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Law of Canada

The Canadian legal system has its foundation in the British common law system, inherited from being a part of the Commonwealth. Quebec, however, still retains a civil system for issues of private law. Both legal systems are subject to the Constitution of Canada, from which all laws formally derive their power.

Contents

Constitution of Canada

See also: Constitution of Canada

The Constitution of Canada is the supreme law in Canada. It is an amalgam of codified acts and uncodified traditions and conventions. The core parts are found in the Constitution Act, 1867 (formerly the British North America Act), which outlines the system of government and the powers of the federal and provincial governments, among other matters. The Constitution also includes the Constitution Act, 1982, which contains the Charter of Rights and Freedoms, an entrenched bill of rights.

Legislation

Acts passed by the Parliament of Canada and by provincial legislatures are the primary sources of law in Canada. Sections 91 and 92 of the Constitution Act, 1867 enumerate the subject matters upon which either level of government (federal and provincial) may legitimately enact legislation.

Laws passed by the federal government are initially announced in the Canada Gazette, a regularly published newspaper for new laws and regulations. Federal acts that receive royal assent are subsequently published in the Annual Statutes of Canada. From time to time, the federal government will consolidate its current laws into a single consolidation of law known as the Revised Statutes of Canada. The most recent federal consolidation was in 1985.

Laws passed by the provinces follow a similar practice. The laws are announced in a provincial gazette, published annually and consolidated from time to time.

Legal traditions

Common law

All provinces and territories within Canada, excluding Quebec, follow the common law legal tradition. Equally, courts have power under the provincial Judicature Acts to apply equity.

As with all common law countries, Canadian law adheres to the doctrine of stare decisis. 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" even though they are not binding on other provinces.

Only the Supreme Court of Canada has authority to bind all courts in the country with a single ruling. The busier courts, such as Ontario Court of Appeal, for example, are often looked to for guidance on many local matters of law outside the province, especially in matters such as evidence and criminal law.

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 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, decisions of the House of Lords 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 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 will do so in the future.

Criminal offences are found within the Criminal Code of Canada or other federal/provincial laws, with the exception that contempt of court is the only remaining common law offence in Canada.[1]

Quebec's civil law system

For historical reasons, Quebec has a hybrid legal system. Private law follows the civil law tradition, originally expressed in the Coutume de Paris as it applied in what was then New France. Today, the jus commune of Quebec is codified in the Civil Code of Quebec. As for public law, 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. 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. Because of Quebec's unique legal system, lawyers trained in either common law or civil law may not practice in Quebec without undergoing further training in one or the other legal system.

Areas of law

Criminal law

See also: Criminal law in Canada

The enactment of criminal law is within the exclusive jurisdiction of the federal government. The Canadian Criminal Code is applicable uniformly throughout the entire country. Provinces cannot enact criminal legislation and any attempt to do so will be deemed ultra vires (outside its jurisdiction) pursuant to sections 91 and 92 of the Constitution Act, 1982.

The provinces, however, are responsible for the administration of courts, including criminal courts, within their respective provinces, despite their inability to enact criminal laws. So, even though there are provincial criminal courts, this is not to be confused with provincial criminal laws, which do not, in fact, exist.

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.

Prior to the enactment of the Canadian Charter of Rights and Freedoms in 1982, it was fairly common for a provincial law to be challenged on the grounds that it was a criminal statute, and thus ultra vires or beyond the province's legislative authority. For example, several provincial acts attempting to restrict pornography, prostitution, and abortion procedures were struck down as being enactments of criminal law.

Civil law

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The area of civil law in Canada encompasses numerous areas of law that involve disputes between parties, which includes individuals, corporations, and government. Parties will seek remedies from the court in contractual matters, tort disputes, and property law cases, among others.

Administrative law is a growing area of Canadian law. This is the body of law dealing with federal and provincial administrative tribunals, including labour boards, human rights tribunals, and workers' compensation appeal tribunals. Decisions of these tribunals can be reviewed by superior courts (or, in the case of federal tribunals, the Federal Court Trial Division or the Federal Court of Appeal), but the courts tend to give at least some deference to the tribunals. The degree of deference will depend on factors such as the specialized nature and expertise of the tribunal.

Procedural law

Procedural law in Canada encompasses several aspects of the justice system. The laws of evidence regulate the admissibility of evidence in courts and tribunals. The level of government which sets these rules depends on who has jurisdiction over the particular area of law. The functioning of the Courts is regulated by the laws of civil procedure which are codified in each province's civil procedures rules.

Courts in Canada

See also: Court system of Canada

The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system.

Prior to 1949, cases could be appealed to the Judicial Committee of the Privy Council in the United Kingdom, and some cases bypassed the Supreme Court of Canada entirely.

Criminal trial courts (often called "superior" courts) and appellate courts are referred to as "Section 96" courts, in reference to the Constitution Act, 1867, s. 96, which grants the federal government the power to appoint the judges of these courts. By contrast, judges in courts that only exercise the jurisdiction of the province (sometimes called "inferior" courts and often called "provincial" courts) are appointed by the province. Typically, appeals from provincial courts go to the superior court of the province. Further appeals would go to the appeal court, and then in limited circumstances on to the Supreme Court of Canada. Provincial courts deal primarily with criminal matters. The most serious criminal matters, such as murder, are heard by superior courts. Civil litigation over contract and tort disputes, also begins in superior courts. Each province has an appellate court, as does each territory. While the judges in Section 96 courts are appointed through a federal process, the courts are administered (and paid for) by the provinces.

The Federal Court Trial Division and Federal Court of Appeal, unlike other superior courts, were created by statute and have jurisdiction over a small number of issues that fall under the federal constitutional scope (for example, immigration, admiralty (maritime law), patents and copyright). Notably, the bulk of the Federal Court and Federal Court of Appeal's work involves judicial review of federal tribunals, boards, and commissions. In some cases, the Federal Courts' jurisdiction is made exclusive by statute. In other areas, the superior courts may exercise concurrent jurisdiction over the underlying subject matter, and proceeding in either court may provide certain advantages to a party.

References

  1. ^ A Compendium of Law and Judges

See also

Wikibooks has a book on the topic of Canadian law

External links

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