Law of Canada
Encyclopedia
The Canadian
legal system has its foundation in the British common law
system, inherited from being a former colony of the United Kingdom
and later a member of the Commonwealth of Nations
. Quebec
, however, still retains a civil system
for issues of private law. Both legal systems are subject to the Constitution of Canada
.
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
), and any amendment to any of those acts. However, the Supreme Court of Canada
has found that this list is not intended to be exhaustive, and in 1998's Reference re Secession of Quebec
identified four "supporting principles and rules" that are included as unwritten elements of the constitution: federalism
, democracy
, constitutionalism
and the rule of law
, 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 unwritten constitution
, 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 ruling.
The Constitution Act, 1867 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
". Matters under provincial jurisdiction include hospitals, municipalities, education (except education on First Nation reserves), and property and civil rights
. The Constitution Act, 1867 also provides that, while provinces establish their own superior court
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, which is, despite its role as supreme arbiter of all Canadian law, a creation of simple, rather than constitutional, statute.
The Constitution Act, 1982 created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial governments; prior to 1982, it could be amended only by the Parliament of the United Kingdom
. It also created the Charter of Rights and Freedoms, which grants individual rights which may not be contravened by any provincial or federal law.
s 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 statutes and regulations. Federal bills 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 Acts are announced in a provincial gazette, published annually and consolidated from time to time.
legal tradition. Equally, courts have power under the provincial Judicature Act
s 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 the Court of Appeal for Ontario, 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.
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.
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, 1867
.
The provinces, are responsible for the administration of courts, including criminal courts, with 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, 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.
which are codified in each province's civil procedures rules.
, 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.
The Supreme Court of Canada
is the highest court
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
in the United Kingdom
, 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 courts
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
, 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
, the Tax Court of Canada
, and the Court Martial Appeal Court of Canada
.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
legal system has its foundation in the British common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system, inherited from being a former colony of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and later a member of the Commonwealth of Nations
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
. Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
, however, still retains a civil system
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
for issues of private law. Both legal systems are subject to the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
.
Constitution of Canada
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
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
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
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
), and any amendment to any of those acts. However, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
identified four "supporting principles and rules" that are included as unwritten elements of the constitution: federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
, democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
, constitutionalism
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex 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"....
and the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, and respect for minorities
Minority rights
The term Minority Rights embodies two separate concepts: first, normal individual rights as applied to members of racial, ethnic, class, religious, linguistic or sexual minorities, and second, collective rights accorded to minority groups...
. 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
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
", which is considered to be an unwritten constitution
Unwritten constitution
An uncodified or unwritten constitution is a constitution in which no single, formal document delineates the powers of a government, and the limits thereof...
, the Supreme Court has also recognized the existence of constitutional conventions
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
. 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 ruling.
The Constitution Act, 1867 assigns powers to the provincial and federal governments. Matters under federal jurisdiction include criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, 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
Peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute...
". Matters under provincial jurisdiction include hospitals, municipalities, education (except education on First Nation reserves), and property and civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
. The Constitution Act, 1867 also provides that, while provinces establish their own superior court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
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, which is, despite its role as supreme arbiter of all Canadian law, a creation of simple, rather than constitutional, statute.
The Constitution Act, 1982 created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial governments; prior to 1982, it could be amended only by the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. It also created the Charter of Rights and Freedoms, which grants individual rights which may not be contravened by any provincial or federal law.
Legislation
ActAct of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
s passed by the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
and by provincial legislatures are the primary sources of law in Canada. Sections 91 and 92 of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
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
Canada Gazette
The Canada Gazette is an official publication by the government of Canada that publishes all laws and Orders in Council issued by the government. It also contains other information on things such as hearing and tribunals, proposed changes and any thing else the government feels should be told to...
, a regularly published newspaper for new statutes and regulations. Federal bills that receive Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
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 Acts are announced in a provincial gazette, published annually and consolidated from time to time.
Common law
All provinces and territories within Canada, excluding Quebec, follow the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal tradition. Equally, courts have power under the provincial Judicature Act
Judicature Act
Judicature Act is a term which was used in the United Kingdom for legislation which related to the Supreme Court of Judicature.-United Kingdom:...
s to apply equity.
As with all common law countries, Canadian law adheres to the doctrine of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
. 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 the Court of Appeal for Ontario, for example, are often looked to for guidance on many local matters of law outside the province, especially in matters such as evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
and criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
.
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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, decisions of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
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.
Civil law
For historical reasons, Quebec has a hybrid legal system. Private lawPrivate 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 or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
follows the civil law tradition
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, originally expressed in the Coutume de Paris as it applied in what was then New France
New France
New France was the area colonized by France in North America during a period beginning with the exploration of the Saint Lawrence River by Jacques Cartier in 1534 and ending with the cession of New France to Spain and Great Britain in 1763...
. Today, the jus commune
Jus commune
Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariate legal principles, sometimes called "the law of the land" in English law...
of Quebec is codified in the Civil Code of Quebec
Civil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
. As for public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of 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
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. 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.
Constitutional law
- Constitution Act, 1867Constitution Act, 1867The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
- Canadian federalismCanadian federalismCanada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
- Canadian federalism
- Constitution Act, 1982Constitution Act, 1982The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
- Canadian Charter of Rights and FreedomsCanadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
- Canadian Charter of Rights and Freedoms
Criminal law
The enactment of criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
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, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
.
The provinces, are responsible for the administration of courts, including criminal courts, with 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, 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
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
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.
Procedural law
The functioning of the Courts is regulated by the laws of civil procedureCivil procedure in Canada
In Canada the rules of civil procedure are administered by each jurisdiction and thus each has its own set of rules. Most provinces base their civil procedure rules on the mixture of English and American rules adapted to the needs of the province...
which are codified in each province's civil procedures rules.
Judicial system
Under the Constitution Act, 1867Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, 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.
The Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
is the highest court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, 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 courts
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
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
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
, 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
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, 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
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, 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
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
, the Tax Court of Canada
Tax Court of Canada
The Tax Court of Canada , 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 of Canada....
, and the Court Martial Appeal Court of Canada
Court Martial Appeal Court of Canada
The Court Martial Appeal Court of Canada hears appeals from military courts .In Canada, courts martial are presided over by independent military judges from the office of the Chief Military Judge...
.
See also
- At Her Majesty's pleasureAt Her Majesty's pleasureAt Her Majesty's pleasure is a legal term of art derived from all legitimate authority for government stemming from the Crown. Originating from the United Kingdom, it is now used throughout the Commonwealth realms...
- Canadian Legal Information Institute (aka CanLIICanLIIThe Canadian Legal Information Institute is a non-profit organization created and funded by the Federation of Law Societies of Canada, on behalf of its 14 member law societies...
) - Human rights in CanadaHuman rights in CanadaSince signing the Universal Declaration of Human Rights in 1948, the Canadian government has attempted to make universal human rights a part of Canadian law...
- Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
- List of Acts of Parliament of Canada
- Statutes of CanadaStatutes of CanadaThe Statutes of Canada consists of the compilation of all the federal laws of Canada passed by the Parliament of Canada since Confederation in 1867. The Revised Statutes of Canada is the consolidation of the Statutes of Canada incorporating amendments and Acts that have been added since the last...
- The Canadian Crown and Aboriginal peoples
Further reading
- Black-Branch, Jonathan L (1995), Making sense of the Canadian Charter of Rights and Freedoms, Canadian Education Association ISBN 092031578X
- Greene, Ian (1989),The Charter of Rights, James Lorimer and Company, ISBN 1550281852