Law of Canada
The law in Canada is based on private law, public law and criminal law largely on the English common law , which is a legacy of British colonial era. In Québec , on the other hand, as a result of the former affiliation to France, a civil law based on Roman law applies in the area of private law. Both common law and Franco-Roman civil law are ranked below in the Canadian Constitution .
Legal history
Common law
All provinces and territories of Canada, with the exception of Québec in private law, have a legal system based on common law . In addition to common law in the narrower sense, the courts are also entitled to make equity decisions based on equity and to develop the law accordingly. As is customary in all other countries that use the common law system, the system of stare decisis also applies in Canada . This means that courts cannot simply overturn older decisions (precedents) without justification.
The lower and higher courts of the provinces are not bound by the decisions of the courts of other provinces. Even so, their decisions are considered appropriate sources of law and are often treated as if they were binding. Only the Supreme Court of Canada has the authority to bind all other courts in the country. The busy courts, such as the Ontario Court of Appeal , are often used as a model when it comes to matters of supra-provincial law, especially in matters such as the law of evidence or criminal law .
If there are few or no Canadian decisions in a particular area of law, foreign court decisions from countries of the common law jurisdiction are also used, mostly British court decisions, preferably those of the Court of Appeal of England and Wales and those of the House of Lords . In the area of constitutional law or privacy law, however, decisions by US courts are also often used, as many legal and historical developments in this area began there.
Since Canada was a colony of the United Kingdom , decisions made by the House of Lords prior to 1867 (the founding of Canada) are still binding unless the same legal issue has been rescheduled by the Supreme Court of Canada. In addition, Canada's jurisdiction is still bound by the decisions of the Privy Council from before 1949, as it was the highest court of appeal up until then. Even today, decisions of this body are used as a source of law.
The offenses are all set out in written federal or provincial criminal law. An exception is the offense of “disregard of the court”, which is the ultimate offense not violating a written statute, but an offense under unwritten common law.
Québec's private law system
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For historical reasons, Québec has developed a hybrid legal system. The private law here (= Civil Law) follows the principle of law, how to apply it on the European continent. In the civil law of the Roman tradition, abstract norms are applied to the specific case, instead of rules being deduced from individual case decisions as in common law. In English this system is referred to as Civil Law or Continental Law. This system was first introduced in New France , today's Québec, by the Coutume de Paris . Today, much of Québec's private law is codified in the Code civil du Québec ( Québec Civil Code ).
After New France fell in the course of the British conquest in 1760, common law was applied in the field of public law . The distribution of legislative competence between the federal and provincial parliaments does not depend solely on whether the legislative matter is to be assigned to public or private law. Therefore, provincial laws affecting public law should be interpreted according to the traditions of common law. Federal Parliament laws that affect private law matters, however, must be interpreted in the light of Franco-Roman civil law when they are applied in Québec, and their legal concepts must be brought into line with the Civil Code of Québec.
Because of Québec's unique legal system, attorneys need to be well educated in both common law and Roman civil law, otherwise they may not be able to practice effectively in Québec.
Constitutional law
The Canadian Constitution is the supreme law in Canada. It is made up of both codified laws and uncodified traditions and conventions . The foundation stone was laid with the constitutional law of 1867 , which was initially called the British North America Act . This law determined, among other things, the system of government and distributed various rights to the provincial governments. The constitution also includes the 1982 Constitutional Act , which contains the Canadian Charter of Rights and Freedoms . This also made fundamental rights part of the Canadian constitution.
legislation
Laws enacted by the Canadian Parliament and provincial legislation are the primary sources of Canadian law. The constitutional law of 1867 authorizes parliament to enact "laws [...] for peace, order and good government in Canada [...]" as long as parliament does not interfere with the legislative powers of the provinces. "Canada's legal system is determined by its federal structure. In contrast to Germany, however, there is no supranational component. Canada forms the NAFTA (North American Free Trade Aera) free trade area with the USA and Mexico, but this bond is not a separate body the EU, but only the result of multilateral treaties. Otherwise there is federal law, provincial law, and law of the municipalities. A big difference to Germany: The legal autonomy of the provinces is significantly greater than that of the German federal states. So the core of civil law is provincial law, while In Germany it is federal law. Legislation competes in the area of company law: there are corporations under federal law and corporations under provincial law. The main legislative competences of the federation are in the following areas: insolvency law, patent and copyright law, unemployment insurance, criminal law. "
Laws made by the federal government are announced in advance in the Canada Gazette , the official gazette of the federal government. Then they are published in the Annual Statutes of Canada , the "Annual Statutes of Canada". From time to time the government will consolidate all of the then applicable laws. This event is known in Canada as the Revised Statutes of Canada (“Revised Statutes of Canada”). The last consolidation took place in 1985.
Laws passed in the provinces follow the same procedure. They are announced in a provincial gazette, published annually and then consolidated from time to time.
Court organization
The Supreme Court of Canada is the highest court and final instance in the Canadian judiciary. Prior to 1949, cases could also be brought before the Justice Committee of the Privy Council in the United Kingdom , and some cases bypassed the Supreme Court of Canada entirely.
Criminal courts and appeals courts are also known as Section 96 courts. This is done on the basis of the constitutional law of 1867 , since "Section 96" allows the federal government to appoint judges for those courts. Judges working in provincial courts are also appointed by the respective provinces. Ordinarily, the legal process runs from the provincial courts to the higher criminal and appeals courts of the provinces, from there to the supra-provincial appeals courts and, in rare cases, to the Supreme Court of Canada. Thus there is an appeals court in every province and territory. Although the judges in the so-called Section 96 Courts are appointed by the federal government, the provinces must pay for these judges and administer the courts.
The Federal Court of Canada and the Federal Court of Appeals , unlike other higher courts, were established by law. Its area of competence covers only a small number of federal constitutional areas, including matters of immigration , the law of the sea and patent and copyright issues. Judicial examinations by federal tribunals, commissions and bodies make up a large part of their work . In some cases, the federal courts enforce jurisdiction only in legal form. In other areas there could possibly be a competing case law between the higher courts on basically the same items. In some cases this would mean advantages or disadvantages for one party, depending on which court is being heard.
Criminal law
The enactment of criminal law is under the sole legislative power of the government, a situation that contrasts with the situation in the United States . This fact is remarkable in that the Canadian provinces are otherwise guaranteed more competencies compared to the American states. In summary, this means that Canada has drawn up a criminal law that has the same validity everywhere within the country. In the case of minor, non-serious crimes, however, the provinces can take administrative measures themselves. The administration of judicial and criminal matters is a matter for the provinces and enforcement is carried out using the provincial and municipal police forces.
Prior to the adoption of the Canadian Charter of Rights and Freedoms in 1982, it was common practice to challenge provincial law to the effect that it was passed without ultra vires , that is, without legislative authority. For example, laws attempting to curb pornography, prostitution and abortion have been overturned on the grounds that they are criminal law laws and that the provinces have no justification for enacting them.
Private law
The field of private law in Canada encompasses numerous areas of law, such as disputes between different parties such as individuals, corporations and the government. Parties in dispute seek justice in court in, among other things, contractual matters ( contract law ), disputes resulting from tort ( tort law ), and cases relating to property law .
Procedural law
Canadian procedural law encompasses several aspects of the judiciary. For example, the law of evidence regulates the admissibility of evidence in courts and tribunals. The various aspects of the judiciary are regulated on a federal basis, depending on their value. Socially and legally serious areas are only dealt with by the highest authorities. The functioning of the courts is determined by the laws on civil procedure. These laws are codified in the rules of civil procedure in each province.
literature
introduction
- Michael Deturbide: Canada . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 978-1-84542-013-0 , pp. 116-119 .
- Stephan Handschug: Introduction to Canadian Law . CH Beck, Munich 2003, ISBN 978-3-406-50826-4 .
- Neil Boyd: Canadian Law: An Introduction . Nelson College Indigenous, 2006, ISBN 978-0-17-640716-2 .
- Jessie Horner: Canadian Law and the Canadian Legal System . Pearson Education Canada, 2006, ISBN 978-0-205-44556-1 .
Individual evidence
- ↑ http://www.kanadischesrecht.de/index.php/geschaeftsbetrieb-in-kanada-die-rechtlichen-rahmenbedingungen.html