Law of Canada
The Canadian legal system has its foundation in the English common law system, inherited from being a former colony of the United Kingdom and a Commonwealth Realm member of the Commonwealth of Nations. The legal system is bi-jurisdictional, as the responsibilities of public and private law are separated and exercised by Parliament and the provinces respectively. Quebec, still retains a civil system for issues of private law. Both legal systems are subject to the Constitution of Canada; the federal government has jurisdiction over certain exclusive domains which are regulated by Parliament, as well as all matters and disputes between provinces. These include interprovincial transport as well as interprovincial trade and commerce; the criminal law is an area of exclusive federal jurisdiction, has its origins in the English common law. Prosecutions of most criminal offences are conducted by the provincial Attorneys General, acting under the Criminal Code. Canada's constitution is its supreme law, any law passed by any federal, provincial, or territorial government, inconsistent with the constitution is invalid.
The Constitution Act, 1982 stipulates that Canada's constitution includes that act, a series of thirty acts and orders referred to in a schedule to that act, any amendment to any of those acts. However, the Supreme Court of Canada has found that this list is not intended to be exhaustive, in 1998's Reference re Secession of Quebec identified four "supporting principles and rules" that are included as unwritten elements of the constitution: federalism, constitutionalism and the rule of law, respect for minorities. While these principles are an enforceable part of Canada's constitution, Canadian courts have not used them to override the written text of the constitution, instead confining their role to "filling gaps"; because the Constitution Act, 1867 provides that Canada's constitution is "similar in Principle to that of the United Kingdom", considered to be an uncodified constitution, the Supreme Court has recognized the existence of constitutional conventions. In 1981's Reference re a Resolution to amend the Constitution, the Court provided three factors necessary for the existence of a constitutional convention: a practice or agreement developed by political actors, a recognition that they are bound to follow that practice or agreement, a purpose for that practice or agreement.
It found that, while these conventions are not law and are therefore unenforceable by the courts, courts may recognize conventions in their rulings. The Constitution Act, 1867 assigns powers to the provincial and federal governments. Matters under federal jurisdiction include criminal law and commerce, immigration; the federal government has the residual power to make laws necessary for Canada's "peace and good government". Matters under provincial jurisdiction include hospitals, municipalities and property and civil rights; the Constitution Act, 1867 provides that, while provinces establish their own superior courts, the federal government appoints their judges. It gives the federal Parliament the right to establish a court system responsible for federal law and a general court of appeal to hear appeals of decisions of both federal and provincial courts; this last power resulted in the federal Parliament's creation of the Supreme Court of Canada, which is, despite its role as supreme arbiter of all Canadian law, a creation of simple, rather than constitutional, statute.
The Constitution Act, 1982 created a mechanism by which Canada's constitution could be amended by joint action of federal and provincial governments. It created the Charter of Rights and Freedoms, which grants individual rights which may not be contravened by any provincial or federal law. Acts passed by the Parliament of Canada and by provincial legislatures are the primary sources of law in Canada. Sections 91 and 92 of the Constitution Act, 1867 enumerate the subject matters upon which either level of government may legitimately enact legislation. Laws passed by the federal government are announced in the Canada Gazette, a published newspaper for new statutes and regulations. Federal bills that receive Royal Assent are subsequently published in the Annual Statutes of Canada. From time to time, the federal government will consolidate its current laws into a single consolidation of law known as the Revised Statutes of Canada; the most recent federal consolidation was in 1985. Laws passed by the provinces follow a similar practice.
The Acts are pronounced in a provincial gazette, published annually and consolidated from time to time. The Revised Statutes of Canada is the federal statutory consolidation of statutes enacted by the Parliament of Canada. In each Canadian province, there is a similar consolidation of the statute law of the province; the Revised Statutes of British Columbia, Revised Statutes of Alberta, Statutes of Manitoba, Revised Statutes of Saskatchewan, 1978, Revised Statutes of New Brunswick, Revised Statutes of Nova Scotia, Statutes of Prince Edward Island, Consolidated Statutes of Newfoundland and Labrador, Revised Statutes of Ontario, Revised Statutes of Quebec are the statutory consolidations of each Canadian province. They contain all of the major topic areas and most of the statutes enacted by the governments in each province; these statutes
The Canada Gazette is the official newspaper of the Government of Canada. It was first published on October 2, 1841. While it published all acts of the Parliament of Canada, it also published treaties and tribunals, proclamations and regulations, various other official notices as required. At one time it contained information on bankruptcies, it has been administered by Public Works and Government Services Canada and the Queen's Printer since 1841. The Gazette is most read to find new acts and proclamations. While not always read by the public, publication in the Gazette is considered official notice to all Canadians. After a regulation has been approved by the Privy Council Office and the Cabinet of Canada, the regulation is published in the Gazette. If a regulation has not been published in the Gazette, a person cannot be convicted of the offence. Canada's provinces all have their own equivalents of the Gazette. From inception in 1841 until 1998, the Gazette was published in print. From 1998 until 1 April 2014, it was published in print and online, with the online version having the same official status as the printed version starting in 2003.
Since 1 April 2014, it has only be published online to satisfy a Government of Canada requirement to make "electronic publishing its new standard for all documents". Structurally, the Gazette is published in three parts: Part, it contains public notices, official appointments and proposed regulations, as well as miscellaneous notices from the private sector that are required to be published by federal statute or by regulations. The proposed regulations are published in Part I as a way for the public to comment on them. Once the regulations are pre-published, the department that sponsored the legislation collects public comments to allow for any changes to be made to the regulation. Notices of Vacancies for senior positions in Government are published here too. Part II is published every second Wednesday and it contains all regulations that have been enacted as well as statutory instruments and other documents, such as orders in council and proclamations, it has a consolidated index of regulations dating since January 1, 1955.
Part III is published with the text of any new laws after they have received Royal Assent and was first published in 1974. Starting from January 1998 all publications other than Part III are available in HTML and are not official. From April 1, 2003, the PDF version is an official version, as it is marked up from the same file as the printed version, it contains a list of the proclamations of Canada and orders in council relating to the coming into force of federal acts. Certain types of regulations do not need to be published in the Gazette; these include regulations that affect only a limited number of people, their publication would be contrary to national defense or international relations, or if their publication would violate personal privacy, such as notices of paroles and pardons. List of government gazettes Official website Canada Gazette 1841 - 1997 Canada Gazette June 1868 - December 1878
A law library is a special library used by law students, lawyers and their law clerks and other scholars of legal history in order to research the law. Law libraries are used by people who draft or advocate for new laws, e.g. legislators and others who work in state government, local government, legislative counsel offices or the U. S. Office of Law Revision Counsel and lobbying professionals. Self-represented litigants known as pro se litigants will use law libraries. A law library may contain print, computer assisted legal research, microform collections of laws in force, session laws, superseded laws and international law, other research resources, e.g. continuing legal education resources and legal encyclopedias, legal treatises, legal history. A law library may have law librarians who help legal researchers navigate law library collections and who teach legal research; some law libraries serve scholars from around the world, e.g. Institute of Advanced Legal Studies in London and the New York City Bar Association Law Library.
Law libraries in the United States are classified as a type of special library because of their focus on providing specialized resources, as well as their specialized and limited user base. Most law schools around the world have a law library, or in some universities, at least a section of the university library devoted to law. In the United States, law school libraries may be subject to accreditation review by the American Bar Association Standards of Legal Education. Law libraries may be found in courts, prison libraries, government departments, private law firms, barristers chambers. Outside of the United States, the largest and most extensive law libraries are those found in countries that follow the English common law which spread throughout the world with the expansion of the British Empire; these countries include but are not limited to Australia, Canada and New Zealand. Law libraries in these countries can be found in law schools, government, private law firms, barristers chambers; the largest law library in the United Kingdom is the Bodleian Law Library with a collection of over 550,000 volumes.
Outside of England, the largest law library in the Commonwealth of Nations is Osgoode Hall Law School's at York University in Canada, with more than 500,000 print volumes. The earliest common law law libraries were founded in the late 15th century in London and include Gray's Inn and Lincoln's Inn. Special collections of legal literature in university and research libraries in England include the Viner collection at the Bodleian Library, University of Oxford; the largest law libraries in the world are found in the United States. The world's largest law library is the Law Library of Congress, which holds over 2.9 million volumes. The world's largest academic law library is the library of Harvard Law School, which holds over 2 million volumes. By way of contrast, the largest law library in the United Kingdom is the Bodleian Law Library with a collection of over 550,000 volumes. Broadly speaking, there are three categories of law libraries in the United States; every law school accredited by the American Bar Association houses a law library.
Public law libraries are available in many states in the local courthouses. Some larger law firms maintain a private library for their own attorneys, but many firms in college towns and larger cities with universities dispatch their attorneys to local law schools to do legal research. A typical law library holds a large number of works not seen in other libraries, including a full set of United States Reports, one or both of the unofficial U. S. Supreme Court reporters, the West National Reporter System, the West American Digest System, official reporters from various states, the Federal Register, volumes of American Jurisprudence, bound volumes containing issues of prominent law reviews from around the country and state statutes and regulations, a variety of treatises, looseleaf services, practice guides. Large law libraries may contain many additional materials covering topics such as: legal education and writing. Smaller law libraries hold, at a minimum, one unofficial Supreme Court reporter, selected West national reporters and digests specific to the state in which the library is located, the United States Code, a few state-specific reporters and statutory compilations, several state-specific treatises and practice guides.
Most academic law library websites contain legal research guidelines on numerous legal topics that are available to the public. In recent years, the advent of online legal research outlets such as FindLaw, LexisNexis, Bloomberg Law, HeinOnline has reduced the need for some ty
Parliament of Canada
The Parliament of Canada is the federal legislature of Canada, seated at Parliament Hill in Ottawa, the national capital. The body consists of the Canadian monarch, represented by the Governor General; each element has its own officers and organization. By constitutional convention, the House of Commons is dominant, with the Senate and monarch opposing its will; the Senate reviews legislation from a less partisan standpoint and the monarch or viceroy provides royal assent to make bills into law. The Governor General summons and appoints the 105 senators on the advice of the Prime Minister, while the 338 members of the House of Commons—called members of parliament —each represent an electoral district referred to as a riding, are directly elected by Canadian voters; the Governor General summons Parliament, while either the viceroy or monarch can prorogue or dissolve Parliament, the latter in order to call a general election. Either will read the Throne Speech; the most recent Parliament, summoned by Governor General David Johnston in 2015, is the 42nd since Confederation.
The Parliament of Canada is composed of three parts: the monarch, the Senate, the House of Commons. Each work in conjunction within the legislative process; this format was inherited from the United Kingdom and is a near-identical copy of the parliament at Westminster, the greatest differences stemming from situations unique to Canada, such as the impermanent nature of the monarch's residency in the country and the lack of a peerage to form the upper chamber. Only those who sit in the House of Commons are called members of parliament. Though legislatively less powerful, senators take higher positions in the national order of precedence. No individual may serve in more than one chamber at the same time; the sovereign's place in the legislature, formally called the Queen-in-Parliament, is defined by the Constitution Act, 1867, various conventions. Neither she nor her viceroy, participates in the legislative process, save for signifying the Queen's approval to a bill passed by both houses of parliament, known as the granting of Royal Assent, necessary for a bill to be enacted as law.
All federal bills thus begin with the phrase "Now, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows..." and, as such, the Crown is immune from acts of parliament unless expressed otherwise in the act itself. The governor general will perform the task of granting Royal Assent, though the monarch may do so, at the request of either the Cabinet or the viceroy, who may defer assent to the sovereign as per the constitution; as both the monarch and his or her representatives are traditionally barred from the House of Commons, any parliamentary ceremonies in which they are involved take place in the Senate chamber. The upper and lower houses do, each contain a mace, which indicates the authority of the Queen-in-Parliament and the privilege granted to that body by her, both bearing a crown at their apex; the original mace for the Senate was that used in the Legislative Council of the Province of Canada after 1849, while that of the House of Commons was inherited from the Legislative Assembly of the Province of Canada, first used in 1845.
Following the burning of the Centre Block on 3 February 1916, the City of London, donated a replacement, still used today. The temporary mace, made of wood, used until the new one arrived from the United Kingdom in 1917, is still carried into the Senate each 3 February; the Senate's 1.6-metre-long mace comprises gold. The Senate may not sit. Members of the two houses of parliament must express their loyalty to the sovereign and defer to her authority, as the Oath of Allegiance must be sworn by all new parliamentarians before they may take their seats. Further, the official opposition is formally called Her Majesty's Loyal Opposition, to signify that, though they may be opposed to the incumbent Cabinet's policies, they remain dedicated to the apolitical Crown; the upper house of the Parliament of Canada, the Senate, is a group of 105 individuals appointed by the governor general on the advice of the prime minister. Senators served for life until 1965, when a constitutional amendment imposed a mandatory retirement age of 75.
Senators may, resign their seats prior to that mark, can lose their position should they fail to attend two consecutive sessions of parliament. The Senate is divided amongst four geographic regions: 24 for Ontario, 24 for Quebec, 24 for the Maritimes, 24 for the Western provinces. Newfoundland and Labrador, which became a Canadian province in 1949, is represented by six senators, is not part of a senatorial division. Further, Canada's three territories—the Northwest Territories and Nunavut—are allocated one senator each. An additio
Code of law
A code of law called a law code or legal code, is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in different common law and civil law systems, their usage is different. In a civil law country, a code of law exhaustively covers the complete system of law, such as civil law or criminal law. By contrast, in a common law country with legislative practices in the English tradition, a code of law is a less common form of legislation, which differs from usual legislation that, when enacted, modify the existing common law only to the extent of its express or implicit provision, but otherwise leaves the common law intact. A code replaces the common law in a particular area, leaving the common law inoperative unless and until the code is repealed. In a third case of different usage, in the United States and other common law countries that have adopted similar legislative practices, a code of law is a standing body of statute law on a particular area, added to, subtracted from, or otherwise modified by individual legislative enactments.
The legal code was a common feature of the legal systems of the ancient Middle East. The Sumerian Code of Ur-Nammu the Babylonian Code of Hammurabi, are among the earliest and best preserved legal codes, originating in the Fertile Crescent. In the Roman empire, a number of codifications were developed, such as the Twelve Tables of Roman law and the Corpus Juris Civilis of Justinian known as the Justinian Code. However, these law codes did not exhaustively describe the Roman legal system; the Twelve Tables were limited in scope, most legal doctrines were developed by the pontifices, who "interpreted" the tables to deal with situations far beyond what is contained therein. The Justinian Code collected together existing legal material at the time; the Hebrew Written Torah and Oral Torah constitute the earliest and best preserved ethical code at the same time. Halakha is the oldest collective body of religious laws and jurisdictions still in use. In ancient China, the first comprehensive criminal code was the Tang Code, created in 624 AD in the Tang Dynasty.
This, subsequent imperial codes, formed the basis for the penal system of both China and other East Asian states under its cultural influence. The last and best preserved imperial code is the Great Qing Legal Code, created in 1644 upon the founding of the Qing Dynasty; this code was the exclusive and exhaustive statement of Chinese law between 1644 and 1912. Though it was in form a criminal code, large parts of the code dealt with civil law matters and the settlement of civil disputes; the Code ceased its operation upon the fall of the Qing dynasty in 1912, but significant provisions remained in operation in Hong Kong until well into the 1970s due to a peculiar interaction between it and the British common law system. In Europe, Roman law the Corpus Juris Civilis, became the basis of the legal systems of many countries. Roman law was either adopted through processing by jurists; the accepted Roman law is then codified and forms part of the central Code. The codification movement gathered pace after the rise of nation-states after the Treaty of Westphalia.
Prominent national civil codes include the Napoleonic Code of 1804, the German civil code of 1900 and the Swiss codes. The European codifications of the 1800s influenced the codification of Catholic canon law resulting in the 1917 Code of Canon Law, replaced by the 1983 Code of Canon Law and whose Eastern counterpart is the Code of Canons of the Eastern Churches. Meanwhile, African civilizations developed their own legal traditions, sometimes codifying them through consistent oral tradition, as illustrated e.g. by the Kouroukan Fouga, a charter proclaimed by the Mali Empire in 1222-1236, enumerating regulations in both constitutional and civil matters, transmitted to this day by griots under oath. The Continental civil law tradition spread around the world along with European cultural and military dominance in recent centuries. During the Meiji Restoration, Japan adopted a new Civil Code, based on the French civil code and influenced by the German code. After the Xinhai Revolution of 1911 in China, the new Republic of China government abandoned the imperial code tradition and instead adopted a new civil code influenced by the German Bürgerliches Gesetzbuch, influenced by the Japanese code.
This new tradition has been maintained in the legal system of the People's Republic of China since 1949. Meanwhile, codifications became more common in common law systems. For example, a criminal code is found in a number of common law jurisdictions in Australia and the Americas, continues to be debated in England. In the Americas, the influence of Continental legal codes has manifest itself in two ways. In civil law jurisdictions, legal codes in the Continental tradition are common. In common law jurisdictions, there has been a strong trend towards codification; the result of such codification, however, is not always a legal code as found in civil law jurisdictions. For example, the California Civil Code codifies common law doctrine and is different in form and content from all other civil codes. A civil code forms the core of civil law systems; the legal Code covers exhaustively the entire system of private law. Civil codes are sometimes found in common law systems in the Unit