NETA PowerPoint® Slides
to accompany
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Chapter 2
The Canadian
Legal System
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Objectives
After studying this chapter, you should have an understanding of
• the impact of the Canadian legal system on business
• the role of constitutional law in protecting commercial rights
and freedoms
• the government’s law-making powers under sections 91 and 92
of the Constitution Act, 1867
• the executive’s formal and political functions in regulating business
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Objectives (cont’d)
• the judiciary’s role in assessing the constitutionality of legislation
• the classifications of law
• how administrative law affects business
• the importance of Indigenous legal traditions as well as aboriginal and
treaty rights
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The Canadian Legal System
• Canadian legal system: The machinery that comprises and governs
the legislative, executive, and judicial branches of government.
• Can be overwhelming and technical
• Essential for business owners and managers to know
• Government policy: The central ideas or principles that guide
government in its work, including the kinds of laws it passes.
• Constitutional law: The supreme law of Canada that constrains and
controls how the branches of government exercise power.
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The Canadian Legal System
• Legislative branch – The branch of government that creates
statute law.
• It passes laws that impact business operations.
• Executive branch – The branch of government that generates policy.
• These policies can be directed at businesses.
• Judicial branch – The branch of government that provides rulings on
legal conflicts or future conflicts.
• Many rulings impact on businesses, e.g., commercial expression.
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The Canadian Constitution
• The Canadian Constitution is contained in several different
documents.
• All Canadian laws must comply with the Canadian Constitution.
• This is difficult to change – a special amending formula must be met.
• Constitutional conventions: Important rules that are not enforceable
by a court of law but that practically determine how a given power is
exercised by government.
• Example: The office of prime minister does not formally exist in our
constitutional documents.
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The Legislative Branch of Government
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BOX: BUSINESS AND LEGISLATION
Constitution Act, 1867
• Formerly the British North America Act or the BNA Act
• Sets up our courts
• Contains the “DIVISION OF POWERS” Exclusive Federal Jurisdiction
(s. 91),
such as:
• currency
• national defence
• criminal law
• banking
• postal service
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BOX: BUSINESS AND LEGISLATION
Constitution Act, 1867
• Exclusive Provincial Jurisdiction (s. 92) includes:
• hospitals
• property and civil rights within the province
• administration of justice
• local matters
• incorporation of provincial companies
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BOX: BUSINESS AND LEGISLATION
Constitution Act, 1867
• Municipalities
• Have no constitutionally recognized powers
• Are usually delegated powers by the provinces in some areas, such
as
• zoning
• subdivision
• property tax
• licensing
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Statute Law and Jurisdiction
• Jurisdiction: The power that a given level of government has to enact
laws.
• Governmental power is split between
• central authority (federal government)
• regional authorities (provincial governments)
• These, in turn, empower municipal governments to legislate in defined areas.
• territorial governments (limited self-government)
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Statute Law and Jurisdiction
• Exclusive jurisdiction: Jurisdiction that one level of government holds
entirely on its own and not on a shared basis with another level.
• Federal government has exclusive jurisdiction over criminal law
• Concurrent jurisdiction: Jurisdiction that is shared between levels of
government.
• Public health
• Environment
• also shared with municipalities – see Environmental Perspective
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Statute Law and Jurisdiction
• Paramountcy: A doctrine that provides that federal laws prevail when
there are conflicting or inconsistent federal and provincial laws (in an
area of concurrent jurisdiction)
• Usually applies only if an express contradiction between laws
• Cannot be used to “pick” the better law to adhere to—in that case, both laws
would apply
• Bylaws: laws made by the municipal level of government.
• Includes taxing, zoning
• Affects business regulation
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BOX: ENVIRONMENTAL PERSPECTIVE
Concurrent Jurisdiction over the Environment
• Federal jurisdiction over the environment centres on
• protecting oceans, inland waterways
• protecting fisheries
• protecting the import and export of hazardous products
• transportation of dangerous goods (provincial and international)
• Municipal involvement is necessary because municipal governments
are usually responsible for water and sewage systems, noise, chemical
use, and more.
• All are linked to federal areas as well.
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BOX: ENVIRONMENTAL PERSPECTIVE
Concurrent Jurisdiction over the Environment
• Examples of federal legislation that touch on environmental matters:
• Canadian Environmental Protection Act
• Provides financial penalties
• Criminal Code of Canada
• Can lay charges
• Provincial environmental protection acts
• Requires remediation, cleanup, can impose fines and jail
• The spread of jurisdiction can make the regulation and protection of
the environment complex.
• It is important for business to understand applicable laws and use risk
management strategies.
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BOX: BUSINESS AND LEGISLATION
Vaping and the Law
• Does not include tobacco
• May contain nicotine
• Still considered a threat to health
by the Canadian government
• Laws were a patchwork of municipal
and provincial
• 2018: Bill S-5 (Tobacco and Vaping Products Act) aims to protect
youth, restrict access, prohibit advertising
• Bill: Proposed legislation going through the process of becoming law.
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The Executive Branch of Government
• The ceremonial/formal function of the executive branch of government includes
supplying the head of the Canadian state, the Queen.
• Formal executive: The branch of government responsible for the ceremonial
features of government.
• Represented by the governor general or lieutenant governor
• Political executive: The branch of government responsible for day-to-day
operations, including formulating and executing government policy, as well as
administering all departments of government.
• Very important for business operations, to both understand laws, and lobby for
favourable policies
• Cabinet: A body composed of all ministers heading government departments,
as well as the prime minister or premier.
• Passes regulations
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BOX: BUSINESS AND LEGISLATION
Tobacco Regulation by the Federal Government
• The Tobacco Act gave power to the
governor general in council (federal
cabinet) to regulate information that
appears on cigarette packages.
• Regulations will be revamped with the
new Bill S-5, which will cover ‘plain and
standardized packaging’ (PSP).
• Likely to remove brand colours, logos, and images.
• The goal is to discourage smoking.
• The tobacco industry may launch legal attacks on the new regulations, such as
violation of freedom of expression under the Charter of Rights and Freedoms.
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The Judicial Branch of Government
• Judiciary: A collective reference to judges.
• Not a branch of government
• Independent from legislative and executive branches
• Composed of appointed judges
• Judges: Those appointed by federal or provincial governments to
adjudicate on a variety of disputes, as well as to preside over
criminal proceedings.
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The System of Courts
• The provincial and territorial systems of courts have three basic levels:
trial, intermediate appeal, and final appeal.
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The System of Courts
Inferior Court
• Judges appointed by the
provincial government
• Limited financial jurisdiction
• Organized by type of case
• Parties often appear without a
lawyer
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Superior Court
• Judges appointed by the federal
government
• Unlimited financial jurisdiction
• Entry level for more serious
criminal matters
• More formal and technical,
usually with legal representation
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The System of Courts
• Civil Court (Small Claims Court)
• Disputes involving smaller amounts of money (varies by province)
• Designed to be simpler, quicker, less expensive to use
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The System of Courts
Supreme Court of Canada (SCC): The final court for appeals in
the country.
• Requires permission to appeal from the SCC itself
• Usually deals with cases of national significance only
Federal Court of Canada: The court that deals with some types of
litigation involving the federal government
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The Canadian Charter of Rights and Freedoms
(Charter)
• Created in 1982, part of the Constitution Act, 1982
• A judicially enforceable guarantee that the government will act with
the values associated with a liberal democratic state
• Examples:
• Right to freedom of expression and religion
• Right to a fair and speedy trial
• Equality rights
• Right to vote
• Fundamental freedoms (fundamental to business)
• Equality rights (fundamental to business)
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Fundamental Freedoms
2.
Everyone has the following fundamental freedoms:
a. freedom of conscience and religion;
b. freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
c. freedom of peaceful assembly; and
d. freedom of association.
(Charter, s. 2)
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Equality Rights
15. (1)
Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age, or mental or physical
disability. (Charter, s. 15)
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Canadian Charter of Rights and Freedoms
• The Charter protects against violation of rights by government’s
conduct (in the form of legislation or policy)
• Protection against non-government violation of rights would be dealt
with through provincial and federal human rights codes.
• For legislation to be unconstitutional, it must violate a Charter right.
• Freedom of expression and tobacco packaging
• But freedom of expression can be restricted, if done in a reasonably
measured, controlled, and appropriate way.
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Box: BUSINESS AND LEGISLATION
Store Owner Challenges Tobacco Access Act
• Robert Gee refused to cover up tobacco products
in his store in Nova Scotia.
• He challenged the constitutionality of the
province’s Act.
• The court was convinced that Gee’s freedom of
expression rights had been violated.
• Legislation was an infringement.
• The Crown showed the purpose of the legislation
was important as a form of protection and health.
• Legislation was upheld.
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Canadian Charter of Rights and Freedoms
• Judges can strike down legislation if proven to be unconstitutional.
• Not all agree that the power is appropriate, since the law is enacted
by elected representatives.
• Most agree that even a majority should not have the power to
infringe on the rights of others.
• The court can assess the constitutionality of legislation.
• The legislative branch, however, usually has the last word.
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Are There Limits to Our Charter Rights?
Section 33 (The “Notwithstanding Clause”)
Allows governments to “opt out” of some Charter rights by enacting
legislation “notwithstanding” that it violates the Charter.
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Sources of Law
Two main sources of law:
• Statute law
• Judge-made law: A formal ruling in a matter as well as reasons for
that outcome.
• The end product (judgment, decision) of dispute that comes before the
judiciary
• Common law: The body or collection of judge-made law as recorded
in judgments.
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Sources of Law
• Judges seek to explain, justify, and account for the decisions that have
been made.
• This includes decisions made by other judges in other relevant cases.
Precedent: The use of decisions made in earlier cases by other judges
in similar matters.
• Lower court must follow precedent made by a higher court.
• The higher the court, the more valued the decision is.
• The Supreme Court of Canada does not have to use precedent.
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Sources of Law
• When resolving disputes, judges can use common law rules and rules
of equity.
• Common law rules were more rigid, predictable.
Law of equity: Rules that focus on what would be fair given the specific
circumstances of the case, as opposed to what the strict rules of
common law might dictate.
• Example: remedy of an injunction
• Equity assists only those with “clean hands.”
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Classifications of Law
Domestic Law
• Internal law of a given country
• Includes both statute and
common law
• Deals primarily with individuals
and corporations and, to a lesser
extent, the state
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International Law
• Governs relations between
states and other entities with
international legal status
• United Nations
• World Trade Organization
• Includes treaty law
• Deals mostly with states and
international organizations
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Classifications of Law
Substantive Law
Procedural Law
• Law that defines rights, duties,
and liabilities.
• The law governing the procedure
to enforce rights, duties, and
liabilities.
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Classifications of Law
Public Law
Private Law
• Relate to or regulate the
relationship between persons
and government at all levels.
• Relate to or regulate the
relationship between persons
and government at all levels.
• Constrains governmental power
according to rules of fairness
• Criminal law
• Tax law
• Constitutional law
• Administrative law
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• Contract law
• Tort law
• Property law
• Company law
NOTE that distinction between
public and private law is not
absolute!
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Examples of Public Law
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Examples of Private Law
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Classifications of Law
Common Law
Civil Law
• Judge-made law
• Used in all provinces and
territories except Quebec
• Bases private law on judicial
decisions that must be applied
• Quebec’s system of private law is
government by a civil code.
• A system of law in which judges
look to the Civil Code for general
principles to be applied to the
case at hand. They are not
bound by how other judges have
interpreted the Code.
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Divisions and Classifications of the Law
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Administrative Law and Business
Administrative Law
• This is the primary area in which government and business interact.
• It refers to rules created by boards, agencies, commissions, tribunals,
and individuals who are in a government function.
• Functions of administrative bodies and officials are varied, and can be:
• Administrative only, such as processing claims for benefits
• Judicial, such as settling employer-employee disputes
• Legislative, such as CRTC regulations on radio and television
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Indigenous Peoples and Constitutional Law
• Relates to reconciling the impact of the arrival of European colonists on
the lands and life in what is now Canada.
• Existing aboriginal and treaty rights are recognized and affirmed in the
Constitution Act, 1981.
• Treaty rights: Rights arising in relation to official agreements between
the Crown and Indigenous peoples.
• Date back to the early 18th century
• 2000 Nisga’a Treaty described as British Columbia’s first modern treaty;
recognizes extensive legislative powers of a regional Nisga’a Lisims Government
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Indigenous Peoples and Constitutional Law
• Aboriginal rights: Exist where treaties have not been negotiated.
• Include rights to occupation of land as well as rights which arise “from a
distinctive practice, custom, or tradition that may or may not be connected”
to land.
• Indian Act recognizes First Nations band councils with power to pass
bylaws governing the reserve community, in areas such as health, law
and order, and residences of band members.
• Modern treaties assert broader legislative power (taxation, resource
use, education).
• The Mohawk band council of Akwesasne has created its own legal
system with bylaws creating a court to enforce civil matters.
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Indigenous Peoples and Constitutional Law
• Because of historic relationship and requirements in section 35,
the Crown owes legally binding obligations to Indigenous peoples.
• The Crown has a duty to consult and accommodate Indigenous
peoples in many situations.
• Crown: The state or government.
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