History and Family of Law
Canada is a country on the northern most part of the continent of North America. It borders the United States to the south and the Arctic Circle to the north. It is considered the 4thlargest country in the world bylandarea. The people of Canada are a mixture of English, French and Aboriginals.Canada is a former colony of both France and the UnitedKingdom, respectivelysoCanada’s legal system is modeled likethe English and French systems. Explorers and colonists brought these systems to Canada in the 17th and 18th centuries (Department of Justice Canada, 2015).Canada’s government is set up much like the United Kingdom as a constitutional monarchy with the Queen of the United Kingdom, Elizabeth IIastheHead of State.TheQueen shares power withan elected Prime Ministerand the Canadian parliament.Canada has 3 levels of government, federal, providential and municipal.It is made up of 10 providences (equivalent to States in the U.S.) and 3 territories with their own provincial government.Canada practicesbijuralism, which means that theyuseboth common and civil law. Matters of private law in Quebec are governed by the civil law, while the common law applies in the otherprovinces (DOJCanada, 2015).Most of Canada uses the common law system except the providence of Quebec (made up mostly of French speaking Canadians) which uses the civillawsystem.Quebec also uses common law for criminalstatuesand other public laws.
Thecommon law used in Canada is not written downin anycodes, they are in fact basedona system of laws created by precedence.According to theDepartment of JusticeCanada (2015),the laws are designed to be flexible andadaptableto changing circumstances because judges can announce new legal doctrines or change old ones.This process is calledStare Decisis(it stands decided),whenever acourtmakes a ruling it becomes a precedentor law.EachofCanada’s 10providencescansetitsown precedent whichonly affectsthe respected providence. Only the Supreme Court of Canada can create a precedent that is binding in all 10 providence.Due to its long standing connection with the United Kingdom, decisions made in the House of Lords prior to 1867 are still binding in Canada unless they were overturned by the Supreme Court of Canada.
The Civil codes are broad rules that are designed to deal with any issues that may arise.They are private laws created for what was then New France (1760s)andwere called theCivilCode of LowerCanada.The civil codes that are used in Canadaareonly used in Quebec and are based upon the French-Napoleonic civil codes.Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisionsto see if they are consistent (DOJ Canada, 2015).As a result, they are frequently amended to keep pace with modern society.Quebec’s civil codes were revised from 1955-1990, which is the largestlegal coderevision in modern history(Godin, 2010).The new codeswere enacted in 1991 with the consent of the Queenand are now calledtheCivil Codeof Quebec.
Aboriginal law is the body of Canadian law that deals with a number of issues related to aboriginalpeople in Canada. Aboriginal refers to the historic people that once ownedall the land.Aboriginal lawsgivethe federal government exclusive power in issues related to Native Indians andproviderights to land and continued traditional practices.The Constitution recognizes and protects Aboriginal rights and treaty rightswhich were made by the English Crown and Aboriginal leaders(DOJ Canada, 2015).Thefederal government hasenacted theIndian Act, Northern Development Act, First Nations Land Management Act, the Department of Indian Affairs and the Indian Oil and Gas Act.
Criminal Lawsin Canadaareprimarily a federal responsibility. Section 91(27) of the British North America Act (1867) explicitly provides that the federal parliament has exclusive jurisdiction to enact legislation concerning the criminal law and the procedures of criminal matters (Griffiths, Klein, Verdun-Jones, 1980).Almost all of the criminal laws in Canada are codified in criminal codes. Each providences has the responsibility to enforce federal criminallaws, however, they cannot create the laws themselves. Even though the providences of Canada cannot create criminal laws,the constitution provides thattheycan administerjusticehoweverthey see fit.The Canadian criminal codeconsistsof750 sections dealing with not onlyoffensesagainst persons, property and thestate, butalso with various procedural matters such as bail, police powers and rights to appeal (Griffiths et. al, 1980).