Canadian Legal System: An Overview

Posted on Oct 23, 2024 in Law & Jurisprudence

Introduction to Law

What is Law?

Law is a set of rules generally obeyed and enforced within a politically organized society (Stephenson & Shears).

  • Cicero: Laws ensure citizen safety, state preservation, and societal happiness.
  • Blackstone: A law must conform to divine law.
  • Coke: Law is the perfection of reason.

Rule of Law

The Rule of Law ensures everyone is treated equally under the law, and power should not be used arbitrarily. It originated from the Magna Carta (1215).

Enforceability

Laws are created by government processes and enforced by state-sanctioned bodies like police and courts.

  • Corrective Justice: Focuses on moral responsibility (e.g., torts).
  • Retributive Justice: Emphasizes proportional punishment (e.g., criminal law).
  • Distributive Justice: Ensures fair distribution of societal resources (e.g., tax law).
  • Restorative Justice: Focuses on restoring community harmony (e.g., alternative dispute resolution).

Law vs. Morality

Law

  • Objective, applies equally regardless of personal beliefs.
  • Created and enforced through a formal process.

Morality

  • Subjective, based on individual beliefs, community norms, and upbringing.
  • Not legally enforceable but guides behavior towards a societal standard of “good”.

Canadian Legal System

Law-Making Bodies

  • Federal Government: Creates laws that apply across Canada.
  • Provincial Governments: Handle regional laws.
  • Municipalities, territories, and First Nations also have certain law-making powers.

Courts

Courts can make laws, but parliament has the power to override judge-made laws (parliamentary sovereignty).

Principles of Rule of Law

  1. Supremacy of law over arbitrary power.
  2. Equality before the law.
  3. Protection of personal rights through access to courts.
  4. Independence of the judiciary.
  5. Accessible courts.
  6. Affordable legal services.

Canada’s Constitution

What is a Constitution?

  • The supreme law of the land.
  • Establishes government structure, powers, and limitations.
  • Ensures the “rule of law”, meaning no one is above the law.

British North America Act (1867)

  • Canada’s first constitution, passed by the British Parliament.
  • Established “federalism”: division of powers between “federal” and “provincial” governments (s. 91 for federal powers, s. 92 for provincial powers).

Federal Powers (s. 91)

Laws applied “across Canada”, such as “criminal law”, “immigration”, and “Indian Act” (Indigenous relations).

Indian Act
  • Federal legislation controlling First Nations’ lands and status.
  • Historically used for assimilation, but now provides some benefits like tax exemptions.

Provincial Powers (s. 92)

Powers include “municipal institutions”, property, and civil rights (e.g., family law, human rights).

Problems with the BNA Act

  • Lacked human rights provisions, consultation with Indigenous people, and a clear amending formula.

Constitution Act (1982)

  • Patriated from the UK by Pierre Trudeau to allow Canadian amendments.
  • Introduced the Charter of Rights and Freedoms, rights of Indigenous peoples, and amending procedures.

Charter of Rights and Freedoms

  • Applies to government actions and law, not private citizens.
  • Limits on Rights (s. 1): Allows reasonable limits for public safety (e.g., hate speech laws).
  • Notwithstanding Clause (s. 33): Allows governments to override certain rights for up to five years.
Charter Remedies (s. 24)

Courts can provide appropriate and just remedies (e.g., exclusion of evidence).

Rights of Indigenous Peoples (s. 35)

  • Recognizes and affirms existing Aboriginal and treaty rights.
  • Protects rights of First Nations, Inuit, and Métis peoples.

Supreme Court of Canada

  • Final appellate court since 1949.
  • Key role in interpreting the Charter and s. 35 (Indigenous rights).

How Elections Work

  • Canada is divided into ridings (electoral districts).
  • Candidates from political parties compete to represent each riding.
  • The candidate with the most votes wins and becomes an MP (federal) or MPP (provincial).
  • The party with the most elected members forms the government, and their leader becomes the Prime Minister (federal) or Premier (provincial).

Majority vs. Minority Governments

  • Majority government: Ruling party has over 50% of the seats.
  • Minority government: Ruling party has fewer than 50% of the seats but more than any other party.

Legislative Branch

  • Federal level: Bicameral system (House of Commons and Senate).
  • Provincial level: Unicameral system (Legislative Assembly).
  • Legislatures pass laws (statutes) as per powers in the Constitution Act 1867 (s. 91 for federal, s. 92 for provincial).
  • Some powers overlap between federal and provincial governments (e.g., driving laws).

How Laws Are Made

  • Bills are proposed laws discussed and voted on by parliament/legislature.
  • Members of the ruling party must vote in favor of government bills or risk expulsion from the party.

How Bills Become Laws

All members have a chance to give input (first reading), debate the idea, discuss and hear witnesses. Bills go through six readings (federal) or three readings (provincial).

Executive Branch

  • Comprises the Prime Minister (federal) or Premier (provincial) and their cabinet ministers.
  • Ministers are responsible for specific government portfolios (e.g., Minister of Finance).
  • Cabinet ministers are both members of the legislature and the executive.

Judicial Branch

  • Independent from the legislative and executive branches.
  • Role: Interprets laws, resolves disputes, and determines if laws comply with the Charter.
  • Court system is hierarchical, starting with lower courts and leading to the Supreme Court of Canada.

Substantive vs. Procedural Law

  • Substantive law: Defines rights and obligations (e.g., criminal law).
  • Procedural law: Details how to enforce those rights (e.g., court processes).

Indigenous Peoples & the Canadian Legal System

Conquest, Settlement, Cession

Historical methods of acquiring land; Canada was colonized through treaties (cession) rather than conquest or settling empty land.

Doctrine of Discovery

European colonial powers believed they could claim sovereignty over lands despite Indigenous presence, viewing Indigenous nations as unequal.

Royal Proclamation of 1763

  • Recognized Indigenous rights to their land, requiring land cession to the British Crown before settlement.
  • Served as a foundation for treaties between British and Indigenous peoples.

Treaties and Perspectives

Historic Treaties

Negotiated from the 1760s-1923, allowing European settlement westward in exchange for Indigenous rights to small parcels of land (reserves) and promises like education and payments.

Indigenous Perspective

Treaties were meant to establish alliances rather than surrendering sovereignty.

Modern Treaties

Began post-1973 following the Calder decision, recognizing Aboriginal title to lands not ceded to the Crown. Over 25 modern treaties have been signed, including self-governance (e.g., Nunavut).

Wampum Belts

Used to record treaties, like the Two Row Wampum, symbolizing peace, friendship, and non-interference between Indigenous peoples and Europeans.

  • Covenant Chain Wampum: Symbolized alliance between First Nations and British representatives.

Canada’s Bijural System

Bijuralism

Canada uses two legal systems—common law in most provinces and civil law in Quebec (civil law for private disputes and common law for public matters).

Quebec Act of 1774

Allowed French settlers in Quebec to use French civil law, maintain their Catholic faith, and live under British rule after the defeat of the French in 1763.

Common Law System

  • Sources: Relies on legislation and case law. Judges follow precedents set by higher courts (stare decisis).
  • Adversarial System: Truth is best determined when opposing parties present their cases, with judges acting as neutral arbiters.

Stare Decisis

Ensures consistency in law, requiring lower courts to follow decisions of higher courts on similar cases.

Civil Law System (in Quebec)

  • Sources: Focuses on a comprehensive legal code as the primary source. Case law is secondary, with no obligation to follow precedents.
  • Inquisitorial System: Judges take an active role in seeking evidence and questioning witnesses to uncover the truth.

Public vs. Private Law

  • Public Law: Governs relationships between individuals and the state (e.g., criminal, immigration, constitutional law).
  • Private Law: Deals with relationships between private individuals (e.g., contracts, family law, torts).

Recognition of Indigenous Legal Systems

  • Indigenous legal systems are increasingly acknowledged and integrated into the Canadian legal framework through modern treaties.
  • Understanding the common law system’s colonial origins is crucial for members of the legal profession.