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S E R V I N G C A N A D I A N S
C A N A D A’ S S Y S T E M o f J U S T I C E
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©Her Majesty the Queen in Right of Canada,
represented by the Minister of Justice and Attorney General of Canada, 2015
ISBN 978-1-100-25574-3
Cat. No J2-32/2015E-PDF
CA N A DA’ S SY ST E M
OF JUSTICE
Note to reader: This booklet provides general information about
Canada’s justice system. It is not intended as legal advice. If you have
a problem, you should consult a lawyer or other qualified professional.
WHERE OUR LEGAL SYSTEM COMES FROM
DID YOU KNOW?
Canada’s legal system is based on the English and French systems.
Explorers and colonists brought these systems to Canada in the
17th and 18th centuries. After the Battle of Quebec in 1759, the country
fell under English common law, except for Quebec, which follows
civil law.
Canada’s legal system is based on The Civil-Law Tradition
a combination of common law Civil codes contain a comprehensive
and civil law. statement of rules. Many are framed
as broad, general principles to deal
The Common-Law Tradition with any dispute that may arise.
Unlike common-law courts, courts in
The common law is law that is not a civil-law system first look to a civil
written down as legislation. Common code, then refer to previous decisions
law evolved into a system of rules to see if they’re consistent.
based on precedent. This is a rule that
guides judges in making later deci- Quebec is the only province with
sions in similar cases. The common a civil code, which is based on the
law cannot be found in any code or French Code Napoléon (Napoleonic
body of legislation, but Code). The rest of Canada uses the
only in past decisions. common law. The Criminal Code is
Quebec is the only At the same time, it is also considered a code, and it is used
flexible. It adapts to throughout Canada.
province with a changing circumstanc-
es because judges can
civil code. announce new legal Aboriginal and Treaty Rights
doctrines or change Aboriginal rights refer to Aboriginal
old ones. peoples’ historical occupancy and use
of the land. Treaty rights are rights
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CA N A DA’ S SY ST E M O F J U ST I C E
set out in treaties entered into by make new laws or change old ones.
the Crown and a particular group of Canada is a federation – a union of
Aboriginal people. The Constitution several provinces and territories with
recognizes and protects Aboriginal a central government. So it has both
rights and treaty rights. a federal parliament in Ottawa to
make laws for all of Canada and a
legislature in each of the ten provinces
How Parliament Makes Laws and three territories that deals with
Democratic countries have a legisla- laws in their areas. Laws enacted at
ture or parliament, with the power to either level are called
statutes, legislation, or
acts. When Parliament The Constitution
or a provincial or terri-
The Two Meanings torial legislature passes recognizes and
of Civil Law a statute, it takes the
The term “civil law” is used to mean place of common law or protects Aboriginal
two quite different things, which precedents dealing with
rights and treaty
can be a little confusing at first for the same subject.
people trying to understand the rights.
justice system. Sometimes the term Making laws this way can
is used in contrast to “common law” be complicated. Let’s use
to refer to the legal system that is an example to explain
based on a civil code, such as the how it works. Suppose the federal
Justinian Code or the Civil Code government wanted to create a law
of Quebec. In its other sense, civil that would help control pollution.
law refers to matters of private 1. Government ministers or senior
law as opposed to public law, and public servants examine the
particularly criminal law, which is problem carefully and suggest
concerned with harm to society ways in which, under federal
at large. It is usually clear from the jurisdiction, a law could deal
context which type of civil law with pollution.
is intended.
2. They would draft the proposed law.
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CA N A DA’ S SY ST E M O F J U ST I C E
3. The law has to be approved by What Are Regulations?
the cabinet, which is traditionally Because our society is so complex,
made up of members of Parliament more laws are being enacted today
chosen by the prime minister. than ever before. If our lawmakers
4. This version is then presented to had to deal with all the details of all
Parliament as a bill to be studied the laws, the task would be nearly
and debated by members. impossible. To solve this problem,
Parliament and provincial and territorial
5. The bill becomes law if it is legislatures often pass laws to give
approved by a majority in both departments or other government
the House of Commons and the organizations the authority to make
Senate. It also needs to be assent- specific laws called regulations.
ed to by the Governor General in Regulations carry out the purposes
the name of the Queen. All laws of the general laws or expand on
need royal assent. them. They have the force of a law.
For example, there are regulations
Every province uses a similar process. that keep our food safe or outline
The Lieutenant Governor of each what kind of storage tank to use for
province gives royal assent for laws oil products.
passed by provincial legislatures.
Judges develop common law by
referring to and setting precedents.
They also interpret and apply statutes.
6
THE CANADIAN CONSTITUTION
DID YOU KNOW?
Canada was created by an act of the Parliament of the United Kingdom
called the British North America Act, 1867 (now known as the Constitution Act,
1867), uniting the British colonies of the United Province of Canada, Nova
Scotia, and New Brunswick.
A constitution provides the fundamental The Queen has the executive power
rules and principles that govern in Canada, but in our democratic
a country. It creates many of the insti- society the Queen’s powers are
tutions and branches of government, exercised by constitutional convention
and defines their powers. on the advice of Ministers who enjoy
the confidence of the House of
The Constitution of Canada includes Commons. Together, the Prime
the Constitution Act, 1867, and the Minister and other Ministers form
Constitution Act, 1982. It is the the cabinet, which is responsible to
supreme law of Canada. It reaffirms Parliament for government business.
Canada’s dual legal system and Ministers are also responsible for
also includes Aboriginal rights and government departments, such as
treaty rights. the Department of Finance and the
Department of Justice. When we say
“the government,” we are usually
What Does Our Constitution Say? referring to the executive branch.
The Constitution sets out the basic
principles of democratic government Parliament is the legislative branch
in Canada when it defines the powers of the federal government. Parliament
of the three branches of government: consists of the Queen (who is
usually represented by the Governor
• the executive
General), the Senate and the House
• the legislative of Commons. Bills are debated and
passed by the Senate and the House
• the judiciary
of Commons. The Governor General
must also give royal assent to a bill
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CA N A DA’ S SY ST E M O F J U ST I C E
DID YOU KNOW?
The Constitution was “patriated” from the United Kingdom in 1982.
When Canada was created, it was a self-governing British colony. The British
North America Act, 1867 codified many constitutional rules for Canada,
but major changes to the Constitution could only be made by the United
Kingdom Parliament. In 1982, the Charter was enacted as part of Canada’s
Constitution along with a set of procedures allowing the Constitution to be
amended in Canada.
in order for it to become a law. Provincial judges are appointed under
By constitutional convention, royal provincial laws.
assent is always given to bills passed
by the Senate and the House of
What is a Federal System?
Commons.
The Parliament of Canada and the
Our Constitution also includes provincial and territorial legislatures
provisions relating to the judicial both have the authority or jurisdic-
branch of government, composed of tion to make laws. Parliament can
judges. The judiciary must interpret make laws for all of Canada, but
and apply the law and the Constitu- only about matters the Constitution
tion, and give impartial assigns to it. A provincial or
judgments in all cases, territorial legislature can only
whether they involve make laws about matters within
Parliament is the the province’s borders.
public law, such as a
legislative branch criminal case, or private
law, such as a dispute The federal Parliament deals mainly
of the federal over a contract. with issues that concern Canada as
a whole: trade between provinces,
government. The Constitution only national defence, criminal law,
provides for federally money, patents, and the postal
appointed judges. service. It is also responsible for
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CA N A DA’ S SY ST E M O F J U ST I C E
the three territories: Yukon, the zoning, smoking,
Northwest Territories, and Nunavut. pesticide use, parking, It was only with
Federal law allows territories to elect business regulations, and
councils with powers like those of construction permits. the Canadian
the provincial legislatures.
Aboriginal peoples in Charter of Rights
The provinces have the authority to Canada have different
make laws about education, property, types of government. and Freedoms
civil rights, the administration of For example, First
justice, hospitals, municipalities, and Nations can have a range
that human
other local or private matters within of governmental powers rights in Canada
the provinces. over reserve lands under
the federal Indian Act. were protected
There are also local or municipal Other Aboriginal
governments. They are created under governments, such as in the written
provincial laws and can make bylaws self-governments,
that regulate a variety of local matters: exercise these powers as Constitution.
a result of agreements
they have negotiated
with the federal and
The Department of Justice provincial or territorial
The Minister of Justice is responsi- governments.
ble for the Department of Justice,
The Constitution Act includes protec-
which provides legal services such
tion for the rights of the Aboriginal
as drafting laws and providing peoples (Indian, Inuit, and Métis)
legal advice to the government of Canada. Section 35 of the
and its departments. The depart- Constitution Act recognizes and
ment also develops criminal law affirms Aboriginal rights, which are
and public law, as well as policies rights related to the historical occu-
and programs for victims, families, pancy and use of the land by Aboriginal
children and youth criminal justice. peoples. This is to help Aboriginal
The Minister of Justice is also the peoples preserve their customs and
Attorney General or chief law traditions for future generations,
officer of Canada. as continuing cultural practices.
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CA N A DA’ S SY ST E M O F J U ST I C E
DID YOU KNOW?
The Constitution Act, 1867 authorized Parliament to establish a general court
of appeal for Canada, as well as any additional courts to better administer
the laws of Canada. It was under this authority that the Federal Courts, the
Tax Court, and the Supreme Court of Canada were established.
Section 35 also recognizes and affirms
treaty rights, which are specifically
set out in agreements between the Other Federal Systems
Crown and particular groups of Australia and the United States
Aboriginal people. also have federal systems where
jurisdiction is divided between
Bijuralism the federal government and the
Canada is a bijural country – that various states. In contrast, the
means it has both common and civil United Kingdom has a unitary
law systems. Matters of private law in system where there is only one
Quebec are governed by the civil law, level of government.
while the common law applies in the
other provinces. Federal bills and
regulations must respect both types
of systems, and the legal concepts
within these laws must be expressed
in both English and French.
12
RIGHTS AND FREEDOMS IN CANADA
In Canada, the Constitution, as well and freedoms. But like any legislation,
as federal, provincial and territorial these laws can be repealed or changed,
laws, protect our human rights and so their protection can be limited.
fundamental freedoms. It was only with the Canadian Charter
of Rights and Freedoms that human
The Canadian Bill of Rights, passed rights in Canada were protected in
in 1960, was the first federal human the written Constitution.
rights law in Canada. It guarantees
many basic rights and freedoms,
including the “right of the individual What Does the Canadian Charter
to life, liberty, security of the person of Rights and Freedoms Say?
and enjoyment of property” and the The Constitution says that the
right not to be deprived of any of Charter takes priority over all other
those rights except in accordance legislation in Canada because it is
with “due process,” meaning basic part of the “supreme law
procedural fairness. of Canada.” It applies to
all government action, The interests of
The Canadian Human Rights Act, meaning to the provincial
passed in 1977, also protects human legislatures and Parlia- society must always
rights in the federal public and ment, and to everything
private sectors (for example, banking, done under their be balanced against
rail, telecommunications, inter- authority. This means
provincial transportation), that governments must the interests of
particularly the right to equality take the Charter into
individuals to see
and non-discrimination in the areas account in developing
of employment, housing and the all laws and policies. It if limits on
provision of services. also means that when an
individual goes to court individual rights
All provinces and territories also because he or she
have human rights legislation which believes that Parliament can be justified.
prohibits discrimination in employ- or a legislature or a
ment, housing and in providing government official
goods, services, and facilities to the has violated rights or
public. Some provincial and territorial fundamental freedoms guaranteed
laws protect a broader range of rights in the Charter, the court may declare
13
CA N A DA’ S SY ST E M O F J U ST I C E
the law invalid if it conflicts with Under the Constitution, both
the Charter or provide any other Parliament and the provincial legisla-
“appropriate and just” remedy. tures still have a limited power to pass
laws that may violate certain Charter
However, section 1 of the Charter also rights. However, this can only be
recognizes that even in a democracy, done if Parliament or a provincial
rights and freedoms are not absolute. legislature specifically declare that it
For example, no one is free to yell is passing a law notwithstanding
“fire” in a crowded theatre, to slander certain provisions of the Charter.
someone, to engage in religious This declaration must be reviewed
practices which cause harm to others, and re-enacted at least every five
to spread child pornography or hate years or it will not remain in force.
propaganda or to enter or leave The declaration informs Canadians
Canada without any restrictions of the limits being imposed on
whatsoever. Parliament or a provincial Charter-protected rights or freedoms.
legislature can limit fundamental It also requires the government to
rights, but only if it can show that explain itself, to accept full responsi-
the limit bility for its actions, and to take the
• is set out in a law; political consequences. So far,
Parliament has never used the
• pursues an important goal which notwithstanding clause.
can be justified in a free and
democratic society; and
What Rights Does the
• pursues that goal in a reasonable
Charter Protect?
and proportionate manner.
The Charter protects
The interests of society must always • fundamental freedoms
be balanced against the interests
of individuals to see if limits on • democratic rights
individual rights can be justified. • mobility rights
The Charter also affirms that we are • legal rights
a multicultural country and that • equality rights
the Charter must be interpreted
consistently with this ideal. • language rights
14
CIVIL CASES
A civil case is a private case where court. Copies are then delivered to,
someone sues someone else. This is or served on, the defendant.
also known as a suit or action. In a
criminal case, the Crown prosecutes The defendant must provide the
an accused under a public-law statute court with a statement of defence.
such as the Criminal Code or the If she or he does not, the court will
Controlled Drugs and Substances Act. assume that the plaintiff’s allegations
are true. The defendant may thus
lose by default.
How Do Civil Cases Work?
A civil action or suit starts when Both the plaintiff and the defendant
individuals or corporations disagree are entitled to consult a lawyer.
on a legal matter, such as the terms of Lawyers often discuss the lawsuit to
a contract or the ownership of a piece settle it before a trial is necessary.
of property. A civil suit can also result The two sides can reach a settlement
if someone is injured or property is at any time before the judge makes his
damaged. For example, someone who or her decision. In fact, 98 percent of
breaks a leg when he or she slips on civil suits never make it to the courts.
an icy stairwell may sue for compen-
sation. The person who sues is called
the plaintiff. The person being sued is Discovery
called the defendant. Each party is then entitled to an
examination for discovery before the
Civil cases are complex. A suit goes trial. Its purpose is to clarify the claim
through several stages: pleadings, against the defendant and lets each
discovery, and the trial itself. side examine the evidence that the
other side intends to use in court.
Pleading
First, the plaintiff files a pleading Trial
with the court. This sets out the During the trial, it is up to the
complaint against the defendant and plaintiff to present facts to support
the remedy the plaintiff is seeking. the claim against the defendant. In a
A court officer then issues the claim civil suit, the plaintiff must prove that
by affixing the seal of the court and it is probable that the defendant is
signing the pleading on behalf of the legally responsible, or liable, because
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CA N A DA’ S SY ST E M O F J U ST I C E
a civil case is decided on a balance At the end, both the plaintiff and
of probabilities. This is the standard the defendant summarize their
of proof for a civil case, just as the arguments. The judge must then
standard of proof for a criminal consider the evidence presented
case is proof beyond a reasonable before making a decision, based on
doubt. what has been proven to be most
probable. He or she must decide
If the facts justify the remedy the whether the facts show that the
plaintiff is seeking, the court will defendant has broken a civil law,
hold the defendant liable, or legally such as a law that says we are obliged
responsible. to fulfill our contracts.
Depending on the suit and the court,
What Happens at a Civil Trial?
the defendant may have a right to a
The trial begins with the plaintiff trial by judge and jury. It is then up
presenting evidence against the to the jury to decide which version
defendant. The plaintiff may call of the facts it believes. The judge
witnesses to testify to facts and still decides which law applies and
present evidence: papers, photographs explains the evidence and the relevant
or other documents. The defendant laws to the jury. The jury must
may cross-examine the plaintiff’s then consider the matter and reach
witnesses to test their evidence. a verdict.
The defendant then presents his or
her own evidence, including witnesses.
The plaintiff has the same right to How a Trial Ends
cross-examine. If the defendant is found not liable,
the judge will dismiss the case.
Throughout the trial, the judge If the defendant is found liable,
must make sure that all the evidence the judge or jury must consider
presented and all the questions asked
three things:
are relevant to the case. For example,
in most situations, the judge will • the remedy that the plaintiff asked
not allow testimony based on what for in the pleadings;
a witness has heard from another
• the facts; and
person – this is called hearsay
evidence. • how to compensate the plaintiff.
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CA N A DA’ S SY ST E M O F J U ST I C E
Remedies • Declaratory remedies simply state
A remedy is a means of resolving a the rights of the parties. For example,
civil case. There are three different when a court interprets a will or
types. decides who owns personal property
or land, its decision is declaratory.
• Monetary remedies, called damages,
are the most common. The judge • An injunction is a restraining order
or jury who decides the case fixes that says that someone can or
the amount of damages. The judge cannot do something. You could get
or jury will take into account the an injunction to stop your neigh-
expenses incurred by the plaintiff. bours from burning garbage or to
Where the law permits, order them to remove a junk heap
they can also award an from your property. Injunctions are
In 2011–12, cases additional sum to not given automatically. In each
compensate the plaintiff case, the court has the discretion to
involving impaired for the loss suffered as a make such an order or to award
result of the wrongdoing damages according to precedent.
driving (11%),
of the defendant.
theft (10%), The judge or jury is not
required to award the
common assault plaintiff the amount
he or she asks for. They
(10%), and failure might even award less
than that amount. In
to comply with an Canada, a judge or jury
may occasionally award
order (9%) were “punitive” damages.
This is a larger award that
the most common
expresses the disapproval
types of cases of the community. These
damages are meant to
completed in adult punish the defendant
because the defendant’s
criminal court. behaviour was so
offensive.
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