Chapter 2: The Canadian Legal System
Canadian legal system: Machinery that governs the legislative, executive, and judicial branches of government
o Legislative branch
Pass laws in the form of statutes and regulations that impact on business operations
Ignorance or failure to comply or challenge laws may result in penalties or miss-out on opportunities.
o Executive branch
Implements and generates policy that may be directed at business
Businesses may work to influence government by monitoring in-house issues, hiring lobbyists, and
working through industry association.
o Judicial branch
Provides rulings that not only resolve existing legal conflicts but also impact on future disputes
o Supreme law that constrains and controls how the branches of government exercise power
o Also upholds liberalism (political philosophy that emphasizes individual freedom as its key value)
The Canadian Constitution
Not constrained in one document or place. The written elements include:
o Constitution Act, 1867 (Divides legislative power between the federal and provincial governments)
o Canadian Charter of Rights and Freedom (Identifies the rights and freedoms that are guaranteed in Canada)
o Relevant decisions by judges concerning constitutional law
Attend to a number of matters including
o Admission of new provinces and territories to Canada
o Provisions for amending the Constitution
o Autonomy from the UK Parliament
Constitutional conventions: Important rules that are not enforceable by a court of law but that practically determines
how a given power is exercised by governments and only in place because politicians have historically agreed to them.
Legislative Branch of Government
Creates a form of law known as statute law or legislation
Statute law (legislation): Formal, written laws created or enacted by the legislative branch of government
o Can be created by all levels of government: federal, provincial, and municipal
o Federal government
Law-making jurisdiction provided by s.91 of the Constitution Act, 1867
Passed by the House of Commons then approved by the Senate
Jurisdiction over the Criminal Code of Canada in its ability to define new crimes, provide penalties, etc.
Affects business in banking, national or interprovincial transport, and communication.
o Territorial government
Limited self-government, with subject to federal control
o Provincial government
Law-making jurisdiction provided by s.92 of the Constitution Act, 1867
Passed by the Legislative Assembly
Affects business in most major fields
o Municipal government
Law-making jurisdiction provided by the provincial legislature
Passed by the city council in the form of by-laws 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
o Concurrent jurisdiction: Jurisdiction that is shared between levels of government
Paramountcy: A doctrine that provides that federal laws prevail when there is conflicting or inconsistent
federal and provincial laws. Also often upheld by the judicial government
Ex. health service, environment
Executive Branch of Government
Formal executive: Branch of government responsible for the ceremonial features of government
o Represented by the governor general or lieutenant governor that issues final approval of statute law
Political executive: Branch of government responsibility for day-to-day operations, including formulating and
executing government policy, as well as administering all departments of government
o Prime minister: Chief executive of the federal system
o Premier: Chief executive of the provincial government
o Cabinet: A body composed of all ministers heading the government departments, and well as the chief
executive (prime minister or premier)
o Typically lobbied by government to secure favourable treatment
Judicial Branch of Government
Judiciary: Collective reference to judges.
Judges: Those appointed by federal and provincial governments to adjudicate on a variety of disputes, as well as to
preside over criminal proceedings
o Individuals rely on judges to settle disputes and criminal matters.
o Businesses go through the courts to settle commercial disputes.
System of courts (Hierarchy of courts picture in page 31)
o Trial courts:
Inferior court: Court with limited financial jurisdiction whose judges are appointed by provincial government
Divided by type of case: criminal, family, civil, etc.
Small claims court: Court that deals with claims up to a specified amount
o Designed to be simpler, quicker, and less expensive than mainstream litigation.
o Often without lawyers.
Superior court: Court with unlimited financial jurisdiction whose judges are appointed by the federal government
Entry level for more serious criminal matters.
Procedure is much more formal and technical, with all parties represented by lawyers.
o Supreme Court of Canada: Final court for appeals in Canada
Usually only hear