1. Overview of Canadian Law
The Canadian Constitution is the supreme law of Canada and consists of several documents. The Constitution Act, 1867 (formerly called the British North America Act, 1867), is the cornerstone of the Constitution and is composed of a preamble and ten parts. It sets out the structure of the Canadian government and the division of powers between the federal government and the provinces.
The Constitution Act, 1982 is the most recent document, and includes the Canadian Charter of Rights and Freedoms, which enshrines fundamental rights and freedoms in Canada. Other parts of the Constitution include the Constitution Act, 1930, the Statute of Westminster 1931, and the Canada Act 1982.
The Constitution is the foundation of Canada’s system of government and is the legal basis for the laws and regulations that govern the country. It sets out the rules and processes for how federal, provincial, and territorial governments are elected and operate, and how they interact with each other. It also defines the rights and responsibilities of citizens.
Section 35 of the Constitution Act, 1982 recognizes and affirms rights of the Indigenous peoples of Canada and that the rights must be recognized and respected by all levels of government. As noted in materials shared on the Government of Canada website: “Section 35 contains a full box of rights, and holds the promise that Indigenous nations will become partners in Confederation on the basis of a fair and just reconciliation between Indigenous peoples and the Crown.” ()
Canada has two fundamental forms of law: Common Law and Civil Law. The civil code of Quebec Law is followed in the Province of Quebec while the other provinces and territories in Canada follow common law. Judges in the common law system help shape the law through their rulings and interpretations, a practice known as applying precedence. The idea that a finding from an earlier case should be binding on future cases is captured by the Latin term stare decisis which means ‘let the decision stand’. This body of past decisions is known as case law, which is used by judges to inform their own rulings. In fact, judges rely on precedent (previous court rulings on similar cases) when determining the ruling in their own cases.
In the civil code system precedent is not a required element of the law. Laws are contained in a comprehensive legislative document referred to as a code. Judges in civil law jurisdictions refer to the code to determine how they will render their verdict. Judges may review and refer to prior legal matters and outcomes, but it is not a formal practice that is expected to be applied to all cases.