notwithstanding clause (french: clause dérogatoire, links=no or ), sometimes referred to as the override power, and ...
allows Parliament and the provincial legislatures to override certain sections of the ''Charter'' for a period of five years.
Canada's judiciary plays an important role in interpreting laws and has the power to strike down Acts of Parliament that violate the constitution. The
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
is the highest court and final arbiter and has been led since December 18, 2017, by
Richard Wagner
Wilhelm Richard Wagner ( ; ; 22 May 181313 February 1883) was a German composer, theatre director, polemicist, and conductor who is chiefly known for his operas (or, as some of his mature works were later known, "music dramas"). Unlike most op ...
, the
chief justice of Canada
The chief justice of Canada (french: juge en chef du Canada) is the presiding judge of the nine-member Supreme Court of Canada, the highest judicial body in Canada. As such, the chief justice is the highest-ranking judge of the Canadian court sy ...
. Its nine members are appointed by the governor general on the advice of the prime minister and
minister of justice
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a v ...
. All judges at the superior and appellate levels are appointed after consultation with non-governmental legal bodies. The federal Cabinet also appoints justices to superior
courts in the provincial and territorial jurisdictions.
Common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
prevails everywhere except in Quebec, where
civil law predominates.
Criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
is solely a federal responsibility and is uniform throughout Canada. Law enforcement, including criminal courts, is officially a provincial responsibility, conducted by provincial and municipal police forces. However, in most rural areas and some urban areas, policing responsibilities are contracted to the federal
Royal Canadian Mounted Police
The Royal Canadian Mounted Police (RCMP; french: Gendarmerie royale du Canada; french: GRC, label=none), commonly known in English as the Mounties (and colloquially in French as ) is the federal police, federal and national police service of ...
.
Canadian Aboriginal law
Canadian Aboriginal law is the body of law of Canada that concerns a variety of issues related to Indigenous peoples in Canada. Canadian Aboriginal Law is different from Canadian Indigenous law: In Canada, Indigenous Law refers to the legal tradi ...
provides certain
constitutionally recognized rights to land and traditional practices for Indigenous groups in Canada.
Various treaties and case laws were established to mediate relations between Europeans and many Indigenous peoples.
These treaties are agreements between the Canadian
Crown-in-Council with the
duty to consult and accommodate In Canada, the duty to consult and accommodate with Aboriginal peoples arises when the Crown contemplates actions or decisions that may affect Aboriginal or Treaty rights. This duty arises most often in the context of natural resource extraction suc ...
.
Indigenous law in Canada
Indigenous law in Canada refers to the legal traditions, customs, and practices of Indigenous peoples and groups. Canadian aboriginal law is different from Indigenous Law. Canadian Aboriginal law provides certain constitutionally recognized rights ...
refers to the legal traditions, customs, and practices of Indigenous Nations and communities.
Constitution of Canada
![British North America Act, 1867](https://upload.wikimedia.org/wikipedia/commons/9/93/British_North_America_Act%2C_1867.jpg)
Pursuant to section 52 of the ''
Constitution Act, 1982
The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
'', Canada's constitution is its supreme law, and any law passed by any federal, provincial, or territorial government that is inconsistent with the constitution is invalid.
The ''Constitution Act, 1982'' stipulates that Canada's constitution includes that act, a series of thirty Acts and orders referred to in a schedule to that Act (the most notable of which is the ''
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
''), and any amendment to any of those Acts. However, the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
has found that this list is not intended to be exhaustive, and in 1998's ''
Reference re Secession of Quebec
''Reference Re Secession of Quebec'', 9982 SCR 217 is a landmark judgment of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada.
Both the Quebec governme ...
'' identified four "supporting principles and rules" that are included as unwritten elements of the constitution:
federalism
Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (Province, provincial, State (sub-national), state, Canton (administrative division), can ...
,
democracy
Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose gov ...
,
constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
Political organizations are constitutional ...
and the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
, and
respect for minorities. While these principles are an enforceable part of Canada's constitution, Canadian courts have not used them to override the written text of the constitution, instead confining their role to "filling gaps".
Because the ''Constitution Act, 1867'' provides that Canada's constitution is "similar in Principle to
that of the United Kingdom",
which is considered to be an
uncodified constitution
An uncodified constitution is a type of constitution where the fundamental rules often take the form of custom (law), customs, usage, precedent and a variety of statutes and legal instruments.Johari, J. C. (2006) ''New Comparative Government'', ...
, the Supreme Court has also recognized the existence of
constitutional conventions. In 1981's ''
Reference re a Resolution to amend the Constitution'', the Court provided three factors necessary for the existence of a constitutional convention: a practice or agreement developed by political actors, a recognition that they are bound to follow that practice or agreement, and a purpose for that practice or agreement. It also found that, while these conventions are not law and are therefore unenforceable by the courts, courts may recognize conventions in their rulings.
![Every Canadian Needs A Copy](https://upload.wikimedia.org/wikipedia/commons/b/b6/Every_Canadian_Needs_A_Copy.jpg)
The ''Constitution Act, 1867'' assigns powers to the provincial and federal governments. Matters under federal jurisdiction include
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
, trade and commerce, banking, and immigration.
The federal government also has the
residual power
Reserved powers, residual powers, or residuary powers are the powers that are neither prohibited nor explicitly given by law to any Separation of powers#Typical branches, organ of government. Such powers, as well as Everything which is not forbidd ...
to make laws necessary for Canada's "
peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Pa ...
".
One of the major areas of provincial jurisdiction is
property and civil rights Section 92(13) of the ''Constitution Act, 1867'', also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on:
It is one of three key residuary powers in the ''Constitution Act, 18 ...
, 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, education (except education on First Nation reserves).
The ''Constitution Act, 1867'' also provides that, while provinces establish their own
superior court
In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
s, the federal government appoints their judges.
It also gives the federal Parliament the right to establish a court system responsible for federal law and a general court of appeal to hear appeals of decisions of both federal and provincial courts. This last power resulted in the federal Parliament's creation of the Supreme Court of Canada.
The ''Constitution Act, 1982'' created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial legislatures; prior to 1982, most of it could be amended only by the
Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
. It also contains the
Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
, which grants individual rights that may not be contravened by any provincial or federal law.
Legislation
Acts passed by the
Parliament of Canada
The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...
and by provincial legislatures are the primary sources of law in Canada. Sections 91 and 94A of the ''
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'' set out the subject matters for exclusive federal jurisdiction, while sections 92, 92A, and 94 set out the areas of exclusive provincial legislation. Section 95 sets out areas of concurrent federal and provincial jurisdiction.
Laws passed by the federal Parliament are initially published in the
Canada Gazette
The ''Canada Gazette'' (french: Gazette du Canada) is the official government gazette of the Government of Canada. It was first published on October 2, 1841. While it originally published all acts of the Parliament of Canada, it later also publ ...
, a federal government newspaper published regularly and which includes new statutes and regulations. Federal statutes are subsequently published in the Annual Statutes of Canada. From time to time, the federal government will prepare a consolidation of federal statuts, known as the
Revised Statutes of Canada Revise or revised may refer to:
Bibles
* Revised Version of the King James Bible
** New Revised Standard Version of the King James Bible
Government and law
* Revised Penal Code of the Philippines
* Revised Statutes of the United States
Other us ...
. The most recent federal consolidation was in 1985.
Laws passed by the provinces follow a similar practice. The Acts are pronounced in a provincial gazette, published annually and consolidated from time to time.
The Revised Statutes of Canada is the federal statutory consolidation of statutes enacted by the
Parliament of Canada
The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...
. In each Canadian province, there is a similar consolidation of the statute law of the province. The Revised Statutes of British Columbia, Revised Statutes of Alberta, Statutes of Manitoba, Revised Statutes of Saskatchewan, 1978, Revised Statutes of New Brunswick, Revised Statutes of Nova Scotia, Statutes of Prince Edward Island, Consolidated Statutes of Newfoundland and Labrador,
Revised Statutes of Ontario
Revised Statutes of Ontario (RSO; French: Lois refondues de l'Ontario, LRO) is a consolidation of public acts in the province of Ontario.
Each volume contains a consolidated version of all amended statutes in force, incorporating amendments passed ...
, and Revised Statutes of Quebec are the statutory consolidations of each Canadian province. They contain all of the major topic areas and most of the
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
s enacted by the governments in each province. These statutes in these provinces do not include
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
, as the criminal law in Canada is an exclusive jurisdiction of the federal Parliament, which has enacted the ''
Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
'', which is included in the Revised Statutes of Canada.
Legal traditions
Common law
Nine of the provinces, other than Quebec, and the federal territories, follow the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
legal tradition.
While the federal territories use common law, Indigenous nations and their associated territories do not (
see below). Equally, courts have power under the provincial ''
Judicature Act
Judicature Act is a term which was used in the United Kingdom for legislation which related to the Supreme Court of Judicature.
List United Kingdom
:The Supreme Court of Judicature Act 1873 (36 & 37 Vict. c.66)
:The Supreme Court of Judicature Ac ...
s'' to apply
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
.
As with all common law countries, Canadian law adheres to the doctrine of .
Lower courts must follow the decisions of higher courts by which they are bound. For instance, all Ontario lower courts are bound by the decisions of the Ontario Court of Appeal and all British Columbia lower courts are bound by the decisions of the British Columbia Court of Appeal. However, no Ontario court is bound by decisions of any British Columbia court and no British Columbia court is bound by decisions of any Ontario court. Nonetheless, decisions made by a province's highest court (provincial Courts of Appeal) are often considered as "
persuasive
Persuasion or persuasion arts is an umbrella term for Social influence, influence. Persuasion can influence a person's Belief, beliefs, Attitude (psychology), attitudes, Intention, intentions, Motivation, motivations, or Behavior, behaviours.
...
" even though they are not binding on other provinces.
Only the Supreme Court of Canada has authority to bind all lower courts in the country with a single ruling, but the Supreme Court cannot bind itself.
The busier courts, such as the
Court of Appeal for Ontario
The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Societ ...
, for example, are often looked to for guidance on many local matters of law outside the province, especially in matters such as
evidence
Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field.
In epistemology, evidenc ...
and
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
.
When there is little or no existing Canadian decision on a particular legal issue and it becomes necessary to look to a non-Canadian legal authority for reference, decisions of English courts and American courts are often utilized.
In light of the long-standing history between English law and Canadian law, the
English Court of Appeal
The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Courts of England and Wales#Senior Courts of England and Wales, Senior Courts of England and Wal ...
and the House of Lords are often cited as and considered persuasive authority, and are often followed.
If the legal question at issue relates to matters of constitutional or privacy law, however, decisions of United States courts are more likely to be utilized by Canadian lawyers because there is a much greater body of jurisprudence in U.S. law than English law in these areas.
Decisions from Commonwealth nations, aside from England, are also often treated as persuasive sources of law in Canada.
Due to Canada's historical connection with the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
, decisions of the
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
before 1867 are technically still binding on Canada unless they have been overturned by the Supreme Court of Canada, and Canada is still bound by the decisions of the
Privy Council
A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
before the abolishment of appeals to that entity in 1949.
In practice, however, no court in Canada has declared itself bound by any English court decision for decades, and it is highly unlikely that any Canadian court would do so in the future.
Criminal offences are found only within the Criminal Code and other federal statutes; an exception is that contempt of court is the only remaining common law offence in Canada.
Civil law
For historical reasons, Quebec has a hybrid legal system.
Private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
follows the
civil law tradition
Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as t ...
, originally expressed in the ''Coutume de Paris'' as it applied in what was then
New France
New France (french: Nouvelle-France) was the area colonized by France in North America, beginning with the exploration of the Gulf of Saint Lawrence by Jacques Cartier in 1534 and ending with the cession of New France to Great Britain and Spai ...
.
Today, the of Quebec is codified in the
Civil Code of Quebec
The ''Civil Code of Quebec'' (CCQ, french: Code civil du Québec) is the civil code in force in the Canadian province of Quebec, which came into effect on January 1, 1994. It replaced the ''Civil Code of Lower Canada'' (french: Code civil du Bas- ...
. As for
public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
, it was made that of the conquering British nation after the fall of New France in 1760, that is, the common law. It is important to note that the distinction between civil law and common law is not based on the division of powers set out in the ''
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
''. Therefore, legislation enacted by the provincial legislature in matters of public law, such as the Code of Penal Procedure, should be interpreted following the common law tradition. Likewise, legislation enacted by the federal Parliament in matters of private law, such as the ''Divorce Act'', is to be interpreted following the civil law tradition and in harmony with the Civil Code of Quebec.
Indigenous legal traditions
Canada was founded on the original
territories
A territory is an area of land, sea, or space, particularly belonging or connected to a country, person, or animal.
In international politics, a territory is usually either the total area from which a state may extract power resources or an ...
of over 900 different
Indigenous group
Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
s, each using different Indigenous legal traditions.
Cree
The Cree ( cr, néhinaw, script=Latn, , etc.; french: link=no, Cri) are a Indigenous peoples of the Americas, North American Indigenous people. They live primarily in Canada, where they form one of the country's largest First Nations in Canada ...
,
Blackfoot
The Blackfoot Confederacy, ''Niitsitapi'' or ''Siksikaitsitapi'' (ᖹᐟᒧᐧᒣᑯ, meaning "the people" or " Blackfoot-speaking real people"), is a historic collective name for linguistically related groups that make up the Blackfoot or Bla ...
,
Mi'kmaq
The Mi'kmaq (also ''Mi'gmaq'', ''Lnu'', ''Miꞌkmaw'' or ''Miꞌgmaw''; ; ) are a First Nations people of the Northeastern Woodlands, indigenous to the areas of Canada's Atlantic Provinces and the Gaspé Peninsula of Quebec as well as the northe ...
and numerous other
First Nations
First Nations or first peoples may refer to:
* Indigenous peoples, for ethnic groups who are the earliest known inhabitants of an area.
Indigenous groups
*First Nations is commonly used to describe some Indigenous groups including:
**First Natio ...
;
Inuit
Inuit (; iu, ᐃᓄᐃᑦ 'the people', singular: Inuk, , dual: Inuuk, ) are a group of culturally similar indigenous peoples inhabiting the Arctic and subarctic regions of Greenland, Labrador, Quebec, Nunavut, the Northwest Territories ...
; and
Métis
The Métis ( ; Canadian ) are Indigenous peoples who inhabit Canada's three Prairie Provinces, as well as parts of British Columbia, the Northwest Territories, and the Northern United States. They have a shared history and culture which derives ...
will apply their own legal traditions in daily life, creating contracts, working with governmental and corporate entities, ecological management and criminal proceedings and family law. Most maintain their laws through traditional governance alongside the elected officials and federal laws. The legal precedents set millennia ago are known through stories and derived from the actions and past responses as well as through continuous interpretation by elders and law-keepers—the same process by which nearly all legal traditions, from common laws and civil codes, are formed.
While the many
legal traditions appear similar in that none were codified, each has quite different sets of laws. Many laws stem from stories which in turn may stem from writings or markings, such as geographic features, petroglyphs, pictographs,
wiigwaasabak
''Wiigwaasabak'' (in Anishinaabe syllabics: , plural: ''wiigwaasabakoon'' ) are birch bark scrolls, on which the Ojibwa (Anishinaabe) people of North America wrote complex geometrical patterns and shapes, also known as a "written language." ...
oon and more.
Inuit Nunangat
Inuit Nunangat (; Inuktitut syllabics: ; lit. "lands, waters and ices of the nuitpeople") is the homeland of the Inuit in Canada. This Arctic homeland consists of four northern Canadian regions called the Inuvialuit Settlement Region (Inu ...
's governance differs quite markedly from its many-nationed neighbour
Denendeh
The Northwest Territories (abbreviated ''NT'' or ''NWT''; french: Territoires du Nord-Ouest, formerly ''North-Western Territory'' and ''North-West Territories'' and namely shortened as ''Northwest Territory'') is a federal territory of Canada. ...
, as Denendeh's diverse Dene Laws differ quite markedly from laws governing
Lingít
The Tlingit ( or ; also spelled Tlinkit) are indigenous peoples of the Pacific Northwest Coast of North America. Their language is the Tlingit language (natively , pronounced ), Aaní,
Gitx̱san Lax̱yip or
Wet'suwet'en Yin'tah; and, as those differ from
Haudenosaunee
The Iroquois ( or ), officially the Haudenosaunee ( meaning "people of the longhouse"), are an Iroquoian Peoples, Iroquoian-speaking Confederation#Indigenous confederations in North America, confederacy of First Nations in Canada, First Natio ...
's,
Eeyou-Istchee's or
Mi'kma'ki's. One thing most Indigenous legal and governance traditions have in common is their use of
clan
A clan is a group of people united by actual or perceived kinship
and descent. Even if lineage details are unknown, clans may claim descent from founding member or apical ancestor. Clans, in indigenous societies, tend to be endogamous, meaning ...
s such as Anishinaabek's
doodeman (though most are matrilineal like Gitx̱san's Wilps).
Areas of law
Aboriginal law
Aboriginal law is the area of law related to the Canadian Government's relationship with its
Indigenous peoples
Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
(
First Nations
First Nations or first peoples may refer to:
* Indigenous peoples, for ethnic groups who are the earliest known inhabitants of an area.
Indigenous groups
*First Nations is commonly used to describe some Indigenous groups including:
**First Natio ...
,
Métis
The Métis ( ; Canadian ) are Indigenous peoples who inhabit Canada's three Prairie Provinces, as well as parts of British Columbia, the Northwest Territories, and the Northern United States. They have a shared history and culture which derives ...
and
Inuit
Inuit (; iu, ᐃᓄᐃᑦ 'the people', singular: Inuk, , dual: Inuuk, ) are a group of culturally similar indigenous peoples inhabiting the Arctic and subarctic regions of Greenland, Labrador, Quebec, Nunavut, the Northwest Territories ...
). Section 91(24) of the ''Constitution Act, 1867'' gives the federal parliament exclusive power to legislate in matters related to Aboriginals, which includes groups governed by the ''
Indian Act
The ''Indian Act'' (, long name ''An Act to amend and consolidate the laws respecting Indians'') is a Canadian act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876 and still ...
'', different
Numbered Treaties
The Numbered Treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the First Nations, one of three groups of Indigenous peoples in Canada, and the reigning monarch of Canada (Victoria, Edward VII or George V) ...
and outside of those Acts.
Administrative law
Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies.
Contract law
Individual provinces have codified some principles of contract law in a ''Sale of Goods Act'', which was modeled on early English versions. Outside of Quebec, most contract law is still common law, based on the rulings of judges in contract litigation over the years. Quebec, being a civil law jurisdiction, does not have contract law, but rather has its own
law of obligations
The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights a ...
.
Constitutional law
Constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the Courts. This is represented in the ''
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', ''
Constitution Act, 1982
The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
'' and ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
''.
Copyright law
Copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada.
Criminal law
![CanadianCriminalCases2](https://upload.wikimedia.org/wikipedia/commons/f/f5/CanadianCriminalCases2.jpg)
Criminal law in Canada falls under the exclusive legislative jurisdiction of the federal government. The power to enact criminal law is derived from
section 91(27) of the ''Constitution Act, 1867''.
Most criminal laws have been codified in the ''
Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
'', as well as the ''
Controlled Drugs and Substances Act
The ''Controlled Drugs and Substances Act'' (french: Loi réglementant certaines drogues et autres substances) (the ''Act'') is Canada's federal drug control statute. Passed in 1996 under Prime Minister Jean Chrétien's government, it repeals ...
'', ''
Youth Criminal Justice Act
The ''Youth Criminal Justice Act'' (YCJA; french: Loi sur le système de justice pénale pour les adolescents) (the ''Act'') is a Canadian statute, which came into effect on April 1, 2003. It covers the prosecution of youths for criminal offen ...
'', and several other peripheral Acts.
The provinces are responsible for the administration of justice, including criminal trials within their respective provinces, despite their inability to enact criminal laws.
Provinces do have the power to promulgate quasi-criminal or regulatory offences in a variety of administrative and other areas, and every province has done so with myriad rules and regulations across a broad spectrum.
Evidence law
The ''
Canada Evidence Act
The ''Canada Evidence Act'' (french: Loi sur la preuve au Canada) is an act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law. As law of evidence is largely set by comm ...
'' is an Act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law.
Each province also has its own evidence statute, governing the law of evidence in civil proceedings in the province.
Family law
Family law in Canada concerns the body of Canadian law dealing with
family relationship
Family (from la, familia) is a group of people related either by consanguinity (by recognized birth) or affinity (by marriage or other relationship). The purpose of the family is to maintain the well-being of its members and of society. Ideal ...
,
marriage
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
, and
divorce
Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the ...
.
The federal government has exclusive jurisdiction over the substance of marriage and divorce. Provinces have exclusive jurisdiction over the procedures surrounding marriage. Provinces also have laws dealing with marital property and with family maintenance (including spousal support).
Human rights law
Human rights are constitutionally protected by the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
'', which applies to the federal and provincial governments and protects the rights of individuals in relation to government action. The Charter protects fundamental freedoms such as freedom of religion, freedom of association, and freedom of expression, as well as prohibiting discrimination on personal characteristics.
Human rights are also protected by federal and provincial statutes, which apply to governments as well as to the private sector. Human rights laws generally prohibit discrimination on personal characteristics in housing, employment, and services to the public. The ''
Canadian Human Rights Act
The ''Canadian Human Rights Act'' (french: Loi canadienne sur les droits de la personne) is a statute passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be vi ...
'' applies to the federal government and to industries under federal jurisdiction, such as aviation and banking. Provincial human rights laws apply to the provincial governments and to industries and businesses under provincial jurisdiction.
Immigration and refugee law
Canadian immigration and refugee law concerns the area of law related to the
admission of foreign nationals into Canada, their rights and responsibilities once admitted, and the conditions of their removal.
The primary law on these matters is in the ''
Immigration and Refugee Protection Act
The ''Immigration and Refugee Protection Act'' (''IRPA'') is an Act of the Parliament of Canada, administered by Immigration, Refugees and Citizenship Canada (IRCC) and Canada Border Services Agency (CBSA), that replaced the ''Immigration Act, 1 ...
''.
Inheritance law
Inheritance law in Canada is constitutionally a
provincial matter. Therefore, the laws governing inheritance in Canada are legislated by each individual province.
Insolvency law
The Parliament of Canada has exclusive jurisdiction to regulate matters relating to bankruptcy and insolvency, by virtue of s.91 of the ''Constitution Act, 1867''. It has passed some statutes as a result, i.e., The ''
Bankruptcy and Insolvency Act
The ''Bankruptcy and Insolvency Act'' (BIA; french: Loi sur la faillite et l'insolvabilité) (the ''Act'') is one of the statutes that regulates the law on bankruptcy and insolvency in Canada. It governs bankruptcies, consumer and commercial prop ...
'' ("BIA") and the ''
Winding-Up and Restructuring Act
The ''Winding-up and Restructuring Ac''t (french: Loi sur les liquidations et les restructurations) ("WURA") (the ''Act'') is a statute of the Parliament of Canada that provides for the winding up of certain corporations and the restructuring of ...
'' (which essentially applies only to financial institutions under federal jurisdiction).
In applying these statutes, provincial law has important consequences. Section 67(1)(b) of the BIA provides that "any property that as against the bankrupt is exempt from execution or seizure under any laws applicable in the province within which the property is situated and within which the bankrupt resides" is not divisible among their creditors. Provincial legislation under the property and civil rights power of the ''Constitution Act, 1867'' regulates the resolution of financial difficulties that occur before the onset of insolvency.
Labour and employment law
Canadian labour law is that body of law which regulates the rights, restrictions obligations of trade unions, workers and employers in Canada. Canadian employment law is that body of law which regulates the rights, restrictions obligations of non-unionised workers and employers in Canada. Most labour regulation in Canada is conducted at the provincial level by government agencies and boards. However, certain industries under federal regulation are subject solely to federal labour legislation and standards.
Patent law
Canadian patent law is the legal system regulating the granting of
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...
s for
invention
An invention is a unique or novel device, method, composition, idea or process. An invention may be an improvement upon a machine, product, or process for increasing efficiency or lowering cost. It may also be an entirely new concept. If an i ...
s within Canada, and the enforcement of these rights in Canada.
Procedural law
The functioning of the Courts is regulated by the laws of
civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
which are codified in each province's civil procedures rules.
Property law
Property law in Canada is the body of law concerning the rights of individuals over land, objects, and expression within Canada. It encompasses
personal property
property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be moved fr ...
,
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
, and
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
.
Tort law
Tort law in Canada concerns the treatment of the law of
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
s within the Canadian jurisdiction excluding Quebec, which is covered by the
law of obligations
The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights a ...
.
Trademark law
Canada's trademark law provides protection for distinctive marks, certification marks, distinguishing guises, and proposed marks against those who appropriate the goodwill of the mark or create confusion between different vendors' goods or services.
Judicial system
![Canada Court System](https://upload.wikimedia.org/wikipedia/commons/1/14/Canada_Court_System.svg)
Under the ''
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', the federal Parliament and the provincial legislatures both have the constitutional authority to create courts: Parliament under s. 101, and the Provinces under
s. 92(14).
However, the federal power to create courts is much more limited than the provincial power. The provincial courts have a much more extensive jurisdiction, including the constitutionally entrenched power to determine constitutional issues.
Through
Section 35 of the ''Constitution Act, 1982'', Indigenous nations retain significant rights and
title
A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
. It, however, remains unclear the degree to which Indigenous nations have authority over judicial matters. Especially since 1995, the
Government of Canada
The government of Canada (french: gouvernement du Canada) is the body responsible for the federal administration of Canada. A constitutional monarchy, the Crown is the corporation sole, assuming distinct roles: the executive, as the ''Crown ...
has maintained a policy of recognizing the inherent right of
self-governance
__NOTOC__
Self-governance, self-government, or self-rule is the ability of a person or group to exercise all necessary functions of regulation without intervention from an external authority. It may refer to personal conduct or to any form of ...
under section 35.
The evolution through cases such as ''
Delgamuukw-Gisday'wa'' and the ''
Tsilhqot'in Nation v British Columbia'' has affirmed the Euro-Canadian courts' needs to meaningfully engage with
Indigenous legal systems, including through Indigenous structures of
dispute resolution.
The
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
(french:
Cour suprême du Canada) is the
highest court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
of Canada and is the final court of appeal in the
Canadian justice system. Parliament created it by Act of Parliament in 1875, as a "general court of appeal for Canada".
Prior to 1949, cases could be appealed to the
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
in the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
, and some cases bypassed the Supreme Court of Canada entirely.
Other than the Supreme Court, the Canadian court system is divided into two classes of courts:
superior court
In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
s of general jurisdiction, and courts of limited jurisdiction, sometimes referred to as inferior courts. The superior courts, created and maintained by the provinces, are divided into superior courts of original jurisdiction and superior courts of appeal. These courts are sometimes also referred to as "Section 96" courts, in reference to s. 96 of the ''
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'', which grants the federal government the power to appoint the judges of these courts.
As courts of general jurisdiction, the provincial superior courts of original jurisdiction have jurisdiction over all matters, under both federal and provincial law, unless the matter has been assigned to some other court or administrative agency by a statute passed by the appropriate legislative body. The superior courts of original jurisdiction have an extensive civil jurisdiction, under both federal and provincial laws. Under the
''Criminal Code'', a federal statute, they have jurisdiction over the most serious criminal offences, such as murder.
They also hear appeals from the Provincial Courts in criminal matters and some civil matters. A further appeal normally lies to superior court of appeal, the highest court in each province.
The provinces also can establish courts of limited jurisdiction, whose jurisdiction is limited solely to what is included in the statutory grant of jurisdiction. These courts are often called "Provincial Courts", even though the superior courts established by the provinces are also provincial courts. The Provincial Courts have an extensive criminal jurisdiction under the
''Criminal Code'', a federal statute, and also typically have a limited civil jurisdiction in matters under provincial jurisdiction, such as small claims and some family matters. The judges of the Provincial Courts are appointed by the provincial governments.
There are also additional federal courts established by Parliament, which have a specialised jurisdiction in certain areas of federal law. These courts are the
Federal Court of Appeal
The Federal Court of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters.
History
Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "addit ...
, the
Federal Court, the
Tax Court of Canada
The Tax Court of Canada (TCC; french: Cour canadienne de l'impôt), established in 1983 by the ''Tax Court of Canada Act'', is a federal superior court which deals with matters involving companies or individuals and tax issues with the Government ...
, and the
Court Martial Appeal Court of Canada
The Court Martial Appeal Court of Canada (CMAC) (french: Cour d'appel de la cour martiale du Canada) hears appeals from Courts-martial of Canada ("courts martial").
In Canada, courts martial are presided over by independent military judges from ...
.
See also
*
At Majesty's pleasure
AT or at may refer to:
Geography Austria
* Austria (ISO 2-letter country code)
* .at, Internet country code top-level domain
United States
* Atchison County, Kansas (county code)
* The Appalachian Trail (A.T.), a 2,180+ mile long mountaino ...
*
Canadian Legal Information Institute
The Canadian Legal Information Institute (CanLII; french: Institut canadien d'information juridique) is a non-profit organization created and funded by the Federation of Law Societies of Canada in 2001 on behalf of its 14 member societies. CanLII ...
(CanLII)
*
Housekeeping provision
*
Human rights in Canada
Human rights in Canada have come under increasing public attention and legal protection since World War II. Prior to that time, there were few legal protections for human rights. The protections which did exist focused on specific issues, rather t ...
*
Legal systems of the world
The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and ...
*
List of Acts of Parliament of Canada
This is an incomplete list of the continuing Acts of the Parliament of Canada. Many of these Acts have had one or more amending Acts.
1867 – 1899
* ''Aliens and Naturalization Act'', 1868
* ''Fisheries Act'', 1868
* ''Gradual Enfranchisem ...
*
Statutes of Canada
The ''Statutes of Canada'' (SC) compiles, by year, all the laws passed by the Parliament of Canada since Confederation in 1867. The Revised Statutes of Canada (RSC) consolidates current federal laws in force, incorporating amendments into acts, ...
*
The Canadian Crown and Aboriginal peoples
The association between the Canadian Crown and Indigenous peoples in Canada stretches back to the first decisions between North American Indigenous peoples and European colonialists and, over centuries of interface, treaties were established c ...
*
List of Vancouver court cases
This article lists legal cases that originated in Vancouver that are significant because have proven to be the leading case law, or because they received significant media attention. Many of these Vancouver cases went on to be decided by the Supr ...
References
Bibliography
*
Further reading
*
*
*
*
*
*
Ignace, Marianne & Ignace, Ronald E (2017). ''Secwépemc People, Land, and Laws – Yerí7 re Stsq'ey's-kucw''. McGill-Queen's University Press. .
*
*
Manuel, Arthur;
Derrickson, Ronald M. (afterword);
Klein, Naomi (foreward) (2015). ''Unsettling Canada: A National Wake-Up Call''.
Between The Lines. .
*
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*
*
External links
Canadian Criminal Law Information SiteConsolidated Statutes and Regulationsof Canada.
CanLII Canadian Legal Information InstituteLegal Information
{{DEFAULTSORT:Canada, law of