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Constitution Act, 1867

The Constitution Act, 1867, originally known as the British North America Act (BNA Act) was
the law passed by the British Parliament creating the Dominion of Canada at Confederation.
The Constitution Act, 1867, originally known as the British North America Act (BNA Act) was
the law passed by the British Parliament creating the Dominion of Canada at Confederation.
Confederation

The BNA Act was enacted on 29 March 1867. It provided for the union of three colonies the
Province of Canada (Ontario and Qubec), Nova Scotia and New Brunswick into a federal
state with a parliamentary system modelled on that of Britain.
Rupert's Land was acquired in 1870, and six provinces were added to the original four: Manitoba
(1870), British Columbia (1871), Prince Edward Island (1873), Alberta and Saskatchewan
(1905), and Newfoundland (1949).
The Act does not contain the entire Constitution of Canada. Complementing its text are British
and Canadian statutes having constitutional effect (e.g., the Canada Elections Act) and certain
unwritten principles known as "the conventions of the constitution." Conventions such as the
power vested in the Crown to dissolve Parliament and call a general election are usually
exercised on the advice of the prime minister.
Sharing of Powers

The Act outlines the distribution of powers between the central Parliament and the provincial
legislatures. For example, section 91 gives Parliament jurisdiction over banking, interest,
criminal law, the postal system and the armed forces; section 92 gives the provinces jurisdiction
over property, most contracts and torts, local works, undertakings and businesses.
Because of the breadth or generality of the legislative powers conferred, occasionally a direct
conflict arises between provincial and federal laws regulating the same things (e.g., security
frauds). When such conflicts occur, federal law prevails. In the case of concurrent powers,
exercisable by both jurisdictions, federal paramountcy prevails in matters involving agriculture
and immigration (section 95), but provincial law prevails in old-age pensions (section 94A).
Unallocated powers such as aeronautics, radio, and official languages go to the federal
government rather than to the provinces. The federal peace, order and good government power
embraces these "residuary" areas and matters falling under "national dimensions" and
"emergencies." "National dimensions" also signifies that certain matters originally of a local
nature and under provincial jurisdiction (e.g., day-to-day health care) can, through altered
circumstances, such as an epidemic, acquire a new aspect transcending provincial competence

and thereby become subject to federal jurisdiction. In wartime, virtually all provincial powers
may come under central control.
In 1976, the Supreme Court of Canada decided that Parliament also possessed what amounted to
a peacetime emergency power to impose national wage and price controls to combat serious
national inflation. Unlike the American constitution, which treats all states as equal, the
Constitution Act,1867 contains no suggestion that all provinces are constitutionally equal. For
example, the Prairie provinces, unlike the original four provinces of Confederation, did not
possess rights to their lands and minerals for 25 years after becoming provinces.
Court Interpretations

Judicial interpretation has had a substantial effect on provincial and federal powers. Until appeals
to Britain were abolished in 1949, influential judges on the Judicial Committee of the Privy
Council often expansively interpreted provincial powers, such as those over property and civil
rights, when they came into conflict with federal powers over peace, order and good government
or the regulation of trade and commerce. The British judges sought thereby to offset the
excessive centralism they perceived in the BNA Act (e.g., the federal veto over any provincial
statute in section 90) and preserve a viable federal system.
Since 1949, the Supreme Court of Canada has pursued a more centralist interpretation. In 1980,
the omission of a domestic amending formula in the BNA Act led to a constitutional crisis when
Prime Minister Pierre Trudeau attempted unilaterally to patriate the Constitution from Britain
without provincial consent. When the Supreme Court decided, in September 1981, that his
proposal was unconstitutional in the conventional sense, Trudeau relented, with "patriation"
finally being achieved in April 1982 by federal-provincial consensus.
See also Constitutional History; Constitutional Law; Constitution Reference. See document
Constitution Act, 1982.

Canadian Charter of Rights and Freedoms


The most visible and recognized part of the Canadian Constitution, the Charter of Rights and
Freedoms, guarantees the rights of individuals by enshrining those rights, and certain limits on
them, in the highest law of the land.

Charter of Rights and Freedoms

Copy of the Canadian Charter of Rights and Freedoms (courtesy Dept of Secretary of State,
Canada).
The most visible and recognized part of the Canadian Constitution, the Charter of Rights and
Freedoms, guarantees the rights of individuals by enshrining those rights, and certain limits on
them, in the highest law of the land. Since its enactment in 1982, the Charter has created a social
and legal revolution in Canada, expanding the rights of minorities, transforming the nature of
criminal investigations and prosecutions, and subjecting the will of Parliament and the
legislatures to judicial scrutinyan ongoing source of controversy.

A Difficult Beginning
Before the Charter came into being, rights and freedoms were protected in Canada by a variety
of laws, including the 1960 Bill of Rights. Although important, none of these laws were part of
the Constitution and therefore lacked the supremacy and permanence of the Charter. The Bill of
Rights also only applied to federal, rather than provincial laws.
In the early 1980s, as the government of Pierre Trudeau began the process of patriating Canada's
Constitutiontaking it out of the hands of the British Parliamentthe government also decided
to include within the Constitution a new Charter of Rights and Freedoms. Along with the wider
constitutional debates that then dominated politics for much of 1981 and 1982, there were
specific concerns about the Charter: would it give courts and judges too much power to interpret
its meaning, and how would it be amended once it was in place? There were also deep
reservations among provincial leaders that a Charter would restrict the right of provinces to
independently make laws as they saw fit.
In the end a compromise was reached with a majority of provinces, which agreed to support a
Charter on the condition that it contain a clause allowing Parliament or any provincial legislature
to exempt their laws from certain sections in the Charter (on fundamental rights, equality rights
and legal rights), for a period of five years. The "notwithstanding clause," as Section 33 of the
Charter is known, has been used only a handful of times by various provinces to violate Charter
rights, most notably by Quebec to create laws limiting the use of English signage, and by Alberta
against the issue of same-sex marriage. Although the clause is available to governments, its use
is politically difficult and therefore rare.
The provinces and Ottawa also settled on an amending formula for the Charter. Any changes
require the agreement of Parliament plus the legislatures of seven provinces representing at least
50 per cent of Canada's population. The Charter has been amended twice since its enactment in
1982.
The hard work of negotiating and crafting the Charter fell to Trudeau's justice minister Jean
Chretien (later prime minister), who was helped in this task by two provincial attorneys-general,
Roy Romanow of Saskatchewan (later premier) and Roy McMurtry of Ontario. Ontario Premier
Bill Davis was also instrumental in bringing the Charter to life.
Quebec Premier Rene Levesque, however, was a fierce opponent of any new constitutional
arrangement, particularly one that did not honour Quebec's traditional constitutional veto. As a
result, the Quebec government has never signed the 1982 Constitution, although opinion surveys
have shown the Charter to be highly popular in Quebec.
After many months of passionate public debate, the Charter took effect as part of the
Constitution Act, 1982 when Queen Elizabeth II signed the governing legislation, the Canada
Act, 1982, into law on April 17 that year in Ottawa.

What the Charter Says

The Charter protects Canadians against the state, and protects minorities against parliamentary
majorities. It applies to anyone in Canada, citizen or newcomer, although some of its rights apply
only to citizens, including the right to vote and the right to enter and leave the country. Its
language is more general than specific, which is one reason why critics fear it gives too much
interpretive power to judges.
The principal rights and freedoms it covers include freedom of expression, the right to a
democratic government, the right to live and seek work anywhere in Canada, the legal rights of
people accused of crimes, Aboriginal peoples' rights, the right to equality including gender
equality, the right to use Canada's official languages, and the right of French or English
minorities to an education in their language.
In Section 1, the Charter also gives governments the power to limit rights and freedoms, as long
as those limits can be "demonstrably justified in a free and democratic society." There have been
numerous cases of the courts upholding such limits, such as the 1992 Butler case, in which the
Supreme Court of Canada said a law dealing with pornography was a reasonable restriction on
the right of free expression, because it protected society from harm in other ways.
Section 33, the "notwithstanding" clause, also allows governments to exempt their laws from
certain sections of the Charter, but not from democratic, mobility or language rights.

A Legal and Social Revolution


The Skapinker case of May 1984, which dealt with mobility rights, was the first Charter case to
come before the Supreme Court since the Charter's creation. In its ruling, the court declared
unanimously that the Charter "is a part of the Constitution of a nation . . . part of the fabric of
Canadian law . . . the supreme law of Canada."
Since that time the Charter has been applied in thousands of court rulings across the country.
Constitutional law scholar Peter Hogg has said that the Charter's influence occurs not only
through the courts, but invisibly behind the scenes, guiding the work of government lawyers and
officials in designing laws and policies that are Charter-compliant.
Although the Charter's impact is broad, in its first three decades (1982-2012) it revolutionized a
number of specific aspects of Canadian life, including the work of police and prosecutors. The
Charter significantly strengthened the rights of criminal defendants, tightening the rules around
telephone wiretaps, protecting accused people from having to disprove presumptions of guilt
(1986 Supreme Court Oakes case) and requiring full disclosure of relevant evidence between the
Crown and defence (1991 Supreme Court Stinchcombe case)although this in turn has
increased the costs and created huge delays in the administration of criminal justice.
The Charter's Section 7 guarantee of personal liberty led the Supreme Court to strike down the
Criminal Code provision against abortion in 1988, transforming women's reproductive rights.
The Charter's Section 15 anti-discrimination clause led to a series of rulings that changed the
legal landscape for gays and lesbians, including the Supreme Court's 1998 Vriend decision which

banned discrimination on the basis of sexual orientation. That paved the way for the 2005
legalization of same-sex marriage.
Section 23 on minority language education rights transformed schooling for francophones
outside Quebec, giving rise to a generation of children, called "Section 23 kids," educated in
French language schools where population numbers warrant.
Section 25 says the Charter can't be used to undermine Aboriginal or treaty rights. Although such
rights don't specifically fall under the Charter (but rather, under Section 35 of the Constitution
Act, 1982) their interpretation and expansion by the courts was profoundly influenced by the
Charter. A prime example was the Supreme Court's 1990 Sparrow decision, which strengthened
Aboriginal fishing and natural resource rights. Sparrow and similar case law has made
consultation of Aboriginal communities a necessity almost anywhere resource development is
contemplated in Canada.

Judicial Activism Debate


The Charter has elevated the role of the courts by allowing judges to make sweeping social and
legal changes through their interpretation of the Charter's meaning. Critics say this has
diminished the supremacy of elected bodies such as Parliament and the legislatures, by giving
courts the power to dismiss their decisions. Others argue the Charter has initiated a "dialogue"
between Parliament and the courts, with judges striking down laws where necessary, allowing
Parliament and legislatures to rewrite those laws in ways that are compliant with the Charter.
Others have accused judges of being social activists by "reading in" rights and freedoms into the
Charter that aren't specified in the document. In his book Friends of the Court, political scientist
Ian Brodie (a former chief of staff to Prime Minister Stephen Harper) says the Charter has also
inspired "business groups, unions, native groups, language minorities, gay and lesbian groups
and others" to import American-style public-interest litigation techniques into Canada, pursuing
policy-making through the courts rather than through the political system.
In 2012, on the 30th anniversary of the Charter, former Supreme Court of Canada Justice Frank
Iacobucci responded to such criticism by telling CBC Television:
"Judges are not Don Quixotes, sort of charging off and expanding the role of interpretation to
nullify parliamentary legislation or provincial legislation," he said. "Judges take that job very,
very seriously. But the Charter is written in very general language, which some people will
criticize because it gives too much leeway to the interpretive function of the courts. But I believe
it's necessary. I dont know of any constitution . . . which doesn't have this general language. So
the judges have to, and the lawyers have to, and the governments have to interpret that legislation
. . . I don't regret what my colleagues and I have done as judges."

A Global Model?
The Charter, thought by some to be moving Canada constitutionally towards the example of the
United States, may in fact offer a distinctive alternative for other nations to emulate. A June,

2012 study published in the New York University Law Review, said the Charter offers a model
widely admired in the English-speaking Commonwealthof how to balance competing legal
interests in a modern, multicultural society. It said the tools for such balancing are found in three
important sections:
Section 1, which says rights are not absolute and can be limited by government as long as there
is compelling evidence for doing so; Section 15, which doesn't define equality rights, but rather
leaves them open-ended, allowing new groups, such as gays and lesbians, to be brought under its
protection through the passage of time; and Section 33, which says governments may sometimes
ignore judges' decisions that strike down their laws, as long as they are willing to spend the
political capital. These sections are key features of a constitution that encourages a dialogue
between legislatures and the courtsa practice that is becoming the norm in many democracies.
"Canada," wrote U.S. law professors David Law and Mila Versteeg in the 2012 study, "is a
constitutional trend-setter among common-law countries."

Constitution Act, 1982

The Constitution Act, 1982 enshrined the Charter of Rights and Freedoms in the Constitution,
and completed the unfinished business of Canadian independence allowing Canadians to
amend their own Constitution without requiring approval from Britain.

Patriation: The Constitution Comes Home

As Prime Minister Pierre Trudeau (left) looks on, Queen Elizabeth II signs the Proclamation of
the Constitution Act, 1982, in Ottawa on 17 April 1982. Her signature brought Canada's newly
patriated Constitution with the Charter of Rights and Freedoms into force.
The Constitution Act, 1982 was a landmark in Canadian history. It enshrined the Charter of
Rights and Freedoms in the Constitution, the highest law of the land, and completed the
unfinished business of Canadian independence allowing Canadians to amend their own
Constitution without requiring approval from Britain.
British Ties

At the time of Confederation, Canadas Constitution consisted of several acts of the British
Parliament in London most importantly, the British North America (BNA) Act, 1867 and a
series of British constitutional conventions (widely accepted, unwritten rules). Only London had
the authority to amend the BNA Act.
With the Statute of Westminster in 1931, the British were willing to grant full autonomy to the
self-governing parts of their empire, including Canada. But Canadians were left with a dilemma:
If Canada accepted the transfer of constitutional power from Britain, and was free to amend its
own Constitution, how would this be done? Should the federal government be allowed to amend
the Constitution unilaterally or was provincial consent required? Did all the provinces need to
agree to an amendment or just a majority? Should all provinces be counted equally or should
larger provinces have more say than smaller ones? And should Qubec have a veto that it would
allow the province to protect the interests of the minority French Canadians? Until Canadians
could settle these questions, the British Parliament retained the authority to amend Canadas
Constitution.
Generations of Canadian politicians had grappled unsuccessfully with the problem of
constitutional change. Since the 1930s, a series of federal-provincial conferences had ended in
failure when the prime minister and premiers could not agree on how Canadas Constitution
should be amended.
Trudeau and the Premiers

The turning point came with the May 1980 Qubec referendum on sovereignty. The federal
government under Pierre Trudeau promised Qubecers during the campaign that Ottawa would
re-open constitutional negotiations. When the separatists were defeated, Trudeau immediately
began a process to create a charter of rights and an amending formula for the Constitution.

Pierre Trudeau

Trudeau triumphant after the 1980 election, determined to bring the constitution home to Canada
(courtesy Canapress).
Facing opposition from eight of the ten provincial governments (all but Ontario and New
Brunswick), Trudeau announced that he would proceed alone and would ask the British to amend
the BNA Act according to a resolution from the Parliament in Ottawa.
Opposition leader Joe Clark held up the resolution in the House of Commons, while the
provincial premiers took Trudeaus government to court on the matter. In September 1981, the
Supreme Court of Canada issued a confused ruling: legally, Trudeau could proceed with a
resolution of the Senate and the House of Commons, but there was a constitutional convention
that Ottawa should seek substantial provincial support before asking Britain for amendments.

Supreme Court Building

The Supreme Court of Canada building in Ottawa. (Corel Professional Photos).


Trudeau returned to the bargaining table one last time. In November 1981, the federal
government and nine of the 10 provincial governments (all but Qubec) reached an agreement on
sending a proposal to London. The new "repatriated" Constitution would now include a
complicated formula for future amendments. It would also include a charter of rights that
despite being enshrined in the Constitution contained clauses that could be overridden for
short periods by the federal Parliament or the provincial legislatures. Britain approved the deal,
which came into force on 17 April 1982. (See also Patriation of the Constitution.)
What the Act Says

The Act consists of seven parts.

Parts 14

The first is the Canadian Charter of Rights and Freedoms, which prevents the federal, provincial
and territorial governments from infringing on Canadian rights and freedoms. Under the
notwithstanding clause, the federal Parliament or the provincial legislatures can exempt any law
from certain Charter provisions. The second part guarantees the existing rights of the Aboriginal
peoples of Canada, though these are left undefined.
The third part recognizes the federal governments practice since the 1950s of providing
equalization payments to poorer provinces to reduce disparities in services from one province to
another.

The fourth part calls for the prime minister and premiers to hold a constitutional conference
before 17 April 1983 to discuss the rights of Aboriginal peoples.

Amending Formula

The fifth part contains the procedure for amending the Constitution. Most sections of the
Constitution can be amended upon approval from the Senate, the House of Commons and the
legislatures of at least two-thirds of the provinces (seven provinces), so long as those provinces
contain at least 50 per cent of the population of all the provinces. This is known as the 7/50 rule.
Unanimity of the Senate, the House of Commons and all 10 provincial legislatures is required to
amend provisions that deal with the composition of the Supreme Court of Canada, the use of the
French and English languages, the right of a province to have at least as many members of
Parliament as senators, or the offices of the Queen, the governor general, or the lieutenantgovernors.
The amending formula does not specifically mention abolition of the Senate. In 2014, however,
the Supreme Court ruled in answer to a constitutional question from the federal government
that changing the makeup of the Senate (in this case, limiting the terms of senators to nine
years) would require an amendment under the 7/50 rule. The court also said that abolishing the
Senate would require the unanimous consent of Parliament and all 10 provinces.
Amendments that deal with some but not all of the provinces (for example, changing the
boundary between two provinces) may be made by the Senate, the House of Commons and the
relevant provinces. An amendment can proceed without Senate approval if the House of
Commons approves the amendment and then does so again at least 180 days later.

Parts 6 and 7

The sixth part amends the BNA Act of 1867 to specify that the provincial legislatures have
exclusive jurisdiction over non-renewable natural resources.
The seventh part contains several minor, miscellaneous provisions.
Aftermath

The Qubec government under Premier Ren Lvesque protested bitterly that Ottawa and nine of
the provinces had proceeded without Qubec. Nationalists in the province spoke dramatically of
the night of the long knives, when Qubec, they claimed, had been betrayed by Trudeau and
the other premiers.

When Brian Mulroney became prime minister in 1984, he was determined to amend the
Constitution to make it acceptable to the government of Qubec, which was led after 1985 by a
federalist Liberal, Robert Bourassa. In 1987, Mulroney and all the premiers settled on a series of
amendments in the Meech Lake Accord, but the agreement collapsed three years later when the
legislatures of Manitoba and Newfoundland failed to ratify it.
A subsequent agreement, the Charlottetown Accord of 1992, also failed, this time after being
defeated in a national referendum. Qubec nationalists again claimed that their province had
been humiliated, and this sentiment fuelled the growth of the Bloc Qubcois, a new separatist
party in Parliament.
Resentment over the events of 198182 still lingers among some Qubec nationalists. However,
Qubecs place in the Constitution is no longer at the forefront of Canadian public debate. Public
opinion surveys show widespread support in every province for the Charter of Rights and
Freedoms.

Act

Constitution

Pierre Trudeau

Canada

1982

Suggested Reading

Hamish Stewart, Fundamental Justice (2012).Ron Graham, The Last Act: Pierre
Trudeau, the Gang of Eight and the Fight for Canada (2011); Hon. Robert J. Sharpe &
Kent Roach, The Charter of Rights and Freedoms, 4th ed. (2009); Peter W. Hogg,
Constitutional Law of Canada, 5th ed. (2007); Patrick J. Monahan, Constitutional Law,
3d ed. (2006).

Criminal Procedure

Criminal procedure is an integral but distinct part of CRIMINAL LAW in Canada.


Criminal procedure is an integral but distinct part of criminal law in Canada. It is distinct from
the substance of criminal law in that it does not define the type of conduct that constitutes a
criminal offence or establishes punishment, but rather determines by whom and in what

circumstances prosecutions against accused offenders may be initiated, conducted, terminated


and appealed. Criminal procedure is a set of rules according to which the substantive law is
administered. The principal objective of criminal law procedure is to ensure a fair and just
process in the determination of guilt or innocence. This determination is made in accord with
those principles that Canadians have accepted as reflecting the proper balance between the value
of protection of society and the value of individual freedom (see Law and Society).
Criminal procedure commences long before an accused person appears in court, as detailed laws
cover how police may investigate a crime (see Criminal Investigation). For example, there are
many procedural rules in the Criminal Code or in the common law that define how and when
police may interrogate witnesses or suspects, search persons and places, arrest suspects, seize
evidence, and use telephone wiretaps. Criminal procedure then sets out the rules as to how a
charge is laid, when accused persons will obtain bail, and in what court they will eventually have
their trial. The actual court process is set in motion by the swearing of an Information (popularly
known as a charge) before a justice of the peace or magistrate (provincial court judge). An
Information is an allegation by a citizen (usually a police officer) that reasonable and probable
grounds exist to believe another person (the accused) has committed a crime.
All offences in Canada may be classified as indictable (the more serious) or summary conviction
(the less serious). Some offences may, at the discretion of the Crown, be prosecuted either by
indictment or by summary conviction. The trial of summary conviction offences is either before
a magistrate or a justice of the peace, and generally they carry a maximum punishment of $2000
or 6 months in prison. Summary conviction proceedings generally have a limitation period of 6
months from the date of the offence.
Procedure with respect to indictable offences is more complicated and varies from province to
province. Depending upon the type of indictable offence, the Criminal Code will determine
whether the trial can be heard by a magistrate, a high-court judge (County Court, District Court,
Supreme Court or Queen's Bench judges appointed by the federal government), or by a court
composed of a high court sitting with a jury. Generally, when an accused is going to have a trial
by a high-court judge or by a court composed of a judge and jury, he has the right to a
preliminary hearing. There are several procedural provisions in the Criminal Code that deal with
how the preliminary hearing should be conducted and what rights the accused has at this stage of
the criminal prosecution. The preliminary hearing is held by a magistrate and the crown
prosecutor presents the witnesses that he will rely upon at the trial. The accused through his
counsel is allowed to cross-examine these witnesses. The public is allowed to attend, but often
the press are not able to report the evidence heard. The issue at the preliminary hearing is not to
determine innocence or guilt but to determine whether there is sufficient evidence to justify a
trial. If it is decided sufficient evidence exists, the accused will be ordered to stand trial in the
higher court by the magistrate.

There is no specific time limitation regarding when an accused must be charged with an
indictable offence, although the Canadian Charter of Rights and Freedoms requires that, once
charged, the accused be tried within a reasonable time. The maximum punishment for each
indictable offence is set out in the Criminal Code and varies from offence to offence.
Whether an accused is charged with a summary conviction offence or an indictable offence, he is
eventually called upon to state in open court whether he pleads guilty or not guilty. If the plea is
not guilty, the case will proceed to trial; if guilty, then a sentencing will take place before the
judge who received the plea. There are several procedural rules as to how guilty pleas may be
entered and how a judge may sentence an accused. In all criminal cases, both the accused and the
Crown may have statutory rights of appeal against the determination of guilt or innocence, as
well as sentence. Once again, there are many procedural rules governing appeals.
There are different theories concerning the best method of achieving a balance between the
control of crime and the protection of individual rights. In Canada, England and the US, an
adversarial or accusatorial system is used, in contrast to the inquisitorial system practised in
France and other European countries. Canadian procedural rules are therefore designed to
support the adversarial system in which the proceeding is a dispute between the state or Crown
and the defendant or accused. As has been indicated above, the parties appear before an
independent arbitrator, either a judge or jury, who must determine whether the accused is guilty
or not guilty. Both parties are responsible for gathering and presenting evidence. The arbitrator is
expected to play a relatively passive role, maintaining an impression of independence and
impartiality, and ensuring that the rules of procedure are observed. In contrast, the inquisitorial
system is a judicial inquiry. The responsibility for investigating and bringing out the facts rests
upon the decision maker. The parties' roles are restricted to ensuring that their interests are
properly represented during the trial.
The adversarial system and the procedural rules which comprise that system unquestionably
favour the accused to a greater degree than the inquisitorial system. The Crown generally has the
burden of adducing evidence to prove the guilt of the accused, who is almost always entitled to a
presumption of innocence until the Crown has proven otherwise beyond a reasonable doubt. The
accused is not required to give evidence and the court must acquit him if the Crown has not
proven its case. If the accused elects not to give evidence or call witnesses, he (through his
counsel) is still actively involved in the trial through cross-examinations of crown witnesses.
This is very different from the inquisitorial system in which the accused is generally subjected,
without election on his part, to extensive questioning but is otherwise inactive in the process.
Nevertheless, certain principles are common to both systems, including the requirements that
trials be public, that determinations be based on evidence presented in open court, and that the
accused is presumed innocent until proven guilty. However, even though both systems share
these fundamental principles, there are differences in the manner in which they are applied.

The Constitution Act of 1867 gave the federal government jurisdiction to legislate with respect to
"the criminal law, except the constitution of Courts of criminal jurisdiction, but including the
procedure in criminal matters." Pursuant to this authority, Parliament has incorporated most
Canadian procedural rules in the Criminal Code. Also, related statutes such as the Narcotic
Control Act include their own specific procedures. One must remember that much criminal
procedure is established by the Courts, as the various legislative provisions dealing with
procedure often require interpretation.
A very important development in Canadian criminal procedure (as in most, if not all, areas of
criminal law) is the inclusion of the Canadian Charter of Rights and Freedoms into the
Constitution Act of 1982. Although the Charter does not set out any procedural rules, it does
provide many of the principles that procedural rules must follow. Legislative procedures, such as
the reverse onus requirement (in which the accused must prove his innocence) under the
"possession for the purpose of trafficking" offence found in the Narcotic Control Act, have been
struck down as contrary to the Charter.
Judicial interpretation of procedural rules has also been affected by the Charter. For instance, the
police now have to be much more careful, when questioning suspects, to ensure that they are
aware that they have the right to consult with a lawyer without delay as is guaranteed by s10(B)
of the Charter. If the police do not allow an accused to exercise this right, then there is an
excellent chance that any confession or other evidence subsequently obtained will be declared
inadmissable. Formerly, a violation of this nature did not generally result in the exclusion of
evidence. The courts have also found that the Charter requires the Crown, before trial, to fully
disclose to the accused all information or evidence it has in its possession which may bear in any
way on the issue of guilt or innocence. If there has not been full disclosure the accused is entitled
to adjourn a trial or, if already convicted, to have the conviction struck and a new trial ordered.

Criminal Law

Criminal law, in its widest sense, includes substantive criminal law, the operation of penal
institutions, criminal procedure and evidence, and police investigations (see Criminal
Investigation).
Criminal law, in its widest sense, includes substantive criminal law, the operation of penal
institutions, criminal procedure and evidence, and police investigations (see Criminal
Investigation). More precisely, the term refers to substantive criminal law - a body of law that
prohibits certain kinds of conduct and imposes sanctions for unlawful behaviour.

In general, the prohibitions contained in criminal offences are concerned with protecting the
public at large and maintaining the accepted values of society. These values include the
preservation of morality (through such laws as the obscenity and prostitution offences);
protection of the person (eg, murder and assault offences); protection of property (eg, theft and
fraud offences); preservation of the public peace (eg, incitement to riot and causing a disturbance
offences); and preservation of the state (eg, treason offences).
Underlying the various theories explaining the purpose of criminal law is the basic premise that
criminal law is a means by which society reaffirms its values and denounces violators. A change
in values entails a change in the types of conduct society wishes to prohibit. Amendments to the
Criminal Code in areas such as sexual offences, abortion, pornography and punishment for
murder demonstrate that Canadian criminal laws develop, at least to some extent, in response to
changing social values.
Criminal law has also changed in response to technical advances, eg, recent amendments to the
Criminal Code concerning theft of telecommunications, and credit card fraud and provisions
regulating the use of wiretap surveillance.
The sources of substantive criminal law in Canada are limited. Most offences are created by the
Criminal Code, which prohibits conviction of an offence at common law (except for the offence
of contempt of court). Criminal offences are also contained in other related federal statutes, such
as the Narcotic Control Act, the Food and Drugs Act, and the Young Offenders Act.
A number of federal offences and offences under provincial statutes (eg, liquor and highway
control offences) and municipal bylaws (eg, parking tickets, pet control) are not criminal
offences in the true sense, but are generally processed through the courts in the same general
manner as criminal offences. These offences are often called "regulatory offences."
Origin of Criminal Law

According to the Constitution Act, 1867, Parliament was granted legislative jurisdiction with
respect to "the criminal law, except for the Constitution of the Courts of Criminal Jurisdiction but
including the Procedure in Criminal Matters." This particular constitutional provision gives the
federal government power to pass laws concerning criminal law and procedure.
The provinces can pass legislation dealing with subjects in which provinces have constitutional
power and can enforce these laws (under s92 of the Constitution Act, 1867) by imposing
"punishment by fine, penalty, or imprisonment." It is therefore possible to have "provincial
offences" enacted by the province, but if these offences conflict with a statute passed under the
federal government's criminal-law power, the federal law is generally paramount.

The provinces were also granted legislative competence concerning "the administration of justice
in the Province, including the Constitution, Maintenance and Organization of Provincial Courts,
both of Civil and of Criminal Jurisdiction."
Therefore, policing, appointment of prosecutors, administration of the courts and appointment of
lower-court judges are provincial responsibilities. The appointment of county and supreme court
judges is a federal responsibility under s96 of the Constitution Act (see Judiciary).
Criminal law and procedures are subject to provisions of the Canadian Charter of Rights and
Freedoms. The Charter is part of the Constitution of Canada. The Constitution Act, 1982, holds
that "the Constitution of Canada is the Supreme Law of Canada, and any law that is inconsistent
with the provisions of the Constitution is, to the extent of the inconsistency, of no force or
effect."
The courts must therefore measure all legislation, including the Criminal Code and related
statutes, against the Charter's provisions. The Charter may directly affect criminal-law procedure
and may have an impact on the definition of certain crimes and the resulting punishment.
It is a cardinal principle of Canadian criminal law that there can be no crime or punishment
except in accordance with fixed, predetermined law. To this end, the courts have concluded that a
criminal prohibition must be in existence at the time of the alleged crime and that the offence
created by such prohibition must be clearly ascertainable. If the provision providing for the
criminal offence is ambiguous, then it will be interpreted by the courts in favour of the accused.
The application of the criminal law by police, prosecutors, judges and juries depends very much
upon the facts of each case. Courts seek to apply the law consistently. Judges, when determining
the law applicable to a case, are influenced greatly by previous court decisions, ie, "precedents"
involving similar situations. The fact that judges tend to follow precedents creates consistency in
the interpretation of the statutory law and helps to indicate how the law will be interpreted in the
future.
An appeal system exists in the criminal courts not only to correct injustices but also to avoid
inconsistencies in the application of the law itself. Previous legal precedents, upon which the
judge hearing the case feels bound, can be overruled by higher courts if it can be demonstrated
that the precedent is either wrongly decided or out of date.
There are many legal wrongs that are not crimes. They fall in the field of civil law and are the
basis of private law suits. A civil action is a private legal proceeding brought to court by one
person against another. A civil court can compensate the aggrieved party by providing monetary
damages or, in some cases, can cause the defendant to rectify the wrong caused.

In criminal law a crime is a wrong against the community as a whole rather than against the
individual victim; consequently a criminal prosecution is launched by the state and the victim is
merely a voluntary (and sometimes reluctant) witness for the prosecution. However, in recent
years Parliament has passed legislation substantially amending the sentencing provisions of the
Criminal Code, by which more attention will be paid to victims of crime and which will provide
for such measures as restitution and compensation to victims (see Criminal Code).
Constituents of a Crime

A crime may be divided into 2 elements: the prohibited conduct or act (actus rea) and the
required mental element (Mens Rea). Generally, before an act can become a crime it must fall
precisely within the definition of the offence. It may be an act of omission as well as
commission. However, in recent years Parliament has passed legislation substantially amending
the sentencing provisions of the Criminal Code, by which more attention will be paid to the
victims of crime and which will provide for such measures as restitution and compensation to
victims (see Criminal Code).
Mens rea ("guilty mind") is a difficult concept. It is not defined in the Criminal Code and in
Canada, depending upon the particular offence, the prosecution may be required to prove a state
of mind that may include either intention (the most common state of mind required to be proven
in criminal cases), advertent negligence, knowledge, recklessness, wilful blindness or more
specific states of mind contemplated by such words as "maliciously" or "fraudulently."
Nevertheless, there is still an overriding principle in the criminal law that there is no criminal
responsibility unless the guilty mind required by the offence can be proven. The idea of "guilty
mind required by an offence" has been refined in light of the Charter. For example, the Supreme
Court of Canada has held that murder is so serious a crime that it would be fundamentally unjust
to convict someone of murder who did not, at the time of the killing, have a murderous state of
mind. The Court then struck down, as unconstitutional, those sections of the Criminal Code
which permitted murder convictions where the intent to kill had not been proven. Thus, the
Charter has given rise to the principle that the mens rea to be proven must "fit" the crime. Most
criminal trials are in fact contested on the basis of whether the accused had the requisite state of
mind rather than whether he actually performed the prohibited act. This state of mind has to be
proven with the same certainty as the other ingredients of a crime, and the prosecution must
therefore present a clear picture of what was in the individual's mind at the time the offence was
committed.
In order to ease this difficulty, some criminal law statutes create or recognize a presumption or
inference regarding the required mental element; however, many of these "reverse onus clauses"
have recently been declared unconstitutional as various courts have ruled the provisions conflict
with the rights of an accused as set out in the Charter. But the Charter has impacted on the mental

element required for so-called "strict liability" offences. The Supreme Court has held that where
an offence carries with it the potential for imprisonment, if the accused has diligently, though
unsuccessfully, attempted to avoid the prohibited action then he or she cannot be convicted of it.
Such a conviction would offend fundamental justice.
In regulatory offences, the law distinguishes 3 different forms of the mental element. If the
legislation uses words such as "wilfully" or "intentionally," the legislature is presumed to have
intended that the mental element required is an intent to commit the prohibited act. For the
second class of regulatory offences, eg, those relating to public health, highway traffic,
environmental law, and safety in the workplace, it is only necessary that the accused knows that
his acts or omissions may result in the offence being committed. But the Charter has impacted on
the mental element required for so-called "strict liability" offences. The Supreme Court has held
that where an offence carries with it the potential for imprisonment, if the accused has diligently,
though unsuccessfully, attempted to avoid the prohibited action then he or she cannot be
convicted of it. Such a conviction would offend fundamental justice.
The final category of regulatory offences (strict liability offences) requires no mental element
whatsoever and there is consequently no necessity of proving any fault on the part of the
accused; the Crown need only prove that the accused was responsible for the prohibited act.
Under Canadian law, criminal responsibility may be placed on parties other than the actual
perpetrator. Persons who aid, assist or counsel the commission of an offence can be found guilty
of the same offence as the perpetrator. Also, attempting or conspiring to commit a crime or
counselling an offence that is not actually committed are all criminal offences. However, courts
have held that mere preparation to commit a crime is not sufficient to constitute an attempt.
In any criminal trial, one of the most important principles of all is the presumption of innocence.
According to this principle, the Crown must prove the guilt of the accused, and it is not for the
accused to establish innocence. Furthermore, the Crown must establish guilt beyond a reasonable
doubt. This principle has been enshrined in the Charter and is considered by many to be one of
the most important protections for the individual against the state.
Defences

Both the Criminal Code and the common law recognize a number of defences to criminal
charges.
Defence of Capacity
In certain cases, individuals will be found not guilty, even though the prohibited act and the
intention to commit this act are proven, because the individuals are deemed incapable by law of
committing the offence in question. For example, any child under the age of 12 years cannot
commit a criminal offence. As well, any boy or girl under the age of 18 must be tried in the

juvenile courts under the Young Offenders Act unless he or she is ordered to stand trial in the
adult court by a juvenile court judge (see Juvenile Justice Systems).
Insane persons are also considered to be incapable of committing criminal offences. Section 16
of the Criminal Code presumes that everyone is sane but permits defendants to establish that they
were insane at the time of the commission of an offence.
If insanity is established, then the person is found to be not guilty by reason of insanity and is
detained indeterminately for treatment until a government-appointed board of review determines
that the individual may return to society. In addition, an individual cannot be found guilty of a
crime if he or she is unfit to stand trial because of mental illness. These individuals are held in
mental hospitals until they recover sufficiently to understand the legal proceedings against them.
Defences that Negate Proof of the Prohibited Act
To prove that someone has committed a prohibited act, it must be demonstrated that the act or
omission was consciously and voluntarily committed. Defences that fall into this category
include accident, duress (ie, a person has been compelled to commit an offence because his or his
family's life or safety have been threatened), and automatism, which may be generally defined as
involuntary, unconscious behaviour where the physical movements are performed without
volition or without exercise of the will (eg, a person, as a result of an external blow to the head,
commits a prohibited act while in an unconscious or semiconscious state, or a person who
commits an offence while sleepwalking).
Defences that Negate Proof of Mens Rea
In most "true" criminal offences, the Crown must prove that, before committing the act, the
accused actually intended to achieve the unlawful result. The law recognizes that certain factors
raise a reasonable doubt that the person intended to achieve the unlawful consequence. The
defences usually mentioned in this context include intoxication (which is commonly used to
reduce a murder charge to the lesser offence of manslaughter), honest mistake of fact, and, in
some very limited circumstances, mistake of law. However, in the vast majority of factual
situations, ignorance of the law provides no defence.
Defences of Excuse or Justification
With these defences, the law recognizes human frailty and weaknesses and will hold that the
accused was either justified in committing the unlawful act or is at least partially excused for the
conduct. Examples of defences of justification are self-defence and defence of property. In 1990
the Supreme Court of Canada found the defence of self-defence can apply to a battered woman
who kills her batterer at a time when her life is not in imminent danger. Recognition of the
"battered woman syndrome" expanded the scope of evidence which could be used to prove selfdefence to include the psychological effects of battering on women charged with assaulting or
even killing their battering partners. Defences of excuse include obedience to authority (eg, a

soldier who believes he is simply obeying lawful orders), provocation (which only applies in
murder cases and involves a killing committed in the heat of passion, which has been caused
suddenly by a wrongful act or insult sufficient to deprive an ordinary person of his self-control),
and entrapment (in which the person has committed the offence under pressure by police
authorities).
Sanctions

If an individual is convicted of a criminal offence, the presiding judge must impose a sentence.
In Canada, judges have a great deal of discretion in sentencing. There are few mandatory
minimum sentences and the maximum sentences given in the Criminal Code are generally set
quite high. A judge may choose an absolute discharge, conditional discharge, probation,
suspended sentence, fines or imprisonment.
In determining an appropriate sentence, judges must consider a multitude of factors and remind
themselves that each sentencing is unique because the individual characteristics of each crime
and offender are never the same. Some of the more important factors that they take into
consideration when imposing sentence are the degree of premeditation, whether the accused has
a previous criminal record, the gravity of the crime committed, the degree of participation of the
offender in the crime, the incidence of this particular crime in the jurisdiction, past sentences
imposed for the same or similar offences, and the age, lifestyle and personality of the offender.
Large-scale changes to the sentencing provisions of the Criminal Code have been made recently
and more are expected shortly. These changes are a response to a growing awareness in Canadian
society that the process of sentencing offenders must account for the needs and interests of
victims of crime and that effective alternatives to imprisonment are a likelier route to
rehabilitation of an offender.

police

law

Criminal Code

crime

government

justice

state

Suggested Reading

Kent Roach, Criminal Law, 6th ed. (2015); Steve Coughlan, Criminal Procedure, 3rd ed.
(2016); Nicholas Bala & Sanjeev Anand, Youth Criminal Justice Law, 2nd ed. (2009);
Steve Coughlan & Glen Luther, Detention and Arrest (2010); Robert J. Currie and Dr.
Joseph Rikhof, International and Transnational Criminal Law, 2nd ed. (2014).

Torts in Canada

Tort law provides compensation for people who have been injured, or whose property has been
damaged by the wrongdoing of others.

Gavel

A vintage gavel, symbol of impartiality and rightness, judicial decisions, closed cases and justice.
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Tort law is a cornerstone of the Canadian legal system and provides compensation for people
who have been injured or whose property has been damaged by the wrongdoing of others. A vast
area of private law that has evolved to keep up with technology and social issues, tort law has
been used by a growing number of victims of crime to help them seek justice against
perpetrators. It has also been at the centre of recent high profile Canadian cases involving the
abuse of children, and the liability of governments for failing to protect citizens from contagious
diseases and from defective medical devices.
What is a Tort?

The word tort comes from the Latin tortum, meaning "wrong, injustice." The purpose of tort law
is not to punish wrongdoers but to provide damages to victims as compensation for their losses.
It affects nearly every walk of life, from manufacturers and property owners to pet owners,
drivers, doctors and bartenders, all of whom have a duty of care.
Although most tort law is judge-made, some originates in statutes which vary from province to
province. Unlike criminal law, which involves the state, tort law is used by individuals to claim
compensation. It also differs from contract law, where parties have agreed to certain terms or
conditions.
Intentional Torts

Intentional torts are the most serious. They are deliberate acts intended to injure others, or to
interfere with another persons rights. A common one is battery. This can involve violence with
the intent to injure, but also includes acts which although not intended to injure, still interfere
with a persons autonomy and the right to security and dignity. Every medical treatment, for
example, performed without the consent of the patient is considered battery, regardless of the
doctors intent to provide the best care possible. The law respects the absolute right of all
competent persons to decide what medical treatment they will accept or refuse.
Other intentional torts include assault and false imprisonment. A person can also sue for acts
intended to cause emotional distress. Sexual or workplace harassment can fall under this tort and,
in these cases, a court may award extra or punitive damages to punish the wrongdoer.
When a person is injured by a criminal act, the offender may be prosecuted under the Criminal
Code, as well as sued through civil court for damages. Tort law is increasingly used by victims of
sexual assaults as some may find it is therapeutic to seek damages even when there is a criminal

prosecution. Often criminals do not have the funds to pay tort judgments, so the recovery of
damages is available through victim compensation funds in most provinces and territories.
People who commit an intentional tort may plead that they had a valid defence, such as the
victim's consent, self-defence, defence of property, necessity or lawful authority. For example,
the defence of consent can protect athletes from being sued for physical contact, as long as the
contact is an ordinary part of the game. As well, numerous statutes such as the Criminal Code
allow the police to detain and imprison people, or to seize their property. If any of these defences
are accepted by the court, the action under tort law will be dismissed.
Torts can involve damage to property as well as injuries to people. Trespassing falls under
intentional torts, as does conversion, which is interfering with another persons goods, and
detinue, which is refusing to return something belonging to another person.
Another important tort action is defamation, which protects a person's reputation from false and
defamatory material either spoken or in published or broadcast form.
Torts of Negligence

People are more frequently injured because of the carelessness rather than the deliberate acts of
others. This is the tort of negligence, the most important of the modern torts. The famous English
case of Donoghue v Stevenson, in which a manufacturer of a soft drink carelessly allowed a snail
to crawl into a bottle, where it decomposed and caused the plaintiff to become ill, established the
principle that everyone is under a legal obligation to take reasonable care to ensure that others
will not be injured because of careless conduct, save for a few exceptional situations.
Everyone must live up to the standards of the "reasonable person," an important concept of the
negligence tort. Based on objective guidelines and built on precedents, the standard allows the
court to adapt to the changing circumstances of what might be considered "reasonable."
Similarly, if people through their own negligence cause or contribute to their own injuries, they
will be held at least partly responsible for their damages under the contributory negligence
defence.
Negligence expanded significantly in the 20th century and now covers a wide range of accidents.
Bar owners, for example, can be held liable if they fail to ensure that their intoxicated customers
take reasonable care when going home. Drivers can be held responsible if they do not ensure that
the occupants of their cars are wearing seat belts, or if they allow incompetent persons to drive
their cars. Courts are reluctant, however, to hold public authorities liable for their negligent
decisions, as opposed to their negligent acts. It is felt best that decisions which raise core policy
issues involving the exercise of political discretion be left to elected officials, and not be second
guessed by the courts.

Compensation

If found liable, wrongdoers must compensate victims in full for losses. Compensation will not
only include medical bills not covered by health insurance, lost past and future income and the
costs of future care, but also awards for pain and suffering and the loss of the enjoyment of life.
If a tort causes death, the estate and dependants are entitled to seek compensation from the
tortfeasor (the person guilty of tort) for their financial losses. Dependants are entitled to be
compensated for the loss of support which they would have obtained from the person who was
killed. Some provinces such as Alberta, allow the recovery of damages for the sorrow and grief
of survivors. Estates are limited to recovering only monetary losses caused by the death, such as
funeral expenses.
Strict Liability

Certain activities are so fraught with risk that compensation to those injured is awarded without
the need to establish the defendant's fault. These are strict liability torts. According to the English
case of Rylands v Fletcher, anyone who brings something onto his land which is not naturally
there is strictly liable if the thing escapes and injures someone. People are strictly liable for
injuries caused by wild animals they keep, or even by domestic pets if they are known to be
dangerous, or by fires they have started. However, in view of the expansion of negligence law,
these strict liability actions are relatively rare.
One important example of strict liability is vicarious liability. This is where an employer is liable
for the torts committed by its employees, during the course of their employment. Since
employers usually have liability insurance and more resources to pay judgments than their
employees, vicarious liability is frequently pleaded.
Land and Product Liability

There are other important torts. A person who unreasonably interferes with another's use and
enjoyment of land will be liable for a private nuisance. Under the law of occupier's liability,
everyone who occupies a building owes a duty of care to those who visit and who are injured on
the premises.
Manufacturers are responsible under the law of products' liability to those who are injured by
products which are negligently designed, manufactured, or marketed. The law imposes upon
manufacturers the obligation to advise consumers of risks associated with the use of the product.
In recent years, this law has resulted in manufacturers being held liable for failing to inform
women of the side effects of birth control pills, and of the risk that breast implants can rupture,
causing serious problems for the patients using them.
Economic Torts

By virtue of the economic or business torts, people will be held liable if they wrongfully interfere
with the economic interests of others. There are a number of these torts, such as inducing breach
of contract, intimidation, and conspiracy. Using unlawful means to prevent a third party from
economically benefitting a specific person can also lead to a successful claim by the person who
was harmed.
Fault-Finding

Of course, many injuries result from pure accident, and if the victim cannot prove that the person
who caused the accident acted wrongfully, he will not be entitled to any compensation, despite
his own innocence, unless this falls under one of the strict liability torts. This has been strongly
condemned by critics of negligence law, who consider it unfair that persons who cannot prove
that their injuries resulted from someone else's negligence are left to bear their losses on their
own.
Many accidents occur either at work or on the road. Because of their frequency and tort law's
inability to compensate adequately all those injured at work, every province has workers'
compensation legislation, allowing workers to receive compensation without the need to
establish fault. Those who are covered by workers compensation are not entitled to sue in tort.
Many Canadian provinces have enacted similar legislation for highway traffic accidents and have
replaced tort law with "no fault" compensation schemes. There is a lively debate about the extent
to which these schemes ought to be enlarged at the expense of the traditional tort-law process.
New Torts

Recently new torts have emerged. Invasion of privacy has gained in importance, and has been
recognized as a new tort action by some courts. Older torts, such as negligence, are applied
increasingly to professional groups such as lawyers, architects and engineers to force them to
live up to higher standards of competence, even with regard to people who are not their clients
but who can be affected by their negligence. As well, negligence law has allowed bystanders who
suffer nervous shock as a result of witnessing terrible accidents involving relatives, to sue for
their damages caused by the traumatic experience. Rescuers who are injured in attempting to
help those in perilous situations can sue the negligent person who created the emergency.
The law of negligence has even begun to relax its traditional reluctance against requiring people
to assist others, or to prevent harm from being caused to them. There is a growing list of
exceptions to the rule that one need not assist others in peril.
People are also held accountable not only for their negligent acts but for misleading advice
which may cause loss to others. This development relates to the expanding use of tort law to deal
with negligence occurring within commercial or contractual relationships.

Even government officials and agencies are being held liable in tort for damages they cause the
public in carrying out their functions. Those who support tort law have applauded these
developments, arguing that the civil remedy in tort has been and can continue to be valuable to
citizens fighting against more powerful elements of our society.

Criminal Code

criminal law

Legal System

crime

justice

justice system

Suggested Reading

Philip Osborne, The Law of Torts, 5th ed. (2015); Jamie Cassels & Craig Jones, The Law
of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigation in Canada
(2005).

Family Law

Family law is critical to most Canadians as it governs relationships between spouses, and
between parents and their children.
Family law is critical to most Canadians as it governs relationships between spouses, and
between parents and their children. In family law, marriage and divorce fall under federal
jurisdiction but most other issues, including adoption and matrimonial property disputes, fall
under provincial laws that vary widely. Traditional family structures have changed significantly
over time, with increasing numbers of same-sex and common law relationships, and growing
divorce rates. This has led to intense debates over the future of family law, court challenges and
provincial reviews of legislation.
Family Law in the Provinces and Territories (Except Qubec)

Marriage
Marriage ceremonies are governed by provincial law, but Parliament has jurisdiction over
marriage (e.g., the age when people can marry, laws forbidding marriage between certain people,
and divorce).

Annulment
A marriage can be annulled if one party was under age, or as a result of bigamy (being married to
more than one person), a defective marriage ceremony, duress, mental incapacity, or the failure
to consummate the marriage because of a physical or mental disability.

Separation and Divorce


Separation is a legally recognized parting by spouses or the agreed end of cohabitation, and can
be cited as grounds for divorce. Until the federal Divorce Act of 1968, divorce was governed by
pre-Confederation provincial statutes and inherited English legislation. In Newfoundland and
Qubec, where no divorce legislation existed, divorces could only be obtained through a private
Act of Parliament. The 1968 Divorce Act was the first divorce legislation for the entire country.
It was repealed and replaced by the 1985 Divorce Act.
The 1985 Divorce Act states that divorce must be based on a breakdown of marriage, which can
be established only with proof of cruelty or adultery, or proof the parties have been living apart
for a year immediately before the divorce proceeding, and were living apart at the time the
petition for divorce was filed. (It is not necessary that the parties had lived apart for a year before
the petition is filed. The year, however, must elapse before the divorce judgement is granted.)

Maintenance
Spousal and child support following a divorce falls under federal law, and all other maintenance
agreements come under provincial law. Spouses, parents, children (who may have to support
dependent parents) and guardians of children all have a legal obligation to support dependants.
The means and resources of the parties are important factors in establishing the amount of
maintenance. The Divorce Act (and some pieces of provincial legislation) set out other factors
relating to the right to receive support and the amount of child and spousal payments. Wives may
have to support their husbands and children, and in all provinces except Qubec, common-law
relationships may result in support obligations.

Matrimonial Property
Under old common law, a husband had the right to own or manage his wife's property. However,
wives had the right of "dower"a life interest in the property the husband owned when he died
(see Property Law). In the 1890s, married women's property Acts introduced the concept of
separation of property. This gave wives contractual and tortious rights and responsibilities,
though in several provinces legal actions between husband and wife were still forbidden.

Giving women power to acquire property, however, did not alter the fact that employment
opportunities for women were restricted and that most property was paid for by husbands and
bought in the husband's name. A wife did not obtain ownership based on domestic work or
rearing the children, although she did obtain a measure of protection by living in the matrimonial
home under Dominion Lands Acts in the West and, to a lesser extent, Dower Acts in the East.
Traditional rules required that for a wife to own property, it must be bought in her name or she
must have made some direct contribution to its purchase. This led to the Murdoch Case, in which
the wife had no rights of ownership in things she assumed were family assets. The harshness of
the old property rules led all of the provinces to amend their legislation to give married women a
fairer share in the division of the family's assets (see Human Rights). Some provincial
matrimonial property legislation distinguishes between family and business assets, while in
Alberta there is no distinction.

Custody
There is no law requiring that the custody of young children be granted to mothers. Where both
parents are working full time, fathers are increasingly winning custody. The courts do, however,
use a degree of common sense and can be unwilling to change the status quo if things are
working well in a home and can be reluctant to separate siblings.
Third parties, such as aunts or uncles, can also seek custody or visiting rights. The Divorce Act
of 1985 provides for increased contact between the child and both parents without expressly
mandating joint custody.

Illegitimacy
Historically an illegitimate child was filius nullius, or the "son of no man." References to
children in wills were usually taken as referring only to legitimate children. The "status" of
illegitimacy has been repealed in several provinces, and parents now have a duty to support their
illegitimate children. The procedure for establishing paternity is called filiation.

Modernizing Family Law


British Columbia undertook a major overhaul of its legislation in recent years and on 18 March
2013, the provinces Family Act replaced the Family Relations Act, which was more than 30
years old. The new legislation makes many changes to family law. Notably, it clarifies how
property is divided up when couples, including those in common-law relationships, break up. It
states that common-law couples have the same rights and responsibilities as married couples
after two years of living together, and that debts and assets acquired over that time are divided
50-50. The law was amended to reflect the fact that the number of common-law families in
British Columbia is growing at a rate three times faster than the number of married couples.

Most other provinces define a couple as acquiring common law status after two or three years of
living together, or after less time if there are children. Elsewhere, laws surrounding spousal
support and division of assets vary widely. Most jurisdictions require that common law couples
have a co-habitation or other legal agreement to deal with the division of property.
Family Law in Qubec

Qubec family law is largely of French origin, but because marriage and divorce are within
federal jurisdiction, there is a strong common-law influence. Moreover, because Qubec law has
been revised drastically by legislation in the last 20 years, differences in family law between
Qubec and the rest of Canada are not as strong as they once were. Traditionally the Qubec
Civil Code consecrated a notion of "paternal authority," which made the husband the head of the
family and gave him considerable powers over his wife and children. This notion was applied by
the court of appeal in Cheyne v Cheyne (1977), but the decision has since been repealed and the
revised Civil Code (1980) insists on absolute equality of spouses.
Other aspects of Qubec family law have also changed drastically. Traditional Qubec family
law was heavily influenced by the Roman Catholic Church (see Catholicism). Divorce was
prohibited; separation and annulment of marriage were difficult to obtain. Women could be
deprived of their part of community property as punishment for adultery. Illegitimate children
were subject to various discriminatory rules and even adopted children were denied full equality.
All of this has now changed and has been replaced by modern, liberal provisions. One aspect of
the new Qubec law has been questioned, however, and that is the tendency to delegate
discretion to courts instead of to individuals. For example, a minor who wishes to marry will, in
the future, ask the court and not his parents for permission.

Marriage
Qubec marriage law is based on principles similar to those in other provinces, i.e., marriages
must be monogamous, require consent of both parties and must include a ceremony, either civil
or religious. Qubec stands apart regarding common law relationships, though. It is the one
province that does not give common law couples financial rights or responsibilities when the
relationship ends, yet it has the largest concentration of common law couples in the world (about
one-third of the provinces residents are in a common law relationship). On 25 January 2013, in a
high profile case known as Lola vs. Eric, The Supreme Court of Canada ruled in a narrow 5-4
vote that Qubec can continue to exclude common law couples from receiving spousal support.
The court ruled after the law was challenged by the ex-partner of a wealthy business owner who
was seeking a $50-million separation payment. The couple was not identified to protect the
children.

Separation and Divorce


Separation can now be obtained in Qubec with a minimum of formality. Divorce is obtained
under federal law. Qubec adopted its own fairly liberal divorce provisions in the 1982 Civil
Code, but these articles have not been proclaimed because they are not constitutional (divorce is
an area of federal not provincial jurisdiction).

Children
The 1982 code abolished the concept of illegitimacy and includes adoption. It is illegal to trade
in children or to accept payment for a private adoption. Parents and children owe each other
support even when the child has reached majority, although both parties must strive to be as
independent as possible.
The Qubec Civil Code and Code of Civil Procedure have been amended in recent decades. In
December 1983, a new set of rules for foreign adoptions came into effect making it very difficult
to adopt foreign children.

Matrimonial Property
Qubec law kept the civilian concept of matrimonial regime (i.e., sharing or separating property
between spouses). Couples are free under the Marriage Act to choose one of three regimes. The
most common regimes are separation of property and partnership of acquests. If no regime is
chosen by marriage contract, the couple is presumed to have selected partnership of acquests.
Under this system, each partner keeps the property he or she had at the time of marriage.
However, when the marriage ends, the property acquired after marriage is generally divided
equally between the parties.

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