Canadian legal system Australian Law Postgraduate Network

Canadian legal system  Australian Law Postgraduate Network

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This module deals with the Canadian legal system. By the end of this module, you will be able to locate:

online guides to the Canadian legal system

Acts and Regulations of the Candian Parliament and those of the Provincial and Territorial Assemblies

sources for the legislative history of Acts passed by Canadian parliaments

case law relating to courts in Canada.

Canada was the creation of the British North America Act, 1867. This Act of the Westminster Parliament established the Confederation of Canada, which included the former British colonies of Prince Edward Island, Nova Scotia, New Brunswick, Quebec and Ontario. Additional provinces joined the Confederation over subsequent decades. The last provinces to join was Newfoundland, which became part of the Confederation in 1949.

The legal systems of Canada and Australia share many points of resemblence. Both countries are Federal states and common law jurisdictions. Canada, however, differs from Australia in that one province (Quebec), has a mixed legal system.

The influence of English law on Canadian law is extremely strong. However, the situation is changing rapidly due to the incorporation of EU law into English jurisprudence. This trend has widened the differences between Candian and English case law.

There are a number of online guides to the Canadian legal system. Some of the most useful include:

Best Guide to Canadian Legal Research. This site is hosted by the BC Courthouse Library Society and written by Catherine Best.

Canadian Legal Research Guide. The Guide is provided by the Library of the Harvard Law School

Doing Legal Research in Canada. This site, which provides an good overview of the Canadian legal system, is offered by LLRX.

Guide to Legal Research Canadian Law. The Guide to Legal Research is an Australian source and is provided by the UNSW Library.

The CED is the standard Canadian legal encyclopedia, providing a broad overview of Canadian law. The CED is published in two editions: the Ontario and Western Edition. The Ontario edition covers Federal law and the law of Ontario Province. The Western Edition deals with Federal law and the law of the four Western Providences (British Columbia, Alberta, Saskatchewan and Manitoba). The CED is currently in its third edition. This source is available in paper in loose-leaf form, in CD-ROM and through Westlaw.

LexisNexis has a rival publication: Halsbury''s Laws of Canada. This publication aims to provide a comprehensive, topic-based guide to the Canadian law. When completed, it will consist of some 57 volumes.

There is also an older publication, the Canadian Converter. This work was issued as a supplement to the third edition of Halsbury''s Laws of England. The Converter provides Canadian cases and statutes relating to each point of law covered in the older edition of the English Halsbury''s.

The Canadian Abridgment provides case digests for Federal and Provincial courts (excluding Quebec) under more than 50 subject titles. The publisher claims that the Abridgement covers almost every case reported in Canada since1803, and every unreported case since 1986. This source includes Canadian Case Citations, Canadian Statute Citations and the Index to Canadian Legal Literature, among other resources. The Canadian Abridgement is currently in its third edition and is available in print and through Westlaw. The electronic version includes Canadian Current Law, a monthly update service.

CanLII is a free source of information on Canadian Law created by the Federation of Law Societies of Canada. The CanLII databases contain over 500,000 case reports. In addition, CanLII offers free access to the Consolidated Statutes of Canada, Annual Statutes and Consolidated Regulations, as well as Consolidated Statutes and Regulations for all Provinces and Territories except British Columbia.

The modern Canadian constitution dates back to the passage of the Constitution Act, 1982. This Act incorporated a Canadian Charter of Rights and Freedoms, and set out the terms for future constitutional amendments. Although the British North America Act (now known in Canada as the Constitution Act, 1867) and the Constitution Act, 1982 are the foundations of Canadian constitutional law, the Canadian Constitution is partly unwritten. The Constitution also includes constitutional conventions, custom and precedent. The decisions of the Supreme Court of Canada is another source of constitutional law, as the Court has the role of interpreting the written constitution.

The texts of Constitution Act, 1967 and the Constitution Act, 1982 are available at the CanLII site.

The Centre for Constitutional Studies at the University of Alberta has a range of resources on Canadian Constitutional Law.

The Charter of Rights and Freedoms

The concept of a Bill of Rights is at odds with the traditional common law assumption of parliamentary supremacy. For this reason, the passage of the Canadian Charter of Rights and Freedoms in 1982 represented a significant departure in terms of Canadian constitutional law. In one respect, however, the Charter represents something less than a Canadian equivalent to the United States Bill of Rights. Section 33(1) of the Charter permits the Canadian Parliament or a Provincial legislature to pass legislation suspending certain categories of rights otherwise protected by the Charter. The initial duration of such overriding legislation is limited to five years or less. There is provision, however, for such legislation to be renacted, so overriding legislation could be renewed indefinitely (at least in theory).

The Canadian Parliament is a bicameral legislature, consisting of a House of Commons and a Senate. The Federal Parliament meets on Parliament Hill at Ottawa, in the Province of Ontario. Provincial and Territorial assemblies are unicameral. Apart from this distinction, they function in an almost identical manner to the Canadian Parliament.

Information about the different categories of Bills is available from the Canadian Parliament site.

Bills from the 1st Session of the 35th Parliament (17 January 19945 February 1996) onwards are also available from the same site.

Acts of the Canadian Parliament are available from the Department of Justice site. This site has a powerful search engine which allows you to locate the text of Consolidated Acts at a particular point of time. It also includes links to the Federal Regulations associated with each Act. The full-text of Federal Acts are also available from CanLII and Westlaw

Federal regulations are available from the Department of Justice site, CanLII and Westlaw.

The purposive approach to statutory interpretation prevails in Canadian courts, as in Australia. The means that documents relating to the legislative history of an individual Act are relevant to the task of statutory interpretation.The LEGISInfo site provides information about Bills introduced into the Canadian Parliament from the 37th Parliament (2001) onwards. This information includes:

the text of the Bill at various stages

Legislative Summaries from the Parliamentary Information and Research Service

The full text of Bills for the Provinces and Territories are available from the Web sites of the relevant legislatures. Links to these sites are available at the CanLII site.

Statutory legislation is available through the official sites of the individual Provinces and Territories.

CanLII provides links to Consolidated Acts for all Provinces and Territories, except British Columbia. LexisNexis has Acts for Alberta, British Columbia, Quebec and Ontario. Westlaw''s Canadian Primary Law Library provides Acts for all 13 Provinces and Territories.

Many of the official sites of the Provinces and Territories provide links to regulations (see above). CanLII provides links to the Consolidated Regulations for the Provinces and Territories (except British Columbia).

Materials for the legislative history of Provincial and Territorial Acts are available from the Web sites of the individual assemblies. Links to these sites are to be found at the Inter-Governmental Affairs site.

As in Australia, each Province or Territory has its own court hierarchy. At the apex of the Federal system is the Supreme Court of Canada. In addition to its constitutional role, the Supreme Court hears appeals from Courts of Appeal at the Federal, Provincial and Terrtorial levels. Below the Supreme Court is the Federal Court of Appeal, which hears appeals from the Federal Court. The Federal Court has first instance jurisdiction over legal disputes in the Federal domain, including claims against the Government of Canada, civil suits in Federally-regulated areas and challenges to the decisions of Federal tribunals.

At the apex of the court hierarchy on the Provincial or Teritorial level there is usually a Court of Appeal. Courts of Appeal hear appeals from Superior Courts below them in the system. These Superior Courts are known by various names, including Superior Court of Justice, Supreme Court (not to be confused with the Supreme Court of Canada) and Court of Queen''s Bench. These courts try the most serious criminal and civil cases in the Provinces and Territories, including divorce cases and major civil matters. The Superior Courts also act as courts of first appeal from the Provincial and Territorial courts below them. The Provincial and Territorial courts deal with most criminal offences and minor civil matters. There are also a growing range of specialised courts, such as Youth Courts and Domestic Violence Courts in the different Provinces and Territories.

The only official court reporters at the Federal level are the Supreme Court Reports and the Federal Court Reports. Although unofficial, the Dominion Law Reports (DLR) are widely used. This source reports significant Federal decisions. The DLR are currently in their 4th series. This source is in print and is available to subscribers through Canada Law Book.

Judgements of the Supreme Court of Canada are available from the Lexum site. This source includes the decisions handed down by the Supreme Court of Canada since 1985 and hundreds of the most significant pre-1985 cases. In addition, it includes all Ontario decisions of the Supreme Court back to 1876. Canada Supreme Court Reports are also available from LexisNexis.

The Federal Court site provides the full-text of decisions rendered by the Federal Court and the Federal Court of Appeal (the former Federal Court of Canada) since 1997. LexisNexis also has the Federal Court Reports.

There are a wide range of regional or topical series series that contain Federal case law. Many are available in print or electronically through LexisNexis or Westlaw.

The DLR covers significant decisions from Provincial and Territorial courts. Each Province and Territory has an official law report series which publishes Superior Court and Appellate Court Decisions. Prince Edward Island and Newfoundland publish a combined series. Links to the sites of Provincial and Territorial courts are available from CanLII. LexisNexis and Westlaw also provide case law for different Provinces and Territories.

A guide to Canadian law reports is available from the Queens University site

There are two comprehensive electronic citators for Canadian case law. These are QuickCite, available through LexisNexis and KeyCiteCanada on Westlaw. Reflex from the CanLII site provides a free case citator if you do not have access to either LexisNexis or Westlaw. Reflex is not, however, as comprehensive as its commercial counterparts.

There are a range of digest services providing short concise summaries of significant court decisions soon after their release. Some of these services offer an order service through which you can obtain the full text of the decision. LexisNexis provides Lawyer''s Weekly Case Digests. Westlaw offers Canadian Abridgement Case Digests.

Before 1763, Quebec was part of New France. The law which prevailed was the Coutume de Paris, the traditional law of Paris. After the end of Seven Years War, Quebec became a British possession and the English common law was imposed on the people of the Province. The Quebec Act, 1774 re-established the authority of Coutume de Paris in the area of private law. In relation to criminal law, the common law continued in force. This arrangement has lasted in Quebec for more than two centuries, although the civil law has undergone a number of changes. The Coutume de Paris remained in force until 1866, when a new Code based on the Napoleonic Code of 1804 was issued. The latest version of the Code came into operation on 1994.

Possibly the best place to begin research into the law of Quebec is the site of La Société québécoise d''information juridique (SOQUIJ). This site provides the most comprehensive body of Quebec case law and statute law on the Web.

This module examined the Canadian legal system, covering the following:

finding online guides to the Canadian legal system

finding Bills, Acts and Regulations of the Candian Parliament and those of the Provincial and Territorial assemblies

locating sources for the legislative history of Acts passed by Canadian parliaments