Canadian Law - Canada FAQ

In most countries, ruled or settled by the British, the so-called Common or traditional law is applied. The Civil Code was also known as the Napoleon Code and initially covered only private law matters: relationships between persons (marriage, divorce, parentage, adoption); legal attributes of individuals such as age of majority and name; property, e.g. land boundaries and possessions; and institutional bodies that administer and govern these relationships. Today, Canadian law in all provinces and territories except for Quebec is based on Common law.

The Common law system has its origins in the decisions of the English courts since the Norman Conquest age. These precedents are used to settle future similar cases.

Until 1949, all developments and decisions in English law were incorporated into the Canadian Common law. The system was influenced by laws such as the Act of Settlement, Magna Carta, the Petition of Right, and the Bill of Right, among others. Before the Confederation, Common law was followed by the provinces Prince Edward Island, Newfoundland, New Brunswick and Nova Scotia. Only Quebec, being a French colony, used the civil law system. After the conquest, civil law was guaranteed with the Québec Act from 1774. In 1791, the Constitutional Act divided the province of Québec into Upper and Lower Canada. Lower Canada retained its civil law system whereas Upper Canada adopted Common law.

According to the British tradition, the Parliament has been responsible for the protection of individual rights, and this rule was followed in Canada until the passing of the Constitution Act in 1982 which set down individual rights along American lines.

Canada Law Similar to other countries that adopted the common law tradition, the Canadian legal system adheres to the principle by which judges must take into consideration the precedents established by prior decisions (the stare decisis doctrine). Lower courts are obliged to respect the rulings of higher level courts which are binding to them. In that way, all lower courts in British Columbia for example, are bound by the provincial Court of Appeal’s decisions, but not by decisions of courts from another province. The decisions of the highest court of a province (Court of Appeal) are mostly considered persuasive. The only court authorized to bind all Canadian courts is the Supreme Court of Canada. In this manner, some of the busier courts, as for instance the Ontario Court of Appeal, are often referred to for guidance on local law matters outside the territory of the province (particularly with regard to criminal law).

There are some legal issues with no precedents in the Canadian legal system, requiring that judges make reference to a foreign legal authority. In such instances, decisions of American and English courts are commonly utilized. Often, the House of Lords as well as the English Court of Appeal are cited and followed as persuasive authorities. For privacy and constitutional law issues instead, US courts’ decisions are preferred due to the much extensive jurisprudence body in US law for these areas, compared to English law. In addition, some rulings from courts of the Commonwealth nations are treated as persuasive point of reference in Canada.



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