The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous law systems developed by the various Indigenous Nations.
The Constitution of Canada is the supreme law of the country, and consists of written text and unwritten conventions. The Constitution Act, 1867 (known as the British North America Act prior to 1982), affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. The Statute of Westminster 1931 granted full autonomy, and the Constitution Act, 1982 ended all legislative ties to Britain, as well as adding a constitutional amending formula and the Canadian Charter of Rights and Freedoms. The Charter guarantees basic rights and freedoms that usually cannot be over-ridden by any government—though a notwithstanding clause allows Parliament and the provincial legislatures to override certain sections of the Charter for a period of five years.
Canada's judiciary plays an important role in interpreting laws and has the power to strike down Acts of Parliament that violate the constitution. The Supreme Court of Canada is the highest court and final arbiterAn Act to Amend the Supreme Court Act, SC 1949, c 37. and has been led since December 18, 2017 by Richard Wagner, the Chief Justice of Canada. Its nine members are appointed by the governor general on the advice of the prime minister and minister of justice. All judges at the superior and appellate levels are appointed after consultation with non-governmental legal bodies. The federal Cabinet also appoints justices to superior courts in the provincial and territorial jurisdictions. Common law prevails everywhere except in Quebec, where civil law predominates. Criminal law is solely a federal responsibility and is uniform throughout Canada. Law enforcement, including criminal courts, is officially a provincial responsibility, conducted by provincial and municipal police forces. However, in most rural areas and some urban areas, policing responsibilities are contracted to the federal Royal Canadian Mounted Police.
Canadian Aboriginal law provides certain constitutionally recognized rights to land and traditional practices for Indigenous groups in Canada. Various treaties and case laws were established to mediate relations between Europeans and many Indigenous peoples. These treaties are agreements between the Canadian Crown-in-Council with the duty to consult and accommodate. Indigenous law in Canada refers to the legal traditions, customs, and practices of Indigenous Nations and communities.
Constitution of Canada
Pursuant to section 52 of the Constitution Act, 1982, Canada's constitution is its supreme law, and any law passed by any federal, provincial, or territorial government that is inconsistent with the constitution is invalid.Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 52.
The Constitution Act, 1982 stipulates that Canada's constitution includes that act, a series of thirty Acts and orders referred to in a schedule to that Act (the most notable of which is the Constitution Act, 1867), and any amendment to any of those Acts.Craik 94 However, the Supreme Court of Canada has found that this list is not intended to be exhaustive, and in 1998's Reference re Secession of Quebec identified four "supporting principles and rules" that are included as unwritten elements of the constitution: federalism, democracy, constitutionalism and the rule of law, and respect for minorities.Craik 96 While these principles are an enforceable part of Canada's constitution, Canadian courts have not used them to override the written text of the constitution, instead confining their role to "filling gaps".Craik 98
Because the Constitution Act, 1867 provides that Canada's constitution is "similar in Principle to that of the United Kingdom", which is considered to be an uncodified constitution, the Supreme Court has also recognized the existence of constitutional conventions. In 1981's Reference re a Resolution to amend the Constitution, the Court provided three factors necessary for the existence of a constitutional convention: a practice or agreement developed by political actors, a recognition that they are bound to follow that practice or agreement, and a purpose for that practice or agreement. It also found that, while these conventions are not law and are therefore unenforceable by the courts, courts may recognize conventions in their rulings.Craik 105
The Constitution Act, 1867 assigns powers to the provincial and federal governments. Matters under federal jurisdiction include criminal law, trade and commerce, banking, and immigration. The federal government also has the residual power to make laws necessary for Canada's "peace, order and good government". One of the major areas of provincial jurisdiction is property and civil rights, which includes broad power to enact laws of a civil nature, such as property law, contract law and family law. Provincial jurisdiction includes other matters, such as natural resources, hospitals, municipalities, education (except education on First Nation reserves).Craik 125
The Constitution Act, 1867 also provides that, while provinces establish their own superior courts, the federal government appoints their judges. It also gives the federal Parliament the right to establish a court system responsible for federal law and a general court of appeal to hear appeals of decisions of both federal and provincial courts.Craik 127 This last power resulted in the federal Parliament's creation of the Supreme Court of Canada.Craik 127–128
The Constitution Act, 1982 created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial legislatures; prior to 1982, most of it could be amended only by the Parliament of the United Kingdom.Craik 131 It also contains the Charter of Rights and Freedoms, which grants individual rights that may not be contravened by any provincial or federal law.Craik 119
Legislation Acts passed by the Parliament of Canada and by provincial legislatures are the primary sources of law in Canada. Sections 91 and 94A of the Constitution Act, 1867 set out the subject matters for exclusive federal jurisdiction. Sections 92, 92A, and 94 set out the areas of exclusive provincial legislation. Section 95 sets out areas of concurrent federal and provincial jurisdiction.Constitution Act, 1867, s. 95.
Laws passed by the federal Parliament are initially published in the Canada Gazette, a federal government newspaper published regularly and which includes new statutes and regulations. Federal statutes are subsequently published in the annual Statutes of Canada. From time to time, the federal government will prepare a consolidation of federal statutes, known as the Revised Statutes of Canada. The most recent federal consolidation was in 1985.
Laws passed by the provinces follow a similar practice. The Acts are pronounced in a provincial gazette, published annually and consolidated from time to time.
The Revised Statutes of Canada is the federal statutory consolidation of statutes enacted by the Parliament of Canada. In each Canadian province, there is a similar consolidation of the statute law of the province. The Revised Statutes of British Columbia, Revised Statutes of Alberta, Statutes of Manitoba, Revised Statutes of Saskatchewan, 1978, Revised Statutes of New Brunswick, Revised Statutes of Nova Scotia, Statutes of Prince Edward Island, Consolidated Statutes of Newfoundland and Labrador, Revised Statutes of Ontario, and Revised Statutes of Quebec are the statutory consolidations of each Canadian province. They contain all of the major topic areas and most of the statutes enacted by the governments in each province. These statutes in these provinces do not include criminal law, as the criminal law in Canada is an exclusive jurisdiction of the federal Parliament, which has enacted the Criminal Code, which is included in the Revised Statutes of Canada.
Legal traditions
Common law Nine of the provinces, other than Quebec, and the federal territories, follow the common law legal tradition. While the federal territories use common law, Indigenous nations and their associated territories do not (see below). Equally, courts have power under the provincial Judicature Acts to apply equity.
As with all common law countries, Canadian law adheres to the doctrine of . Lower courts must follow the decisions of higher courts by which they are bound. For instance, all Ontario lower courts are bound by the decisions of the Ontario Court of Appeal and all British Columbia lower courts are bound by the decisions of the British Columbia Court of Appeal. However, no Ontario court is bound by decisions of any British Columbia court and no British Columbia court is bound by decisions of any Ontario court. Nonetheless, decisions made by a province's highest court (provincial Courts of Appeal) are often considered as "persuasive" even though they are not binding on other provinces.
Only the Supreme Court of Canada has authority to bind all lower courts in the country with a single ruling, but the Supreme Court cannot bind itself. The busier courts, such as the Court of Appeal for Ontario, 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 for reference, decisions of English courts and American courts are often utilized. In light of the long-standing history between English law and Canadian law, the English Court of Appeal and the House of Lords are often cited as and considered persuasive authority, and are often followed.
Decisions from Commonwealth nations, aside from England, are also often treated as persuasive sources of law in Canada.
Due to Canada's historical connection with the United Kingdom, decisions of the House of Lords before 1867 are technically still binding on Canada unless they have been overturned by the Supreme Court of Canada, and Canada is still bound by the decisions of the Privy Council before the abolishment of appeals to that entity in 1949. In practice, however, no court in Canada has declared itself bound by any English court decision for decades, and it is highly unlikely that any Canadian court would do so in the future.
Criminal offences are found only within the Criminal Code and other federal statutes; an exception is that contempt of court is the only remaining common law offence in Canada.
Civil law
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 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. 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.
Indigenous legal traditions