Chapter 1
The Canadian Legal
System
Summary of Objectives
 To provide the historical background
to Canadian law
 To identify sources of Canadian law
 To introduce the concept of legal
jurisdiction
 To compare and contrast criminal and
civil legal procedures
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What is Law?
 A formally enacted or customary body
of rules recognized as binding on
people within a state or a community
 Enforcement of the set of rules is part
of their design in a politically
organized society.
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Theoretical Bases of Law
 Positive Law – law created by a person
or body with the authority to enact
and enforce it
 Natural Law – law based on moral,
religious or philosophical grounds
 Legal Realism – law is whatever
judges say it is
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Purposes of Law
 To maintain the integrity of state boundaries
 To maintain law and order
 To protect citizens from each other and from abuse
of power by government officials
 To provide a forum for dispute resolution between
citizens or between citizens and government
 To establish and maintain standards relating to
areas such as health, education and employment
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Divisions of Law
 Public law – associated with government and the
public interest
 Private law – associated with interpersonal matters
 Criminal law – protection of the political security of
the state and its citizens
 Civil law – non-criminal resolution of disputes
 Substantive law – rights and remedies
 Procedural law – the procedures through which
substantive rights are protected
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Canadian Governmental
Hierarchy
 The sovereign, Queen Elizabeth II
 Federal parliament (House of
Commons and Senate)
 Provincial or territorial legislatures
 Municipal governments
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Players in the Legal
System
 Legislators – elected
 Judges – appointed
 Jurors – chosen from citizens who have never been
convicted of an indictable criminal offence
 Lawyers – must have achieved a law degree and
been “called to the bar” in order to practise law
 Clients
 Police
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Sources of Canadian Law
 Royal prerogatives
 Legislative enactments
 Delegated lawmaking
 Judge-made law
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Federal Courts
 Supreme Court of Canada – nine federally
appointed justices with jurisdiction to hear
all criminal, civil and constitutional cases
 Federal Court of Canada – trial and appeal
divisions with jurisdiction to hear, for
example, cases on patents, copyright,
trademark, aeronautics, maritime law, inter
provincial and federal-provincial disputes
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Federal Courts
2
 Tax Court of Canada
 Court Martial Appeal Court of
Canada – military
 Court of Canadian Citizenship
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Provincial Courts
 Superior Courts of the Province –
federally appointed judges with
jurisdiction to hear, for example,
indictable offence cases like murder or
treason under the Criminal Code,
divorce cases, civil cases above the
ceiling for small claims, and
administrative law applications from
boards and tribunals
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Provincial Courts
 Provincial Courts – judges are
provincially appointed with jurisdiction
to hear, for example, less serious
Criminal Code offences, support and
custody applications in family law,
youth court issues and small claims
cases
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Provincial Courts
2
 Provincial Boards, Commissions and
Tribunals – specialty quasi-judicial
bodies with jurisdiction that includes,
for example, liquor licensing,
employment standards and labour
relations
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Civil Court Procedure
5 Stages:
 Pleadings
 Discoveries
 Pre trial or mediation
 Trial
 Appeal
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Pleadings
 Plaintiff files statement of claim and has it
personally served on defendant
 Defendant responds with statement of defence
 Defendant may also counterclaim against
defendant, crossclaim against co-defendant, and
bring third party claim against someone not a party
to the lawsuit
 Plaintiff responds with reply or statement of
defence to the counterclaim
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Discoveries
 Purpose is to identify all facts, issues and
evidence prior to trial
 Each party examines the other under oath.
 A certified reporter records the questions
and answers and prepares a transcript of
them.
 Each party must list all documents relevant
to the case and the names of witnesses
who will be called.
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Pretrial or Mediation
 Purpose is to settle before trial or
reduce the number of issues at trial
 If a pretrial occurs, that judge is
disqualified from proceeding at the
actual trial.
 In some provinces or territories,
mediation is mandatory.
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Trial
 Plaintiff makes opening statement and
presents case.
 Plaintiff’s witnesses are examined in chief,
and cross-examined by defendant
 Defendant presents defence in chief, and
plaintiff cross-examines.
 Plaintiff must prove case on a balance of
probabilities.
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Appeals
 Appeals of civil cases are not granted
automatically.
 Appeals are usually limited to cases
where there was an error of law, not
of fact.
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Offers to Settle, Costs and
Enforcement
 Parties are encouraged to settle out of court
before trial.
 A party who refuses a reasonable offer may
be punished by the court and required to
pay the court costs of the other litigant.
 Garnishment of wages and seizure and sale
of the losing litigant’s assets by a sheriff
may assist the winning litigant to realize
upon a court’s judgment.
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Evidence
 Rules of procedure require that
evidence gathered in a manner that
infringes or denies rights guaranteed
under the Canadian Charter of Rights
and Freedoms is inadmissible.
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Criminal Procedure
 Purpose is to protect against acts that
threaten the security of a person or the
state
 Types of offences: summary conviction
(minor), indictable (serious), and hybrid
(the Crown chooses whether to proceed
summarily or by indictment)
 The Crown must prove its case beyond a
reasonable doubt.
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Criminal Court Procedure
 First step is arraignment
 If plea is “not guilty,” the case proceeds to trial.
Depending on the charge, the accused may choose
trial by jury or by judge alone.
 Crown calls prosecution’s witnesses and examines
in chief.
 Defence may cross-examine.
 If Crown does not meet the burden of proof, the
presumption of innocence applies.
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