2.2: Overview of Canadian Law

Rules and regulations govern procurement practices, including the bidding process, contract formation, compliance, enforcement, and dispute resolution. Public purchasers must keep up with legal developments in public sector procurement law and guard against legal risk and reputational or financial problems. Procurement laws vary from country to country and may also depend on the type of procurements being made.

Historical Context

Laws are created to establish standards for acceptable conduct, proscribe punishment for violations as a deterrent, establish systems for enforcement, and peacefully resolve disputes. The Canadian legal system has its roots in the British common law system, the French civil law system, Aboriginal laws (developed by courts and legislatures) and Indigenous law (practices that originate and are applied by Indigenous cultures and communities). A primary goal of the Canadian legal system is the promotion of the common good.

Establishing Standards

The Canadian legal system was developed to establish standards that outline what is to be considered minimally acceptable behaviour. All Canadian citizens are expected to follow federal and provincial laws. Provincial and territorial laws may mirror federal laws, but they may also differ in content and application.

The Books of Authorities are early legal textbooks that can be easily referenced as a legal authority in a court of law.

No system of law is perfect, and the Canadian system is no different, as evidenced by the problematic history endured by Indigenous people in this country. A primary goal of the Indian Act (an Act that is still in full force and effect) was the assimilation of Indigenous peoples for the common good. The principle of the common good applied in this example is not a version that views all people’s values, cultures, history and experiences equally and inclusively.

It is important to note that there are Indigenous Nations that have Self-Government Agreements (for example, the First Nations within the Anishinabek Nation and Nisga’a), which provide the legal authority to make their own laws in certain areas of jurisdiction. This may include, but is not limited to, education, elections within the First Nations, language and culture. Each self-government agreement is unique to the context and needs of the Nations that are party to the Agreement, which may result in variations across Agreements.

The Procurement Strategy for Aboriginal Business was created in 1996 to increase the number of Indigenous suppliers and vendors who bid on and won federal contracts. In 2021, the program changed its name to the Procurement Strategy for Indigenous Business, with a mandatory requirement for federal departments and agencies to ensure that qualified Indigenous businesses held a minimum of 5% of the total value of contracts.

First Nations self-government agreements in Canada are agreements between the federal government and a specific Indigenous community or nation that give them the authority to create and enforce their own laws, manage their finances and resources, and develop their own social programs. These agreements are important in the reconciliation process between Indigenous and non-Indigenous peoples in Canada. They provide a way for Indigenous communities to have greater autonomy and control over their affairs. The agreements are negotiated between the government and the Indigenous community and are legally binding. The agreements are also designed to ensure that the rights of the Indigenous community are respected and upheld.

Debates in the Legislative Assembly

The Legislative Assembly’s main responsibilities are to debate and pass legislation to hold the government accountable and improve government spending. A report of the debates and proceedings is known as a Hansard.

Promoting Consistency through Case Law

The Canadian legal system follows the British common law system, which is designed to reference past judicial reasoning while promoting fairness through consistency. Judges in the common law system help shape the law through their rulings and interpretations. This body of past decisions is known as case law. Judges use case law to inform their rulings. Indeed, judges rely on precedent (previous court rulings on similar cases) to rule on their cases.

Resolving Disputes

Laws are typically developed and applied to promote, provide, and maintain order, but conflicts are expected, given people’s varying needs, desires, objectives, values, and perspectives. The Canadian legal system provides a formal means for resolving disputes through the courts. In addition to the federal and provincial court systems, in Canada, there are alternative systems for resolving disputes, including mediation, arbitration and, in Indigenous applications, restorative justice circles (a dialogical community-based healing process focusing on an offender’s obligation to repair harms that they have created or actioned).

The Rule of Law

The Rule of Law stands against arbitrary actions undertaken by the State against its citizens. It requires transparency of law and fair, predictable, and equal application of laws, an independent judiciary and due process. The Rule of Law ensures that the law is public and accessible — enabling people to understand legal obligations and the process governing legal procedures.

Canada has a rule of law system. Canadian laws operate with the purpose and function of protecting the liberties and rights of people from violations by persons, companies, governments, or other entities. The Canadian Constitution is the supreme law of Canada, containing and explicating the conditions, rules, and regulations within which government and the people operate.

The first statement of the Charter of Rights and Freedoms (a section within the Canadian Constitution) states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Charter provides a guardrail to ensure that laws enacted by a government do not override or infringe on the individual rights and freedoms identified within the Act. The intention is not absolute, as the Charter limits the exercise of rights that could result in adverse outcomes for Canadian society. For example, freedom of speech is protected under the Charter, but such freedom does not extend to hate speech.

It should be noted that the Charter of Rights and Freedoms contains a controversial provision in Section 33 — the Notwithstanding Clause. The clause enables parliaments within Canada to disregard specific sections of the Charter (sections 2 and 7 – 15) for up to five years if “non-controversial issues” warrant the invocation of the clause. Agreement on what counts as legitimate application of the clause continues to be vigorously debated in legal, academic, and political circles throughout the country.

Attribution

“2.2: Overview of Canadian Law” is adapted from “Chapter 1: Overview of Canadian Law” from Business Law and Ethics, Canadian Edition, copyright © 2023 by Craig Ervine, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

“Practical Procurement: Scenarios and Solutions” box was created with the assistance of Microsoft Copilot and is shared under the Creative Commons – CC0 1.0 Universal License.

The multiple choice questions in the Checkpoint boxes were created using the output from the Arizona State University Question Generator tool and are shared under the Creative Commons – CC0 1.0 Universal License.