Law of Canada

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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 within provincial jurisdiction. 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.

Contents

1 Constitution of Canada
2 Courts in Canada
3 Legal traditions

3.1 Common law
3.2 Quebec civil system

4 Criminal law
5 Civil law
6 Procedural law
7 See also
8 External links

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 exclusive jurisdiction over a small number of issues that fall under Federal constitutional authority (immigration, patents, martitime law).

Legal traditions

Common law

As with all common law countries, 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.

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 civil system

Section 94 of the Constitution has allowed for the province of Quebec to preserve its civil system in matters within the provincial jurisdiction through the Civil Code of Quebec. The court system, being a federal matter, however, is still founded on the common law.

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 provices 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.

External links

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