Where our legal system comes from

Did you know?

Canada's legal system is based on the English and French systems. Explorers and colonists brought these systems to Canada in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which follows civil law.

Canada's legal system is based on a combination of common law and civil law.

The common-law tradition

The common law is law that is not written down as legislation. Common law evolved into a system of rules based on precedent. This is a rule that guides judges in making later decisions in similar cases. The common law cannot be found in any code or body of legislation, but only in past decisions. At the same time, it is flexible. It adapts to changing circumstances because judges can announce new legal doctrines or change old ones.

The civil-law tradition

Civil codes contain a comprehensive statement of rules. Many are framed as broad, general principles to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisions to see if they're consistent.

Quebec is the only province with a civil code, which is based on the French Code Napoléon (Napoleonic Code). The rest of Canada uses the common law. The Criminal Code is also considered a code, and it is used throughout Canada.

The two meanings of civil law 

The term “civil law” is used to mean two quite different things, which can be a little confusing at first for people trying to understand the justice system. Sometimes the term is used in contrast to “common law” to refer to the legal system that is based on a civil code, such as the Justinian Code or the Civil Code of Quebec. In its other sense, civil law refers to matters of private law as opposed to public law, and particularly criminal law, which is concerned with harm to society at large. It is usually clear from the context which type of civil law is intended.

Aboriginal and treaty rights

Aboriginal rights refer to Aboriginal peoples' historical occupancy and use of the land. Treaty rights are rights set out in treaties entered into by the Crown and a particular group of Aboriginal people. The Constitution recognizes and protects Aboriginal rights and treaty rights.

How Parliament makes laws

Democratic countries have a legislature or parliament, with the power to make new laws or change old ones. Canada is a federation – a union of several provinces and territories with a central government. So it has both a federal parliament in Ottawa to make laws for all of Canada and a legislature in each of the ten provinces and three territories that deals with laws in their areas. Laws enacted at either level are called statutes, legislation, or acts. When Parliament or a provincial or territorial legislature passes a statute, it takes the place of common law or precedents dealing with the same subject.

Making laws this way can be complicated. Let's use an example to explain how it works. Suppose the federal government wanted to create a law that would help control pollution.

  1. Government ministers or senior public servants examine the problem carefully and suggest ways in which, under federal jurisdiction, a law could deal with pollution.
  2. They would draft the proposed law.
  3. The law has to be approved by the cabinet, which is traditionally made up of members of Parliament chosen by the prime minister.
  4. This version is then presented to Parliament as a bill to be studied and debated by members.
  5. The bill becomes law if it is approved by a majority in both the House of Commons and the Senate. It also needs to be assented to by the Governor General in the name of the Queen. All laws need royal assent.

Every province uses a similar process. The Lieutenant Governor of each province gives royal assent for laws passed by provincial legislatures.

Judges develop common law by referring to and setting precedents. They also interpret and apply statutes.

What are regulations?

Because our society is so complex, more laws are being enacted today than ever before. If our lawmakers had to deal with all the details of all the laws, the task would be nearly impossible. To solve this problem, Parliament and provincial and territorial legislatures often pass laws to give departments or other government organizations the authority to make specific laws called regulations. Regulations carry out the purposes of the general laws or expand on them. They have the force of a law. For example, there are regulations that keep our food safe or outline what kind of storage tank to use for oil products.

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