Canada's System of Justice

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Where Our Legal System Comes From

The common-law tradition

Canada’s 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 immigrant cultures became dominant. After the Battle of Quebec in 1759, the country fell almost exclusively under English law. Except for Quebec, where the civil law is based on the French Code Napoléon, Canada’s criminal and civil 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 evolved into 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 because it cannot be found in any code or body of legislation, but exists only in past decisions. At the same time, common law is flexible and adaptable to changing circumstances.  

The civil-law tradition

The tradition of civil law is quite different. It is based on Roman law, which had been scattered about in many places – in books, in statutes, in proclamations – until the Emperor Justinian ordered his legal experts to consolidate all the laws into a single book to avoid confusion. Ever since, the civil law has been associated with a “civil code.” Quebec’s Civil Code, first enacted in 1866 just before Confederation and amended periodically, was recently thoroughly revised. 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, 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.  

The Quebec Act of 1774 made Canada a “bijural” country, one with two types of law. The Quebec Act stated that common law was to be applied outside Quebec in matters of private law, while similar matters in Quebec were to be dealt with under Civil Code law. For public law, on the other hand, the common law was to be used in and outside Quebec.  

Aboriginal traditions

Aboriginal peoples in Canada have also contributed to our legal system. Aboriginal rights and treaty rights are recognized and 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 by the Crown and a particular group of Aboriginal people. Reserves, for example, are the responsibility of the federal government.  

Aboriginal customs and traditions have also contributed to new ways of dealing with people, such as healing and sentencing circles, community justice and restorative justice.  

Parliament

Democratic countries usually have a “legislature” or “parliament,” which has the power to make new laws or change old ones. Since Canada is a federation (a union of several provinces with a central government), it has both a federal parliament in Ottawa to make laws for all of Canada and a legislature in each province and territory to deal with local matters. Laws enacted at either level are called “statutes,” “legislation,” or “acts.” When Parliament or a provincial or territorial legislature passes a statute, that statute takes the place of common law or precedents dealing with the same subject. In Quebec as well, much legislation has been passed to deal with specific problems not covered by the Civil Code.  

Making laws this way 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, they would draft the proposed law. This would then have to be approved by the Cabinet, which is composed of Members of Parliament or Senators chosen by the Prime Minister. This version would then be presented to Parliament as a “bill” to 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. Royal assent for laws enacted by provincial legislatures is provided by the Lieutenant Governor.  

But law is more than a number of statutes, as we have seen from the description of common law. Judges develop common law, such as the laws of contracts, through referring to and setting precedents. They also interpret and apply the statutes.  

Because of the complexity of modern society, more laws are being enacted 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, provincial and territorial legislatures often pass general laws delegating authority to departments or other government organizations to make specific laws called “regulations.” Regulations carry out the purposes of the general laws or expand on them, but are limited in scope by these laws.

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