Canada’s Legal System
Naiomi Metallic
CESD 3216 – CESD and the Law
January 25-26, 2010
Part 1
Warm-up activity
1.
2.
3.
4.
What is government?
How does it obtain authority?
What does government do?
What would life be without government?
Introduction
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There are different types of governments (democracy,
monarchies, etc.)
These determine the level of participation of the
citizens in both the selection and decision-making of
government.
With Barbara, you will be learning about different forms
of government, the nuts and bolts of Canada’s political
system and the Canadian government, and public
(including Aboriginal peoples’) participation in politics
My main focus is on the legal system and laws, and my
discussions about government is generalized.
What sort of things do modern
governments do?
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Makes laws and enforces them in order to promote
better functioning of society
– Prohibit conduct (criminal conduct)
– Regulate conduct
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Provides programs, assistance and benefits
– EI, welfare, health care, etc.
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Manage public resources and assets
– Raise revenue through taxes
– Support economic development and stimulus
– Environmental protection and management of land and
resources
Three branches of government
1.
Legislature
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2.
Executive
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3.
Makes laws
Implementing laws
Judiciary (the courts)
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Enforcing and interprets the law
Different types of law
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Constitutions
– Foundational / fundamentals laws the country follows
– Includes both written and unwritten laws
– Highest form of law – supersedes all others
– Very difficult to amend
Legislation (codified laws)
– Includes statutes, regulations (and in Quebec, Civil Code)
– Can be amended, repealed, or found unconstitutional by the
courts
Common law
– Judge-made law
– In the British legal tradition (which most of Canada follows),
many areas of law (contract, property, tort) were not codified
in legislation, but rather the law developed through court
decisions over time.
Brief (and incomplete) history of
creation of Canada
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Canada is a democracy (i.e., citizens elect leadership in elections
through majority vote), but specifically it is a Constitutional
Monarchy.
Britain and France (and other European Countries) fought to
colonize North America – Britain won.
Britain set up different colonies in North American that passed
some of their own laws, and other times followed orders from
England.
Colonies south of 49th parallel decided they didn’t want to be under
British rule – so we then had the war of independence. US won.
North of it, colonies would keep ties to the British Crown in
exchange for “responsible government”.
The colonies then decide to unite – Confederation – and did this by
way of a Constitution.
Canada adopts Federalism
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Constitution Act 1867 identifies two orders of
government – Federal and Provincial
In Section 91 and 92, set out different powers each
order has control over.
If one order of government passes a law that is under
the list of powers of the other government, law is
invalid.
Sometimes impossible not to touch on other’s powers –
the courts have set out rules to determine when a law is
invalid or not.
Court decisions today allow a lot of overlap
Federal government has s. 91(24) power of
“Indians and Indian lands”
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Provincial laws generally apply to Indians, so long as they don’t
single out Indians:
– Traffic laws
– Contract law
The fact that these laws apply to Indians is not an attempt to take
over Federal power over Indians (and Feds cannot legislate over
every single area for Indians).
The areas in which the courts have found Feds have main law
making power over Indians include Indian status, reserve land and
Aboriginal title, and Aboriginal and Treaty rights.
Provincial laws that touch on or impact such areas can be found to
invalid (so far as they impact Indian people or lands).
But there is some exceptions to this because of Section 88 of the
Indian Act – we’ll come back to.
Types of governments not included in
Constitution Act 1867
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Municipalities
– Municipalities not separate government, but part of
provincial government
– Provinces delegate a part of its power to municipalities
through legislation (i.e., the Municipal Government Act)
– Municipal can only do what the Act allows it do, otherwise
it has no jurisdiction.
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Aboriginal / First Nation governments
– For long time, seen only as federally-delegated form of
government through the Indian Act (i.e., Band Councils)
Constitution Act, 1982
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Constitution of 1867 dealt mainly with rights / responsibilities of
federal and provincial governments, not individuals and groups of
people.
Also, while wanting to maintain its symbolic ties to British Crown,
Canada wanted to sever legal ties (i.e., British approval required for
constitutional amendments)
Canada Act, 1982 ((U.K.) 1982, c.11) - an Act by the British parliament
that incorporated and accepted as law the Constitutional Act, 1982,
granting severed virtually all remaining constitutional and
legislative ties between the United Kingdom and Canada. The
Constitution Act, 1982 was enacted as Schedule B of the Canada Act,
1982.
Constitution Act, 1982 (cont’d)
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Constitution Act, 1982 - an Act by the Canadian Parliament
requesting full political independence from Britain. Part V of this
Act created a constitution-amending formula that did not require
an Act by the British Parliament.
Part I of this Act is the Canadian Charter of Rights and Freedoms
which outlines the civil rights and liberties of every citizen in
Canada, such as freedom of speech, of religion, of mobility, legal
rights, equality, etc.
Constitution is broadly worded – has to be interpreted by the
Courts to be given meaning (i.e., not a complete Code).
Courts sometimes get criticized for making laws (i.e., “judicial
activism”), for example, finding the ban of gay marriage illegal,
finding that Mi’kmaq and Maliseet have right to trade fish in order
to gain “moderate livelihood” – but this is just interpreting the
Constitution.
Constitution Act, 1982 (cont’d)
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Part II deals with the rights of Canada's Aboriginal peoples:
35. (1) The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the
Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes
rights that now exist by way of land claims agreements or may
be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal
and treaty rights referred to in subsection (1) are guaranteed
equally to male and female persons.
Constitution Act, 1982 (cont’d)
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The Charter of Rights and Freedoms also contains section 25:
25. The guarantee in this Charter of certain rights and freedoms
shall not be construed so as to abrogate or derogate from any
aboriginal, treaty or other rights or freedoms that pertain to the
aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal
Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims
agreements or may be so acquired.
Citizen recourse against government
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Political – elections, pressure through opposition,
lobbying, media, etc.
Internal complaints procedures
Ombudsman – official within government who is
assigned the responsibility of overseeing government
officials from “within” the system. He or she may
obtain access to secret government documents to
determine if citizens’ complaints about improper
treatment by the administration are valid and set up
private investigations to inquire into problems within
the administration.
Citizen recourse against government
(cont’d)
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Legal:
– Administrative tribunals
• Labour standards
• Human rights
• Utility and Review Board
– Courts
• Constitutional challenge – acting without jurisdiction, violating
equality rights, freedom of expression, Aboriginal rights, etc.
• Administrative law challenge – violation of natural justice / duty of
procedural fairness (duty to give notice, permit a fair hearing, give
reasons for a decision, etc.)
• Government violating some other law
End
Wela’lioq
Naiomi Metallic
Burchells LLP
1801 Hollis Street, Suite 1800
Halifax, NS B3J 3N4
t. 902.423.6361
f. 902.420.9326