The Canadian legal system and Constitution: traditions, sources, the Constitution Acts, the Crown and Parliament, and languages

Canada has three legal traditions that live side by side. The common law governs private law (contract, tort, property) in every province and territory except Quebec, and is the source of the country’s public-law structure. Civil law governs private law in Quebec, where the Civil Code of Québec (in force since 1994) is the starting point and judges apply the Code rather than build rules from earlier cases. Indigenous legal traditions are distinct systems of law and governance that existed before the arrival of European law; they are recognised through section 35 of the Constitution Act, 1982, through agreements with Indigenous peoples, and increasingly in the courts. Federal legislation is bijural: since the Federal Law–Civil Law Harmonization Act, federal statutes that touch private law are drafted so they work in both traditions and in both official languages.

Canadian courts decide cases under these sources, but there is no single code. A Canadian lawyer begins by asking which legislature or which legal order has the power to make the rule, which is why federalism (Module 2) is the first question in many Canadian problems.

The Constitution Act, 1867 (originally the British North America Act) created the federation, divided powers between Parliament and the provinces, and set out the structure of the courts and Parliament. The Constitution Act, 1982, adopted after patriation from the United Kingdom, added the Canadian Charter of Rights and Freedoms, the recognition of Aboriginal and treaty rights (section 35), and an amending formula that Canada now controls. Section 52(1) declares the Constitution the supreme law of Canada, and any law that is inconsistent with it is, to that extent, of no force or effect. Section 52(2) lists what the Constitution includes, so it is wider than a single document.

Conventions are rules of constitutional practice, such as the rule that the Governor General acts on the advice of the Prime Minister, that the government must keep the confidence of the House of Commons, and that a Prime Minister who loses it must resign or seek dissolution. In the *Patriation Reference* (1981) the Supreme Court said that courts may recognise conventions but cannot enforce them, because they are political rather than legal. Unwritten constitutional principles are different: they are legal. In the *Reference re Secession of Quebec* (1998) the Supreme Court identified four underlying principles: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. They inform the interpretation of the written text and can impose obligations (there, a duty on the parties to negotiate in good faith after a clear majority had voted for secession on a clear question) but they are not used to strike down legislation by themselves. The Constitution is a ‘living tree’ that is read broadly and progressively (*Edwards v Canada (AG)*, the Persons Case, 1929).

Canada is a constitutional monarchy. The King is head of state, represented federally by the Governor General and in each province by a lieutenant governor. In law, executive power belongs to the Crown; in practice it is exercised by ministers. Responsible government means that the Cabinet, led by the Prime Minister, holds office only while it has the confidence of the elected House of Commons, and is accountable to it. The Governor General’s formal powers (to summon and dissolve Parliament, to give Royal Assent, to appoint the Prime Minister) are exercised under conventions, with a narrow reserve of discretion in an unusual crisis such as a government that has lost confidence.

Languages. English and French are the official languages of Canada. Section 133 of the Constitution Act, 1867 allows the use of either in Parliament, the Quebec legislature and the federal and Quebec courts, and requires laws to be enacted in both. Sections 16 to 23 of the Charter confirm that English and French are equal in status in the federal government, guarantee the right to communicate with and receive services from federal institutions where there is significant demand, and, in section 23, protect the right of minority-language parents to have their children educated in their language where numbers warrant, in facilities that are managed by the minority community (*Mahe v Alberta*, 1990). New Brunswick is the only officially bilingual province. The federal Official Languages Act gives effect to the federal duties. Quebec’s Charter of the French Language makes French the official language of Quebec and sets rules for commerce, signs, work and education. The Supreme Court held in *Ford v Quebec (AG)* (1988) that a ban on other languages on commercial signs violated freedom of expression, a decision that led Quebec to use the notwithstanding clause in section 33 (Module 2).