Doing Legal Research in Canada - Introduction: The Canadian Legal SystemBy Ted Tjaden, Published on April 1, 2008
This section of Doing Legal Research in Canada provides an introduction to the Canadian legal system on the following topics:
- The Canadian government
- Division of power: federal vs. provincial power
- History of Canada
- The Canadian judicial system
- The Canadian legislative system
- The Charter of Rights & Freedoms
- Legal Research in Québec
- Legal classification in Canada (KF Modified)
- Differences in laws between Canada and the United States
More detailed information on conducting legal research in Canada can be found on the other pages in the guide listed above at the top of this page.
1. The Canadian Government
For legal researchers unfamiliar with Canada, this part of the guide sets out some basic information about Canada and the Canadian government. Further details can be found on the official website of the Canadian government, including facts on Canada, Canada's system of justice, and an overview of the Canadian government:
- National (federal) capital: Ottawa, Ontario
- Country population: approximately 33 million people
- National languages: French and English (federal legislation and decisions from the Supreme Court of Canada - the top national court - are published in both languages)
- Form of government: constitutional monarchy and a federal state with a democratic Parliament (Ottawa), consisting of a bicameral legislature composed of (i) elected federal politicians in the House of Commons, and appointed Senators in the Senate
- There are 313 constituencies or electoral districts in Canada, each represented by one elected politician who sits in the House of Commons. Federal elections must be held every five years, and the candidate within a constituency who receives the most votes is elected for that constituency and the political party whose members win the most seats will form the government and the leader of that party will ordinarily become Prime Minister of the country.
- Canada has 10 provinces (British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador) and 3 territories (Yukon Territory, Northwest Territories and Nunavut)
The federal government has a page of "quicklinks" on their Government at a Glance page and some online maps of Canada. The online version of Eugene A Forsey's How Canadians Govern Themselves (6th ed.) provides a more detailed explanation of the governmental process in Canada.
2. Division of Power: Federal vs. Provincial Power
Under s. 91 of the Constitution Act, 1867, the federal government of Canada is given exclusive power to "make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." Some of the federal powers to legislate cover such topics as:
- the regulation of trade and commerce
- unemployment insurance
- postal service
- militia, military and naval service, and defence
- navigation and shipping
- patents and copyright
- marriage and divorce
Under s. 92 of the Constitution Act, 1867, the provincial governments have exclusive power over such areas as:
- direct taxation within the province to raise revenue for provincial purposes
- prisons (but not penitentiaries)
- the incorporation of companies with provincial objects
- the solemnization of marriage in the province
- property and civil rights in the province and generally all matters of a merely local or private nature in the province.
Parliament and the provincial legislatures both have power over agriculture and immigration, and over certain aspects of natural resources; but if their laws conflict, the national law prevails. Parliament and the provincial legislatures also have power over old age, disability and survivors' pensions; but if their laws conflict, the provincial power prevails.
Generally speaking, everything not mentioned as belonging to the provincial legislatures comes under the powers of the national Parliament (opposite to the same situation in the United States).
Canada's constitution is not found in only one document but comprises a series of British and Canadian legislation. In 1982, the Trudeau government initiated steps to "repatriate" Canada's constitution. At the same time, Canada introduced the Charter of Rights and Freedoms, a constitutional document that guarantees certain basic rights and freedoms for all Canadians.
3. History of Canada
The federal government has a Web page providing a nice overview of the history of Canada. Additional information on the history of Canada is provided by the Museum of Civilization. At this time, rather than setting out in this guide a detailed history of Canada, readers are encouraged to visit the links discussed immediately above. Suffice it to say, Canada was originally settled by aboriginal peoples thought to come from Asia via Siberia thousands of years ago. European immigration began in the 1600's by the English and French, and the influence of all three cultures is till felt today in modern Canada. Formal Canadian history is fairly recent with the formation of Canada as a country occurring under the 1867 British North America Act when Confederation occurred on July 1, 1867. The country then expanded to the West and Northwest over the next few decades with additional provinces and territories joining the Confederation. More details about Canada's history can be found in the links described immediately above.
4. The Canadian Judicial System
In Canada, the power of the legislature over courts is set out in the Constitution Act, 1867 and is shared between the federal and provincial governments. Simply put, the federal government has power to appoint and pay for judges in the superior courts of the provinces and to establish a federal court system (ss. 96-101). The provinces have power under s. 92, para. 14 for the "Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts."
For most Canadian provinces, there is in essence only a first-level court (a trial court, such as the Ontario Superior Court of Justice, where judges are federally appointed, or the Ontario Court of Justice, where judges are provincially appointed) and a second-level of court (a provincial Court of Appeal such as the Ontario Court of Appeal). The third level of courts for the provinces is the national Supreme Court of Canada in Ottawa where it is possible to appeal (in very limited circumstances) from a provincial Court of Appeal. The Supreme Court of Canada usually only hears matters of national significance on Charter issues, certain criminal matters (where an appeal is a right) or to resolve conflicting decisions of the provincial appeal courts. The government is also allowed to ask the Supreme Court of Canada to answer legal questions on a "reference" (as was done by the Trudeau government regarding how the federal government, in conjunction with the provinces, could amend the Charter).
Prior to 1949, there was actually a further appeal from the Supreme Court of Canada in Ottawa to the Privy Council in London, England, but that avenue of appeal was dropped in 1949.
In addition to there being this three-level court system for the provinces, there is the separate federal court system established by the federal government. The federal court system consists of a trial division and a Court of Appeal (with the third level also being the Supreme Court of Canada in Ottawa). The federal courts have offices in all major cities across the country. The majority of lawyers do not regularly appear in federal court since its jurisdiction is for special matters falling under federal jurisdiction, such as copyright actions, maritime law matters, and actions against the Crown. In comparison to the United States federal court system, the Canadian federal court is much less active and prominent in the daily lives of Canadian lawyers.
In Canada, some of the more well known, national coverage case reporters include:
- Supreme Court Reports (S.C.R.)
- Federal Court Reports (F.C.)
- Dominion Law Reports (D.L.R.)
- Western Weekly Reports (W.W.R.)
Other reports can be found by region (the Ontario Reports or O.R., for example) or by topic (the Canadian Cases on Employment Law or C.C.E.L.). There are a large number of print case reporters available in Canada.
Electronic sources of case law in Canada include QUICKLAW, SOQUIJ, WestlaweCARSWELL, Lexis-Nexis, Maritime Law Book and Canada Law Book. In addition, there is a growing body of case law available on the Internet through the Canadian Legal Information Institute (CanLII)
This guide has a separate page that provides more detail on sources of Canadian case law.
In Canada, the leading style guide is the Canadian Guide to Uniform Legal Citation (the "McGill Guide") (6th ed., 2006)
5. The Canadian Legislative System
As discussed above, the political party holding the most number of seats controls the legislative process through their majority control of the legislature. As such, the party in power will introduce legislation that supports their political policies. Quite often, legislation and policies will be discussed by Cabinet and then the details of the legislation will be worked upon by the deputy minister and his or her staff for the relevant ministry most closely associated with the subject matter of the legislation.
Once the draft legislation has been prepared, it will be introduced into the legislature as a bill and must pass through three stages or "readings" before it can become law (federal legislation must pass through three readings in both the House of Commons and the Senate; at the provincial level there is only a single legislature through which bills must pass only three readings). The procedure below describes the process for Ontario provincial legislation (similar procedures apply in other Canadian jurisdictions):
First reading: The bill is introduced by the Minister responsible, who also explains its objectives and makes a motion for its formal introduction. If the members vote in favour of the bill, it is assigned a number, printed and given to each member of the legislative assembly and scheduled for future debate.
Second reading: The bill is debated in the House. There is then a vote whether the bill will proceed to the committee stage (or directly to third reading stage, in some cases).
[committee stage]: If the bill was "sent to committee" this means it will be examined in detail by the committee for that subject matter or ministry. The committee will usually be made of members from all political parties but controlled by the party with majority power. The bill is discussed section by section. This is the stage where changes are made, sometimes as a result of political compromise, sometimes because of a change in policy by the majority, and sometimes simply to improve clarity.
The committee process may last a few days or a few months, depending on the bill. The committee will then debate whether to send the bill to the Committee of the whole House (for more study by the entire legislature) or directly into final debate.
Third reading: This is the final debate on the bill. If the vote carries, the bill is sent to the Lieutenant-Governor for approval (called "Royal Assent") (Federal bills are sent to the Governor General for Royal Assent). The bill is also given a chapter number at this time.
Federally, a bill must also pass through three readings in the House of Commons but it then must also pass three readings through the Senate. Alternatively, the Senate itself can introduce legislation. In this case, the bill must pass three readings in the Senate and then pass three readings by the House of Commons. The federal government has a Web page explaining how a federal bill becomes law.
Most bills are public bills ó these are typically introduced by a member of Cabinet and relate to laws of general application throughout the jurisdiction. There are also private member bills ó these can be introduced by any Member and are often introduced by members of the opposition party. If they are too controversial, they often do not pass third reading. In addition, there are also private bills ó these can be introduced by any member and are not of general application but typically relate to a particular organization or individual.
When is a statute in force? Once a bill has received Royal Assent, it may not yet be in force. A statute may come into force in one of three ways:
1) The statute will state when it comes into force (usually at the end of the statute).
2) The statute will state it comes into force upon Royal Assent.
3) The statute will state it comes into force upon "proclamation". The date of proclamation is usually given in the Gazette, a publication used by the government to publish regulations and other notices. Federal bills must be published in the Canada Gazette, Part III before they are official. The advantage to the government for having a law come into force upon "proclamation" is that they may not know at the time the bill passes third reading when they and the relevant ministry will be ready for the new legislation. Brochures may be required to be printed, staff may need training, and so on. A proclamation date therefore provides flexibility since the government can cause the Lieutenant Governor (or Governor General) to announce the proclamation date whenever its suits the needs of the government.
Philip Kaye, Research Officer, of the Ontario Legislative Library, has an online Backgrounder research paper entitled When Do Ontario Acts and Regulations Come into Force? (PDF) that explains how legislation in Ontario comes into force.
Federal proclamation dates can be found in a number of sources, including the "Proclamations of Canada" tables in the sessional volumes, in Canada Gazette Part III, the Canada Statute Citator, the Canada Legislative Index, and QUICKLAW (CSB).
Ontario proclamation dates can also be found in a number of sources including the Ontario Gazette, online on the Proclamations page of the Ontario government.
Provincial bills are assigned a (consecutive) number depending whether they are public bills (Bill 76) or private bills (Bill Pr 7). Federal bills are also assigned numbers in addition to a letter signifying where the bill originated: bill C-5 signifies the bill originated in the House of Commons; bill S-11 signifies the bill originated in the Senate.
Statutes and regulations are ordinarily given a short title, the name by which you may refer to the statute. Use the short title plus the balance of the citation (year, chapter number and source) when citing statutes or regulations.
6. The Charter of Rights & Freedoms
In 1982, Canada adopted its own Constitution which includes the Charter of Rights and Freedoms, an entrenched constitutional document that guarantees certain basic legal rights subject only "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (s. 1). The equality provisions in the Charter (s. 15) came into force in 1985. The Charter had a dramatic effect on Canadian jurisprudence, an effect that cannot be ignored in any matter of Canadian public law. The Supreme Court of Canada, the highest appellate court, has issued a large number of Charter decisions in recent years on a wide range of issues that receive page one newspaper coverage. Because courts are given the power (if not the obligation) to strike down unconstitutional laws, some critics are alleging that Canadian judges are becoming too judicially active and doing the job that should be done by elected politicians. Despite these concerns, the decisions of the Supreme Court of Canada are highly regarded throughout the world. In certain cases, Canadian courts look to decisions under U.S. constitutional law, but differences in the constitutions of both countries must always be kept in mind.
This guide has a separate page providing information and resources on Canadian constitutional law.
7. Legal Research in Québec
Québec is unique in Canada not only for its language and culture but also for its legal system. Unlike the other Canadian provinces, which draw upon the British common law tradition, the roots of Québec's private law stem from the civil law and the Napoleonic Code from France. But the common law influence has penetrated into the Québec legal system, making it a unique hybrid, influenced both by the civil law and the common law. The website of the Québec Department of Justice has a nice overview of the history of the legal system in Québec and an explanation of the court system in Québec.
The current Civil Code of Québec came into force on January 1, 1994 and contains 3,168 articles divided into ten sections or "books." For lawyers and librarians trained in the common law system, it may help to think of the Civil Code of Québec as a systematic codification of the "headnotes" or principles arising from the case law. As such, in a common law system, there are a whole series of court rulings from which one could synthesize general principles (such the the "duty of care" principle arising from Donoghue v. Stevenson that a person will be held liable for the damages caused by his or her negligence when it is reasonably foreseeable that a breach of duty of care by that person would cause injury to the other person). If one were to systematically codify these principles arising from the case law, one might start to approach a code of law resembling a civil code, although such a simplistic view overlooks the fact that a civil code is not actually developed in such a manner.
There are six law schools in Canada that provide a civil law course for persons to become lawyers in Québec:
- University of Ottawa - Faculty of Law (Common Law)
- University of Ottawa - Faculty of Law (Civil Law)
- McGill University - Faculty of Law
- l'Université de Sherbrooke - Faculté de droit
- l'Université Laval - Faculté de droit
- l'Université de Montreal Faculté de droit
- l'Université du Québec à Montréal Département des sciences juridiques
Of the foregoing schools, McGill's program is in English and both McGill and Ottawa also provide a joint common law/civil law degree upon completion of an extra fourth year of law at either of these schools. Admission to the practice of law in Québec, like the other provinces in Canada, requires writing and passing provincial bar exams and then articling for a requisite period of time. Québec notaries, however, have a different status and play a more elevated role than notaries in other provinces. Hence, graduates from civil law schools in Canada have an option of attending the professional schools of either the Barreau du Québec or the Chamber des notaires du Québec.
Denis Le May in Chapter 15 of MacEllven and McGuire's Legal Research Handbook (5th ed.) describes some of the similarities between Québec and the common law provinces, despite the civil code tradition in Québec:
- Like the other provinces, Québec is bound by Canadian federal laws, such as the Criminal Code or the Copyright Act. As a result, the crime of breaking and entering is the same whether it is committed in Alberta or Québec. Hence, case law regarding matters of federal jurisdiction that apply in Québec is relevant no matter where it originates.
- Judges in Québec are appointed in the same manner as judges in the other provinces in Canada. Thus, judges in Québec resemble their counterparts in other provinces more so than their counterparts in other civil law systems, such as France.
- Québec, like other provinces, also has provincial statutes and regulations of general application in the province. The Revised Statutes of Québec were lasted revised in 1977 (R.S.Q. 1977). They are kept current by the annual Statutes of Québec (S.Q.). The Revised Regulations of Québec 1981 are kept current by the Gazette officielle du Québec: Part 2, Laws and Regulations. The government of Québec provides Internet access to Québec legislation. Québec legislation and case law are also available on the web-site of La Société québécoise d'information juridique (SOQUIJ), an online database for Québec that is the Québec equivalent of QUICKLAW.
It is conceptually a little bit confusing for lawyers or librarians trained in a common law system to understand the interplay between the Civil Code of Québec and the Revised Statutes of Québec since both are statutes. Perhaps the simplest way to understand their relationship is to regard the Civil Code of Québec as stating the general principles by which the specific remedial measures set out in the Revised Statutes of Québec are governed. As such the Revised Statutes of Québec will usually legislate at a much more specific level of detail than the Civil Code of Québec.
The following resources discuss Québec's legal system in more detail:
- Brierley, John E.C. and Roderick A. Macdonald. Québec Civil Law: An Introduction to Québec Private Law. Toronto: Emond Montgomery Publications, 1993.
- Canadian Bar Association - Ontario, et al.The New Civil Code: A Practical Guide to What Every Ontario Lawyer Needs to Know about Québec Law. Ottawa: CBAO, 1994.
- Gall, Gerald L. The Canadian Legal System. 3rd Ed. Chapter 8. Toronto: Carswell, 1990.
- MacEllven, Douglass T. et al. Legal Research Handbook. 5th ed. Chapter 15. Toronto: Butterworths, 2003.
8. Legal Classification in Canada (KF Modified)
In the early 1970s, before the KE Class for the Law of Canada was created, several large Canadian academic law libraries made a decision to adapt the KF Class for the Law of America (created in 1968) for Canadian and commonwealth materials. Shih-Sheng Hu, the law librarian at Manitoba, devised a way of modifying the KF class for American materials to the Canadian context that would also allow all materials on a subject from different jurisdictions to be shelved together. Other members of the KF Modified School were Roger Jacobs (Windsor), and Balfour Halévy and Judith Ginsberg (York) and Diana Priestly (then of York).
For some KF classes, there is little modification: Family Law is KF 501-505 for both Canadian and U.S. family law materials. Other KF classes were modified by adding "geographical divisions" (G.D.) such that materials from the U.S. have no G.D. (and hence would be shelved first in that subject) and with all other countries being "cuttered" with "Z"; thus, KF 6499 would be the range for an American book on income tax, while a Canadian book on the same subject would fall within the range KF 6499 ZA2 and an Australian text would be KF6499 ZD2.
The KF Class was also modified through the use of tables for several areas of Canadian law where the American classification was not well-suited, such as constitutional law (KF 4480-4496), legal history of Commonwealth countries (KF 345-349), and the Québec Civil Code. Tables assign specific numbers for this material. Cataloguers use a textbook (in a blue three-ring binder) called KF Classification, Modified for Use in Canadian Law Libraries to catalog legal materials for those Canadian law libraries using KF Modified as its classification scheme. This text contains a list or chart of legal subjects organized by classification number. For certain classes, the user is told to finish building the number using the tables of the back of book depending on the type of resource being catalogued and the size of the number range given for that topic.
By 1975, use of KF Modified had increased among Canadian law libraries and was in use by many of the common law Canadian academic law libraries. In April 1987, the National Library of Canada added KF Modified numbers to its CIP (Cataloging in Publication) data.
Despite this use of a special KF Modified by Canadian law libraries, the Library of Congress started to develop the KE Class (for the Law of Canada) through the help of Ann Rae, former Chief Librarian of the Bora Laskin Law Library, Faculty of Law, University of Toronto, who was seconded to the Library of Congress in Washington, D.C. in the 1970s to develop the current KE Class for the Law of Canada.
Thus, the current situation in Canada for law library classification is that we have a mixed system: some law libraries use KF Modified, while others (particularly the "civil law" academic law libraries in Quebec) use "pure" KE for the Law of Canada. Some law libraries, including the University of Victoria and the University of Toronto, that initially adopted the KF Modified form of classification are now moving towards "pure KE," primarily on the grounds that it is easier to buy cataloging records that use pure Library of Congress classification instead of the relatively unique KF Modified form of classification.
The following articles discuss the history and use of KF Modified cataloging in Canada for legal materials:
- Abols, Edite. "The Los Angeles County Law Library K Classification and the Department of Justiceís Library Collection, Ottawa" in "Classification Schemes Used in Law Libraries in Canada. CALL Newsl. No. 5, 399-400 Nov. 1988, 13.
- Beresford, Anne. "Why Moys?" in "Classification Schemes Used in Law Libraries in Canada. CALL Newsl. No. 5, 393-394 Nov. 1988, 13.
- Ginsberg, Judith. "KF Classification Modified for Use in Canadian Law Libraries" in "Classification Schemes Used in Law Libraries in Canada. CALL Newsl. No. 5, 392-393 Nov. 1988, 13.
- Ginsberg, Judith. "A Note on the KF Classification Modified for Use in Canadian Law Libraries." In Law Libraries In Canada, ed. Joan N. Fraser, 159-161. Toronto: Carswell, 1988.
- Inselberg, Diana. "Home-Grown Classification Schemes: The Russell & DuMoulin Experience" in "Classification Schemes Used in Law Libraries in Canada. CALL Newsl. No. 5, 396 Nov. 1988, 13.
- MacKellar, Marilyn. "Use of Dewey Decimal Classification for Tax Law Collections." in "Classification Schemes Used in Law Libraries in Canada. CALL Newsl. No. 5, 395 Nov. 1988, 13.
- Rae, E. Ann. "The Development of the KE Classification Schedule for Canadian Law: The Politics of Expediency." In Law Libraries In Canada, ed. Joan N. Fraser, 147-158. Toronto: Carswell, 1988.
- Rapkin, Lenore. "Classification of Books in McGill University Law Library" in "Classification Schemes Used in Law Libraries in Canada. CALL Newsl. No. 5, 396-397 Nov. 1988, 13.
- Rashid, H. "One Decade Later: KF Canadian Adaptation Scheme." Canadian Library Journal 41 (1984): 75-77.
9. Differences in laws between Canada and the United States
American lawyers, law librarians and legal researchers should be aware of some general differences between Canadian laws and American laws. Some of these differences include the following points:
- criminal law: In Canada, criminal law is a matter of federal law under the federal Criminal Code, R.S.C. 1985, c. C-46, whereas in the United States, criminal laws are largely a matter of state law, except for matters falling under U.S. federal jurisdiction. Thus, in Canada, most criminal laws are uniform across the countries (some offences, such as motor vehicle offences, may also fall under provincial jurisdiction). This guide has a separate page providing information and resources on Canadian criminal law.
- residual federal powers: As mentioned above on this page, there is a constitutional principle in Canada of residual federal power that states that any matter of jurisdiction not assigned to the provinces under the Constitution Act, 1867 resides with the federal government, at least in matters of national concern. This is opposite to the American situation where residual powers are given to the States. This guide has a separate page providing information and resources on Canadian constitutional law.
- legislation: Canadian federal and provincial legislation is generally not consolidated by subject matter but is instead published in its official version alphabetically by name of the statute or regulation, unlike the situation with the United States Code and many state codes. Some Canadian legal publishers publish unofficial consolidated or annotated editions of Canadian legislation.
- Crown copyright: The notion of Crown copyright exists in Canada, unlike the situation in the United States. (Professor David Vaver has a nice online article entitled "Copyright and the State in Canada and the United States" that analyzes the differences between Canada and the United States regarding government ownership of government works). Although many Canadian governments are increasing the amount of publishing on the Internet, one wonders if the differences in copyright law in this area between the two countries explains the large amount of American government information on the Internet compared to the amount of Canadian government information on the Internet (once differences in population and culture have been taken into account).
- employment law: Employment at will is not a concept recognized by Canadian courts or federal or provincial legislation in Canada, unlike the situation in the United States. Thus, in most cases, Canadian employees are entitled to receive either "reasonable notice" or termination or the amount of "statutory notice" set out in the applicable employment legislation. This guide has a separate page providing information and resources on Canadian employment law.
- constitutional rights: Canada has a recent (1982) Charter of Rights and Freedoms that has some similarities to the U.S. Constitution. Among other things, the Canadian Charter guarantees "right to life, liberty and security of the person" (s. 7) and the "right not to be subjected to any cruel and unusual treatment or punishment" (s. 12). One major difference, however, is s. 1 of the Canadian Charter which "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". In Canada, therefore, the courts must balance the rights guaranteed in the Charter against the right of the government to reasonably limit those rights as can be demonstrably justified in a free and democratic society. This guide has a separate page providing information and resources on Canadian constitutional law.