Canadian Law Information
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.
Constitution of Canada
See also: Constitution of CanadaCanada'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.[1]
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.[2] 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.[3] 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".[4]
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.[5]
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, and property and civil rights.[6] The Constitution Act, 1867 also provides that, while provinces establish their own superior courts, 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.[7] 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.[8]
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.[9] It also created the Charter of Rights and Freedoms, which grants individual rights which may not be contravened by any provincial or federal law.[10]
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 statutes and regulations.[11][12] 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.[13] 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 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 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.[14]
Civil Law
Main article: Law in QuebecFor 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.
Areas of law
Aboriginal Law
Main article: Canadian aboriginal lawAdministrative Law
Main article: Canadian administrative lawCivil and Human Rights Law
Main article: Civil rights law in CanadaContract Law
Main article: Canadian contract lawConstitutional Law
Main article: Canadian constitutional lawCopyright Law
Main article: Canadian copyright lawCriminal law
Main article: Criminal law in CanadaThe 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, 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.
Evidence Law
Family Law
Main article: Canadian family lawImmigration and Refugee Law
Main article: Canadian immigration and refugee lawLabour and Employment Law
Main article: Canadian labour and employment lawPatent Law
Main article: Canadian patent lawProcedural law
The functioning of the Courts is regulated by the laws of civil procedure which are codified in each province's civil procedures rules.
Property Law
Main article: Canadian property lawTort Law
Main article: Tort law in CanadaTrade-mark Law
Main article: Canadian trademark lawJudicial system
See also: Court system of CanadaThe 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
See also
| Canada portal |
| Book: Canada | |
| Wikipedia Books are collections of articles that can be downloaded or ordered in print. | |
- The Canadian Crown and Aboriginal peoples
- Legal systems of the world
- Statutes of Canada
- List of Acts of Parliament of Canada
- At Her Majesty's pleasure
- Human rights in Canada
References
- ^ Craik 114
- ^ Craik 94
- ^ Craik 96
- ^ Craik 98
- ^ Craik 105
- ^ Craik 125
- ^ Craik 127
- ^ Craik 127–128
- ^ Craik 131
- ^ Craik 119
- ^ Statutory Instrument Act
- ^ "Canada Gazette - About Us". Gazette.gc.ca. 2010-06-09. http://www.gazette.gc.ca/cg-gc/about-sujet-eng.html. Retrieved 2011-02-28.
- ^ Legislation Revision and Consolidation Act
- ^ A Compendium of Law and Judges
- Craik, Neil; Forcese, Craig; Bryden, Philip et al., eds (2006). Public Law: Cases, materials, and commentary. Toronto: Emond Montgomery Publications Limited. ISBN 1-55239-185-X.
Further reading
- Baudouin, Jean-Louis; Allen M. Linden (2010), Tort Law in Canada, Wolters Kluwer, ISBN 9789041133731, http://books.google.ca/books?id=Afq10h3zOA4C&lpg=PA15&dq=law%20in%20%20Canada&pg=PA2#v=onepage&q&f=true
- Black-Branch, Jonathan L (1995), Making sense of the Canadian Charter of Rights and Freedoms, Canadian Education Association ISBN 092031578X
- Borrows, John (2002), Recovering Canada: the resurgence of Indigenous law, University of Toronto Press, ISBN 0802036791, http://books.google.ca/books?id=3c0x55W22qoC&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true
- Casey, Brian; Janet Mills, Arbitration law of Canada: practice and procedure, Juris Pub, ISBN 9781929446681, http://books.google.ca/books?id=7BPDTYb5hWoC&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true
- Greene, Ian (1989),The Charter of Rights, James Lorimer and Company, ISBN 1550281852
- Kronby, Malcolm C (2010), Canadian Family Law (10th ed.), J. Wiley, ISBN 9780470736821, http://books.google.ca/books?id=X3mmgbMJ_SEC&lpg=PP1&dq=Canadian%20law&pg=PP2#v=onepage&q&f=true
- Dahlitz, Julie (2003). Secession and international law: conflict avoidance – regional appraisals. The Hague: T.M.C. Asser Press. ISBN 90-6704-142-4. http://books.google.ca/books?id=nECFiV3slksC&lpg=PP1&dq=Secession%20and%20international%20law%3A%20conflict%20avoidance&pg=PP1#v=onepage&q&f=true.
- Goldman, Calvin S; John D. Bodrug (2002), Competition Law of Canada, Volume 1, Juris Pub, ISBN 426248502, http://books.google.ca/books?id=hqtjVdcc1h8C&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true
- Morton, Frederick Lee (2002). Law, politics, and the judicial process in Canada. University of Calgary Press. ISBN 1552380467. http://books.google.ca/books?id=dj_4_H35nmYC&lpg=PP1&dq=Law%20of%20Canada&pg=PP1#v=onepage&q&f=true.
- McRae, Donald M (2006), The Canadian yearbook of international law, University of British Columbia Press, http://books.google.ca/books?id=QhCuC4I2W3YC&lpg=PP1&dq=Canadian%20law&pg=PP1#v=onepage&q&f=true
- Moon, Richard (2008), Law and religious pluralism in Canada, UBC Press, ISBN 9780774814973, http://books.google.ca/books?id=ah66SQsk4hAC&lpg=PP1&dq=law%20in%20%20Canada&pg=PP1#v=onepage&q&f=true
- McCormick, Peter (2000), Supreme at last: the evolution of the Supreme Court of Canada, J. Lorimer, ISBN 1550286935, http://books.google.ca/books?id=7Ohg2iK7Q90C&lpg=PP1&dq=Supreme%20Court%20of%20Canada&pg=PP1#v=onepage&q&f=true
- Wilkinson, Margaret Ann (2010), Genealogy and the Law in Canada, Ontario Genealogical Society, ISBN 9781554884520, http://books.google.ca/books?id=bNZWyI8fHFAC&lpg=PA1&dq=law%20in%20%20Canada&pg=PA1#v=onepage&q&f=true
External links
| Wikibooks has a book on the topic of Canadian law |
- Consolidated Statutes and Regulations of Canada.
- Canada's Justice System - Department of Justice
- CanLII Canadian Legal Information Institute
- Legal Information
|
|||||||||||||||||
|
||||||||||
Categories: Canadian law
|