Canada’s legal system is complex, featuring two official languages (English and French), two legal traditions in common law and civil law (only for Quebec), two separate systems for processing cases — civil and criminal — and a multi-tiered court system that handles federal, provincial, and municipal laws.
It’s a lot to take in, but here is a brief synopsis to help guide you:
Common law vs. civil law
As a former British colony, Canada’s judicial system hails from the British common law tradition, which is a system of rules based on legal precedents — decisions made by judges. These precedents then become the foundation on which other judges base their decisions.
Quebec is the only province that does not go by common law, embracing a more structured civil law system that stems from Roman law. The statutes are clearly defined and the judges enforce the law strictly as it is written. It relies less on case law and more on broad legal principles that have been codified, hence Quebec goes by its own Civil Code. Therefore judgments are more prescribed and cases are less open to interpretation from judges.
The Quebec Act of 1774 turned Canada into a “bijural” country — one with two types of law. Since then common law has been applied outside Quebec in matters of private law, while similar matters in Quebec are dealt with under civil law. In criminal, or public, cases, on the other hand, the common law is applied throughout Canada.
Civil vs. criminal cases
The main distinction here is that civil law governs relationships between individuals, while criminal law governs relationships between individuals and the state, or Crown, which represents all Canadians.
Combined with the previous definition of ‘civil law’ above, the term can be more than a little confusing. The Justice Canada website further clarifies:
“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.”
Only the federal government has the ability to make criminal laws. The federal, provincial, and territorial courts all have the power to make civil laws.
Canada’s legal system is divided into three tiers. The government makes and administers the laws through its executive (Cabinet), legislative (Parliament) and judicial (courts) branches.
The process of making laws starts with the Cabinet, or ruling party, which then presents the legislation to Parliament — composed of the House of Commons and Senate — for debate and approval. The final step involves the Governor General, or Queen’s representative, who must give the bill official “assent.”
The same process applies provincially, but the Queen’s representative is called the Lieutenant Governor.
Parliament can make laws for all Canada, but only about matters assigned to it by the Constitution. A provincial or territorial legislature, likewise, can make laws only about matters over which it has been assigned jurisdiction. This means these laws apply only within the province’s borders.
The government usually makes laws related to issues that apply to all Canadians, including constitutional rights, crime, aboriginal rights, national defence, trade, and patents.
The provinces handle laws concerning education, property, civil rights, the administration of justice, hospitals, municipalities, and other matters of a regional importance.
The Constitution Act, a successor to the British North America Act of 1867, establishes Canada’s dual legal system and enshrines the provinces’ jurisdictional rights over property and civil, or private, rights.
Once a law is enacted, it’s the role of the judiciary — judges who preside over cases in the courts — to interpret and apply it. While judges can’t make their own laws, their decisions can create legal precedents — a new way to interpret the law for future cases.
The judicial system is made up of various levels of courts that fall under federal or provincial/territorial control.
Here are the different types of courts:
- Provincial/territorial courts: these courts exist in every province or territory, except Nunavut, and deal with most criminal offences, family law matters (except divorce), young persons 17 and under in conflict with the law, traffic violations, regulatory offences, and claims involving money.
- Provincial/territorial superior courts: Each province and territory, including Nunavut, has superior courts. These courts have different names and most provinces have their own Supreme Court that is separate from the Supreme Court of Canada. Some, like Alberta, even have a division called the Court of Queen’s Bench. These courts hear serious criminal and civil cases. They also are specialized to deal with certain family law matter such as divorce and property claims. The judges are appointed and paid for by the federal government and superior courts serve as the first level in the appeals process.
- Provincial/territorial courts of appeal: These appellate courts hear appeals from decisions rendered in the provincial/territorial regular and superior courts. They usually sit as a panel of three judges, which are all federally appointed.
- Federal courts: These courts, which consist of the Federal Court and Federal Court of Appeal, only deal with matters related to federal laws. Decisions by the Federal Court that get appealed are heard by the Federal Court of Appeal. These courts mostly try cases stemming from inter-provincial and federal-provincial disputes, intellectual property proceedings, citizenship appeals, trade and competition cases, and cases involving Crown corporations or government departments. The Tax Court of Canada and Military courts are specialized arms of the Federal Court.
- Supreme Court of Canada: This is the top court in Canada and the final court of appeal and has the final — and binding — interpretation of Canadian laws. The Supreme Court has jurisdiction over disputes in all areas of the law, including constitutional law, administrative law, criminal law and civil law, but only hears the most important cases. While the panel of nine judges — including a Chief Justices and eight fellow judges — are appointed by the Prime Minister, they are independent and often make decisions counter to the government’s will. Under the Supreme Court Act, three of the nine judges must come from Quebec. The SCC also decides on key questions regarding the Canadian Constitution and the Charter of Rights and Freedoms. The Court also serves an advisory role to the government, which can ask for its opinion on important legal matters.
Department of Justice
The role of the Department of Justice is to ensure that Canada's justice system is as fair, accessible and efficient as possible. The DOJ works with the federal government to develop policy and to make and reform laws. It also acts as the government's lawyer, providing legal advice, prosecuting cases under federal law, and representing the government in court. These responsibilities reflect the double role of the Minister of Justice, who is also the Attorney General of Canada.
The Constitution Act