From Wikipedia, the free encyclopedia

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 of private law. Both legal systems are subject to the Constitution of Canada, from which all laws formally derive their power.

Contents 1 Constitution of Canada 2 Legal traditions 2.1 Common law 2.2 Quebec's civil law system 3 Areas of law 3.1 Criminal law 3.2 Civil law 3.3 Procedural law 4 Courts in Canada 5 See also 6 External links

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Constitution of Canada

See also: 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. The core parts are found in the Constitution Act, 1867 (formerly the British North America Act), which outlines the system of government, and the Constitution Act, 1982, which includes the Charter of Rights and Freedoms.

Legal traditions

Common law

All provinces and territories within Canada, excluding Quebec, follow the common law legal tradition. Equally, courts have power under the provincial Judicature Acts to apply equity.

As with all common law countries, English-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, are often looked to for guidance on many local matters of law outside the province, especially in matters such as evidence and criminal 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, English court decisions, especially those of England's Court of Appeal and the House of Lords, are almost always used. The exception comes for questions involving certain legal fields such as constitutional law and privacy law where United States court decisions are more favoured because historic American judges were the legal pioneers of these specialized areas where England's judiciary had made little or no comment. Decisions from other Commonwealth nations are also treated as persuasive sources of law, as well as decisions from the United States.

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's civil law system

For historical reasons, Quebec has a hybrid legal system. Private law follows the civil law tradition, originally expressed in the Coutume de Paris as it applied in what was then New France. Today, the jus commune of Quebec is codified in the Civil Code of Quebec. As for public law, it was made that of the conquering British nation after the fall 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 the Constitution 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 the Divorce Act, is to be interpreted following the civil law tradition and in harmony with the Civil Code of Quebec. Because of Quebec's unique legal system, lawyers trained in either common law or civil law may not practice in Quebec without undergoing futhur training in one or the other legal system.

Areas of law

Criminal law

See also: Criminal law in Canada

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 provinces and weak American states; this means that Canada has one Criminal Code that is applicable throughout the country. The provinces separately promulgate "quasi-criminal" or regulatory 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 via provincial and municipal police forces.

Prior to the enactment of the Canadian 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 in contractual matters, tort disputes, and property law cases, 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.

Courts in Canada

See also: Court system of 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.

Criminal trial courts (often called "superior" courts) and apellate courts are referred to as "Section 96" courts, in reference to the Constitution Act, 1867, s. 96, which grants the federal government the power to appoint the judges of these courts. By contrast, judges in courts that only exercise the jurisdiction of the province (sometimes called "inferior" courts and often called "provincial" courts) are appointed by the province. Typically, appeals from provincial courts go to the superior court of the province. Further appeals would go to the appeal court, and then in limited circumstances on to the Supreme Court of Canada. Each province has an appellate court, as does each territory. While the judges in Section 96 courts are appointed through a federal process, the courts are administered (and paid for) by the provinces.

The Federal Court of Canada and Federal Court of Appeal, unlike other superior courts, are creatures of statute and have jurisdiction over a small number of issues that fall under the federal constitutional scope (for example, immigration, admiralty (maritime law), patents and copyright). Notably, the bulk of the Federal Court and Federal Court of Appeal's work involves judicial review of federal tribunals, boards, and commissions. In some cases, the Federal Courts' jurisdiction is made exclusive by statute. In other areas, the superior courts may exercise concurrent jurisdiction over the underlying subject matter, and proceeding in either court may provide certain advantages to a party.

 

Canadian constitutional law

From Wikipedia, the free encyclopedia

Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the Courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.

Contents 1 Reviewable matters 2 Valid parties 3 Judicial review of legislative competence 4 Principles of interpretation 5 Notes 6 External links

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Reviewable matters

Under the authority of section 52(1) of the Constitution Act, 1982 Courts may review all matters of law. Accordingly, the courts have a broad reaching scope of competence. Constitutional issues come before the court through disputes between parties as well as through reference questions. The Court has the discretion to hear any Constitutional issues as long as there is a sufficient legal component.^[1] The US constitutional political questions doctrine was rejected and so a political dimension to the issue does not bar it from Court.^[2]

Courts must be careful when considering reference questions. They are required to be careful to only answer questions that are not speculative, of a purely political nature, or unripe.^[3] When answering the questions the Court must retain its proper role within the constitutional framework.^[4]

Valid parties

A party must have standing (locus standi) bring a constitutional challenge to the Courts. Those who wish to challenge a law can do so in one of several ways. A party who is directly affected by the law that proports to be unconstitional has standing as of right. Likewise, rights holder may challenge any law that will limit any of their rights. Those who are not protected by a right but are nonetheless prosecuted by that law may challenge it as well.^[5]

Public interest groups may also gain standing if they satisfy the requirements of the Borowski test.^[6] The group must demonstrate that the law raises a serious constitutional issue, the group has a genuine interest in the matter, and that there is no other reasonable and effective manner in which the issue may be brought before the Court.

Judicial review of legislative competence

There are three approaches to a challenging a law on the division of powers.^[7] A law may be challenged on its validity, applicability, or operability.

The validity of a law may be challenged where the core subject matter of the law is outside the legislative competence of the government. The analysis begins by determining the pith and substance of the law. This requires examining the purpose of the law as well as the legal and practical effects of the law. The matter identified is then assigned to the most appropriate legislative powers that are enumerated in sections 91 to 195 of the Constitution Act, 1867.

The applicability of a law may be challenged where a valid law will, in certain circumstances, affect a subject matter that is allocated to the other "head of power". In this case the law can be held to be inapplicable to the matters outside of the government's competence through the doctrine of inter-jurisdictional immunity.

The operability of a law may be challenged where the provincial and federal governments have concurrent jurisdiction over certain matters of law and have each enacted legislation that may interfere with one another. If it can be shown that the laws are functionally inoperative then the provincial law will be held to be inoperative under the paramountcy doctrine.

Principles of interpretation

In Reference re Secession of Quebec, the Supreme Court characterized four fundamental and organizing principles of the Constitution (though not exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities.