Chapter: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1. Introduction to the Legal System Canada is a constitutional monarchy, a federal state and a parliamentary democracy. It is composed of ten provinces: Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan and of three territories: the Northwest Territories, the Yukon and Nunavut (created on 1 April 1999). Canada has two official languages: English and French, and two legal systems: the common law and the civil law, the latter of which is used only in private law in Quebec.
1.1 Structure of Government
As a federation, Canada is composed of a central government (federal) and many regional governments (provincial and territorial). Each federal, provincial and territorial government consists of three main branches: legislative, executive, and judicial. The Canadian Constitution (sections 91 to 95) lists the exclusive and joint powers allocated to both levels of government. The Canadian territories are subject to the legislative power of the federal government.
National - Subnational Relations
The areas of responsibility assigned to the provincial legislatures by the Constitution include: education, property and civil rights, administration of justice, hospital services and health, natural resources on their own territories, social security and municipal institutions. The federal Parliament is responsible for subjects of national importance, such as defence, interprovincial and international trade, the banking and monetary system, criminal law and fisheries. The Constitution also grants the federal government residual authority to legislate regarding matters not explicitly assigned to a particular level of government. Parliament and the provincial assemblies share jurisdiction over agriculture, immigration and certain aspects of natural resources. However, federal law prevails in the event of a conflict. Each level of government has its own taxation system. The disparity of wealth between provinces is compensated for by equalization payments from the federal government to the poorer provinces.
The Canadian Constitution does not address the environment specifically. Legislative powers with respect to environmental matters are shared between the two levels of government according to the specific distribution of their areas of responsibility (see Chapter 3 for a more detailed explanation of this subject.)
The division of legislative powers is complex and has been subject to many judicial interpretations. It has also been the subject of numerous agreements and protocols. Although one level of government cannot transfer any of its powers to another level, it remains possible to delegate administration of a law. The federal government and most provincial governments have intergovernmental relations departments.
1.2 Federal Government
The federal government of Canada is characterized by its three main branches: the legislative branch, the executive branch and the judicial branch.
The legislative branch
The Constitution states that the Parliament of Canada has three components: the head of state, the Senate and the House of Commons. Canada is a constitutional monarchy, and the head of state is Her Majesty the Queen of the United Kingdom. However, all of her powers are delegated to the Governor General of Canada (section 9 of the Constitution). Although the Governor General is considered the head of state, he/she does not use any personal initiative in the exercise of his/her powers, except for certain "reserve powers" or "personal prerogatives" that are, for the most part, no longer exercised. Instead, the role of the Governor General, who is appointed by Her Majesty on the advice of the Prime Minister of Canada for a five year term, is largely ceremonial. The Governor General has power to appoint the members of the Senate and to summon into session the members of the House of Commons. In practice, the role of the Governor General is to act upon the recommendation of the government. The Governor General is also the Commander-in-Chief of the Canadian Armed Forces, although, again, this is a ceremonial position.
The Senate or upper chamber consists of 104 senators, appointed by the Governor General upon advice from the Cabinet. Senators essentially represent Canada's four major regions: the Atlantic provinces, Quebec, Ontario, and the West. They are appointed for life, and may sit in the Senate until the age of 75. With some exceptions, the Senate has the same powers as the House of Commons.
The House of Commons currently consists of 301 Members of Parliament (MPs) elected on the basis of universal adult suffrage. Each MP represents the population of a local constituency. Members usually belong to a recognized political party. The government is formed by the party that has the largest number of seats, and the Governor General then asks the leader of that party to become Prime Minister. Under the Canadian Constitution, a new House of Commons must be elected at least once every five years. However, the Prime Minister can ask the Governor General to dissolve the Parliament at any time, or the Members of the House of Commons can defeat the government by a vote of non-confidence. In either case, the Governor General calls a general election.
The executive branch
The executive branch includes the Prime Minister, Ministers, the Cabinet, the Privy Council, the Governor in Council and the administration.
The Cabinet, under the broad authority of the Prime Minister, holds the real executive power. Once officially appointed by the Governor General, the Prime Minister selects the Ministers who will make up the Cabinet, and advises the Governor General to appoint them. Ministers are usually Members of Parliament belonging to the party in power. The federal Cabinet consists of about thirty Ministers, most of whom have "portfolios" (that is, they are in charge of particular departments and each is responsible, answerable and accountable to the House of Commons for his or her own department. Sometimes, there are also Ministers without portfolio, who are not in charge of any department, or Ministers of State, who may be in charge of a particular section of a department, or of a "ministry," which is not a full-fledged department.
The Privy Council includes all Cabinet Ministers; former Cabinet Ministers are always members, as are the Chief Justice of Canada as well as former Chief Justices and former Speakers of the House of Commons. Various other prominent citizens can be made members simply as a mark of honour. The whole Privy Council as such has never met. The Cabinet is the Council's operating body. The Governor in Council is essentially the Governor General acting on the advice of the Cabinet. The administration consists of public servants assigned to the various departments, and persons attached to the various agencies established by acts of Parliament to implement, enforce and introduce laws. A Minister heads each department of the federal government. The "Deputy Minister" is the senior public servant in each department, the link between the Minister and the bureaucracy. Deputy Ministers are appointed by the Governor General on the recommendation of the Prime Minister.
The judicial branch
In Canada, the rule of law is ensured by the general principle of the independence of the judiciary. The Constitution provides that almost all our courts shall be provincial, that is, created by the provincial legislatures. But it also provides that the judges of almost all of these courts are to be appointed by the federal government. What is more, it provides that judges of the provincial "superior courts" (the Superior Court of Quebec, the supreme courts of the other provinces, and all the provincial courts of appeal) shall be removable only on an address to the Governor General by both Houses of Parliament. The Acts establishing the Supreme Court of Canada and the Federal Court have similar provisions. No judge of any Canadian superior court has ever been removed.
The Supreme Court of Canada was established by an Act of the national Parliament in 1875. It is the court of final appeal for both civil and criminal cases, and its judgments are binding on all other Canadian courts. Since 1949, the Supreme Court has had a bench of nine judges appointed by the Governor General. By law, three of these judges must come from the Quebec Bar and therefore belong to the civil law tradition. The government customarily appoints three judges from Ontario, two from Western Canada and one from the Atlantic provinces. The Federal Court's jurisdiction extends only to federal law matters.
1.3 Subnational Governments
The structure of provincial governments is similar to that of the federal government, with the same fundamental principle of separation of the legislative, executive and judicial branches. Legislative power is vested in the Parliament (Lieutenant Governor and the Legislative Assembly) of each province. The Lieutenant Governors are appointed by the Governor General on the advice of the Prime Minister. The Lieutenant Governor exercises functions at the provincial level similar to those of the Governor General at the federal level. The legislative assembly consists of members elected on the basis of universal suffrage, each representing the population of a local constituency. There is no longer a provincial equivalent to the federal Senate. Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Quebec all had such an upper house at one time. The executive power consists of the Premier, Ministers, the Cabinet or Executive Council, the Lieutenant Governor in Council and the administration. The leader of the political party with a majority of seats in the legislature is named Premier of the province. Ministers are selected by the Premier and appointed by the Lieutenant Governor. The Executive Council, the government's principal decision-making body, consists of the Premier, the Ministers, Ministers of State and junior Ministers with specific responsibilities.
Judicial authority in each province consists of several levels. Each province has a court of appeal, which is a general appeal court, and a superior court, which is a competent court of ordinary law for both civil and criminal matters. This court is called the Supreme Court, Court of Queen's Bench or Superior Court in different provinces. The judges of these two courts are appointed and paid by the federal government. Then comes a series of lower courts with much more specific or specialized functions. There are also administrative tribunals governed by their enabling acts. These statutes specify such matters as the possibility of an appeal from the tribunal's decisions, and the forum in which it will be heard. The judges and members of all these lower courts and tribunals are appointed and paid by the provincial government.
Nunavut, the Yukon and Northwest Territories have governments that are the creation of federal statutes, and lack the independent constitutional status enjoyed by the provinces. The federal Parliament has plenary legislative powers over the three territories, but has delegated extensive powers of self-government to both of them. The Northwest Territories Act and the Yukon Act establish a Territorial Council for each territory and empower the Council to make "ordinances" for subjects corresponding roughly to the subjects under the jurisdiction of the provinces (section 92 of the Constitution). These two Canadian territories have legal systems similar to those of the provinces. These systems were established by the federal government, which has delegated its authority to administer justice to the Territorial Councils. However, the Supreme Courts (superior courts) of British Columbia and Alberta serve as courts of appeal for Yukon and the Northwest Territories respectively.
The Nunavut Act provides for the establishment of a legislature made up of a commissioner and a legislative assembly. The Act grants Nunavut the power to establish its own laws in areas of responsibility that correspond roughly to those that fall under provincial jurisdiction under the Canadian Constitution (section 92). The Act also creates the Nunavut Court of Justice and the Nunavut Court of Appeal, which serve as superior courts.
The provincial legislatures have the authority to create local or municipal governments. These governments have power under provincial legislation to pass bylaws to regulate matters within their boundaries. However, local governments must exercise this power in compliance with the provisions of the enabling provincial act. The sources of most municipal powers are provincial statutes dealing specifically with municipal governments or with planning legislation.
Local governments with law-making power are subordinate to the provincial authority that has delegated its power. The provincial authority can take away, alter, or control the powers transferred at any time. The structure of local governments in Canada is determined by each provincial legislature. For most of Canada, the basic structure includes towns, townships, villages, counties, regional municipalities, and cities which vary greatly in size.
Native Governments / Aboriginal People
The Aboriginal peoples of Canada consist of First Nations (Indians), Inuit (Eskimos) and Métis (descendants of Indians and French settlers and traders). In total they represent a population of approximately 700,000. Indians make up 11 different language groups from the Atlantic to the Pacific, mostly residing below the northern treeline. The Inuit live in the northern regions of the country. Métis people generally live in the Prairie provinces (Alberta, Saskatchewan and Manitoba). The Constitution (section 91(24)) confers upon the federal Parliament the power to make laws in relation to Indians and lands reserved for Indians. It is Canada's legal position that it does not have constitutional authority to legislate for Métis as a distinct group. Regarding the scope of section 91(24), the federal government generally takes the view that it includes the authority to legislate for Indians on matters which would otherwise be outside federal legislative competence and normally within provincial competence. Provincial laws of general application usually apply to Indians and lands reserved for Indians, except where they intrude on a federal statute, interfere with treaty rights, or are inconsistent with band by-laws under the federal Indian Act. The federal Department of Indian and Northern Affairs provides services to registered Indians and coordinates federal policies and programs in the North. Its responsibilities include fulfilling obligations resulting from treaties, the Indian Act, and other legislation.
In 1982, existing aboriginal and treaty rights were given recognition in the Constitution (section 35). Aboriginal rights refer to the survival of certain customs and traditions that have continued to be exercised since the imposition of European sovereignty. Treaty rights generally refer to obligations/responsibilities owed by the federal Parliament to native people in return for the surrender of land rights. In recent years, these rights have been the subject of numerous Supreme Court of Canada decisions.
1.4 Sources and Hierarchy of Law
The Canadian Constitution
The Canadian Constitution is the supreme source of law in Canada. All federal and provincial laws must be consistent with it. Unlike the American Constitution, it is not a single document. The "Constitution of Canada" consists of 25 primary documents, including 14 acts of the British Parliament, seven acts of the Canadian Parliament and four British orders in council. The Constitution Act, 1867, remains the basic element of our written constitution. It created the federation, the provinces, the territories, the national Parliament and the provincial legislatures. It also sets out the powers of each level of government and guarantees Quebec's distinctive civil law.
In 1982, the Constitution Act, 1982, was proclaimed in Canada, thus marking the termination of the British Parliament's power over Canada, which now has four alternative legal procedures for the purpose of amending its Constitution, depending on the scope of the proposed changes. A Canadian Charter of Rights and Freedoms was also entrenched in the Constitution, applicable to all levels of government and all provincial and federal laws. The Charter guarantees a set of civil liberties and fundamental rights that are protected from the actions of Parliament, provincial legislatures, government agencies and officials. The Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (art.1). It is for the courts to determine the exact nature of these limits. The fundamental freedoms, legal guarantees and equality rights proclaimed in the Charter are subject to a "notwithstanding" clause that allows a government to opt out of certain Charter sections for a period of five years at a time, subject to an express statement of its intent in the legislation in question.
Some provinces have also adopted human rights codes applicable to provincial authorities and between individuals. These provincial charters are adopted by statute, subject to repeal or amendment.
In Canada, international treaties are not automatically part of the law of the land, but are usually given effect through the adoption of legislation by the appropriate legislative body. This requires the adoption of new statutes, or amendments of existing statutes, at the federal and/or provincial levels depending on the subject matter.
If Canada's internal law is not in conformity with a binding treaty, Canada may be found in breach of its international obligations. In the event of a clear inconsistency between a statute and an international treaty, the provisions of the Canadian (federal or provincial) statute generally prevail.
Federal / Provincial Laws
Canadians are governed partly by statutes and regulations adopted by each legislative body (Parliament and provincial legislatures), and partly by common law. Governments' intentions can be expressed through documents of different legal effect. Statutes, regulations and orders in council are considered binding law. Guidelines, codes of practice, policies and procedures are usually much less formal and often provide guidance rather than enforceable rules. These documents are used at both federal and provincial levels. Most statutes and regulations are available on the Internet through departments of justice, or from official government publishers.
In all Canadian provinces-though less so in Quebec, which has largely a civil law tradition-case law is an important part of the interpretation of the Constitution, statutes and regulations. Most court decisions can be found in their individual official reports (Supreme Court, Federal Court, provincial courts of appeal, provincial superior courts and provincial courts as well as certain administrative tribunal reports) and in certain commercially published reports. Decisions of the Supreme Court of Canada are binding on all lower courts. Decisions of a provincial court of appeal are binding within the province and will be considered of persuasive value in other provinces. Court decisions from the United Kingdom, other Commonwealth countries and the United States are sometimes referred to by Canadian courts.
Certain basic features of our system of government, including the Prime Minister, the Cabinet, responsible government and political parties are directly founded on custom. Customary rules may also on occasion be used to interpret both the civil and the common law.
1.5 Role of the Legislature in the Law-Making Process
The three entities making up the federal Parliament of Canada - the Governor General, the Senate, and the House of Commons - must give their approval before a written document can become a law. Public bills (proposed statutes) are generally introduced to the House of Commons by one of the federal Ministers after approval by the Cabinet. Individual Members of Parliament (MPs) also have the opportunity to present bills, in the form of a Private Member's Bill. Senators can also present a bill (section 53 of the Constitution) as long as it does not levy any tax or involve spending money. Passage of a federal statute requires three readings in each of the House of Commons and the Senate. The first reading is a formal presentation without debate. Discussions begin only at the second reading, when the principle of the bill is adopted or not. The bill is then sent to a standing committee which studies it, first as a whole, and then section by section. The committee often hears witnesses. Then it reports to the Commons or Senate, sometimes with recommendations for amendments to the bill. In this way, Members of Parliament, Senators and the public can participate in development of legislation. Following the third reading, a vote is taken by the House of Commons or Senate to adopt or reject the bill, as amended. If a bill is passed by the Commons and subsequently amended by the Senate, it must go back to the Commons. Once the final bill has been passed by both houses of Parliament, it requires royal assent by the Governor General. In addition, many statutes specify that they are not in force legally until they have been proclaimed in force by the federal Cabinet. It should be noted that although the Constitution grants the Senate the same powers as the House of Commons, it is accepted that the Senate plays a subordinate role, since its members have not been democratically elected. As a result very few bills are rejected or substantially amended by the Senate.
Provincial statutes are adopted in substantially the same manner as federal ones. However, only the Legislative Assembly of the Province is required to vote, as there is no equivalent to the Senate at the provincial level. Approved provincial legislation must also be given royal assent by the Lieutenant Governor before coming into effect.
1.6 Role of the Executive in the Law-Making Process
In Canada, there is no requirement that legislative and executive powers be exercised by separate and independent bodies. At the federal level, the Cabinet develops government policy and defends it in the House of Commons. It is the government's principal decision-making body, directs the government and defines its positions, implements laws, adopts related regulations and manages the government administration. The Cabinet carries out its functions through federal departments and agencies, boards, commissions and Crown corporations. The Ministers collectively are answerable to the House of Commons for the policy and conduct of the Cabinet as a whole. If a Minister does not agree with a particular policy or action of the Government, he or she must either accept the policy or action and, if necessary, defend it, or resign from the Cabinet. The Cabinet is responsible for most legislation. It has the sole power to prepare and introduce bills providing for the expenditure of public money or imposing taxes. These bills must be introduced first in the House of Commons; however, the House cannot initiate them, or increase either the tax or the expenditure without a royal recommendation in the form of a message from the Governor General. The Senate cannot increase either a tax or an expenditure.
At the provincial level, the Executive Council plays the same role as the Cabinet at the federal level.
1.7 Role of Courts and Tribunals
In all provinces except Quebec, the courts operate on the common law system. Quebec has a civil law tradition originating from France. The duality of the Canadian legal system gives the courts and tribunals a different role depending on the system of law to be applied. The principal characteristic of the common law is the application of previous court decisions (case law) to the facts of the case before the court. By contrast, the application of the civil law in Quebec focuses mostly on the interpretation of codified laws. The Quebec courts can rely only on the existence of statutory provisions (either in the Civil Code or in other statutes) in order to impose a sanction or to penalize conduct or an activity. The criminal law has been codified and is now uniform throughout Canada. General duties to be performed by all Canadian courts and tribunals include the enforcement of the Canadian Charter of Rights and Freedoms, and the interpretation of federal, provincial and territorial legislation. The courts are sometimes called on to express their views on the distribution of powers between the two levels of government.
Supreme Court of Canada
The general court of appeal for Canada is the Supreme Court of Canada. Most cases come to the Supreme Court on appeal from the provincial courts of appeal and the Federal Court of Appeal. Usually, the Court must give its permission (called "granting leave to appeal") before an appeal can be brought, although there are exceptions to this rule, primarily for certain criminal cases. The Court grants leave in cases which raise a legal issue of public importance. The Government of Canada may refer questions for decision directly to the Supreme Court, bypassing the usual appeals process. The government occasionally exercises this reference power for questions relating to the interpretation of the Constitution or the validity of a federal law. All provinces have the power to refer questions to their provincial court of appeal, and the decision on a provincial reference can be appealed to the Supreme Court of Canada.
The power of the Federal Court of Canada is limited to certain matters arising under federal jurisdiction, such as tax and revenue, copyrights, trade marks, patents, admiralty, and citizenship. The Court also has the power to review the decisions of federal agencies and officials, and to entertain claims for relief in respect of, for example, aeronautics, interprovincial undertakings, and certain kinds of commercial papers.
The highest court in the provincial system is the provincial court of appeal. Its role is to hear appeals from the decisions of the lower courts in both civil and criminal cases, where the law so permits.
The second level of judicial authority, often called the superior court, is a court of ordinary law which hears all cases not falling within the express jurisdiction of any other court or body. This court also often exercises a power of supervision and review over all provincial courts and bodies, with the exception of the court of appeal.
At the base of the judicial hierarchy are the so-called "lower" courts, normally referred to as the provincial court per se, which is in fact a group of somewhat specialized courts with very specific mandates. They include courts dealing with minor criminal offences, some aspects of family law, small claims, municipal cases, youth matters, etc.
Administrative tribunals are decision-making bodies established by statute. They function somewhat like courts, but focus on specialized areas such as environmental appeals, labour relations, public utilities, and tenancy disputes. In the past thirty years there has been a significant growth in the number of administrative tribunals in Canada. Decisions of administrative tribunals are subject to review by superior courts or the Federal Court.
1.A Legal Instruments
Canada Act, 1982, c.11 (U.K.).
Constitution Act, 1982, R.S.C. 1985, Appendix II, No. 44.
Criminal Code, R.S.C. 1985, c. C-46.
Indian Act, R.S.C. 1985, c. I-5.
Northwest Territories Act, R.S.C. 1985, c. N-22.
Nunavut Act, S.C. 1993, c. 28.
Territorial Lands Act, R.S.C. 1985, c. T-7.
Yukon Act, R.S.C. 1985, c. Y-2.
|Last update: September 2003|