Chapter 2: The Canadian legal system
Definition: the Canadian legal system is the machinery that comprises and regulates
government. Government is divided into three branches:
o The legislative branch creates law in the form of statutes and regulations
o The executive branch formulates and implements government policy and law
o Government policy: the central ideas or principles that guide government in
its work, including the kind of laws it passes.
o Statutes which are approved by the executive branch will exist in the statute
o The judicial branch adjudicates on disputes.
Constitutional law (formerly known as British North America Act): a separate legal
entity the supreme law of Canada that constrains and controls how the branches of
government exercise power.
o No other law can go against Constitutional law
o Charged with “the values of a nation” or liberalism (a political philosophy that
emphasizes individual freedom as its key organizing value)
The Canadian legal system: governed by the Constitutional law, it is the machinery that
comprises and governs the legislative, executive, and judicial branches of government
The Canadian Constitution
o Constitutional conventions: important rules that are not enforceable by a court of
law but that practically determine how government exercises a given power.
They are in place because politicians historically have agreed to abide by
Provide for the three branches of government
The legislative branch:
o Example: criminal code of Canada, tobacco access act (provincial)
o For enacted statute to become law, it must be passed through “the House of
Common” ▯approved by “ the Senate”(also called the chamber of sober second
o Each province also has a lawmaking body, but there is no Senate or upper house at
the provincial level.
o Municipalities (created by provincial legislation) have legislative bodies called city
Statute law and jurisdiction
o Jurisdiction: the power that a given level of government has to enact laws o Exclusive jurisdiction: jurisdiction that one level of government holds entirely
on its own and not on a shared basis with another level (Ex: Criminal Code of
o Concurrent jurisdiction: jurisdiction that is shared between levels of
government. (Ex: public health, environment…)
The provincial government cannot enact legislation that would conflict
with federal legislation
Paramountcy: a doctrine that provides that federal laws prevail when
there are conflicting federal and provincial laws.
Treaty: an agreement between two or more states that is governed by
Ratify: to approve or authorize.
o In a federal state country like Canada: federal government empowers
provincial governments, which in turn empower municipal governments.
• Businesses are most affected by provincial and municipal governments, except for
fields such as banking, international communication…
• Bylaw: laws made by the municipal level of government
The executive branch of government: formal and ceremonial function, and political
o The formal executive: the branch of government responsible for the ceremonial
features of government
Also has a significant role in approving the creation of statute laws
(governor general (federal) or lieutenant governor (provincial) of the
o The political executive: the branch of government responsible for daytoday
operations, including formulating and executing government policy, as well as
administering all departments of government.
Cabinet: a body composed of all ministers heading government
departments, as well as the prime minister (head of federal government) or
premier (head of provincial government)