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C ANADA’ S S YSTEM of J USTICE

PURL: https://www.legal-tools.org/doc/9c01a1/ Published by authority of the Minister of Justice and Attorney General of of Canada by

Communications Branch Department of Justice Canada , K1A 0H8 www.canada.justice.gc.ca

©Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada, 2005

Library and Archives Canada Cataloguing in Publication

Main entry under title :

Canada’s system of justice

Rev. ed. Text in English and French on inverted pages. Title on added t.p.: Le système de justice au Canada. ISBN 0-662-68904-6 Cat. no. J2-23/2005 JUS-645

1. – Canada. 2. Justice, Administration of – Canada. I. Canada. Dept. of Justice. II. Title : Le système de justice au Canada.

KE444.C32 2005 349.71 C2005-980099-2E

PURL: https://www.legal-tools.org/doc/9c01a1/ SERVING CANADIANS

C ANADA’ S S YSTEM of J USTICE

PURL: https://www.legal-tools.org/doc/9c01a1/ Note to reader: This booklet provides general information about Canada’s justice system. It is not intended as legal advice. If you have a legal problem, you should consult a lawyer or other qualified professional.

PURL: https://www.legal-tools.org/doc/9c01a1/ CONTENTS

Introduction ...... 1

What is the Law? ...... 2 • Why do we need ? ...... 2 • What other goals do laws achieve? ...... 2 • and ...... 3

Where Our Legal System Comes From...... 4 • The common-law tradition ...... 4 • The civil-law tradition...... 4 • Aboriginal traditions ...... 5 • ...... 5

Keeping the Law Up to Date ...... 7 • Law reform ...... 7 • Changing laws ...... 7

The Canadian Constitution ...... 8 • What type of government is described by our Constitution?...... 8 • What is a federal system? ...... 9

Rights and Freedoms in Canada ...... 11 • The role of the Canadian Charter of Rights and Freedoms...... 11 • What rights does the Charter protect? ...... 12 • Fundamental freedoms ...... 12 • Democratic rights ...... 12 • Mobility rights ...... 13 • Legal rights...... 13 • Equality rights ...... 14 • Language rights ...... 14 • Minority-language educational rights...... 15 • Aboriginal rights ...... 15 • Other rights...... 15

The Judicial Structure ...... 16 • How the courts are organized ...... 16 • What do the federal courts do? ...... 16 • Provincial and territorial courts ...... 17 • Administrative boards and tribunals ...... 18

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PURL: https://www.legal-tools.org/doc/9c01a1/ Civil and Criminal Cases...... 19 • How do civil cases proceed?...... 19 • What happens at a civil trial? ...... 20 • Decisions in civil cases ...... 20 • How do criminal cases proceed? ...... 21 • What happens in a criminal trial?...... 22 • Victims of crime...... 22 • Decisions in criminal cases ...... 23 • Can a decision be appealed? ...... 23 • How does restorative justice fit in? ...... 24 • Youth justice ...... 24

The Role of the Public ...... 26 • What are our duties under the law? ...... 26 • Jury duty ...... 26 • Testifying in court ...... 27 • Knowing the law...... 27

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PURL: https://www.legal-tools.org/doc/9c01a1/ INTRODUCTION

The law affects nearly every aspect of Another purpose of this booklet is to our lives every day. On the one hand, we suggest that we need to take a wider view have laws to deal with crimes such as of the law. Laws are often thought of as robbery or murder and other threats and commands, but they are more than that. challenges to society. On the other hand, A law balances individual rights with laws regulate common activities such as the obligations that people share as driving a car, renting an apartment, members of society. For example, when getting a job or getting married. a law gives a person a legal right to drive, it may also restrict that right Understanding the law, and the ideas with traffic laws, and make it a duty for and principles behind it, is every her or him to know how to drive. Canadian’s business. This booklet will help readers understand what the law is, Our legal system functions well when where it comes from, what it is for, and people both understand their legal rights how it operates. It does not give and live up to their legal responsibilities. complete answers to these questions, In fact, the basis of much of our law is but offers a brief ’s common sense. But before we can create laws and the whole justice system. new laws or change old ones, we need to understand the basic principles of our legal heritage.

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PURL: https://www.legal-tools.org/doc/9c01a1/ WHAT IS THE LAW?

Why we need laws Laws help to ensure a safe and peaceful society in which people’s rights are Almost everything we do has a set of respected. The Canadian legal system rules. There are rules for games, for respects individual rights, while at the social clubs, for sports and for the work- same time ensuring that our society place. Rules of morality and custom tell operates in an orderly manner. An essen- us what we should and should not do. tial principle is that the same law applies to everybody, including the police, Rules made by government are called and public officials, who “laws.” Laws are meant to control or must carry out their public duties change our behaviour and, unlike rules according to the law. of morality, they are enforced by the courts. If you break a law – whether you What other goals do like that law or not – you may have to laws achieve? pay a fine, pay for the damage you have done, or go to jail. In Canada, laws not only govern our conduct; they are also intended to carry Ever since people began to live together out social policies. For example, laws in society laws have been necessary to provide for benefits when workers are hold that society together. Imagine the injured on the job, for insurance when chaos – and the danger – if drivers just workers are unemployed, for health care, chose which side of the street to drive and for loans to students. on. Imagine trying to buy and sell goods if no one had to keep promises or fulfill Laws are also aimed at ensuring fairness. contracts. Imagine trying to hold onto By recognizing and protecting basic your or even to keep individual rights and freedoms, such as yourself safe if there were no laws against liberty and equality, our laws ensure that robbery or assault. stronger groups and individuals do not use their powerful positions to take Even in a well-ordered society, people unfair advantage of weaker groups have disagreements, and conflicts arise; or people. the law provides a way to resolve disputes peacefully. If two people claim the same Our legal system, based on a tradition piece of property, rather than fight they of law and justice, gives Canadian society turn to the law and the courts to decide a valuable framework. The , who is the real owner and how the freedom under the law, democratic owner’s rights are to be protected. principles, and respect for others form the foundations of this important heritage.

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PURL: https://www.legal-tools.org/doc/9c01a1/ Public law and private law Private law, also called “,” deals with the relationships between Laws can be divided into public and individuals. Civil laws set the rules for private law. Public law is concerned contracts, property ownership, the with matters that affect society as a rights and obligations of whole. It includes criminal, constitu- members, damage to someone or to tional and administrative law. Public their property caused by others and so laws set the rules for the relationship on. A civil case is an action between between the individual and society or private parties, primarily to settle for the roles of different governments. private disputes. For example, if someone breaks a , it is regarded as a wrong against society as a whole.

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PURL: https://www.legal-tools.org/doc/9c01a1/ WHERE OUR LEGAL SYSTEM COMES FROM

The common-law tradition cannot be found in any code or body of legislation, but exists only in past deci- Canada’s legal system derives from sions. At the same time, various European systems brought to is flexible and adaptable to changing this continent in the 17th and 18th cen- circumstances. turies by explorers and colonists. Although the whom The civil-law tradition the Europeans encountered here each had their own system of laws and social The tradition of civil law is quite differ- controls, over the years the laws of the ent. It is based on Roman law, which immigrant cultures became dominant. had been scattered about in many After the Battle of in 1759, the places – in books, in , in procla- fell almost exclusively under mations – until the Emperor Justinian . Except for Quebec, where ordered his legal experts to consolidate the civil law is based on the French all the laws into a single book to avoid Code Napoléon, Canada’s criminal and confusion. Ever since, the civil law has civil law has its basis in English been associated with a “civil code.” common and statutory law. Quebec’s Civil Code, first enacted in 1866 just before Confederation and The common law, which developed in amended periodically, was recently Great Britain after the Norman thoroughly revised. Like all civil codes, Conquest, was based on the decisions such as the Code Napoléon in , it of judges in the royal courts. It evolved contains a comprehensive statement of into a system of rules based on “prece- rules, many of which are framed as dent.” Whenever a judge makes a broad, general principles, to deal with decision that is to be legally enforced, any dispute that may arise. Unlike this decision becomes a : a common-law courts, courts in a civil- rule that will guide judges in making law system first look to the Code, and subsequent decisions in similar cases. then refer to previous decisions for The common law is unique because it consistency.

The two meanings of civil law The term “civil law” is used to mean Quebec. In its other sense, civil law two quite different things, which can refers to matters of private law as be a little confusing at first for people opposed to public law, and particularly trying to understand the justice system. criminal law, which is concerned with Sometimes the term is used in contrast harm to society at large. It is usually to “common law” to refer to the legal clear from the context which type of system that is based on a civil code, such civil law is intended. as the Justinian Code or the Civil Code of

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PURL: https://www.legal-tools.org/doc/9c01a1/ The of 1774 made Canada laws for all of Canada and a a “bijural” country, one with two types in each province and to deal of law. The Quebec Act stated that with local matters. Laws enacted at common law was to be applied outside either level are called “statutes,” “legis- Quebec in matters of private law, while lation,” or “acts.” When Parliament or a similar matters in Quebec were to be provincial or territorial legislature dealt with under Civil Code law. For passes a , that statute takes the public law, on the other hand, the place of common law or common law was to be used in and dealing with the same subject. In outside Quebec. Quebec as well, much legislation has been passed to deal with specific Aboriginal traditions problems not covered by the Civil Code. Aboriginal peoples in Canada have also contributed to our legal system. Making laws this way can be a compli- Aboriginal rights and treaty rights are cated process. Suppose, for example, recognized and protected under the the federal government wanted to Constitution. Aboriginal rights are create a law that would help control those related to the historical occu- pollution. First, government ministers pancy and use of the land by Aboriginal or senior public servants would be peoples; treaty rights are those set out asked to examine the problem carefully in treaties entered into by and suggest ways in which, under and a particular group of Aboriginal federal jurisdiction, a law could deal people. Reserves, for example, are with pollution. Next, they would draft the responsibility of the federal the proposed law. This would then have government. to be approved by the Cabinet, which is composed of Members of Parliament or Aboriginal customs and traditions have Senators chosen by the Prime Minister. also contributed to new ways of dealing This version would then be presented with people, such as healing and sen- to Parliament as a “bill” to be studied tencing circles, community justice and and debated by members. Bills only restorative justice. become laws if they are approved by a majority in both the House of Parliament Commons and the Senate and “assented to” by the Governor General Democratic usually have a in the name of the Queen. “legislature” or “parliament,” which has the power to make new laws or change A similar process is used in every old ones. Since Canada is a province. Royal assent for laws enacted (a union of several provinces with a by provincial is provided by central government), it has both a the Lieutenant Governor. federal parliament in Ottawa to make

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PURL: https://www.legal-tools.org/doc/9c01a1/ But law is more than a number of statutes, as we have seen from the description of common law. Judges develop common law, such as the laws of contracts, through referring to and setting precedents. They also interpret and apply the statutes.

Because of the complexity of modern society, more laws are being enacted today than ever before. If our lawmak- ers had to deal with all details of all laws, the task would be nearly impossi- ble. To solve this problem, Parliament, provincial and territorial legislatures often pass general laws delegating authority to departments or other gov- ernment organizations to make specific laws called “regulations.” Regulations carry out the purposes of the general laws or expand on them, but are limited in scope by these laws.

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PURL: https://www.legal-tools.org/doc/9c01a1/ KEEPING THE LAW UPTODATE

Law reform More than just changing laws, we may need to change the system of law and Although much of our law was inherited justice itself. For instance, in our from European legal traditions, as complex society it can take years to society grows and develops it cannot settle disputes. As our court system is rely entirely on tradition. Sometimes stretched to the limit, other, less formal there is an urgent need for new laws or ways may help people settle their for old laws to be changed. Even as gov- disputes. Some informal mediation ernment enacts reforms to address methods, such as in landlord-tenant changing ethics and morality, society disputes, are already being used. continues to evolve dynamically, making it necessary to reform laws constantly. Changing laws

As Canadian society changes, we must Government legal experts are constantly make sure that our system of law and examining our laws, looking for ways to justice meets the challenges of our new improve them. Law reform committees society. Every day, we hear about social review laws and recommend changes. issues, medical developments, new Lawyers bring questions of law to court types of technology – all of which may to bring about change. Social action raise moral and legal questions. For groups seek changes to laws that they example, we are increasingly becoming consider unfair to members of Canadian aware of the effects of modern society society. Legislators at the federal, on our environment and of the provincial and territorial governments immense threat of pollution and respond by introducing new laws or wasteful habits. amendments to old ones to be consid- ered and debated in Parliament and As people change the way they live and the legislatures. work, some laws may become obsolete or new situations may arise that are not Ultimately, though, the responsibility dealt with by any existing law. For for changing our laws is not left entirely example, the same computer technol- to the lawyers, the experts or the ogy that enables one person to find interest groups. It is the people of information about another may also Canada who elect the lawmakers; we make it possible to “steal” information need to decide what we want from the that was meant to be private. Old laws law and then make sure it reflects those against theft did not foresee stealing wishes. Everyone has the right to point computer files or indeed storing or out flaws in the law and to work moving information by such means. towards changing these laws – lawfully, This kind of technological and social of course. change makes it necessary to reform our laws.

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PURL: https://www.legal-tools.org/doc/9c01a1/ THE CANADIAN CONSTITUTION

In many countries formed by revolution includes Aboriginal rights, those related or an act of independence – the United to the historical occupancy and use States is the best example – most consti- of the land by Aboriginal peoples, tutional law is contained in a single treaty rights, agreements between the document. In a with a written Crown and particular groups of constitution, legislators cannot make just Aboriginal people. any laws they wish. A country’s constitu- tion, among other things, defines the Bijuralism powers and limits of powers that can be Because of Canada’s dual legal system exercised by the different levels and (bijuralism), every federal law must be branches of government. drafted in both official languages but it must also respect both the common-law Canada, in contrast, became a country and civil-law traditions in the provinces. by an act of the Parliament of Great Britain. Consequently, the closest thing Confederation of the colonies into the to a constitutional document would be of Canada did not involve the British Act of 1867 any break with the Imperial govern- (the BNA Act, now known as the ment. The new country was still part of Constitution Act, 1867), by which the the , governed by author- British colonies of Upper and Lower ity appointed by the monarch on the Canada, , and New advice of the British Colonial Secretary Brunswick were united in a confedera- at Westminster. The BNA Act provided tion called the Dominion of Canada. for confederation, but it did not codify (, although a a new set of constitutional rules for member of the team that shaped Canada or even include a clause for Confederation, did not join until later.) amending or changing the Act. For this reason, until 1982 any amendments to Although there is no single constitution the BNA Act had to be enacted by the in Canadian law, the Constitution Act – Parliament in England. a part of the Canada Act of 1982 – finally “patriated” or brought home What type of government is from Great Britain Canada’s constitu- described by our Constitution? tion as created by the BNA Act. The The Constitution sets out the basic prin- Constitution Act declares the Constitution ciples of democratic government in of Canada to be the supreme when it defines the powers of the Canada and includes some 30 acts and three branches of government: the exec- orders that are part of it. It reaffirms utive, the legislative and the judicial. Canada’s dual legal system by stating The power in Canada is provinces have exclusive jurisdiction vested in the Queen. In our democratic over property and civil rights. It also society, this is only a constitutional

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PURL: https://www.legal-tools.org/doc/9c01a1/ convention, as the real executive power In the provinces, the same process rests with the Cabinet. The Cabinet, at applies but the Queen’s provincial the federal level, consists of the Prime representative is called the Lieutenant Minister and Ministers who are answer- Governor. able to Parliament for government activities. As well, Ministers are respon- Our Constitution also provides for a sible for government departments, such judiciary, the judges who preside over as the Department of Finance and the cases before the courts. The role of the Department of Justice. When we say judiciary is to interpret and apply the “the government” in a general way, we law and the Constitution, and to give are usually referring to the executive. impartial judgments in all cases, whether they involve public law, such The legislative branch is Parliament, as a criminal case, or private (civil) law, which consists of the House of such as a dispute over a contract. They Commons, the Senate and the Monarch also contribute to the common law or her representative, the Governor when they interpret previous decisions General. Most laws in Canada are or set new precedents. first examined and discussed by the Cabinet, then presented for debate and The Constitution provides only for fed- approval by members of the House of erally appointed judges. Provincial Commons and the Senate. Before a bill judges are appointed to office under becomes a law, the Queen or her repre- provincial laws.

The Department of Justice The Minister of Justice is responsible department also develops policies and for the Department of Justice, which programs for victims, , children provides legal services such as drafting and youth criminal justice. The Minister laws and providing lawyers for the of Justice is also the Attorney General or government and its departments. This chief law officer of Canada. sentative, the Governor General, must What is a federal system? also approve or “assent to” it. This Under Canada’s federal system of gov- requirement of royal assent does not ernment the authority or “jurisdiction” mean that the Queen is politically to make laws is divided between the powerful; by constitutional convention, and the provin- the Monarch always follows the advice cial and territorial legislatures. of the government. Parliament can make laws for all Canada, but only about matters assigned to it by the Constitution. A provincial or territorial legislature,

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PURL: https://www.legal-tools.org/doc/9c01a1/ likewise, can make laws only about There are also local or municipal gov- matters over which it has been assigned ernments. They are created under jurisdiction. This means these laws provincial laws and can make bylaws apply only within the province’s borders. regulating a variety of local matters, such as zoning, smoking, pesticide use, Other federal systems parking, business regulations, and con- struction permits. Australia and the also have federal systems in which jurisdic- tion is divided between the federal Finally, Aboriginal peoples in Canada government and the various states. have different types of government. In contrast, in the For example, Indian bands can have a Parliament has sole authority to pass range of governmental powers over laws for the entire country. reserve lands under the federal . Other Aboriginal governments, The federal Parliament deals, for the such as self-governments, exercise most part, with issues concerning governmental powers as a result of Canada as a whole, such as trade specific agreements negotiated with between provinces, national defence, the federal and provincial or territorial criminal law, money, patents and the governments. postal service. It is responsible as well for the , the Northwest and .

The provinces have the authority to make laws concerning education, property, civil rights, the administration of justice, hospitals, municipalities and other matters of a local or private nature within the provinces. Federal law allows territories to elect councils with powers similar to those of the provincial legislatures, and citizens of territories thus govern themselves.

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PURL: https://www.legal-tools.org/doc/9c01a1/ RIGHTS AND FREEDOMS IN CANADA

In Canada, both federal and provincial Nevertheless, the protection provided or territorial governments protect the by all of this legislation is limited. individual’s rights and freedoms. The Because the , the territorial governments may also legis- CHRA, and all provincial human rights late to protect human rights, since the codes are only legislation, it is possible federal government has delegated those to repeal them. It was not until the powers to them. advent of the Canadian Charter of Rights and Freedoms that human The Canadian Bill of Rights, passed in rights in Canada were protected in 1960, was the first federal law that the Constitution. specifically set out fundamental human rights for Canadians. The Canadian The role of the Canadian Human Rights Act (CHRA), first Charter of Rights and enacted in 1977, also protects human Freedoms rights, particularly in the areas of employment, housing and commercial When the Constitution was patriated in premises. Unlike the Canadian Bill of 1982, the Canadian Charter of Rights Rights, the CHRA applies not only to and Freedoms became a fundamental the federal government but also to the part of it. The Charter takes precedence private sector in matters that are regu- over other legislation because it is lated directly by the federal govern- “entrenched” in the Constitution, the ment, such as banking. supreme law of Canada. It applies to the provincial legislatures as well as to All provinces and territories also have Parliament. This means that when an human rights legislation to prohibit individual who believes that Parliament discrimination on various grounds with or a legislature has violated guaranteed regard to employment and the provi- rights asks the courts for help, the sion of goods, services and facilities. courts may declare the law invalid as far as it conflicts with the Charter. In The Québec Charter of Human Rights addition, courts may provide other and Freedoms, passed in 1975, protects all fundamental human rights as well as appropriate remedies to individuals some political, social and economic whose rights have been violated rights. In addition, and or infringed. enacted bills of rights in 1947 and 1972, respectively. This legislation However, the Charter also recognizes applies to discrimination both by indi- that even in a democracy rights viduals in the private sector and by and freedoms are not absolute. For provincial or territorial governments. instance, freedom of expression is guaranteed, but no one is free to yell “fire” in a crowded theatre, to slander

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PURL: https://www.legal-tools.org/doc/9c01a1/ someone, or to spread hate propa- What rights does the ganda. Therefore, Parliament or a Charter protect? provincial legislature can limit fundamental rights, but only if that The Charter protects fundamental government can show that the limit is freedoms, democratic rights, the reasonable, is prescribed by law, and right to move from one province or can be justified in a free and demo- territory to another in Canada, legal, cratic society. The interests of society equality and language rights, and must be balanced against the interests Aboriginal rights. of individuals to see if limits on individ- ual rights can be justified. • Fundamental freedoms The Charter gives constitutional pro- The Constitution affirms that we are a tection to freedoms that custom and multicultural country and that Charter law over the years had made almost rights must be interpreted consistently universal in our country. Everyone in with this ideal. Canada has a right to practise any religion or no religion at all. We are Under the agreement between the free to speak our minds, to gather federal and provincial governments peacefully into groups and to associ- that resulted in the Constitution Act, ate with whomever we wish, as long both Parliament and the provincial leg- as we do not infringe the legal and islatures keep some limited power to constitutional rights of others. The pass laws that may violate Charter freedom of the media to print and rights. This is democratic because it broadcast news and other informa- gives the elected legislatures the last tion is guaranteed as well under word. However, their power is still the Charter. limited because Parliament or a provin- cial legislature must specifically declare • Democratic rights that it is passing a law “notwithstand- The Charter also guarantees our ing” specified provisions of the Charter. democratic tradition. Canadian This declaration must be reviewed and citizens have a constitutional right re-enacted at least every five years or it to vote in elections for Members of will not remain in force. These limits Parliament and representatives in act as a kind of warning to Canadians, provincial and territorial legislatures, and force the government to explain and to seek election themselves. A itself, to accept full responsibility for few restrictions – such as those on its actions, and to take the political minors and the mentally incapaci- consequences. tated, or on election officials, who may have to cast a deciding ballot on a citizen’s right to vote or to run in

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PURL: https://www.legal-tools.org/doc/9c01a1/ an election – have been found to be average may set up programs for reasonable in a democratic society. socially and economically disadvan- Another protection of democracy is taged residents as well. that our elected governments cannot hold power indefinitely. The Charter • Legal rights requires governments to call an The Charter also protects the indi- election at least once every five vidual and ensures fairness during years. (The only exception is in a legal proceedings, particularly in national emergency, such as war, criminal cases. The rights to habeas if two-thirds of the Members of corpus, or the right to challenge Parliament or a legislature agrees to being detained or held, and to be delay the election.) The Charter also presumed innocent until proven specifies that Parliament and legisla- guilty – always recognized as part tures must sit at least once a year. of our law – are now guaranteed in This ensures that our governments our constitution. do the work for which they were elected, and that they have to No one can be deprived of the right answer questions and explain to liberty and security of his or her themselves in public. person except through proper legal procedures. Canadians are protected • Mobility rights against unreasonable searches and Canadian citizens have the right to seizures, and against police using enter, remain in or leave the country. excessive force, even when a search Citizens and permanent residents or seizure is authorized by law. We have the constitutional right to live are also protected against being or seek work anywhere in Canada, detained or arrested arbitrarily. In including the right to live in one other words, a police officer must province and work in another. The have a reasonable suspicion that we Charter stops provinces and territo- have committed a crime before ries from discriminating against new- holding us in custody. comers. For example, if a person is a qualified professional, such as an The Charter also protects us against accountant, in one province, another arbitrary actions by law enforcement province cannot prevent him or her agencies. It guarantees our rights to from working there because that be told why we are being arrested or person does not live there. However, detained, to consult a lawyer without provinces can make a residency delay, to be informed of this right, requirement for certain social and and to have a court determine welfare benefits. Provinces with an quickly whether the detention employment rate below the national is lawful.

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PURL: https://www.legal-tools.org/doc/9c01a1/ If you are charged with an offence The Charter does not require that under federal or provincial law you all people always have to be treated also have the right in exactly the same way. For example, • to be told promptly of the offence, it is constitutional to create special • to be tried within a reasonable programs for individuals or groups time, who may be at a disadvantage in • not to be compelled to testify at society, such as women, visible your own trial, minorities or people with disabilities. • to be presumed innocent until proven guilty beyond a reason- • Language rights able doubt in a fair and public English and French are Canada’s hearing by an independent and official languages, according to impartial tribunal, the Charter. Both languages have • not to be denied reasonable bail equal status and equal rights and without cause, privileges in Parliament and the • not to be subjected to any cruel . In addition, and unusual punishment, everyone has the right to use English • to be tried by a jury for serious or French in the debates and pro- charges, and ceedings of Parliament, and all • not to be tried or punished twice statutes and parliamentary records for the same offence. and journals must be printed and published in both languages. Any witness, as well as the accused, Everyone has the right to use English at trial has the right to an interpreter or French in proceedings before any if he or she does not understand the court established by Parliament. language or is hearing-impaired. Moreover, members of the public Witnesses also have the right not to have a right to communicate with have incriminating used and receive services in English or against them in later proceedings. French from the central offices of federal institutions and from other • Equality rights federal offices where there is a sig- Everyone, regardless of race, nificant demand in either language national or ethnic origin, colour, or where it is reasonable. religion, sex, age, or mental or physical disability, is equal before The same conditions apply on the the law and has equal protection and provincial level in , benefit of the law. This means that the only province which is officially laws and government programs, bilingual under the Charter. The such as pension plans, must not public has the same right to services be discriminatory. in English or French from all offices

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PURL: https://www.legal-tools.org/doc/9c01a1/ of New Brunswick legislative and to receive their education in governmental institutions. minority-language schools and educational facilities. The Constitution Act of 1867 and the Act in 1870 gave people in • Aboriginal rights Quebec and Manitoba, respectively, A number of provisions in the the right to use English and French Charter, and elsewhere in the in debates and proceedings of the Constitution, specifically protect legislatures, in the courts of those the rights of the Aboriginal peoples provinces, and require that provin- (Indian, , and Métis) of Canada. cial laws be enacted and published These provisions in both languages. The Charter pre- • recognize and protect the serves these rights and obligations. Aboriginal and treaty rights of Aboriginal peoples and • Minority-language • help Aboriginal peoples preserve educational rights their cultures, identities, customs, In the predominantly English- traditions and languages. speaking provinces and all the terri- The Charter specifically states that tories, citizens whose mother tongue the rights and freedoms it guaran- is French or who attended French- tees cannot be used to take away any language primary schools, or whose rights that Aboriginal peoples now child has or is receiving primary or have or may acquire in the future secondary school instruction in (for example, from the settlement of French, have a constitutional right land claims). to send all their children to French- language schools. In Quebec, Other rights citizens who received their primary The Charter does not embody all our education in English, or who have a rights as Canadians; it only guarantees child who was or is being taught in basic minimum rights. We all have English, have the constitutional right other rights derived from federal, to send all their children to English- provincial, territorial, international and language schools. common law. Similarly, Parliament or a provincial or territorial legislature can This right to minority-language always add to our rights. instruction applies wherever there are enough other children in the same situation to warrant the provision of such instruction, and includes the right of those children

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PURL: https://www.legal-tools.org/doc/9c01a1/ THE JUDICIAL STRUCTURE

How the courts are organized Parliament has exclusive authority over the procedure in criminal courts. Constitutional authority for the judicial Federal authority for criminal law system in Canada is divided between and procedure ensures fair and the federal and provincial governments consistent treatment of criminal in this way: behaviour across the country. • The federal government has the • The provinces have jurisdiction over exclusive authority to appoint and the administration of justice in the pay the judges of the superior or provinces, including the organiza- upper-level courts in the provinces. tion and maintenance of the civil Parliament also has the authority to and criminal provincial courts and establish a general court of appeal civil procedure in those courts. and courts for the better administra- tion of the laws of Canada. It has used What do the federal this authority to create the of Canada, the courts do? and the , as The Constitution Act of 1867 authorized well as the Tax Court. In addition, as Parliament to establish a general court part of its criminal-law power, of appeal for Canada, as well as any

Outline of Canada’s Court System

Supreme Court of Canada

Court Martial Provincial Courts Federal Court Appeal Court of Appeal of Appeal

Provincial / Territorial Tax Court Federal Court Superior Courts of Canada

Military Courts Provincial Courts

Provincial Administrative Federal Administrative Tribunals Tribunals

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PURL: https://www.legal-tools.org/doc/9c01a1/ additional courts for better administra- Provincial and tion of the laws of Canada. territorial courts

The serves Although the names of the courts are as the final court of appeal in Canada. not identical in each province, the Its nine judges represent the five major court system is roughly the same across regions of the country, but three of Canada. There are two levels: provincial them must be from Quebec, in recogni- courts and superior courts. tion of the civil law system. As the country’s highest court, it hears appeals Provincial courts from decisions of the appeal courts in Provincial courts try most criminal all the provinces and territories, as well offences and, in some provinces, as from the Federal Court of Appeal. civil cases involving small amounts Supreme Court judgments are final. of money. Provincial courts may also Ordinarily, parties must apply to the include specialized courts, such as judges of the Supreme Court for per- youth courts, family courts and mission (or leave) to appeal. In certain . The provincial criminal cases, the right to an appeal is governments appoint the judges for assured. provincial courts.

The second function of the Supreme Superior courts Court is to decide important questions Superior courts, the highest level in a concerning the Constitution and con- province, have power to review the troversial or complicated areas of decisions of the provincial or lower private and public law. The government courts. The federal government appoints can also ask the Supreme Court for its the judges to these courts, and their opinion on important legal questions. salaries are set by Parliament.

The federal government also estab- Superior courts are divided into trial lished the Federal Court, the Federal level and appeal level. The trial level Court of Appeal, and the Tax Court. hears civil and criminal cases and has The Federal Court specializes in areas authority to grant . The appeal such as and level hears civil and criminal appeals maritime law and federal-provincial from the superior trial court. These levels disputes, while the Tax Court special- may be arranged as two separate courts: izes in tax cases. The Federal Court of the trial court named the Supreme Court Appeal reviews decisions of both these or the Court of Queen’s Bench and the courts, as well as federally appointed appeal court called the Court of Appeal. administrative tribunals such as the In some provinces there is a single court, Immigration Appeal Board and the generally called a Supreme Court, with a National Parole Board. trial division and an appeal division.

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PURL: https://www.legal-tools.org/doc/9c01a1/ Do these courts try both civil Procedure before these administrative and criminal cases? bodies is usually simpler and less In Canada, our courts deal with both formal than in the courts. However, to civil and criminal cases. In civil or ensure that such bodies exercise only private cases involving breach of the authority given to them by law and contract or other claims of harm that their procedures are fair, the courts (), the courts apply common-law may review their decisions and pro- principles in nine provinces and the ceedings. In the case of federal boards, territories. In Quebec, courts apply the Federal Court and the Federal Court the Quebec Civil Code. In criminal, of Appeal do this review. or public, cases, on the other hand, the common law is applied throughout Canada. Administrative boards and tribunals Many administrative rules and regula- tions are often dealt with outside formal trials. Disputes concerning such matters as broadcasting licences, employment insurance, occupational safety standards or health regulations, may be reviewed by federal, provincial or territorial gov- ernment departments or by special administrative boards like the Canada Employment Insurance Commission, the Canadian Radio-Television and Telecommunications Commission, labour relations boards, tenancy tribunals, and refugee tribunals.

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PURL: https://www.legal-tools.org/doc/9c01a1/ CIVIL AND CRIMINAL CASES

The difference between private and a declaration or an application. When public law has already been described. the pleading is filed, a court officer Another important distinction is that issues the claim by affixing the seal of between “civil” and “criminal” cases. A the court and signing the pleading on civil case is another way of referring to behalf of the court. Copies are then a private case or “suit” – that is, where delivered to, or “served on,” the someone sues someone else. A criminal defendant. case involves a prosecution by the Crown under a public-law statute such The defendant is responsible to provide as the , the Controlled the court with a “statement of defence.” Drugs and Substances Act or the If she or he does not, the court will Competition Act. assume that the plaintiff’s allegations are true, and the defendant may thus How do civil cases proceed? lose by default. A civil action or suit can be started when individuals or corporations Both the plaintiff and the defendant are disagree on a legal matter, such as the entitled to consult a lawyer for assis- terms of a contract or the ownership of tance. Lawyers representing each side a piece of property. A civil suit can also often discuss the lawsuit in an effort to result from damage to private property settle it before a trial is necessary. A or physical injury to someone. For settlement can be reached at any time example, someone who breaks a leg before the judge makes his or her when he or she slips on an icy stairwell decision. In fact, only about two may sue for compensation. The person percent of civil suits are actually tried who sues is called the “plaintiff” and before the courts. the person being sued is called the “defendant.” After statements of claim and defence are filed, each party is entitled to an The procedure in a civil case can be “examination for discovery” before the complex, and the terminology describ- trial. This examination is intended to ing the steps varies across Canada. clarify the claim against the defendant Generally, a suit goes through plead- and to let each side examine the ings, discovery, and the trial itself. evidence that the other side intends to use in court. A suit begins when the plaintiff files a pleading with the court to set out the The dispute may then proceed to trial. complaint against the defendant and During the trial, it is up to the plaintiff the remedy the plaintiff is seeking. to present facts to support the claim This pleading may be called a writ against the defendant. In a civil suit, of summons, a statement of claim, the plaintiff must prove that it is

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PURL: https://www.legal-tools.org/doc/9c01a1/ probable that the defendant is legally Depending on what the suit is about responsible, or “liable,” as a civil case is and the court in which the action is decided on a balance of probabilities. taken, the defendant may have a right to a trial by judge and jury. In such If the facts justify the remedy the plain- cases, the jury must decide which tiff is seeking, the court will hold the version of the facts it believes. The defendant liable. judge decides what law applies. At the end of the trial, the judge will explain What happens at a civil trial? the evidence and the relevant laws to The trial begins with the plaintiff pre- the jury. The jury must then consider senting evidence against the defendant. the matter and reach a verdict. The plaintiff may call witnesses to testify to facts and present papers, pho- Decisions in civil cases tographs or other kinds of evidence. If the defendant is found to be not The defendant may cross-examine the legally responsible or liable on a plaintiff’s witnesses to test their balance of probabilities, the judge will evidence. The defendant then presents dismiss the case. If the defendant is his or her own evidence, including wit- found liable, the judge or jury must nesses. The plaintiff has the same right consider the remedy that the plaintiff to cross-examine. asked for in the pleadings, the facts, and the authority to grant specific relief Throughout the trial, the judge must before deciding how to compensate make sure that all the evidence pre- the plaintiff. sented and all the questions asked are relevant to the case. For example, in Remedies can be monetary, declaratory most situations, the judge will not or injunctions. Monetary remedies, allow “hearsay” evidence, testimony called “damages,” are the most based on what a witness has heard common. The judge or jury who from another person. decides the case normally fixes the amount of damages. The judge or jury At the conclusion, both the plaintiff will take into account the expenses and the defendant summarize their incurred by the plaintiff and, where arguments. The judge must then the law permits, an additional sum to consider the evidence presented before compensate the plaintiff for the loss making a decision, based on what has suffered or that might be suffered in the been proven to be most probable. He or future as a result of the wrongdoing of she must decide whether the facts show the defendant. that the defendant has broken a civil law, such as a law that we are bound to fulfill our contracts.

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PURL: https://www.legal-tools.org/doc/9c01a1/ The judge or jury is not required to the judge could order Mr. Jones to award the amount asked for by the sell the house to Mrs. Smith at the plaintiff; they may, in fact, award less agreed price. than the amount claimed. In Canada, a judge or jury may occasionally award Injunctions and specific performance “punitive” or “exemplary” damages remedies are not given automatically. beyond compensation to the plaintiff. In each case, the court has the discre- Such damages are usually awarded tion to make such an order or to award when possible under a law or when the damages according to precedent. judge or jury feels that the conduct of the defendant was so offensive that an How do criminal increased award is required to express cases proceed? the disapproval of the community. Since a crime is considered to be an offence against society as a whole, it is Declaratory remedies state the rights usually the state that starts a criminal of the parties. For example, when a prosecution. court interprets a will or a contract, its decision is declaratory. The court’s Criminal offences are set out in the decision on the ownership of personal Criminal Code or in other federal laws. property or land is also declaratory. They are divided into “summary con- viction” and “indictable” offences. Some remedies require a person to Some offences that may be prosecuted do or not do something. The most either summarily or by indictment are common of these is the “injunction.” known as “hybrid” or “dual-procedure An injunction can prohibit someone elective” offences. from doing something, such as annoying his or her neighbours by The person charged with a criminal burning garbage. Injunctions can also offence is called the “accused,” and is make someone do something, such as always presumed innocent until proven remove a junk heap from the plaintiff’s guilty. If the accused is charged with a property. summary conviction offence, he or she will appear before a provincial court Another remedy that requires a person judge for a trial that will normally to do something is known as “specific proceed “summarily,” that is, without performance.” This is most commonly further procedures. The maximum applied when the defendant has penalty for this type of offence is breached a contract with the plaintiff. normally a $2,000 fine, six months in For example, if the defendant, Mr. prison, or both. Jones, has broken his contract to sell his house to the plaintiff, Mrs. Smith,

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PURL: https://www.legal-tools.org/doc/9c01a1/ More serious offences are prosecuted “show-cause” hearings because the by indictment. In most cases the prosecutor usually must show why accused may choose to be tried by a the accused should remain in custody. provincial court judge, by a superior However, in certain situations the court judge or by a judge of a superior accused must show why he or she court with a jury. For indictable should be released. If a judge decides offences, there may be a “prelimi- on release, the accused may be released nary hearing” during which a judge with or without conditions. Release on examines the case to decide if there is bail will only be refused if there are very enough evidence to proceed with the strong reasons for doing so. trial. If the judge decides there is not enough evidence, the case will be Anyone accused of a crime also has dismissed. Otherwise, a full trial will the right to stand trial within “a reason- be ordered. able time.”

A person accused of a crime may not What happens in a always be arrested. The accused may criminal trial? simply receive a “summons” after a A criminal trial is a particularly serious charge has been laid before the court. matter because liberty, as well as the A summons is an order to appear in stigma of a criminal conviction, is at court at a certain time to answer to stake for the accused. Recognizing this, the charge. both common law and the Charter provide appropriate protection. For If the accused is arrested by the police, example, the prosecution must prove certain procedures must be followed that the accused is guilty of the charge to protect his or her rights. When the beyond a reasonable doubt. Also, if police arrest or detain an individual, any evidence is obtained in violation of they must tell the person that he or the accused’s Charter rights, such as she has the right to consult a lawyer through an unreasonable search and without delay and explain the reasons seizure, the judge may refuse to admit for the arrest and the specific charge if the evidence. one is being made. In a criminal trial, an accused person Anyone arrested and held in custody cannot be required by the prosecution has the right to appear before a justice to give evidence. of the or judge as soon as possible (usually within 24 hours unless Victims of crime released sooner by the police) to have pre-trial release or bail determined. Bail Although the legal system appears to hearings are sometimes referred to as focus on the offender and the state, the

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PURL: https://www.legal-tools.org/doc/9c01a1/ role of victims is also recognized, and • probation (release of the offender on legislation and services are in place that the conditions prescribed), which may help victims. may include community service, • community service (an order that For example, under the Criminal Code the offender perform a certain the victim’s safety must be considered number of hours of volunteer work in bail decisions; a victim’s identity may in the community), or be protected in appropriate circum- • imprisonment (confinement in a stances; victim impact statements may prison or penitentiary). be submitted and must be considered at sentencing; and offenders may be An offender who is sentenced to more ordered to pay restitution (an amount than two years will be sent to a federal of money to compensate the victim) as penitentiary; one who is sentenced part of the sentence. to two years or less will go to a provin- cial prison. Decisions in criminal cases If the accused is found not guilty, he However, the judge does not always or she will be acquitted and is then have to convict, even if the accused free to go. person has pled guilty or been found guilty. The judge may give an offender If the accused is found guilty of a crime, an absolute or conditional discharge. the judge must decide the appropriate Under a conditional discharge, the sentence. When making this decision, offender must obey conditions imposed the judge must consider the serious- by the judge or face a more severe ness of the crime, the range of sen- sentence. An offender who is given a tences possible in the Criminal Code or discharge will not get a criminal record other statutes, preventing or deterring for the offence. the offender or others from committing similar crimes and the prospects for Can a decision be appealed? rehabilitation. Because it is possible that a court may make an error in a trial, the right to Judges may impose many different kinds appeal a court’s decision is an impor- of sentences or a combination of penal- tant safeguard in our legal system. ties that may include such penalties as: • A fine (a sum of money), In most civil and criminal cases, a • restitution (an order requiring the decision made at one level of the court offender to compensate for injuries system can be appealed to a higher or to pay compensation for loss of or level. Where there is no right to appeal, damage to property as a result of permission or “leave” to appeal must be the offence), sought. The higher court may deny

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PURL: https://www.legal-tools.org/doc/9c01a1/ leave to appeal, affirm or reverse the their actions and to be actively involved original decision. In some cases, it will in improving the situation. Wrongdoers order a new trial. must make reparation to victims and the community. Both sides in a civil case and either the prosecution or the accused in a Youth justice criminal case may appeal. Special considerations come into play when young people commit acts that Sometimes, it is only the amount of are considered criminal. This is why damages or the severity of the sentence Parliament passed the Youth Criminal that is appealed. For example, the Justice Act in 2003. It applies to young accused may ask a higher court to people aged 12 to 17 years, inclusive. reduce a sentence, or the prosecution The Act recognizes that young persons may ask to have the sentence increased. must be held accountable for criminal acts, although they need not always be How does restorative held accountable in the same manner justice fit in? or to the same extent as adults. It is in Restorative justice, which has recently society’s interest to ensure that as many come into our system from Aboriginal young offenders as possible are rehabil- justice traditions, is another way to itated and become productive respond to criminal acts. Restorative members of society. justice puts emphasis on the wrong done to a person as well as on the The Act recognizes that young people wrong done to the community. It recog- lack the maturity of adults, and that the nizes that crime is both a violation of youth justice system should include relationships between specific people enhanced procedural protections and and an offence against everyone measures of accountability that are (the state). consistent with this reduced level of maturity. The Act also recognizes that In restorative justice programs, the young people have special needs and victim of the crime, the offender and, circumstances that must be considered ideally, members of the community vol- when any decision is made under the untarily participate in discussions. The Act. These principles are set out in goal is to restore the relationship, fix the Act’s Declaration of Principle. the damage that has been done, and To protect the rights of young people, prevent further crimes from occurring. youth justice proceedings require special guarantees: courtesy, compas- Restorative justice requires wrongdoers sion and respect for victims; the oppor- to recognize the harm they have tunity for victims to be informed and to caused, to accept responsibility for participate; and assurance that parents

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PURL: https://www.legal-tools.org/doc/9c01a1/ will be informed and encouraged to The Act allows for youths to be dealt participate in addressing the young with outside the formal court system person’s offending behaviour. Young through the means of “extrajudicial persons are given the same rights and measures.” These measures are gener- protections as adults, such as the pre- ally restricted to relatively minor, first sumption of innocence and the onus offences. They are expeditious and on the prosecution to prove its case often informal, and minimize the stig- beyond a reasonable doubt. Of course, matizing effects of an appearance in young people are also entitled to be court. They also reserve the costlier represented by a lawyer. court process for more serious cases.

Proceedings under the Act are con- The Act says that young people are to ducted in special youth courts. A youth be held accountable in ways that are court has the power to impose an adult fair and in proportion to the serious- sentence. For the most serious offences ness of their offences. These interven- committed by a young person who is 14 tions should reinforce respect for years of age or more (this age varies societal values, encourage the repair of from 14 to 16, as determined by each harm done, be meaningful to the province), there is a presumption that offender, respect gender, ethnic, an adult sentence will be imposed. The cultural and linguistic differences and Crown may also choose to renounce respond to the needs of Aboriginal the application of this presumption. In young persons and of young persons this case, the judge who finds the with special requirements. young person guilty has to impose a youth sentence.

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PURL: https://www.legal-tools.org/doc/9c01a1/ THE ROLE OF THE PUBLIC

What are our duties During the trial, jurors must not under the law? allow themselves to be influenced by anything except the evidence presented in court. Jurors must make up their own In Canada, law and justice is not only minds about the truth or honesty of the the business of Members of Parliament, testimony given by witnesses. judges, lawyers and police services. Each of us has a part in ensuring that Finally, after both sides have called all the law works properly and justice their witnesses and presented their is done. arguments, the judge instructs the jury on the law and on what they must Jury duty take into account when making their Serving on a jury is one way a citizen decision. Then the jurors meet by can carry out his or her role. One of the themselves in a room outside the oldest institutions of our justice system, courtroom to decide, in a criminal a jury enables those who have been case, whether the prosecutor has charged with a criminal offence to be proven beyond a reasonable doubt tried by a group of fellow citizens. In that the accused is guilty. In a civil Canada, a criminal law jury is made up case, they must decide whether the of 12 jurors selected from among plaintiff has proven that the defendant citizens of the province or territory in is liable, or responsible, on a balance which the court is located. Generally, of probabilities. any adult Canadian citizen is qualified to be considered for jury duty. The All the jurors must agree on the provinces determine the precise way of decision or verdict – in other words, selecting jurors. their decision must be unanimous. If they cannot all agree, the judge may A citizen who is called for jury duty discharge the jury and direct a new jury must show up for selection. Being to be empanelled (chosen) for a new called for jury duty does not mean a trial. After a trial, no juror is allowed to person will be selected to serve as a tell other people about the discussions juror. Some prospective jurors may that took place in the jury room. not be required to do so by the laws of their province. Also, the prosecutor or A jury in a civil case is slightly different. the defence counsel may object to a It has, for example, only six jurors, and particular juror if they believe there the decision does not have to be unani- is a reason why he or she should be mous, as long as five of them agree on disqualified. the verdict.

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PURL: https://www.legal-tools.org/doc/9c01a1/ the truth. Witnesses are required to Trial by jury answer all questions they are asked, Most civil cases in Canada are tried unless the judge decides that a by judges without a jury. However, question is irrelevant or not necessary • anyone charged with a criminal to the case. offence for which there can be a prison sentence of five years or more has the right to a trial by jury, Sitting on a jury or testifying in court • in some cases, a person charged with gives citizens an opportunity to make a criminal offence for which there can sure Canada’s justice system is working be a prison sentence of less than five as it should. years may have the right to choose a trial by jury, and • some civil cases can also be tried by Knowing the law judge and jury. People do not have to be experts in the law. However, in our system, ignorance of the law is no excuse or defence. If Testifying in court you are charged with an offence, for A person who has information that example, you cannot be excused by either party in the case believes to be claiming that you did not know you useful may be called to give evidence were breaking the law (although the in a civil or criminal trial. For example, court will consider honest mistakes someone might have witnessed the of fact). Because our laws are publicly event, know something that is impor- debated before being passed in tant to the case, or have a document Parliament or a legislature, the public key to the trial. People whose knowl- is expected to know what is permitted edge about a particular subject can or legal and what is not. help the court with answers to techni- cal questions may also be called as an The duty to know the law means that expert witness. Usually, though, people citizens should take steps to be sure come forward voluntarily when they they are acting legally. Information is have information they believe is related available from federal, provincial and to the case. If they do not, they can be territorial government offices, public summoned by “subpoena” to give libraries, public and evidence in court. A person subpoe- information associations, and the naed must testify or face a penalty. police. If, after consulting these sources of information, you are still uncertain Witnesses’ testimony is taken under about the law, then you should consult oath or by affirmation that they will tell a lawyer.

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PURL: https://www.legal-tools.org/doc/9c01a1/ Lawyers Lawyers are qualified to give legal law, such as criminal law, or only give advice through many years of study tax advice. and training. They may represent their clients in both civil and criminal cases. A lawyer’s advice is important to an They can also help and advise their accused since a conviction can have clients in any situation where knowledge serious consequences, but some accused of the law is necessary, such as buying people are not able to pay for one. For or selling a house. this reason, the federal and provincial governments have set up a program to In Quebec, the legal profession consists share the cost of legal services for those of both lawyers and notaries. Notaries who qualify for such assistance. Any deal with contractual matters, especially person who meets the financial criteria in real estate, and cannot appear in court and who is accused of a crime for which except in non-contentious matters. In the a conviction might mean jail or loss of rest of the country, lawyers can provide livelihood may get legal aid. Some any kind of legal service. However, provinces also offer legal aid for civil many lawyers specialize in one type of cases, particularly in family-law matters.

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PURL: https://www.legal-tools.org/doc/9c01a1/