Basic Canadian Legal Research

General

Canada is a constitutional monarchy, a parliamentary democracy and a federation composed of ten provinces and three territories. Canada's system of government, referred to as 'responsible government,' is imported from the United Kingdom. "In a system of responsible government, there is a "dual executive," consisting of a formal head of state and a political head of state." (Hogg, 2007, 9-2). The Queen occupies the role of formal head of state. The Prime Minister is the political head of state.

Executive

The Queen is represented in Canada by the Governor General at the federal level and by Lieutenant Governors at the provincial level. The formal head of state retains numerous functions. "The formal head of state must nearly always act under the 'advice' (meaning direction) of the political head of state", however. (Hogg, 2007, 9-2). This allows the traditional monarchical form to persist while ensuring that elected officials are running the show. Id. The Prime Minister, the political head of state, "is the leader of the party that commands a majority in the House of Commons." (Hogg, 2007, 9-2). The Prime Minister remains in office only as long as his or her party holds a majority in the House of Commons. This is in contrast to the American system where there is no guarantee that the party of the President will also control the legislature.

Legislative

"The legislative power of the federal government is vested in the Parliament of Canada, which consists of the Queen, an upper house styled the Senate, and the House of Commons." (Hogg, 2007, 9-15). The Parliament of Canada is composed of an elected lower house, the House of Commons, and an appointed upper house, the Senate. Senators are appointed for life by the Prime Minister and are permitted to serve until they reach 75 years of age. The Constitution Act, 1867 sets forth the circumstances in which a Senator is subject to removal from his or her post. Members of the House of Commons are elected by the Canadian citizens.

Canada is unique from the United States in that the executive and legislative branches are not independent of one another. "The Prime Minister effectively controls the executive branch of government through his control over ministerial appointments and over the cabinet." (Hogg, 2007, 9-12). Through his leadership of the majority party in the House of Commons "the Prime Minister effectively controls the legislative branch as well." This control over the legislative branch allows the Prime Minister to determine what legislation will be enacted. (Hogg, 2007, 9-12).

Judicial

The judicial branch is composed of the various federal courts, the Supreme Court of Canada being the highest. Justices of the Supreme Court of Canada are appointed by the Governor General on the advice (direction) of the Prime Minister. The Prime Minister enjoys nearly unfettered appointment power, constrained only by the requirements that appointees meet minimum qualifications, and that three justices originate from Quebec. "There is no requirement that appointees be ratified by the Senate or the House of Commons or a legislative committee." (Hogg, 2007, 8-8)

Law

Canada patterned its legal systems after its imperial influences, the United Kingdom and, to a much lesser extent, France. (Hogg, 2007, 2-1). France's influence is largely confined to the province of Quebec, where the legal system is based on the civil law and French is the dominant language. The rest of the country, at both the federal and provincial level, relies on the common law.

Canada is unique from the United States in that "there is no single document comparable to the Constitution of the United States, and the word 'Constitution' accordingly lacks a definite meaning. The closest approximation to such a document is the British North America Act, 1867." (Hogg, 2007, 1-3) The B.N.A. Act, 1867 united the existing British colonies into a confederation called the Dominion of Canada, and provided the framework for admitting new territories into the confederation. Id.

It was not until 1982 that Canadian dependence on Great Britain was finally terminated. An act of the United Kingdom Parliament, the Canada Act 1982, terminated the authority over Canada of the United Kingdom Parliament. The Canada Act 1982 also contained two important instruments in Canada's constitutional development. The first is the Constitution Act, 1982, which included a domestic amending formula that would permit the Canadian sovereign to make changes to the country's constitutional framework. (Hogg, 2007, 1-6).

The second is the Canadian Charter of Rights and Freedoms (Charter of Rights), which is a bill of rights found in the Constitution Act, 1982. The Charter of Rights "is entrenched (that is, alterable only by the process of constitutional amendment) and applicable to provincial as well as federal laws." (Hogg, 2007, 1-6). Also, for the first time, the Constitution Act, 1982 provided a definition for the term "Constitution of Canada." (Hogg, 2007, 1-7).

Similar to the American system, the job of interpreting the law in Canada falls to the judiciary. "While the courts' role is simply one of interpretation, the cumulative effect of a series of precedents will constitute an important elaboration or even modification of the original text." (Hogg, 2007, 1-16). It is for this reason that case law occupies an important place in researching any issue in Canadian law. "Canadian courts accept the doctrine of precedent (or stare decisis), under which the decisions of a court are binding on courts lower in the judicial hierarchy." (Hogg, 2007, 8-21).

The job of creating and amending law in Canada falls to the federal and provincial legislatures. The journey of a piece of legislation begins either in the House of Commons or the Senate. The legislation goes through a series of readings and also goes through a committee. If both houses of Parliament pass a piece of legislation in exactly the same form, the bill becomes a law. (Inside Canada's Parliament - The Work). As previously stated, the executive exerts a great deal of control over the legislative process. This is a byproduct of the 'responsible government' principle that requires the executive to have the confidence of the Parliament.

Researching Canadian Law

Researching the law in Canada should be a familiar exercise for students trained to research American law. Once an issue has been identified, the next step is to determine whether the issue is covered by a piece of legislation. Legislation from the various provincial and federal jurisdictions can be found online to varying degrees. Links to some of these sources are printed below.

Having established that an issue is covered by a piece of legislation, the next step is to consult the case law dealing with the legislation. Because Canada embraces a common law legal system, decisions of the various Canadian courts are of significance in interpreting legislation. Binding precedent helps to shape the contour and meaning of legislation. As noted above, judicial decisions are crucial to understanding a piece of legislation and how that piece of legislation fits into the greater scheme of the law.

Bibliography

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