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Thelegal system ofCanada ispluralist: its foundations lie in the Englishcommon law system (inherited from its period as a colony of theBritish Empire), theFrench civil law system (inherited from itsFrench Empire past),[1][2] andIndigenous law systems[3] developed by the variousIndigenous Nations.[4][5]
TheConstitution of Canada is the supreme law of the country, and consists of written text and unwritten conventions.[6] TheConstitution Act, 1867 (known as theBritish North America Act prior to 1982), affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments.[7] TheStatute of Westminster 1931 granted full autonomy, and theConstitution Act, 1982 ended all legislative ties to Britain, as well as adding a constitutional amending formula and theCanadian Charter of Rights and Freedoms.[8] TheCharter guarantees basic rights and freedoms that usually cannot be over-ridden by any government—though anotwithstanding clause allows Parliament and the provincial legislatures to override certain sections of theCharter for a period of five years.[9]
Canada's judiciary plays an important role in interpreting laws and has the power to strike down Acts of Parliament that violate the constitution. TheSupreme Court of Canada is the highest court and final arbiter and has been led since December 18, 2017, byRichard Wagner, theChief Justice of Canada.[10] Its nine members are appointed by thegovernor general on the advice of theprime minister andminister of justice. All judges at the superior and appellate levels are appointed after consultation with non-governmental legal bodies. The federal Cabinet also appoints justices to superiorcourts in the provincial and territorial jurisdictions.[11]Common law prevails everywhere except inQuebec, wherecivil law predominates.[12]Criminal law is solely a federal responsibility and is uniform throughout Canada.[13] Law enforcement, including criminal courts, is officially a provincial responsibility, conducted by provincial and municipal police forces.[14] However, in most rural areas and some urban areas, policing responsibilities are contracted to the federalRoyal Canadian Mounted Police.[15]
Canadian Aboriginal law provides certainconstitutionally recognized rights to land and traditional practices for Indigenous groups in Canada.[16] Various treaties and case laws were established to mediate relations between Europeans and many Indigenous peoples.[17] These treaties are agreements between the CanadianCrown-in-Council with theduty to consult and accommodate.[18]Indigenous law in Canada refers to the legal traditions, customs, and practices of Indigenous Nations and communities.[19][20]
Pursuant to section 52 of theConstitution Act, 1982, 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.[21][22]
TheConstitution 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 theConstitution Act, 1867), and any amendment to any of those Acts.[23] However, theSupreme Court of Canada has found that this list is not intended to be exhaustive, and in 1998'sReference re Secession of Quebec identified four "supporting principles and rules" that are included as unwritten elements of the constitution:federalism,democracy,constitutionalism and therule of law, andrespect for minorities.[24] 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".[25]
Because theConstitution Act, 1867 provides that Canada's constitution is "similar in Principle tothat of the United Kingdom",[26] which is considered to be anuncodified constitution, the Supreme Court has also recognized the existence ofconstitutional conventions. In 1981'sReference 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.[27]
TheConstitution Act, 1867 assigns powers to the provincial and federal governments. Matters under federal jurisdiction includecriminal law, trade and commerce, banking, and immigration.[28] The federal government also has theresidual power to make laws necessary for Canada's "peace, order and good government".[29] One of the major areas of provincial jurisdiction isproperty and civil rights, 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).[28][30]
TheConstitution Act, 1867 also provides that, while provinces establish their ownsuperior courts, the federal government appoints their judges.[31] 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.[32] This last power resulted in the federal Parliament's creation of the Supreme Court of Canada.[33]
TheConstitution 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 theParliament of the United Kingdom.[34] It also contains theCharter of Rights and Freedoms, which grants individual rights that may not be contravened by any provincial or federal law.[35]
Acts passed by theParliament of Canada and by provincial legislatures are the primary sources of law in Canada. Sections 91 and 94A of theConstitution Act, 1867 set out the subject matters for exclusive federal jurisdiction. Sections 92, 92A, and 94 set out the areas of exclusive provincial legislation. Section 95 sets out areas of concurrent federal and provincial jurisdiction.[36]
Laws passed by the federal Parliament are initially published in theCanada Gazette, a federal government newspaper published regularly and which includes new statutes and regulations.[37][38] Federal statutes are subsequently published in the annual Statutes of Canada. From time to time, the federal government will prepare a consolidation of federal statutes, known as theRevised Statutes of Canada.[39] 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 theParliament of Canada. 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, and Revised Statutes of Quebec are the statutory consolidations of each Canadian province. They contain all of the major topic areas and most of thestatutes enacted by the governments in each province. These statutes in these provinces do not includecriminal law, as the criminal law in Canada is an exclusive jurisdiction of the federal Parliament, which has enacted theCriminal Code, which is included in the Revised Statutes of Canada.
Nine of the provinces, other than Quebec, and the federal territories, follow thecommon law legal tradition.[40] While the federal territories use common law, Indigenous nations and their associated territories do not (see below). Equally, courts have power under the provincialJudicature Acts to applyequity.
As with all common law countries, Canadian law adheres to the doctrine ofstare decisis.[41] 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.[42]
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.[43] The busier courts, such as theCourt 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 asevidence andcriminal 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.[44] In light of the long-standing history between English law and Canadian law, theEnglish Court of Appeal and the House of Lords are often cited as and considered persuasive authority, and are often followed.[44]
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 theUnited Kingdom, decisions of theHouse 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 thePrivy Council before the abolishment of appeals to that entity in 1949.[45] 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.[45]
Criminal offences are found only within theCriminal Code and other federal statutes; an exception is that contempt of court is the only remaining common law offence in Canada.[46]
For historical reasons,Quebec has a hybrid legal system.Private law follows thecivil law tradition, originally expressed in theCoutume de Paris as it applied in what was thenNew France.[47] Today, thejus commune of Quebec is codified in theCivil Code of Quebec. As forpublic law, it was made that of the conquering British nation after thefall 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 theConstitution 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 theDivorce Act, is to be interpreted following the civil law tradition and in harmony with the Civil Code of Quebec.
Canada was founded on the originalterritories of over 900 differentIndigenous groups, each using different Indigenous legal traditions.Cree,Blackfoot,Mi'kmaq and numerous otherFirst Nations;Inuit; andMétis 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.[48] 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 manylegal 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,[49]petroglyphs,pictographs,wiigwaasabakoon and more.Inuit Nunangat's governance[50] differs quite markedly from its many-nationed neighbourDenendeh, as Denendeh's diverse Dene Laws[51] differ quite markedly from laws governingLingít Aaní,[52][53]Gitx̱san Lax̱yip[54] orWet'suwet'en Yin'tah;[55] and, as those differ fromHaudenosaunee's,[56]Eeyou-Istchee's orMi'kma'ki's. One thing most Indigenous legal and governance traditions have in common is their use ofclans such as Anishinaabek'sdoodeman (though most are matrilineal like Gitx̱san's Wilps).[57]
Aboriginal law is the area of law related to the Canadian Government's relationship with itsIndigenous peoples (First Nations,Métis andInuit). Section 91(24) of theConstitution Act, 1867 gives the federal parliament exclusive power to legislate in matters related to Aboriginals, which includes groups governed by theIndian Act, differentNumbered Treaties and outside of those Acts.[58]
Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies.[59]
Individual provinces have codified some principles of contract law in aSale 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 ownlaw of obligations.[60]
Constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the Courts.[61] This is represented in theConstitution Act, 1867,Constitution Act, 1982 andCanadian Charter of Rights and Freedoms.
Copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada.[62]
Criminal law in Canada falls under the exclusive legislative jurisdiction of the federal government. The power to enact criminal law is derived fromsection 91(27) of theConstitution Act, 1867.[63] Most criminal laws have been codified in theCriminal Code, as well as theControlled Drugs and Substances Act,Youth Criminal Justice Act, 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.[64] 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.[65]
TheCanada Evidence Act is an Act of theParliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law.[66] Each province also has its own evidence statute, governing the law of evidence in civil proceedings in the province.
Family law in Canada concerns the body of Canadian law dealing withfamily relationship,marriage, anddivorce.[67] 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 are constitutionally protected by theCanadian Charter of Rights and Freedoms, 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. TheCanadian Human Rights Act 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.[68]
Canadian immigration and refugee law concerns the area of law related to theadmission of foreign nationals into Canada, their rights and responsibilities once admitted, and the conditions of their removal.[69] The primary law on these matters is in theImmigration and Refugee Protection Act.
Inheritance law in Canada is constitutionally aprovincial matter. Therefore, the laws governing inheritance in Canada are legislated by each individual province.
The Parliament of Canada has exclusive jurisdiction to regulate matters relating to bankruptcy and insolvency, by virtue of s.91 of theConstitution Act, 1867. It has passed some statutes as a result, i.e., TheBankruptcy and Insolvency Act ("BIA") and theWinding-Up and Restructuring Act (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.[70] Provincial legislation under the property and civil rights power of theConstitution Act, 1867 regulates the resolution of financial difficulties that occur before the onset of insolvency.
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.[71] 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.
Canadian patent law is the legal system regulating the granting ofpatents forinventions within Canada, and the enforcement of these rights in Canada.[72]
The functioning of the Courts is regulated by the laws ofcivil procedure which are codified in each province's civil procedures rules.
Property law in Canada is the body of law concerning the rights of individuals over land, objects, and expression within Canada. It encompassespersonal property,real property, andintellectual property.[73]
Tort law in Canada concerns the treatment of the law oftorts within the Canadian jurisdiction excluding Quebec, which is covered by thelaw of obligations.[74]
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.[75]
Under theConstitution Act, 1867, the federal Parliament and the provincial legislatures both have the constitutional authority to create courts: Parliament under s. 101, and the Provinces unders. 92(14).[76] 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.
ThroughSection 35 of theConstitution Act, 1982, Indigenous nations retain significant rights andtitle. It, however, remains unclear the degree to which Indigenous nations have authority over judicial matters.[77] Especially since 1995, theGovernment of Canada has maintained a policy of recognizing the inherent right ofself-governance under section 35.[78] The evolution through cases such asDelgamuukw-Gisday'wa and theTsilhqot'in Nation v British Columbia has affirmed the Euro-Canadian courts' needs to meaningfully engage withIndigenous legal systems, including through Indigenous structures ofdispute resolution.[79]
TheSupreme Court of Canada (French:Cour suprême du Canada) is thehighest court of Canada and is the final court of appeal in theCanadian justice system. Parliament created it by Act of Parliament in 1875, as a "general court of appeal for Canada".[80] Prior to 1949, cases could be appealed to theJudicial Committee of the Privy Council in theUnited Kingdom, and some cases bypassed the Supreme Court of Canada entirely.[80]
Other than the Supreme Court, the Canadian court system is divided into two classes of courts:[81]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 theConstitution Act, 1867, which grants the federal government the power to appoint the judges of these courts.[31] 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 theCriminal Code, a federal statute, they have jurisdiction over the most serious criminal offences, such as murder.[82] 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.[83]
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 theCriminal 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.[84]
There are also additional federal courts established by Parliament, which have a specialised jurisdiction in certain areas of federal law. These courts are theFederal Court of Appeal, theFederal Court, theTax Court of Canada, and theCourt Martial Appeal Court of Canada.
As has already been noted, numerous indigenous legal traditions continue to function in Canada in a systematically important way. Canada would better be described as multi-juridicial or legally pluralistic.
In Canada, Indigenous legal traditions are separate from but interact with common law and civil law to produce a variety of rights and obligations for Indigenous people....Many Indigenous societies in Canada possess legal traditions. These traditions have indeterminate status in the eyes of many Canadian institutions.
Indigenous law exists as a source of law apart from the common and civil legal traditions in Canada. Importantly, Indigenous laws also exist apart from Aboriginal law, though these sources of law are interconnected. Aboriginal law is a body of law, made by the courts and legislatures, that largely deals with the unique constitutional rights of Aboriginal peoples and the relationship between Aboriginal peoples and the Crown. Aboriginal law is largely found in colonial instruments (such as the Royal Proclamation of 1763, the Constitution Acts of 1867 and 1982 and the Indian Act) and court decisions, but also includes sources of Indigenous law. "Indigenous law consists of legal orders which are rooted in Indigenous societies themselves. It arises from communities and First Nation groups across the country, such as Nuu Chah Nulth, Haida, Coast Salish, Tsimshian, Heiltsuk, and may include relationships to the land, the spirit world, creation stories, customs, processes of deliberation and persuasion, codes of conduct, rules, teachings and axioms for living and governing.
A Tlingit history as recounted by Jackie Williams, Wolf Clan Leader, Taku River Tlingit First Nation
The Government of Canada recognizes theinherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that theinherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.
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