4 min read
27 Mar
The Canadian Legal System


  • What is our Constitution? The Canadian Constitution sets out the principles and precedents under which we are governed.
  • Our Constitution includes the Canadian Charter of Rights and Freedoms which, in basic terms, limits government action (but rights and freedoms have limits, and a legislature can “suspend” such rights and freedoms.
  • Our legislatures, like Parliament in Ottawa and the Legislative Assembly of Ontario in Toronto, are our largest sources of law. 
  • Our Constitution sets out which laws may be made by Parliament (in Ottawa) and by the legislatures in the capital cities of the provinces.
  • Under our Constitution Act 1867, some laws may be made by Parliament (such as those pertaining to coinage, banks, the military, and crime) and some laws may be made by provincial legislatures (pertaining to local works and undertakings, property and civil rights, and municipal institutions).
  • Our Constitution, mostly written, is our super law.
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  • What is our common law? In a number of different ways, judges, in the course of adjudicating and deciding disputes, make laws, called the common law.
  • Sometimes when there is a reference to the common law, the law of equity (or fairness) is seen to be included. The law of equity is also judge-made law. One example is the equitable rule of quantum meruit which starts with the notion that one should be paid what s/he deserves for labor or materials provided for the benefit of another.
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    The websites do not provide legal advice but merely legal information
    The book Canadian Law and Business Studies contains a complete chapter on the "Canadian Legal System and Sources of Law".
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What is Canada’s legal system?

A legal system will have a set of laws and regulations. Only certain bodies will be able to make laws and regulations that can be enforced. A legal system will classify laws and have set procedural rules related to those laws. A legal system will have courts presided over by judges. Judges determine disputes or may decide on guilt in criminal matters and unlawfulness or wrongdoing in other matters.

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In Canada, our Constitution is a our “guiding law”. It sets out what laws the federal Parliament can make and what laws the provincial legislatures can make.

The Constitution also sets out rights and freedoms and, in that way, controls what laws may not be passed that affect citizens and others. To help ensure everyone is treated equally and fairly, our courts rely heavily on precedent – what other courts decided in similar circumstances.

We have a criminal and civil court system. In some circumstances, someone facing a criminal charge or is involved in civil lawsuit may have a jury selected from the general population to decide the verdict after a trial.

A civil court will have its own rules of procedure – what paperwork must be filled in, served on the opposing side, and filed with the court. Criminal courts have their own set of procedural rules.

In making decisions, judges interpret documents and explain their decisions and, in that way, help to make law which is called the common law.

While decisions of lower court trial judges can be appealed to a higher court, the rulings of the Supreme Court of Canada (whether as to guilt, Constitutional or contract interpretation, or the common law) is final and supreme. Courts have the power to enforce their orders by imposing fines or incarcerating those who are contemptuous. 

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As the complainant, can I have a criminal charge withdrawn against the alleged wrongdoer? NO is probably the correct answer in Canada. Once police are called and investigate, it is up to the Crown Prosecutor to determine whether to proceed with the criminal charge or not. However, the complaint’s position may be considered by the Crown.

What is an unlawful assembly? Peaceful assembly and association is a Charter right. But the Criminal Code prohibits unlawful assembly which includes a tumultuous disturbance of the peace. Some university parties can grow so large and become so unruly that this Code prevision could be used to charge attendees.

Emergencies ActThe Emergencies Act is a federal statute which authorizes the taking of special temporary measures to ensure safety and security during national emergencies.
It was invoked for about a week in February of 2022 to deal with a protest that seemed like an occupation beside Parliament in Ottawa and other parts of the city. After its use, the legislation requires an "inquiry" to ensure that it was invoked in accordance with requirements set out in the legislation.

Oath of Allegiance to KingThe oath of allegiance to the king or queen prospective Canadian citizens are asked to take does not violate our Charter Rights and is a commitment to our form of government: McAteer v. Canada (Attorney General)

In any case, the Quebec Assembly has passed a law making the oath of allegiance that is needed to become a sitting member of the legislature optional.

Courts Do What Was Done Before for Consistency?

The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. In Latin it is referred to as stare decisis. Essentially, it is following precedent.

This doctrine provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to being stagnant.

Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence (that “fundamentally shifts the parameters of the debate”): Canada (Attorney General) v. Bedford, 2013 SCC 72 para. 42).

Constitutional Rights Trump Common Sense??? In the United States, none of these facts were found sufficient to take away the abuser’s right to have pistol in his home: 5 firearm discharges in 2 months, domestic violence, a restraining order, or the fact that firearms account for half the deaths in domestic violence in that country. This was the ruling of the 5th US Circuit Court of Appeals in favour of Zackey Rahimi, feared by his girlfriend. In the US, their Constitution is interpreted to mean that citizens may bear arms. See the 2nd Amendment for specifics. This is merely general information.

Caution: Legal information is not legal advice.

This website merely provides a general guide to the subject matter. 

New and interesting information will be periodically added.

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