[T226]The Australian Legal System

As in many Western nations, the ?supreme law? in Canada is its Constitution, which is a combination of both codified and uncodified acts, conventional practices and traditions. The Constitution Act, 1867, which was originally known as the British North America Act, provides the core of the Canadian Constitution and describes the structure and workings of government at the federal and provincial levels, among other things. The Constitution Act, 1982, including the Charter of Rights and Freedoms that functions as an ?embedded? bill of rights, is also an integral part of the nation's Constitution.

As it has a long and storied history as a member of the Commonwealth, Canada's legal system is solidly entrenched in the British common law tradition. Its own, separate history as a French colony makes Quebec a special case in many aspects of law, and to this day it retains a unique civil system for handling issues of ?private? law. Both systems are subject to, and protected by, the Constitution of Canada.

Legislation

The Canadian Parliament and the several provincial legislatures pass various acts that then become a part of the legal system. In a manner reminiscent of the U.S. Constitution's principle of ?enumerated powers,? Sections 91 and 92 of the Constitution Act, 1867 define the areas in which the federal and provincial levels of government may enact laws.

The Canada Gazette publishes new statutes and regulations enacted by the federal government, and bills that receive Royal Assent are then republished in what is called the Annual Statutes of Canada. Occasionally, and without regard to any regular periodicity, the federal government will aggregate all current laws into a compendium or collection known as the Revised Statutes of Canada. The Canadian government last did this in the mid-1980s.

In the 10 provinces of Canada, laws are proposed, debated, pass and published in much the same way they are at the federal level. The new laws, officially known as ?Acts,? are published in provincial magazines that are published annually. The provincial laws are also consolidated on occasion.

Criminal law

The Canadian Criminal Code is applied the same way throughout the nation, as all criminal laws are written and passed at the federal level. The provinces do not pass criminal legislation since that is considered to be beyond their powers according to the Constitution Act, 1982.

On the other hand, the provinces are in charge of running their own court systems, including criminal courts, even though they are prohibited from to enact criminal laws of their own. Therefore, provincial criminal courts do, in fact, exist, despite the fact that there is no such thing as a provincial criminal law.

The provinces do have the ability to create and enforce regulations, however, and a wide range of administrative rules and regulations are evident in every region of the country. Some critics maintain that it is through such administrative rules that the provinces have sought to evade the Canadian Constitution's ban on provincial lawmaking.

In fact, before the Canadian Charter of Rights and Freedoms was established in 1982, provincial rules and regulations were often challenged on the basis of their being, in effect, criminal statutes. The Supreme Court of Canada, in fact, struck down a number of provincial laws attempting to restrict prostitution, pornography and reproductive rights, opining that the provinces had overstepped their authority by passing criminal laws.

Civil law

Civil law in Canada comprises areas of law dealing with disputes between discrete parties, and by legal definition ?parties? includes government, corporations and individuals. Courts will render decisions on such disparate subjects as contractual matters, torts and property cases, among many others.

A fast growing area of the Canadian justice system is administrative law. This body of law describes the operation and aim of such federal and provincial administrative tribunals as labor, human rights and workers' compensation appeal boards. Superior courts may review these tribunals? decisions (in the case of federal decisions, the Federal Court Trial Division or the Federal Court of Appeal performs the reviews), but the courts accord these hearing boards wide latitude and rarely reverse their decisions outright. Courts are more likely to overturn tribunals? decisions when they doubt that the expertise of the panel is sufficient for rendering a decision on the subject matter before it.

Summary

A full understanding of Canada's legal system is impossible without noting that local (or municipal) law is essentially non-existent. That is, municipal and regional laws are the exclusive jurisdiction of provincial legislatures, and vary from province to province rather than among cities or towns. Paralleling the U.S. Constitution's 14th Amendment extending ?equal protection of the laws,? however, the Supreme Court of Canada has determined that the nation's Charter of Rights and Freedoms does apply to the various ?activities? of municipal governments.

Finally, it should be noted that Canada's legal system is quite open to using case precedents from both England and the United States when there are insufficient ones in the corpus of Canadian law. For the most part, Canadian jurists will refer to American cases dealing with privacy rights, as the U.S. has many precedents in that area. However, they often consider decisions by both the English Court of Appeal and the House of Lords when judging a wide range of matters. Once a Canadian court has established a non-Canadian court or magistrate as being a ?persuasive authority,? it can use their decisions as foundations for its own. In this way, Canada's legal system truly incorporates a ?living? body of laws.