Canada's System of Justice

The law in Canada derives from the two legal traditions which are centuries old: common law and le droit civil. The common law tradition originated in medieval England, while le droit civil dates back even further, to ancient Rome. In Canada, the civil law of nine provinces is based on common law. Civil law in Quebec is based on le droit civil.

Traditionally, common law is a system of roles based on "precedent". Whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent - a rule that will guide judges in making decisions in similar cases. Many of our laws are made up of these precedents and customary practices which have developed over many years and adapted to changing circumstances.

The tradition of le droit civil is quite different. The Civil Code of Quebec is based on written legal codes that date back to the Byzantine Emperor Justinian. A Civil Code contains a comprehensive statement of roles, which list general principles of le droit civil it looks at a written civil code, and precedent is relied on to a somewhat lesser extent than under the common law. This is due to the guidance offered by the roles established in the Civil Code itself.

While the procedures used in common law are different from those used in le droit civil, the actual results are often similar. The courts' decisions in similar cases are very much the same under both the common law and le droit civil. It is only the method of reaching a decision that is different.

Much of our law, then, has been inherited from the two great Western legal traditions. However, we have found that as society grows and develops we cannot rely entirely on tradition. Sometimes we find that there is an urgent need for new laws or for old laws to be changed, and the common law may evolve too slowly to meet this need.

Governments can create new laws or change old laws by legislating "statue" law. When Parliament or a provincial legislature passes a statute law, it takes the place of any conflicting common law dealing with the same subject.

Making laws through legislation can be a rather complicated process. Suppose, for example, that the government wants to create a law that will help to control pollution. Government ministers or senior public servants would be asked to examine the problem carefully, and suggest ways that a law could deal with the problem of pollution. The proposed law must be drafted, and before it is presented to Parliament it must be approved by Cabinet - a group of Members of Parliament chosen by the Prime Minister to advise him. Members of Parliament must then study and debate the proposals. The proposals become law only if they are approved by a majority in both the House of Commons and the Senate and assented to by the Governor-General in the name of the Queen.

Because modern society is so complex and changes so quickly, more laws are made today than ever before. If our lawmakers had to deal with all the details of all laws, it would be a nearly impossible task. To solve this problem, Parliament and provincial legislatures often pass laws that authorize the making of regulations that fill in the details in accordance with the intention of the lawmakers.

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