Government and Legal System

1.    Levels of Government

Canada is a constitutional monarchy and a parliamentary democracy. There is a nationally elected Parliament which sits in Ottawa. Each of the ten provinces has its own elected legislature which sits in the relevant province. The three territories (Yukon, Northwest Territories, and Nunavut) are governed by their respective government and receive their legislative authority from the federal government, which has provided the territories with authority similar to that held by the provinces.

The Constitution Act, 1867 assigns exclusive legislative authority over specific matters to the federal and provincial governments respectively. There is overlap in the federal and provincial legislative jurisdictions in some areas. In the event of a conflict between valid federal and provincial legislation, federal laws prevail – this is known as the doctrine of paramountcy.

a.      Federal

The federal government’s legislative jurisdiction includes foreign affairs, international trade, banking, telecommunications, bankruptcy, intellectual property, immigration, criminal law, and national defence.

b.      Provincial

The provincial governments’ legislative jurisdiction includes real and personal property, education, hospitals, natural resources and intra-provincial trade and commerce. Note that certain aspects of the provincial powers related to municipalities are delegated to municipal governments.

Each of Canada’s two levels of government is subject to the limits provided by the Canadian Charter of Rights and Freedoms, which forms part of the Constitution Act, 1982. Aboriginal communities in different parts of Canada also exercise a variety of governmental powers within specific geographic areas as a result of agreements with the federal and provincial governments.

2.    Legal System

a.      Common Law and Civil Law

In nine of the ten provinces and all of the three territories, the legal system is based on common law. In the province of Quebec, the legal system is based on civil law.

b.      Courts

The Canadian judiciary enjoys independence from the government in its decision-making powers.

Each province has both provincial courts and superior courts. The provincial courts try most criminal and family law matters, as well as certain regulatory offences. The superior courts deal with matters such as commercial litigation, constitutional litigation, judicial review and serious criminal offences.

There is a separate system of federal courts. The federal courts include the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada. The Federal Court and the Federal Court of Appeal have jurisdiction over matters specifically assigned to them by the Federal Courts Act. The Tax Court of Canada has jurisdiction over appeals from assessments under the Income Tax Act, the Excise Tax Act, the Employment Insurance Act and the Canada Pension Plan. Decisions of the Federal Court and Tax Court of Canada can be appealed to the Federal Court of Appeal.

The highest court in Canada is the Supreme Court of Canada. It has the final authority over all questions of Canadian law. For most cases, there is no right of appeal to the Supreme Court, and leave to appeal must be obtained. To be granted leave, an appeal must raise a question that is of sufficient public importance to justify the appeal.