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 systems are subject to the Constitution of Canada from which all laws formally derive their power. For example, Quebec has its own law of contract, but the criminal law is the same across Canada.
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. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens.
Courts in 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.
Some Courts are referred to as superior courts or Section 96 Courts in reference to the Constitution Act, 1867, s. 96, which gives the Federal government the power to appoints these judges. By contrast, inferior courts are appointed by the province and are sometimes called provincial court.
While the judges in Superior courts are appointed through a federal process, the courts are administered (and paid for) by the provinces. Each province has an appellate court, as does each territory. The federal court system, unlike other Courts, is a creation of statute and has jurisdiction over a small number of issues that fall under Federal constitutional authority (immigration, patents, martitime law). In some areas the Federal Court's jurisdiction is made exclusive by statute. In other areas, the Superior courts may exercise concurrent jurisdiction over the underlying subject matter, but proceeding in the Federal courts offers significant procedural advatages.
Legal traditions
Common law
As with all common law countries, English-Canadian law follows the system of stare decisis. All courts must follow the decisions of the more senior courts. The inferior and superior courts of the provinces are not bound by the courts of any other provinces. However, their decisions are treated as a persuasive source of law and are often followed as if binding; 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, is often looked to for guidance on many local matters of law for many other provinces, 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, English court decisions, especially those of England's Court of Appeal and the House of Lords, are almost always used. The exception comes for questions involving certain legal fields such as constitutional law and privacy law where United States court decisions are more favoured because historic American judges were the legal pioneers of these specialized areas where England's judiciary had made little or no comment.
Due to Canada’s historical connection with the United Kingdom, decisions of the House of Lords prior to 1867 are still binding upon Canada unless they have been overturned by the Supreme Court of Canada. Equally, Canada is still bound by the decisions of the Privy Council prior to the abolishment of appeals in 1949. Nonetheless, decisions from both of these bodies, even after sovereignty, are still held in high esteem and are considered very persuasive by the courts.
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 futhur training in one or the other legal system.
Criminal law
The enactment of criminal law is under the exclusive jurisdiction of the federal government (a situation which contrasts to that in the United States, and which is a notable reversal of the usual pattern of strong Canadian provinces and weak American states), which means Canada has one Criminal Code that is applicable throughout Canada. The provinces separately promulgate "quasi-criminal" offences in a variety of administrative and other areas. The administration of justice and penal matters are under the jurisdiction of the provinces, so each province administers most of the criminal and penal law through provincial and municipal police forces.
Prior to the enactment of the 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
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 contractual matters, tort, and property law, among others.
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.
See also
- Legal systems of the world
- Legal education in Canada
- Statutes of Canada
- List of Acts of Parliament of Canada
- Canadian law Wikiproject
