Canadian Legal System
The Canadian legal system is based on the British common law system while the province of Quebec has retained its civil system for matters of private law. Areas of law under the Canadian legal system include administrative law, constitutional law, contract law, aboriginal law, and civil and human rights law, together with criminal law and copyright law, among others.
All territories and provinces, except Quebec, follow the common law tradition, with courts adhering to the doctrine of stare decisis. Lower courts are bound to respect the decisions of higher courts, and decisions by the highest court of a province are regarded persuasive. The decisions of the Supreme Court of Canada are binding for all courts in Canada. When no decision exists on a legal issue, courts look for decisions made by non-Canadian authorities, utilizing decisions by US and English courts.
The province of Quebec has adopted a hybrid legal system for historical reasons. Public law follows the common law tradition while private law is modeled on the civil law tradition. Notably, the distinction between common law and civil law is not based on the 1867 Constitution Act and the division of powers set out in it.
Under the Constitution Act, the Canadian federal government has powers to make laws in relation to the regulation of commerce and trade, shipping and navigation, defense, military and naval service, militia, and postal service. Other areas in which the government has federal powers include marriage and divorce, banking, unemployment insurance, and patents and copyright.
The provincial governments also have powers under the Constitution Act of 1867. Areas include solemnization of marriage, direct taxation within the province, property and civil rights, prisons, and incorporation of companies. The provincial legislatures and the parliament have power over certain aspects of natural resources, immigration, and agriculture. However, the national law prevails if the national and provincial laws are in conflict. The provincial legislatures and the parliament also have power over survivors’ pensions and disability and old age, and provincial law prevails if the provincial and national laws are in conflict.
The Canadian constitution itself comprises of a series of Canadian and British legislative acts. The government of Trudeau undertook to repatriate the constitution in 1982, and the Charter of Rights and Freedoms was introduced at the same time. It is a constitutional document guaranteeing basic freedoms and rights, which came into force in 1985.
Regarding criminal law, the federal government has the power to enact laws, and most of them are codified in the Youth Criminal Justice Act, Controlled Drugs and Substances Act, and the Criminal Code of Canada. Administrative law addresses the operations and actions of governmental agencies and governments. Administrative law concerns the ways in which courts review decisions made by various agencies, ministers, commissions, tribunals, boards, and other decision-makers. Administrative law is mainly concerned with matters of substantive review and the enforcement of participatory rights, i.e. procedural fairness.
Human rights are protected through four mechanisms: the Canadian Human Rights Commission, the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms, and provincial legislation and laws.
Regarding contract law, it follows the English legal tradition and is rooted in equity and common law. Unlike other provinces, Quebec has its law of obligations instead of contract law. Labor and employment law is another area of law in Canada, which regulates the obligations and rights of employers, trade unions, and workers. The statutory environment in Quebec is again considerably different.
Other areas of law, which are part of the body of law in the country, include inheritance law, family law, patent law, tort law and property law, etc.