The Canadian Legal System and Sources of Law
Two levels of law
The Constitution Act, 1867 divides power: s. 91 gives Ottawa criminal law, and s. 92 gives the provinces property and civil rights, the administration of justice and provincial offences. That is why the Criminal Code is federal while trespass, liquor and licensing are provincial. The Charter (Constitution Act, 1982) constrains government action, including how arrests and detentions are carried out.
Sources of law
- Statute law - written Acts and regulations (Criminal Code, SSIA, Trespass to Premises Act).
- Common law - judge-made law built on precedent. Under stare decisis, a lower court follows decisions of higher courts in the same hierarchy.
- Quebec alone uses a civil code for private law; the rest of Canada is common law.
Criminal versus civil
Criminal law is public law: the state prosecutes, a conviction is the outcome, and the standard is proof beyond a reasonable doubt. Civil law (torts such as negligence, assault and false imprisonment) is between parties, on a balance of probabilities. One act - say an overzealous detention - can trigger both.
Courts in Alberta
Alberta Court of Justice (provincial court: most criminal and provincial offence trials, bail), Court of King's Bench (serious criminal and civil matters), Court of Appeal of Alberta, then the Supreme Court of Canada.
Traps: a bylaw or provincial offence is not a crime; 'beyond a reasonable doubt' does not mean 'beyond all doubt'; a precedent binds only courts below the court that made it.
Rule of thumb: identify the actor (state or private party), the source of the rule (statute or common law) and the standard of proof - that answers most legal-system questions.