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C ANADA’ S S YSTEM of J USTICE Information contained in this publication or product may be reproduced, in part or in whole, and by any means, for personal or public non-commercial purposes, without charge or further permission, unless otherwise specified.

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Commercial reproduction and distribution is prohibited except with written permission from the Department of Justice Canada. For more information, please contact the Department of Justice Canada at: www.justice.gc.ca.

©Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada, 2015

ISBN 978-1-100-25574-3

Cat. No J2-32/2015E-PDF CANADA’S SYSTEM OF JUSTICE Note to reader: This booklet provides general information about Canada’s justice system. It is not intended as legal advice. If you have a problem, you should consult a lawyer or other qualified professional. CONTENTS

What is the ?...... 1 Why We Need ...... 1 What Other Goals Do Laws Achieve?...... 2 and ...... 2

Where Our Legal System Comes From...... 4 The Common-Law Tradition...... 4 The Civil-Law Tradition...... 4 Aboriginal and Treaty Rights...... 4 How Makes Laws...... 5 What Are Regulations?...... 6

Keeping the Laws Up to Date...... 7 Law Reform...... 7 Alternative Approaches to Laws...... 7 Changing Laws...... 8

The Canadian Constitution...... 9 What Does Our Constitution Say?...... 9 What is a Federal System?...... 10

Rights and Freedoms in Canada...... 13 What Does the Canadian Charter of Rights and Freedoms Say?...... 13 What Rights Does the Charter Protect?...... 14 –.Fundamental freedoms...... 15 –.Democratic rights...... 15 –.Mobility rights...... 15 –.Legal rights...... 16 –.Equality rights...... 17 –.Language rights...... 18 –.Minority-language educational rights...... 19 –.Aboriginal and treaty rights...... 19 Other Rights...... 20

i CANADA’S SYSTEM OF JUSTICE

How the Courts are Organized...... 21 What Do the Federal Courts Do?...... 22 Provincial and Territorial Level Courts...... 22 Administrative Boards and Tribunals...... 23

Civil and Criminal Cases...... 24 How Do Civil Cases Work?...... 24 Pleading...... 24 Discovery...... 24 Trial...... 24 What Happens at a Civil Trial?...... 25 How a Trial Ends...... 25 Remedies...... 26 What Are Criminal Cases?...... 26 Summary Offences...... 27 Indictable Offences...... 27 What Happens in an Arrest?...... 27 What Happens in Custody?...... 27 What Happens in a Criminal Trial?...... 28 Decisions in Criminal Cases...... 28 Can You Appeal a Decision?...... 29

Victims of ...... 30

Restorative Justice...... 31

Youth Justice...... 32

The Role of the Public...... 34 Duty...... 34 Testifying in Court...... 35 Know the Law...... 35 Who Gets Legal Aid?...... 36

Definitions...... 36 ii WHAT IS THE LAW?

The law affects nearly every aspect Why We Need Laws of our lives every day. We have laws Laws are rules made by government to deal with like robbery that forbid certain actions and are and murder. And we have laws that enforced by the courts. Laws apply to govern activities like driving a car, everyone equally. If you getting a job, and getting married. break a law, you may Laws give us rules of conduct that have to pay a fine, pay The law provides protect everyone’s rights. for the damage you have done, or go to jail. a way to resolve The , freedom under the law, democratic principles, and Imagine the chaos – disputes respect for others form the founda- and the danger – peacefully. tions of Canada’s legal heritage. if there were no laws. Every Canadian should understand The strongest people the law, and the ideas and principles would be in control and behind it. This publication will help people would live in fear. Drivers readers understand could choose which side of the street • what the law is; to drive on and no one could stop them. Imagine trying to buy and sell • where it comes from; goods if no one had to keep promises. • what it is for; and Or trying to hold onto your or even to keep yourself safe • how it operates. if there were no laws against robbery or assault. Laws also balance individual rights with our obligations as members Even in a well-ordered society, people of society. For example, when a law disagree, and conflicts arise. The law gives a person a legal right to drive, provides a way to resolve disputes it also makes it a duty for a driver to peacefully. If two people claim the know how to drive and to follow the same piece of property, rather than rules of the road. fight they turn to the law. The courts

1 CANADA’S SYSTEM OF JUSTICE

can decide who the real owner is and and equality. This helps prevent how to protect the owner’s rights. stronger groups and individuals from taking unfair advantage of weaker Laws help to ensure a safe and groups or people. peaceful society. The Canadian legal system respects individual rights and Public Law and Private Law ensures that our society is orderly. It applies the same law to everybody. Laws can be divided into public law This includes the police, and private law. and public officials. All of them must Public law sets the rules for the carry out their duties according to relationship between the individual the law. and society. If someone breaks a , it is seen as a wrong What Other Goals Do against society. It includes Laws Achieve? • criminal law, which deals with In Canada, laws also carry out social crimes and their punishments; policies. Laws allow systems to be put • constitutional law, which defines in place for governments the relationship between various to provide, for example, branches of government, as well Our laws also • benefits when workers as between federal and provincial are injured on the job; recognize and governments; it also limits the exercise of governmental power • insurance when over individuals through the protect basic workers are protection of human rights and unemployed; individual rights fundamental freedoms; • health care; and and freedoms, • administrative law, which deals • loans to students. with the actions and operations such as liberty of government. Our laws also recognize and equality. and protect basic If someone runs away from a store individual rights and with unpaid goods, that’s . freedoms, such as liberty It violates public law because it affects

2 CANADA’S SYSTEM OF JUSTICE

other people. If you back up your Private law sets the rules between car into somebody’s fence, you could individuals. It is also called . be violating their right to enjoy Private law settles disputes among their property. That falls under groups of people and compensates private law. victims, as in the example of the fence. A civil case is an action that settles private disputes.

3 WHERE OUR LEGAL SYSTEM COMES FROM

DID YOU KNOW? Canada’s legal system is based on the English and French systems. Explorers and colonists brought these systems to Canada in the 17th and 18th centuries. After the Battle of in 1759, the fell under English , except for Quebec, which follows civil law.

Canada’s legal system is based on The Civil-Law Tradition a combination of common law Civil codes contain a comprehensive and civil law. statement of rules. Many are framed as broad, general principles to deal The Common-Law Tradition with any dispute that may arise. Unlike common-law courts, courts in The common law is law that is not a civil-law system first look to a civil written down as legislation. Common code, then refer to previous decisions law evolved into a system of rules to see if they’re consistent. based on . This is a rule that guides judges in making later deci- Quebec is the only province with sions in similar cases. The common a civil code, which is based on the law cannot be found in any code or French Code Napoléon (Napoleonic body of legislation, but Code). The rest of Canada uses the only in past decisions. common law. The is Quebec is the only At the same time, it is also considered a code, and it is used flexible. It adapts to throughout Canada. province with a changing circumstanc- es because judges can civil code. announce new legal Aboriginal and Treaty Rights doctrines or change Aboriginal rights refer to Aboriginal old ones. peoples’ historical occupancy and use of the land. Treaty rights are rights

4 CANADA’S SYSTEM OF JUSTICE WHERE OUR LEGAL SYSTEM COMES FROM

set out in treaties entered into by make new laws or change old ones. and a particular group of Canada is a – a union of Aboriginal people. The Constitution several provinces and with recognizes and protects Aboriginal a central government. So it has both rights and treaty rights. a federal parliament in to make laws for all of Canada and a in each of the ten provinces How Parliament Makes Laws and three territories that deals with Democratic have a legisla- laws in their areas. Laws enacted at ture or parliament, with the power to either level are called , legislation, or acts. When Parliament The Constitution or a provincial or terri- The Two Meanings torial legislature passes recognizes and of Civil Law a , it takes the The term “civil law” is used to mean place of common law or protects Aboriginal two quite different things, which dealing with rights and treaty can be a little confusing at first for the same subject. people trying to understand the rights. justice system. Sometimes the term Making laws this way can is used in contrast to “common law” be complicated. Let’s use to refer to the legal system that is an example to explain based on a civil code, such as the how it works. Suppose the federal Justinian Code or the Civil Code government wanted to create a law of Quebec. In its other sense, civil that would help control pollution. law refers to matters of private 1. Government ministers or senior law as opposed to public law, and public servants examine the particularly criminal law, which is problem carefully and suggest concerned with harm to society ways in which, under federal at large. It is usually clear from the jurisdiction, a law could deal context which type of civil law with pollution. is intended. 2. They would draft the proposed law.

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3. The law has to be approved by What Are Regulations? the cabinet, which is traditionally Because our society is so complex, made up of members of Parliament more laws are being enacted today chosen by the prime minister. than ever before. If our lawmakers 4. This version is then presented to had to deal with all the details of all Parliament as a bill to be studied the laws, the task would be nearly and debated by members. impossible. To solve this problem, Parliament and provincial and territorial 5. The bill becomes law if it is often pass laws to give approved by a majority in both departments or other government the House of Commons and the organizations the authority to make Senate. It also needs to be assent- specific laws called regulations. ed to by the Governor General in Regulations carry out the purposes the name of the Queen. All laws of the general laws or expand on need royal assent. them. They have the force of a law. For example, there are regulations Every province uses a similar process. that keep our food safe or outline The Lieutenant Governor of each what kind of storage tank to use for province gives royal assent for laws oil products. passed by provincial legislatures.

Judges develop common law by referring to and setting precedents. They also interpret andapply statutes.

6 KEEPING THE LAWS UP TO DATE

Law Reform resolution and landlord-tenant Every day, we hear about social issues, disputes, are already being used. medical developments, and new types of technology. All of these raise moral Aboriginal customs and traditions and legal questions. These kinds of have also contributed to new ways of changes mean we need to constantly dealing with people, such as healing reform our laws so we can make sure and sentencing circles, community that our system of law and justice justice, and restorative meets the challenges of our society. justice. We need to As our society grows and develops, The Aboriginal Justice it cannot rely entirely on tradition. Strategy (AJS) is a way constantly reform Sometimes new laws are needed or of diverting low-risk old laws need to be changed. non-violent offenders our laws so we can from mainstream justice As people change the way they live to restorative justice. make sure that our and work, some laws may become As a result, offenders system of law and obsolete. Or new situations may arise don’t get a criminal that no existing law deals with. record, they can instead justice meets the For example, old laws against theft make amends to their did not foresee identity theft or online community, and funds challenges of harassment. The same technology that and resources are freed enables one person to find informa- up to deal with more our society. tion about another also makes it serious offences. possible to steal information that was meant to be private. The goals of the AJS are • to give Aboriginal people a greater Alternative Approaches to Laws role in administering justice in We may even need to change the their communities; system of law and justice itself. • to help decrease the rates of victim- In our court system, it can take years ization, crime, and imprisonment to settle disputes. People can settle among Aboriginal people; disputes by using less formal methods. Some informal mediation • to provide better and more timely methods, such as alternative dispute information about community

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justice programs funded by the and other stakeholders meet with AJS; and government decision makers in an effort to present their opinions on the • to reflect and include Aboriginal direction of public policy. Legislators values within the justice system. in the federal, provincial, and territorial governments respond by Changing Laws introducing new laws or changing Government legal experts are old ones. constantly examining our laws and looking for ways to improve them. Ultimately, though, it is the people Law reform committees also review of Canada who elect the lawmakers. laws and recommend changes. We as Canadians need to decide Lawyers bring questions of law to what we want from the law and then court to create change. Social action make sure it reflects those wishes. groups seek changes to laws that Everyone has the right to work they consider unfair to members of toward changing the law. Canadian society. Industry groups

8 THE CANADIAN CONSTITUTION

DID YOU KNOW? Canada was created by an act of the Parliament of the called the British Act, 1867 (now known as the Constitution Act, 1867), uniting the British colonies of the United , , and .

A constitution provides the fundamental The Queen has the power rules and principles that govern in Canada, but in our democratic a country. It creates many of the insti- society the Queen’s powers are tutions and branches of government, exercised by constitutional convention and defines their powers. on the advice of Ministers who enjoy the confidence of the House of The includes Commons. Together, the Prime the Constitution Act, 1867, and the Minister and other Ministers form Constitution Act, 1982. It is the the cabinet, which is responsible to supreme . It reaffirms Parliament for government business. Canada’s dual legal system and Ministers are also responsible for also includes Aboriginal rights and government departments, such as treaty rights. the Department of Finance and the Department of Justice. When we say “the government,” we are usually What Does Our Constitution Say? referring to the executive branch. The Constitution sets out the basic principles of democratic government Parliament is the legislative branch in Canada when it defines the powers of the federal government. Parliament of the three branches of government: consists of the Queen (who is usually represented by the Governor • the executive General), the Senate and the House • the legislative of Commons. Bills are debated and passed by the Senate and the House • the judiciary of Commons. The Governor General must also give royal assent to a bill

9 CANADA’S SYSTEM OF JUSTICE

DID YOU KNOW? The Constitution was “patriated” from the United Kingdom in 1982. When Canada was created, it was a self-governing British colony. The Act, 1867 codified many constitutional rules for Canada, but major changes to the Constitution could only be made by the United Kingdom Parliament. In 1982, the Charter was enacted as part of Canada’s Constitution along with a set of procedures allowing the Constitution to be amended in Canada.

in order for it to become a law. Provincial judges are appointed under By constitutional convention, royal provincial laws. assent is always given to bills passed by the Senate and the House of What is a Federal System? Commons. The and the Our Constitution also includes provincial and territorial legislatures provisions relating to the judicial both have the authority or jurisdic- branch of government, composed of tion to make laws. Parliament can judges. The judiciary must interpret make laws for all of Canada, but and apply the law and the Constitu- only about matters the Constitution tion, and give impartial assigns to it. A provincial or judgments in all cases, territorial legislature can only make laws about matters within Parliament is the whether they involve public law, such as a the province’s borders. legislative branch criminal case, or private law, such as a dispute The federal arliamentP deals mainly of the federal over a contract. with issues that concern Canada as a whole: trade between provinces, government. The Constitution only national defence, criminal law, provides for federally money, patents, and the postal appointed judges. service. It is also responsible for

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the three territories: , the zoning, smoking, , and . pesticide use, parking, It was only with Federal law allows territories to elect business regulations, and councils with powers like those of construction permits. the Canadian the provincial legislatures. Aboriginal peoples in Charter of Rights The provinces have the authority to Canada have different make laws about education, property, types of government. and Freedoms civil rights, the administration of For example, First justice, hospitals, municipalities, and Nations can have a range that human other local or private matters within of governmental powers rights in Canada the provinces. over reserve lands under the federal . were protected There are also local or municipal Other Aboriginal governments. They are created under governments, such as in the written provincial laws and can make bylaws self-governments, that regulate a variety of local matters: exercise these powers as Constitution. a result of agreements they have negotiated with the federal and The Department of Justice provincial or territorial The Minister of Justice is responsi- governments. ble for the Department of Justice, The Constitution Act includes protec- which provides legal services such tion for the rights of the Aboriginal as drafting laws and providing peoples (Indian, , and Métis) legal advice to the government of Canada. Section 35 of the and its departments. The depart- Constitution Act recognizes and ment also develops criminal law affirms Aboriginal rights, which are and public law, as well as policies rights related to the historical occu- and programs for victims, , pancy and use of the land by Aboriginal children and youth criminal justice. peoples. This is to help Aboriginal The Minister of Justice is also the peoples preserve their customs and Attorney General or chief law traditions for future generations, officer of Canada. as continuing cultural practices.

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DID YOU KNOW? The Constitution Act, 1867 authorized Parliament to establish a general court of appeal for Canada, as well as any additional courts to better administer the laws of Canada. It was under this authority that the Federal Courts, the Tax Court, and the of Canada were established.

Section 35 also recognizes and affirms treaty rights, which are specifically set out in agreements between the Other Federal Systems Crown and particular groups of Australia and the Aboriginal people. also have federal systems where jurisdiction is divided between Bijuralism the federal government and the Canada is a bijural country – that various states. In contrast, the means it has both common and civil United Kingdom has a unitary law systems. Matters of private law in system where there is only one Quebec are governed by the civil law, level of government. while the common law applies in the other provinces. Federal bills and regulations must respect both types of systems, and the legal concepts within these laws must be expressed in both English and French.

12 RIGHTS AND FREEDOMS IN CANADA

In Canada, the Constitution, as well and freedoms. But like any legislation, as federal, provincial and territorial these laws can be repealed or changed, laws, protect our human rights and so their protection can be limited. fundamental freedoms. It was only with the Canadian Charter of Rights and Freedoms that human The , passed rights in Canada were protected in in 1960, was the first federal human the written Constitution. rights law in Canada. It guarantees many basic rights and freedoms, including the “right of the individual What Does the Canadian Charter to life, liberty, security of the person of Rights and Freedoms Say? and enjoyment of property” and the The Constitution says that the right not to be deprived of any of Charter takes priority over all other those rights except in accordance legislation in Canada because it is with “due process,” meaning basic part of the “supreme law procedural fairness. of Canada.” It applies to all government action, The interests of The Canadian Human Rights Act, meaning to the provincial passed in 1977, also protects human legislatures and Parlia- society must always rights in the federal public and ment, and to everything private sectors (for example, banking, done under their be balanced against rail, telecommunications, inter- authority. This means provincial transportation), that governments must the interests of particularly the right to equality take the Charter into individuals to see and non-discrimination in the areas account in developing of employment, housing and the all laws and policies. It if limits on provision of services. also means that when an individual goes to court individual rights All provinces and territories also because he or she have human rights legislation which believes that Parliament can be justified. prohibits discrimination in employ- or a legislature or a ment, housing and in providing government official goods, services, and facilities to the has violated rights or public. Some provincial and territorial fundamental freedoms guaranteed laws protect a broader range of rights in the Charter, the court may declare

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the law invalid if it conflicts with Under the Constitution, both the Charter or provide any other Parliament and the provincial legisla- “appropriate and just” remedy. tures still have a limited power to pass laws that may violate certain Charter However, section 1 of the Charter also rights. However, this can only be recognizes that even in a , done if Parliament or a provincial rights and freedoms are not absolute. legislature specifically declare that it For example, no one is free to yell is passing a law notwithstanding “fire” in a crowded theatre, to slander certain provisions of the Charter. someone, to engage in religious This declaration must be eviewedr practices which cause harm to others, and re-enacted at least every five to spread child pornography or hate years or it will not remain in force. propaganda or to enter or leave The declaration informs Canadians Canada without any restrictions of the limits being imposed on whatsoever. Parliament or a provincial Charter-protected rights or freedoms. legislature can limit fundamental It also requires the government to rights, but only if it can show that explain itself, to accept full responsi- the limit bility for its actions, and to take the • is set out in a law; political consequences. So far, Parliament has never used the • pursues an important goal which notwithstanding clause. can be justified in a free and democratic society; and What Rights Does the • pursues that goal in a reasonable Charter Protect? and proportionate manner. The Charter protects The interests of society must always • fundamental freedoms be balanced against the interests of individuals to see if limits on • democratic rights individual rights can be justified. • mobility rights

The Charter also affirms that we are • legal rights a multicultural country and that • equality rights the Charter must be interpreted consistently with this ideal. • language rights

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It also recognizes and affirms to call an election at least once Aboriginal and treaty rights. every five years. The only exception is in a national emergency, such as Fundamental freedoms war, if two-thirds of the Members of the House of Commons or a • Everyone in Canada is free to legislative assembly agree to delay practise any religion or no the election. religion at all. • Every citizen has the right to have • We are free to think our own their elected representatives sit thoughts, speak our minds, at least once a year in Parliament to gather peacefully into groups and legislatures, so Parliament and and to associate with whomever we government are held to account. wish, as long as we do not infringe valid laws which protect the rights Mobility rights and interests of others. • Canadian citizens have the right • The media are free to print and to enter, remain in, or leave broadcast news and other informa- the country. tion, subject only to reasonable and justifiable limits set out in law. • Canadian citizens and permanent residents have the right to live or Democratic rights seek work anywhere in Canada. Governments in Canada can’t • Every Canadian citizen has the discriminate on the basis of some- right to vote in elections for one’s current or previous province Members of Parliament and of residence. For example, if a representatives in provincial and person is a qualified professional, territorial legislatures, and to seek such as an accountant, in one election themselves, subject to province, another province cannot certain limited exceptions (for prevent him or her from working example, minimum voting age), there because that person does not which have been found to be live there. reasonable and justifiable. • However, laws can set reasonable • Our elected governments residency requirements for certain cannot hold power indefinitely. social and welfare benefits. Provinces The Charter requires governments with an employment rate below the

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national average may also set up that you have committed a crime programs for socially and economi- before holding you in custody. cally disadvantaged residents, The right to challenge the legality without having to extend them of your detention (also called to non-residents. “habeas corpus”) is expressly guaranteed in the Charter. Legal rights • The Charter also protects against • The Charter also protects the basic random or arbitrary actions by law human rights to life, liberty and enforcement agencies. For example, physical and psychological safety you have the right to be told why (or “security of the person”). you are being arrested or detained, to consult a lawyer without delay, • No one can be deprived of these to be informed of this right, and rights except through fair legal to have a court determine quickly procedures and based on clear, whether this detention is lawful. fair laws. • Everyone has the right not to be • The right to be presumed innocent subjected to any cruel and unusual until proven guilty is a basic punishment, including torture, constitutional guarantee. excessive or abusive use of force • The Charter also protectseveryone’s by law enforcement officials and reasonable expectation of privacy sentences of imprisonment which in their homes, private spaces and are “grossly disproportionate” personal information. This includes to the seriousness of the crime protection against unreasonable committed. searches and seizures by police and • If you are charged with an offence other government authorities, under federal or provincial law who generally need a judge- you also have the right: approved warrant to enter your home or take other actions which – to be told promptly of the interfere with your privacy. offence; • Everyone is also protected – to be tried within a reasonable against being detained or arrested time; arbitrarily. A police officer must – not to be compelled to testify have reasonable grounds to believe at your own trial;

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– to be presumed innocent until Equality rights proven guilty beyond a reasonable • Equality rights are at Everyone, regardless doubt in a fair and public hearing the core of the Charter. by an independent and impartial They are intended to of race, national tribunal; ensure that everyone is or ethnic origin, – not to be denied reasonable bail treated with the same without cause; respect, dignity and colour, religion, sex, consideration (i.e. – to be tried by a jury for serious without discrimina- age, or mental or charges; tion), regardless of physical disability, – to be convicted only for an act personal characteristics such as race, national or or omission that was a crime at ethnic origin, colour, is equal before the time it was committed; religion, sex, age, or the law. – not to be tried or punished twice mental or physical for the same offence; disability, sexual orientation, marital – to the benefit of the lesser status or citizenship. punishment if the punishment for a crime changes between the • This usually means that everyone time you committed the offence should be treated the same by law and the time you are sentenced; and that everyone is entitled to the same benefits provided by laws or • Everyone has the right, as a witness government policies. However, in legal proceedings, not to have the Charter does not require that any incriminating you government always treat people in give used against you in later exactly the same way. For example, proceedings, unless you are charged sometimes protecting equality with perjury (lying during legal means that rules or standards must proceedings). be reasonably adapted to take account of people’s differences, • Everyone has a right to an inter- including by allowing people to preter in legal proceedings if you observe different religious holidays do not understand the language or without losing their job, or putting are hearing-impaired. specific supports in place to enable

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people with visual disabilities or before any court established by hearing impairments to access Parliament. government services. • Members of the public have a right • It is also constitutional to create to communicate with and receive special programs aimed at improving services in English or French from the situation of individuals who any head office of an institution of are members of groups that have Parliament or government of historically experienced discrimina- Canada. They have this same right tion in Canada, including from any office of an institution on the basis of the where there is a significant demand. Everyone has grounds listed above. Depending on the nature of the office, it might also be reasonable the right to use Language rights that communications and services be available in both English English or French English and French are Canada’s official and French. in the debates and languages, according • Similar rights apply in New Bruns- to the Charter. Both wick, the only officially bilingual proceedings of languages have equality province in Canada. In fact, people of status and equal rights in New Brunswick have the right to Parliament. and privileges to be communicate and obtain services used in all institutions of Parliament and in either English or French from government of Canada. any office of an institution of the legislature or government of New • Everyone has the right to use Brunswick. Under section 16 of the English or French in any Charter, the English and French debates and other proceedings linguistic communities in New of Parliament. Brunswick also have equality of • The statutes, records and journals status and equal rights and privileges, of Parliament must be printed including the right to distinct and published in both languages educational institutions and and both language versions have cultural institutions that are needed equal authority. to preserve and promote those • Everyone has the right to use communities. English or French in proceedings

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• TheConstitution Act, 1867 and the • In Quebec, citizens Act also grants people in who received their TheCharter and Quebec and Manitoba the right to primary education in use English and French in debates English in Quebec, or the Constitution and proceedings of the legislatures who have a child who and the courts of those provinces. was or is being taught protect the rights These provisions also require that in English in Quebec, provincial laws be enacted and have the constitutional of the Aboriginal published in both languages, and right to send all peoples (Indian, that both languages be used in their children to the Records and Journals of English-language Inuit, and Métis) their legislatures. schools. of Canada. Minority-language This right to minori- educational rights ty-language instruction applies where numbers • Every province and warrant, and can include has official language minority the right to receive that instruction communities (French-speaking in minority-language educational communities outside Quebec facilities provided out of public funds. and English-speaking minorities in Quebec). Aboriginal and treaty rights • Outside Quebec, citizens whose As noted earlier, section 35 of the mother tongue is French, or who Constitution Act, 1982 recognizes have attended French primary and affirms the Aboriginal and or secondary schools in Canada, treaty rights of Aboriginal peoples. have a constitutional right to have all their children receive primary The Charter cannot take away or or secondary instruction in that diminish those rights, or any other language. This is also true if their rights or freedoms that Aboriginal children are, or have, attended peoples may acquire in the future French primary or secondary (for example, from the settlement schools in Canada. of land claims).

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Other Rights The Charter guarantees many basic human rights and fundamental freedoms. But we all have other rights that come from federal, provincial, territorial, international, and common law. Also, Parliament or a provincial or territorial legislature can always add to our rights.

20 HOW THE COURTS ARE ORGANIZED

The federal and provincial and terri- Parliament also has exclusive torial governments are all responsible authority over the procedure in for the judicial system in Canada. courts that try criminal cases. Federal authority for criminal law Only the federal government can and procedure ensures fair and appoint and pay judges of the consistent treatment of criminal superior, or upper-level, courts in behaviour across the country. the provinces. Parliament can also establish a general court of appeal The provinces administer justice and other courts. It has created the in their jurisdictions. This includes , the organizing and maintaining the civil and the Federal Court and criminal provincial courts and of Appeal, as well as the Tax Court. civil procedure in those courts.

Outline of Canada’s Court System

Supreme Court of Canada

Court Martial Provincial/Territorial Federal Court Appeal Court Courts of Appeal of Appeal

Provincial/Territorial Federal Tax Court Superior Courts Court of Canada

Military Provincial/Territorial Courts Courts

Provincial/Territorial Federal Administrative Administrative Tribunals Tribunals

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What Do the Federal Courts Do? The Tax Court specializes in hearing The Supreme Court of Canada appeals from tax assessments. is Canada’s final court of appeal. Its nine judges represent the four The reviews major regions of the country. the decisions of both these courts. Three of them must be from In fact, it is the highest court of the Quebec, to adequately represent land for about 95 percent of all cases. the civil law system. Provincial and Territorial The upremeS Court has two main Level Courts functions. The court system is roughly the same • It hears appeals from decisions across Canada. Except for Nunavut, of the appeal courts in all the each province has three levels: provincial provinces and territories, as well and territorial, or lower, courts; as from the Federal Court of Appeal. superior courts; and appeal courts. Supreme Court judgments are final. TheNunavut Court of Justice has • It decides important questions about a single-level trial court. the Constitution and controversial or complicated areas of private and Provincial and Territorial Courts public law. The government can Provincial courts try most criminal also ask the Supreme Court for offences, money matters and its opinion on important legal matters. In private-law cases involving questions. breach of contract or other claims of harm, the courts apply common-law The federal government also principles in nine provinces and the established the Federal Court, the territories. In Quebec, courts apply Tax Court and the Federal Court the Quebec Civil Code. of Appeal. Provincial courts may also include TheFederal Court specializes in specialized courts, such as youth areas such as , courts, family courts, and small maritime law, federal–provincial claims courts. Each provincial disputes, and civil cases related government appoints the judges to terrorism. for its own courts.

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Superior Courts Administrative Boards and Tribunals Superior courts are the highest level of courts in a province or territory. There are other kinds of disputes They deal with the most serious that do not need to be dealt with criminal and civil cases and have in the courts. Different kinds of the power to review the decisions administrative tribunals and boards of the provincial and territorial courts. deal with disputes over the interpretation and Superior courts are divided into two application of laws and Administrative levels: trial level and appeal level. regulations, such as enti- tlement to employment tribunals play an • The trial-level courts hear civil and insurance or disability criminal cases. They may be called benefits, refugee claims, essential role in the Supreme Court, the Court of and human rights. Queen’s Bench, or the Superior resolving disputes in Court of Justice. Administrative tribunals Canadian society. • The appeal-level courts, or Courts are less formal than of Appeal, hear civil and criminal courts and are not part appeals from the superior trial of the court system. courts listed above. However, they play an essential role in resolving disputes Although the provinces and territories in Canadian society. Decisions of administer superior courts, the administrative tribunals may be federal government appoints and reviewed in court to ensure that pays the judges. tribunals act fairly and according to the law.

23 CIVIL AND CRIMINAL CASES

A civil case is a private case where court. Copies are then delivered to, someone sues someone else. This is or served on, the defendant. also known as a suit or action. In a criminal case, the Crown prosecutes The defendant must provide the an accused under a public-law statute court with a statement of defence. such as the Criminal Code or the If she or he does not, the court will Controlled Drugs and Substances Act. assume that the plaintiff’s allegations are true. The defendant may thus lose by default. How Do Civil Cases Work? A civil action or suit starts when Both the plaintiff and the defendant individuals or corporations disagree are entitled to consult a lawyer. on a legal matter, such as the terms of Lawyers often discuss the lawsuit to a contract or the ownership of a piece settle it before a trial is necessary. of property. A civil suit can also result The two sides can reach a settlement if someone is injured or property is at any time before the judge makes his damaged. For example, someone who or her decision. In fact, 98 percent of breaks a leg when he or she slips on civil suits never make it to the courts. an icy stairwell may sue for compen- sation. The person who sues is called the plaintiff. The person being sued is Discovery called the defendant. Each party is then entitled to an examination for discovery before the Civil cases are complex. A suit goes trial. Its purpose is to clarify the claim through several stages: pleadings, against the defendant and lets each discovery, and the trial itself. side examine the evidence that the other side intends to use in court. Pleading First, the plaintiff files a pleading Trial with the court. This sets out the During the trial, it is up to the complaint against the defendant and plaintiff to present facts to support the remedy the plaintiff is seeking. the claim against the defendant. In a A court officer then issues the claim civil suit, the plaintiff must prove that by affixing the seal of the court and it is probable that the defendant is signing the pleading on behalf of the legally responsible, or liable, because

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a civil case is decided on a balance At the end, both the plaintiff and of probabilities. This is the standard the defendant summarize their of proof for a civil case, just as the arguments. The judge must then standard of proof for a criminal consider the evidence presented case is proof beyond a reasonable before making a decision, based on doubt. what has been proven to be most probable. He or she must decide If the facts justify the remedy the whether the facts show that the plaintiff is seeking, the court will defendant has broken a civil law, hold the defendant liable, or legally such as a law that says we are obliged responsible. to fulfill our contracts.

What Happens at a Civil Trial? Depending on the suit and the court, the defendant may have a right to a The trial begins with the plaintiff trial by judge and jury. It is then up presenting evidence against the to the jury to decide which version defendant. The plaintiff may call of the facts it believes. The judge witnesses to testify to facts and still decides which law applies and present evidence: papers, photographs explains the evidence and the relevant or other documents. The defendant laws to the jury. The jury must may cross-examine the plaintiff’s then consider the matter and reach witnesses to test their evidence. a verdict. The defendant then presents his or her own evidence, including witnesses. The plaintiff has the same right to How a Trial Ends cross-examine. If the defendant is found not liable, the judge will dismiss the case. Throughout the trial, the judge If the defendant is found liable, must make sure that all the evidence the judge or jury must consider presented and all the questions asked three things: are relevant to the case. For example, in most situations, the judge will • the remedy that the plaintiff asked not allow testimony based on what for in the pleadings; a witness has heard from another • the facts; and person – this is called hearsay evidence. • how to compensate the plaintiff.

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Remedies • Declaratory remedies simply state A remedy is a means of resolving a the rights of the parties. For example, civil case. There are three different when a court interprets a will or types. decides who owns personal property or land, its decision is declaratory. • Monetary remedies, called damages, are the most common. The judge • An injunction is a restraining order or jury who decides the case fixes that says that someone can or the amount of damages. The judge cannot do something. You could get or jury will take into account the an injunction to stop your neigh- expenses incurred by the plaintiff. bours from burning garbage or to Where the law permits, order them to remove a junk heap they can also award an from your property. Injunctions are In 2011–12, cases additional sum to not given automatically. In each compensate the plaintiff case, the court has the discretion to involving impaired for the loss suffered as a make such an order or to award damages according to precedent. driving (11%), result of the wrongdoing of the defendant. theft (10%), The judge or jury is not What Are Criminal Cases? required to award the common assault plaintiff the amount A crime is considered to be an offence he or she asks for. They against society as a whole, so it is (10%), and failure might even award less usually the state that starts a criminal than that amount. In prosecution. to comply with an Canada, a judge or jury may occasionally award Criminal offences are set out in the order (9%) were “punitive” damages. Criminal Code or in other federal laws. There are two types: the most common This is a larger award that expresses the disapproval • Summary conviction offences, of the community. These types of cases which are the most minor cases, damages are meant to for example causing a disturbance; punish the defendant completed in adult and because the defendant’s criminal court. behaviour was so • Indictable offences, which are more offensive. serious and include theft, break and enter, and murder.

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The person charged with a criminal What Happens in an Arrest? offence is called the accused. The police must follow certain The accused is always presumed procedures to protect the rights of innocent until proven guilty. the accused. A person who has been arrested is first read their rights. Summary Offences The police must The accused appears before a provincial • tell the person that he or she has the right to court judge for a trial that will consult a lawyer A crime is normally proceed immediately. without delay; The maximum penalty for this type considered to be of offence is normally a $5,000 fine, • explain the reasons for six months in prison, or both. the arrest and the an offence against specific charge, if one is being made. society as a whole, Indictable Offences so it is usually An accused has three choices: What Happens in Custody? • Have a judge alone hear the case the state that in provincial court. A person who is taken into custody goes to a starts a criminal • Have a judge and jury hear the holding cell in a deten- case in a . tion centre. He or she prosecution. • Have a judge alone hear the case has the right to appear in superior court. before a justice of the or judge as soon as possible (usually within There may be a preliminary hearing 24 hours). At that time a judge before a trial, during which a judge decides on pre-trial release or bail. examines the case to decide if there In a bail hearing, the prosecutor is enough evidence to proceed with must show why the accused should the trial. If the judge decides there is remain in custody. If a judge decides not enough evidence, the case will the accused should be released, be dismissed. the accused may be released with or without conditions. Release on bail Otherwise, the judge will order a will only be refused if there are very full trial. strong reasons for doing so.

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Anyone accused of the charge beyond a reasonable The median a crime also has the doubt. Also, if any evidence is right under the Charter obtained that violates the accused’s amount of time to to stand trial within Charter rights, such as through an “a reasonable time.” unreasonable search and seizure, complete an adult The Charter does not the judge may refuse to admit the say what this means but criminal court case evidence. In a criminal trial, an the courts have provided accused person cannot be required some guidance. A judge declined in 2011– by the prosecution to give evidence. considers four factors 12, down two days to determine if a trial is happening within a Decisions in Criminal Cases from the previous reasonable time: If the accused is found not guilty, • the length of the delay; he or she will be acquitted and is year, to 117 days. then free to go. • the reason for the delay; If the accused is found guilty of a • whether the accused agreed to crime, the judge must decide the a delayed trial date; appropriate sentence. When making this decision, the judge must consider: • whether the delay affected the accused’s ability to put forward • the seriousness of the crime; to a fair defence. • the range of sentences possible in the Criminal Code or other statutes; What Happens in a • preventing or deterring the offender Criminal Trial? or others from committing similar A criminal trial is a very serious crimes; matter. After all, the accused has • denouncing the harm to the victim a lot to lose: his or her liberty and and the illegal conduct; and the stigma of a criminal conviction. Because of that, both common law and • the prospects for rehabilitation. the Charter protect the rights of the accused. For example, the prosecution Judges may impose many different must prove that the accused is guilty of kinds of sentences or a combination

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of penalties. These may include: Can You Appeal a Decision? • A fine (a sum of money); The right to appeal a court’s decision is an important safeguard in our legal • Restitution: asking the offender system because a court could make to pay costs of injuries or loss of an error in a trial. damage to property; • Probation: release of the offender In most civil and criminal cases, a decision made at one level of the with conditions; court system can be appealed to a • Community service: an order higher level. Where there is no right that the offender perform a certain to appeal, permission or number of hours of volunteer “leave” to appeal must work in the community; be sought. The higher The right to appeal court may deny leave to • Imprisonment: confinement in appeal, affirm or reverse a court’s decision a prison or penitentiary. the original decision. In some cases, it will order is an important An offender who is sentenced to a new trial. more than two years will be sent to safeguard in our a federal penitentiary. An offender Both sides in a civil case legal system because who is sentenced to two years or less and either the prosecu- will go to a provincial prison. tion or the accused in a court could a criminal case may A judge does not always have to appeal. make an error convict, even if the accused person has pleaded guilty or been found Sometimes, it is only in a trial. guilty. The judge may give an the amount of damages offender an absolute or conditional or the severity of the discharge. An offender given a sentence that is appealed. conditional discharge must obey For example, the accused may ask the conditions imposed by the judge a higher court to reduce a sentence, or face a more severe sentence. or the prosecution may ask to have An offender who is given a discharge the sentence increased. will not receive a criminal record for the offence.

29 VICTIMS OF CRIME

The criminal law process is funda- an offender if it is elevantr to the mentally between the accused and victim’s safety – for example, if the the state. But there is increasing offender is released once a week for recognition of the importance of counselling. Even if the victim hearing victims and they are starting is not in harm’s way, he or she could to have a greater voice and role in still be traumatized by seeing the the legal process. offender shopping in the same neighbourhood. The victim’s physical There is federal legislation and well-being and psychological safety services to help victims. are considered equally important.

For example, under the The federal government and provinces Criminal Code: work together on how victims are served. For example, Canada and the • the victim’s safety must be provinces agreed to a baseline set of considered in bail decisions; principles that govern all policies • a victim’s identity may be protected and legislation called the Canadian in appropriate circumstances; Statement of Basic Principles.

• judges must consider victim impact The Canadian Victims Bill of Rights statements and the harm to the came into force in 2015 to improve the victim; and experiences of victims of crime across • offenders may be ordered to pay the country by creating, at the federal restitution (an amount of money level, clear rights for victims of crime to reimburse the victim for losses – a first in Canadian history. To read caused by the offender) as part of the Canadian Victims Bill of Rights the sentence. They also have to in full, please visit the Justice Laws pay a victim surcharge. website. You can find out more about victim-related issues in Canada at Victims are not allowed to decide if canada.ca. There are also many services an appeal is brought or not because available across the country for victims the process is between the accused of crime - consult the Victim Services and the state. Directory at the site above to search for services by postal code and by type. The victim can receive some information about an offender while that person is

30 RESTORATIVE JUSTICE

Restorative justice came into the Restorative justice requires system from Aboriginal justice wrongdoers traditions. Restorative justice empha- • to recognize the harm they sizes the wrong done to a person as have caused; well as the wrong done to the community. It recognizes that crime • to accept responsibility for is both a violation of relationships their actions; between specific people and an • to be actively involved in offence against everyone (the state). improving the situation; and In restorative justice programs, the • to make amends to victims and victim of the crime, the offender and, the community. ideally, members of the community voluntarily participate in discussions. The goal is • to restore the relationship; • to fix the damage that has been done; and • to prevent further crimes from occurring.

31 YOUTH JUSTICE

Special considerations come into play adult criminal justice systems, the when young people commit acts that YCJA establishes special procedures are considered criminal. The Youth to ensure that young people are Criminal Justice Act (YCJA) is the treated fairly and to promote their federal law that governs Canada’s rehabilitation. For example, as a youth justice system. It applies to general rule, the privacy of young youth aged 12 to 17 who get into offenders and young victims and trouble with the law. The YCJA witnesses is protected through recognizes that young persons must publication bans on their identity. be held accountable for criminal acts, although not in the same way or to The YCJA says that young people are the same extent as adults. It is in to be held accountable in ways that society’s interest to ensure that as are fair and in proportion to the many young offenders as possible are seriousness of their offences. These rehabilitated and become productive interventions should members of society. • reinforce respect for societal values; The YCJA recognizes • encourage the repair of harm done; TheYouth that young people lack the maturity of adults. • be meaningful to the offender; Criminal Justice The youth justice system • respect gender, ethnic, cultural, and includes measures that linguistic differences; and Act says that young are consistent with this reduced level of maturi- • respond to the needs of Aboriginal people are to be ty. The YCJA also young persons and of young held accountable in recognizes that young persons with special requirements. people have special ways that are fair needs and circumstances The YCJA encourages the use of that must be considered measures outside of the formal court and in proportion when any decision is system for less serious offences. made under the Act. These measures are often the most to the seriousness of appropriate and effective way to respond While many aspects of to youth offending, and include options their offences. criminal procedure are such police warnings and referrals to similar in the youth and community-based programs.

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Youth cases that do end up in the impose an adult formal court system are conducted in sentence. If an adult Canadian youth special youth courts. If a youth is sentence is imposed, the found guilty of a criminal offence, Criminal Code penalties courts completed the youth court judge must deter- for adult offenders are mine the appropriate sentence. The applied to the young about 48,000 YCJA has specific sentencing provi- person. This can include sions for young offenders that are mandatory minimum cases in 2011–12, different than the adult sentencing penalties and sentences down 10% from provisions in the Criminal Code. up to life imprisonment. However, a young the previous In most cases, judges impose one of person cannot serve any the youth sentencing options in the portion of a sentence in year. The largest YCJA. However, in very serious cases, an adult prison before he the court does have the power to or she is 18 years old. decreases were in the territories, where declines ranged from 23% to 36%.

33 THE ROLE OF THE PUBLIC

In Canada, each of us has a part in in court. Jurors must make up ensuring that the law works properly their own minds about the truth and that justice is done. Two ways or honesty of the testimony given of contributing to justice in Canada by witnesses. are being on a jury and testifying in court. After both sides have called all their witnesses and presented their arguments, Jury Duty the judge instructs the jury on the law and on what they must take into Serving on a jury is one way a citizen account when making their decision. can carry out his or her role. A jury is a group of citizens who try an Criminal Cases accused charged with a criminal offence. In Canada, a criminal law The jurors meet in a room outside jury is made up of 12 jurors selected the courtroom to decide whether from among citizens of the province the prosecutor has proven beyond or territory in which the court is a reasonable doubt that the accused located. Any adult Canadian citizen is guilty. can be considered for jury duty. All the jurors must agree on the Being called for jury duty does not decision or verdict – their decision mean a person will be selected to must be unanimous. If they cannot serve as a juror but he or she must all agree, the judge may discharge show up for the selection process. the jury and direct a new jury to be Some people may not be required chosen for a new trial. After a trial, to do jury duty by the laws of their jurors are not allowed to tell anyone province. Also, the prosecutor or the else about the discussions that took defence counsel may object to a place in the jury room. particular juror if they believe there is a reason why he or she should be Civil Cases disqualified. The jury must decide whether the plaintiff has proven that the defendant During the trial, jurors must not is liable, that is, responsible, on a allow themselves to be influenced by balance of probabilities. anything except the evidence presented

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People whose knowledge about a particular subject can help the court Trial by Jury with answers to technical questions Most civil cases in Canada are tried may also be called as expert witnesses. by judges without a jury. However, anyone charged with a criminal If people have information they offence for which there can be a believe is related to the case, they may prison sentence of five years or come forward voluntarily. If they more has the right to a trial by jury. do not, they can be summoned by subpoena to give evidence in court. In some cases, a person charged A person who is subpoenaed must with a criminal offence for which testify or face a penalty. there can be a prison sentence of less than five years may have the Witnesses must take an oath or affirm right to choose trial by jury. that they will tell the truth. They Some civil cases can also be tried must answer all questions they are by judge and jury. asked, unless the judge decides that a question is irrelevant.

There are only six jurors in a civil Know the Law case, and the decision does not have to be unanimous as long as five of People do not have to be experts them agree on the verdict. in the law. But ignorance of the law is no excuse or defence. If you are charged with an offence, for example, Testifying in Court you cannot be excused by claiming A person who has information that that you did not know you were either party in the case believes to be breaking the law. Because our laws useful may be called to give evidence are publicly debated before being in a civil or criminal trial. Someone passed in Parliament or a legislature, might have witnessed the event, the public is expected to know what know something that is important to is legal and what is not. the case, or have a document that is key to the trial. The duty to know the law means that citizens should make sure they are

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acting legally. You can Who Gets Legal Aid? Legal help for find this information Legal help for low-income people from federal, provincial is as important as health care and low-income people and territorial government education. The federal and provincial offices, public libraries, governments have set up a program is as important as public legal information to share the cost of legal services for associations, and the those who qualify. Any person who health care and police. If, after consulting meets the financial criteria and who these sources of informa- education. is accused of a crime for which a tion, you are still conviction might mean jail or loss uncertain about the law, of livelihood may get legal aid. then you should consult Some provinces also offer legal aid a lawyer. for civil cases, particularly in family-law matters.

DEFINITIONS Jurisdiction: the type of case and the physical area over which the courts have legal authority. Legislature: government body with the power to enact, amend, and repeal laws. Parliament: legislature, in Canada made up of the Monarch, House of Commons and the Senate. Remedy: the means used by the law to correct injuries or enforce legal rights. Restorative justice: an approach to justice that emphasizes healing for victims, holding offenders to account in a meaningful way, and involving citizens in the community. Subpoena: an order to appear in court or give evidence. Treaty rights: Aboriginal rights set out in a treaty.

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