Canada's Legal System - Sharing of Legislative Powers in Canada

For inhabitants of countries with only one government—such as France, Sweden, Israel, or Algeria—it may be hard to understand the complexity of a federal structure, especially since examples (e.g., Germany, Belgium, Russia, Switzerland, South Africa, Mexico, Pakistan, etc.) generally differ widely, and Canada is no exception. Many citizens of unitary countries can have great difficulty understanding how a country like Canada can function, with its 14 governments and as many parliaments, legal systems, public services, etc., all carefully guarding their prerogatives and jurisdictions.

Canada also has a federal prime minister and 10 provincial premiers, as well as members that sit in the House of Commons (Chambre des communes in French) in Ottawa and others in 13 different provincial and territorial legislative assemblies. Those elected to a provincial (or territorial) legislative assembly are called members of the legislative (or national) assembly (MLA and MNA, respectively), members of the provincial parliament (MPPs), or members of the House of Assembly (MHAs), depending on the province or territory. In addition, the generic term "first ministers" applies to both the prime minister and the premiers of the provinces and territories.

Exclusive federal government jurisdictions

Areas that fall under exclusive federal government jurisdiction in Canada include defence, currency, shipping, airports, weights and measures, patents, censuses, postal services, Amerindians and reserves, penitentiaries, bank incorporation, international relations, radio and television, and others. When Canada was founded in 1867, it was designed as a federal system with shared jurisdictions between the central federal power and the provinces (a government in each province). Sections 91 to 95 of the 1867 Constitution lay out the different areas of legislative authority:

Federal jurisdiction

  • Trade
  • Taxes
  • Postal service
  • Militia and defence
  • Currency and banks
  • Indian policies
  • Criminal law
  • Residual powers (not defined in the British North America Act)
  • Right of disallowance over the provinces

Provincial jurisdiction

  • Public lands and forests
  • Health system
  • Municipal institutions
  • Marriage
  • Property and civil rights
  • Education
  • Business licences
  • Provincial constitution

Shared jurisdiction

  • Agriculture
  • Companies and economic development
  • Prisons and justice
  • Fishing
  • Public works
  • Transportations and communications
  • Immigration

Source: "British North America Act" in Gérald-A. Beaudoin,
The Constitution of Canada, Montreal, Wilson and Lafleur, 1990, p. 849–902

Although in principle the federal authority holds responsibility over matters of general and national interest and the provincial governments over regional matters, the jurisdictions of the two bodies were not completely settled in 1867. It is not always easy to determine what constitutes "general matters" (appertaining to the federal government) and "local matters" (appertaining to provincial governments) because the two levels of government are both independent and complementary. This is why conflicts of jurisdiction have erupted regularly over the course of Canada's political history, notably in the area of language.

In addition, the central government may exercise its authority in areas not specifically laid out in the Constitution. This is what is known as "residual powers" which, in Canada, are automatically attributed to the federal government. In other countries, like Switzerland and the United States, for example, it is the cantons or member states that exercise residual powers, not the central government. However, the provinces also hold residual powers in their own areas of authority.

Penal law is made up of a series of provisions covering illegal behaviour (offences) and sentencing (fines or imprisonment). Canada's Criminal Code, an exclusively federal jurisdiction, deals with such crimes as murder, kidnapping, fraud, theft, sexual assault, assault and battery, and others. Penal law also covers provincial and municipal laws and regulations. Under the Canadian system, the provinces generally hold the power and authority to institute legal proceedings for offences under Canada's Criminal Code, which makes the country's legal system even more difficult to understand. The Criminal Code and some provincial laws contain a number of provisions dealing with language.

Moreover, there are two legal systems in effect in Canada: the British-inspired common law and French-inspired civil law. Common law is a legal system based primarily on customs and usages, and is generally found in Anglo-Saxon countries like the United Kingdom, Ireland, United States, Canada, and others. The Roman civil law system applies in the Romano-Germanic world (virtually the entire European continent and Latin America). In Canada, civil law applies in Quebec, while common law is used in the other provinces and territories. In Quebec, civil law is codified in the Civil Code of Quebec adopted in 1866 (under the name Civil Code of Lower Canada), and was inspired by the Napoleonic Code (French civil code adopted in 1804), the Custom of Paris, the Louisiana Code, and Switzerland's Vaud Canton Code, among other texts of law. Quebec adopted a new Civil Code in 1991, which went into effect in 1994. Quebec courts refer first to the Civil Code and other laws, and then to earlier decisions for guidance and consistency. The Anglo-Norman common law, also called "case law," has evolved through decisions handed down by British courts since William the Conqueror's Norman Conquest in 1066. These decisions were reached according to the "precedent theory" (stare decisis in Latin) established in earlier decisions of a similar nature. In provinces operating under the common law system, courts refer first to any promulgated laws, and subsequently to earlier decisions. Despite the differences between civil law and common law, the two systems adapt ably to the challenges that arise within Canada's legal system.

Canada's native peoples also contribute to the country's legal system. In 1996, the federal government drew up a number of memoranda of understanding between the natives and certain provinces (Alberta, British Columbia, Manitoba, Quebec, and the Yukon). This federal program known as the Aboriginal Justice Strategy was designed to buttress the community justice programs administered by the natives. This initiative has no incidence on language, since Canada's courts are obligated to operate in either of the two official languages. However, it shows that Canada's legal system has become more accessible to native communities and addresses their needs more effectively. It is worth noting that under the Northwest Territories Languages Act, aboriginal languages can be used in some courts.

Exclusive provincial jurisdictions

Exclusive jurisdictions of Canada's provinces include natural riches (mines, minerals, natural gas, and oil), property rights, education, hospital administration, social services, municipal institutions, labour relations, and others. Another key provincial jurisdiction is civil law, or the general rules of law in society. Civil law governs all aspects of daily life, from birth to death. In Quebec, most civil law is contained in the Civil Code (2,700 sections) which, unlike the common law of the other Canadian provinces and territories, is inspired by French law. Matters covered by civil law include separations, injunctions, labour relations, property, sales, successions, and other such business. Given Canada's penal (criminal), statutory and civil law jurisdictions, we will see further on how official-language minority rights differ depending on the court hearing the case and whether a case is civil, penal or statutory.

In addition, the provinces have full jurisdiction on matters of language in areas under their responsibility. For example, provinces may adopt language laws not only for their own institutions, but also for everything that falls under their jurisdiction: education, municipal institutions, health, business permits, marriage, etc.

Shared jurisdiction

Unlike in countries like Belgium and Switzerland where jurisdictional conflicts rarely arise between levels of government, several areas in Canada fall under shared jurisdiction, such as culture, agriculture, justice, language, and consumer goods. Certain distinctions must, however, be made. Provincial governments are free to legislate in their own fields of jurisdiction without interference from the federal government, except in certain areas governed by the Canadian Constitution, which contains provisions that apply to all the provinces.

Moreover, problems can arise between the provinces and central authorities when the latter use their spending power to intervene directly or indirectly in areas of provincial jurisdiction. For example, the federal government can use its financial clout to influence certain social services like pension funds, various areas of education (primary and secondary teaching, vocational education and universities), health and municipalities. Given that certain powers are shared between the federal and provincial governments, a certain amount of overlap between the two levels of government in Canada is common and generally accepted.

Occasionally, conflicts arise over federal or provincial legislation. By virtue of the Federal precedence principle, in case of incompatibility, Federal law will have precedence over the provincial legislation but only to remedy such incompatibility. In the special case of language, history has shown that the courts will sometimes strike down parts of provincial legislation, something that has almost never happened at the federal level.

Language jurisdiction

Language is an ancillary or accessory field, meaning that it is tied to the Federal or Provincial Constitutional authority on a given field of action. As in every shared jurisdiction, problems are commonplace. For instance, the provinces may legislate on the language of a company name, but only in cases where the company is incorporated under a provincial, not a federal law. Therefore, a federally chartered bank is not subject to provincial language legislation on company names; however, that same bank can be obliged under provincial law to use French as its working language because labour relations are a provincial jurisdiction. Furthermore, the provinces cannot regulate working language in areas that fall under exclusive federal jurisdiction: the federal public service, air transport, shipping, federal courts of justice, and others. The provinces may pass any laws they like, provided they comply with constitutional provisions guaranteeing certain rights for Canada's linguistic minorities.