SOURCES OF CANADIAN LAW

English Law and the Code Napoléon

Canada's present legal system derives from various European systems brought to this continent in the 17th and 18th centuries by explorers and colonists. Although the indigenous peoples whom the Europeans encountered here each had their own system of laws and social controls, over the years the laws of the encroaching immigrant cultures began to prevail. After the English defeat of the French at Quebec in 1759, the country fell almost exclusively under English law. Other than in Quebec, where the civil law was codified on the model of the French Code Napoléon, Canada's criminal and private law has its basis in English common and statutory law.

The common law, which developed in Great Britain after the Norman Conquest, was based on the decisions of judges in the royal courts. It is called judge-made law because it is a system of rules based on "precedent". Whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases. The common law is unique in the world because it cannot be found in any "code" or "legislation"; it exists only in past decisions. However, this also makes it flexible and adaptable to changing circumstances.

The tradition of civil law is quite different. It is based on Roman law, which was consolidated by the Roman Emperor Justinian. The law in ancient Rome was scattered about in many places: in books, in statutes, in proclamations. Justinian ordered his legal experts to put all the law into a single book to avoid confusion. Ever since, the civil law has been associated with a "civil code", containing almost all private law. Quebec's Civil Code was first enacted in 1866, just before Confederation (as the Civil Code of Lower Canada), and periodically amended over the years. The reformed Civil Code of Quebec came into effect in 1994. Like all civil codes, such as the Code Napoléon in France, it contains a comprehensive statement of rules, many of which are framed as broad, general principles so as to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to the Code, and then refer to previous decisions for consistency.

When discussing the law as it pertains to Aboriginal people in Canada it is also necessary to consider Aboriginal rights and treaty rights which are protected under the Constitution. Aboriginal rights are those related to the historical occupancy and use of the land by Aboriginal peoples; treaty rights are those set out in treaties entered into between the Crown and a particular group of Aboriginal people.

Law Reform: An Endless Cycle

Although much of our law has been inherited from European legal traditions, as society grows and develops it cannot rely entirely on tradition. Sometimes there is an urgent need for new laws, or for old laws to be changed, and the common law and civil law may evolve too slowly to meet this need. So, even as government ponderously enacts reforms designed to address changing ethics and morality, society continues to evolve dynamically ahead of the lawmakers, necessitating a never-ending cycle of law reform.

Making New Laws: Legislation

Democratic countries usually have what is called a "legislature" or "parliament", which has the power to make new laws or change old laws. In its political structure, Canada is a federation: a union of several provinces, with a central government. So, it has both a parliament in Ottawa to make laws for all of Canada, and a legislature in each province and territory to deal with local matters. Laws created at either level are called "statutes", "legislation", or "acts". When Parliament or a provincial legislature passes a statute, that statute takes the place of common law dealing with the same subject. In Quebec, much legislation exists to deal with specific problems not dealt with in the Civil Code.

Making laws through legislation can be a complicated process. Suppose, for example, the federal government wanted to create a law that would help control pollution. First, government ministers or senior public servants would be asked to examine the problem carefully and suggest ways in which, under federal jurisdiction, a law could deal with pollution. Next, a draft of the proposed law would be made. This text would then have to be approved by the Cabinet, which is composed of members of Parliament chosen by the Prime Minister. This version would then be presented to Parliament as a "bill", and would be studied and debated by members. Bills only become laws if they are approved by a majority in both the House of Commons and the Senate, and assented to by the Governor General in the name of the Queen.

A similar process is used in every province to make laws. Laws enacted by provincial legislatures are assented to by the Lieutenant Governor.

Because of the complexity of modern society, more laws are made today than ever before. If our lawmakers had to deal with all details of all laws, the task would be nearly impossible. To solve this problem, Parliament and provincial legislatures often pass general laws delegating authority to make more specific laws called "regulations". Regulations serve to carry out the purposes of or expand on the general laws but are limited in scope by such laws.

The Constitution

In a democracy with a written constitution, legislators cannot make any laws they wish. A country's constitution, among other things, defines the powers and limits of powers that can be exercised by the different levels of government.

In many countries formed by revolution or some act of independence -- the United States, for example -- the preponderance of constitutional law is contained in a single document, usually referred to as "the constitution". In Canada's case, however, the country was formed by an act of the Parliament of Great Britain; consequently, it does not have a "constitution" per se. The closest thing to a constitutional document would be the British North America Act, 1867, by which the British colonial provinces of Canada (Upper and Lower), Nova Scotia and New Brunswick were united to create the Dominion of Canada.

Even so, although there is no single "constitution" in Canadian law, the Constitution Act, 1982, which is Schedule "B" to the Canada Act, 1982 -- by which Canada's constitution was finally patriated from Great Britain -- contains a definition of the constitution. Section 52 of the Act declares the Constitution of Canada to be the supreme law of Canada and states that it includes an itemized list of some 30 acts and orders enumerated in an attached schedule.

Confederation of the provinces into the Dominion of Canada did not involve any break with the Imperial government. The new country was still part of the British Empire, governed by authority appointed by the monarch on the advice of the British Colonial Secretary at Westminster. Far from codifying a new set of constitutional rules for Canada, the BNA Act did little more than provide for confederation, not even having the inclusion of an amending clause. For this reason, until 1982 any necessary amendments to the BNA Act were enacted by the Parliament in England.

The Constitution sets out the basic principles of democratic government in Canada. It also defines the powers of the three branches of government: the executive, the legislative and the judicial.

The executive power in Canada is vested in the Queen. But in our democratic society, it is a constitutional convention reflected in our fundamental laws that the real executive power rests with the Cabinet, which consists at the federal level of the Prime Minister and a number of ministers who are all answerable to Parliament for various government activities. As well, individual ministers are responsible for various government departments, such as the Department of Finance and the Department of Justice. When we say "the government" in a general way, we are usually referring to the executive.

The legislature, which at the federal level in Canada is called "Parliament", is made up of the House of Commons, the Senate, and the monarch. Most laws in Canada are first examined and discussed by the Cabinet, then presented for debate and approval by members of the House of Commons and the Senate.

Before a bill becomes a law, the Queen or her representative, the Governor General, must "assent" to it. The same is true in each province, except that the Queen's provincial representative is called the Lieutenant Governor. The requirement of royal assent does not mean that the Queen is politically powerful: it is a constitutional convention that the monarch always follows the advice of the government.

Our constitution also provides for a "judiciary", which means the judges who preside over cases before the courts. The Constitution expressly provides only for federally appointed judges; provincial judges are appointed to office under provincial laws. The role of the judiciary is to interpret and apply the law and the Constitution, and to give impartial judgments in all cases, whether they involve public law, such as a criminal case, or private law, such as a dispute over a contract.

The Federal System

The Constitution defines a federal system of government for Canada. This means that the authority or "jurisdiction" to make laws is divided between the Parliament of Canada and the provincial legislatures. Parliament can make laws for the whole of Canada with respect to matters assigned to it by the Constitution. A provincial legislature, likewise, can make laws that come within the subject matter over which it has been assigned jurisdiction. But these laws are only effective within the province's borders. A number of other countries, such as Australia and the United States, also have federal systems. Jurisdiction in those countries is divided between the federal government and the various states. By contrast, Great Britain does not have a federal system; its Parliament has sole authority to pass laws for the entire country.

The Canadian Constitution gives the provinces authority to make laws concerning such matters as education, property, the administration of justice, hospitals, municipalities and other matters of a local and private nature within the provinces.

The federal Parliament deals, for the most part, with issues concerning Canada as a whole, such as trade between provinces, national defence, criminal law, money, patents and the postal service.

As well, the federal Parliament has responsibility for Yukon Territory and the Northwest Territories. To ensure that the people in the territories can govern themselves on local matters, as the citizens of a province can, federal law provides for elected territorial councils with the power (similar to provincial powers) to pass laws.

There are also local or municipal governments. They are created under provincial laws and can make by-laws dealing with a variety of local matters, such as parking regulations and the issuance of construction permits.

Finally, particular arrangements have been developed for Aboriginal peoples in the various regions of Canada. For example, Indian bands can exercise a range of governmental powers over reserve lands under the Indian Act. There are also several examples of Aboriginal governments which exercise governmental powers as a result of specific agreements negotiated with the federal and provincial governments.

The Canadian Charter of Rights and Freedoms

In Canada, protection of the individual's rights and freedoms is a subject of both federal and provincial jurisdiction. The territorial governments also may legislate to protect human rights, since the federal government has delegated to them the powers to do so.

The Canadian Bill of Rights, which was passed in 1960, was the first federal legislative enactment to specifically set out fundamental human rights for Canadians. The Canadian Human Rights Act (CHRA), which was first enacted in 1977, also protects human rights, particularly in the areas of employment, the provision of accommodation, and commercial premises. Unlike the Bill of Rights, the CHRA applies not only to the federal government but also to the private sector.

All provinces and territories also have human rights legislation that prohibits discrimination on various grounds with regard to employment matters and the provision of goods, services and facilities. This legislation applies to discrimination by individuals in the private sector and by provincial or territorial governments.

The protection provided by all of the above-mentioned legislation is limited. Because the Bill of Rights, the CHRA, and all provincial human rights codes are only statutes, they are always subject to repeal. It was not until the advent of the Canadian Charter of Rights and Freedoms that human rights in Canada were expressly protected in the Constitution.

When the Constitution was patriated in 1982, the Canadian Charter of Rights and Freedoms became a fundamental part of our Constitution. The Charter applies to the provincial legislatures as well as to Parliament. The Charter is paramount over other legislation because it is "entrenched" in the Constitution and is the supreme law of Canada. This means that when an individual who believes that Parliament or a legislature has violated guaranteed rights asks the courts for help, the courts may declare the law in question to be invalid insofar as it conflicts with the Charter. In addition, courts may provide other appropriate remedies to individuals whose rights have been infringed.

However, the Charter also recognizes that, in a democracy, rights and freedoms are not absolute. For instance, freedom of expression is guaranteed, but no one is free to yell "fire" in a crowded theatre, to slander someone or to spread hate propaganda. In Canada, Parliament or a provincial legislature can limit fundamental rights, but only if that government can establish that the limit is reasonable, is prescribed by law, and can be justified in a free and democratic society. This allows for the balancing of the interests of society against the interests of individuals to determine if limits on individual rights can be justified.

Under the agreement between the federal and provincial governments that resulted in the Constitution Act, 1982, both Parliament and the provincial legislatures retain a limited power to pass laws that may violate certain Charter rights. Many believe that such a provision is consistent with our democratic principles because it gives the legislatures, whose members are elected, the last word, as opposed to the unelected judiciary. Nonetheless, it is limited in that Parliament or a provincial legislature must specifically declare that it is passing a law "notwithstanding" specified provisions of the Charter. Further, the declaration must be reviewed and re-enacted at least every five years; otherwise, it will not remain in force. These conditions act as a kind of warning to Canadians, and force the government that is invoking the notwithstanding clause to explain itself, to accept full responsibility for its actions, and to take the political consequences.

The Charter protects our rights and freedoms in the following areas.

Fundamental Freedoms

The Charter constitutionally protects certain fundamental freedoms that custom and law over the years had made almost universal in our country. Everyone in Canada has a right to practise any religion or no religion at all. We are free to speak our minds, to gather peacefully into groups and to associate with whomever we wish, as long as we do not infringe the legal and constitutional rights of others. Unlike the situation that exists in many totalitarian countries, the freedom of the media to print and broadcast news and other information is guaranteed in Canada.

Democratic Rights

The tradition of democratic rights in Canada is specifically guaranteed by the Charter. This means that Canadian citizens have a constitutional right to vote in elections for members of Parliament and provincial legislatures, and to seek election themselves. A few restrictions on a citizen's right to vote or to run in an election have been found to be reasonable in a democratic society; for example, restrictions on minors or on certain election officials who may have to cast a deciding ballot.

Another democratic protection is that our governments cannot continue to hold power indefinitely without calling an election. The Charter requires governments to call an election at least once every five years. The only exception is in a time of national emergency, such as war. But, even then, two thirds of the members of Parliament or a legislature must agree to delay the election.

The Charter also provides that Parliament and the provincial legislatures must sit at least once a year. This ensures that our governments perform the work for which they were elected, and also that they will have to answer questions and explain themselves in public; they cannot govern in secret.

Mobility Rights

Canadian citizens have the right to enter, remain in or leave the country. Citizens and permanent residents have the constitutional right to live or seek work anywhere in Canada. This includes the right to live in one province and work in another. Further, the Charter prevents provinces from distinguishing between residents and newcomers. For example, if a person is a qualified professional in a province, such as an accountant or a teacher, that province cannot prevent him or her from working there because that person resides elsewhere in the country. However, this does not prevent a province from making residency a requirement for certain social and welfare benefits, nor does it prevent the application of other laws or practices of general application in force in the province that do not discriminate. Also, a province in which the employment rate is below the national average has the right to undertake programs for socially and economically disadvantaged residents of the province.

Legal Rights

The Charter requires government to act in accordance with specified rights and freedoms. These rights are designed to protect the individual and to ensure fairness during legal proceedings, particularly in criminal cases. The right to habeas corpus to challenge a detention, and to be presumed innocent until the contrary be proved, have always been recognized as part of our law, but those rights are now guaranteed in our constitution.

In Canada, everyone has a right to life, liberty and security of the person, and cannot be deprived of these rights except in accordance with fundamental justice. Canadians are protected against unreasonable searches and seizures; even where a search or seizure is authorized by law, the police cannot use excessive force in carrying it out. We are also protected against being detained or arrested arbitrarily. In other words, a police officer must have a reasonable suspicion that we have committed a crime before detaining us.

The Charter also protects us once we are arrested or detained. We have a right to be told why we are being arrested or detained, to consult a lawyer without delay and to be informed of this right, and to have a court determine quickly whether the detention is lawful. These rights are to protect against arbitrary actions by law enforcement agencies.

When charged with an offence under federal or provincial law, we also have the right to be told promptly of the offence; to be tried within a reasonable time; not to be compelled to testify at one's own trial; to be presumed innocent until proven guilty beyond a reasonable doubt in a fair and public hearing by an independent and impartial tribunal; not to be denied reasonable bail without cause; to be tried by a jury for serious charges; and not to be tried or punished twice for the same offence.

Everyone also has the right not to be subjected to any cruel and unusual punishment. Any witness at trial has the right to the assistance of an interpreter if he or she does not understand the language or is deaf. Witnesses also have the right not to have incriminating evidence used against them in subsequent proceedings.

Equality Rights

Under the Charter, every individual, regardless of race, religion, national or ethnic origin, colour, sex or age, as well as one who is physically or mentally disabled, is equal before and under the law and enjoys equal protection and benefit of the law. This means that laws and government programs, such as pension plans, must not be discriminatory. For example, practices that unfairly discriminate on the basis of religious observance are not permitted. However, the existence of the Charter does not mean that all people always have to be treated in exactly the same way. For example, it is constitutional to create special programs to favour individuals or groups who may be at a disadvantage in society, such as women, visible minorities or the disabled.

Language Rights

The Charter recognizes English and French as Canada's official languages, as well as the official languages of New Brunswick. Both languages have equal status and equal rights and privileges as to their use in the institutions of the Parliament and Government of Canada, and the Legislature and Government of New Brunswick.

Everyone has the right to use English or French in the debates and proceedings of Parliament or of New Brunswick's legislature, and all statutes and parliamentary records and journals must be printed and published in both languages. Everyone has the right to use English or French in proceedings before any court established by Parliament or in any court in New Brunswick. Moreover, members of the public have a right to communicate with and receive available services, in English or French, from the head or central offices of federal institutions and from other federal offices where there is a significant demand in either language, or where the nature of the office makes it reasonable. The public has a right to communicate with and receive available services, in English and French, from all offices of New Brunswick legislative and governmental institutions.

The Constitution Act, 1867 and the Manitoba Act, 1870 give persons in Quebec and Manitoba, respectively, the right to use English and French in debates and proceedings of the legislatures and the courts of those provinces, and require that provincial laws be enacted and published in both languages. The Charter preserves these rights and obligations.

Minority Language Educational Rights

In the nine predominantly English-speaking provinces and the territories, citizens whose mother tongue is French, or who attended French primary schools in Canada, or who have a child who has received or is receiving primary or secondary school instruction in French in Canada, have a constitutional right to send all their children to French schools.

In Quebec, citizens who received their primary instruction in English in Canada, or who have a child who was or is being instructed in English in Canada, have the constitutional right to send all their children to English schools.

The right to minority language instruction in English or French applies wherever in the respective province there are sufficient numbers of other children in the same situation to warrant the provision of such instruction, and includes, where the number of children warrant it, the right of those children to receive their instruction in minority language schools and educational facilities.

Aboriginal Rights

A number of provisions in the Charter, and other provisions in the Constitution, specifically provide for the protection of the rights of the Aboriginal peoples of Canada who are defined as including Indian, Inuit and Metis. The purpose of these provisions is twofold: first, to recognize and protect the Aboriginal and treaty rights of Aboriginal peoples and, secondly, to help Aboriginal peoples preserve their cultures, identities, customs, traditions and languages. For instance, no provision in the Charter can be used to take away any rights that Aboriginal peoples now have or may acquire in the future from, for example, the settlement of land claims.

The Charter and Other Rights

It would be wrong to think that the Charter embodies all our rights as Canadians; rather, the Charter only guarantees a basic minimum set of rights. We all have other rights that derive from federal, provincial, international and common law. And, of course, Parliament or a provincial legislature can always add to our rights.

The Constitution affirms that we are a multicultural country and that Charter rights must be interpreted consistently with this ideal.