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S E R V I N G C A N A D I A N S

C A N A D A’ S S Y S T E M o f J U S T I C E
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©Her Majesty the Queen in Right of Canada,


represented by the Minister of Justice and Attorney General of Canada, 2015

ISBN 978-1-100-25574-3

Cat. No J2-32/2015E-PDF
CA N A DA’ S SY ST E M
OF JUSTICE
Note to reader: This booklet provides general information about
Canada’s justice system. It is not intended as legal advice. If you have
a problem, you should consult a lawyer or other qualified professional.
CONTENTS

What is the Law?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


Why We Need Laws.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
What Other Goals Do Laws Achieve?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Public Law and Private Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Where Our Legal System Comes From. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


The Common-Law Tradition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Civil-Law Tradition.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Aboriginal and Treaty Rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
How Parliament Makes Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
What Are Regulations?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Keeping the Laws Up to Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


Law Reform.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Alternative Approaches to Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Changing Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The Canadian Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


What Does Our Constitution Say?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
What is a Federal System?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rights and Freedoms in Canada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


What Does the Canadian Charter of Rights and Freedoms Say?. . . . . . . . . . . . . . . . 13
What Rights Does the Charter Protect?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
–.Fundamental freedoms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
–.Democratic rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
–.Mobility rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
–.Legal rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
–.Equality rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
–.Language rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
–.Minority-language educational rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
–.Aboriginal and treaty rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Other Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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CA N A DA’ S SY ST E M O F J U ST I C E

How the Courts are Organized. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21


What Do the Federal Courts Do?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Provincial and Territorial Level Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Administrative Boards and Tribunals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Civil and Criminal Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24


How Do Civil Cases Work?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Pleading. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
What Happens at a Civil Trial?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
How a Trial Ends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
What Are Criminal Cases?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Summary Offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Indictable Offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
What Happens in an Arrest?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
What Happens in Custody?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
What Happens in a Criminal Trial?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Decisions in Criminal Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Can You Appeal a Decision?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Victims of Crime.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Restorative Justice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Youth Justice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

The Role of the Public. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34


Jury Duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Testifying in Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Know the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Who Gets Legal Aid?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

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WHAT IS THE LAW?

The law affects nearly every aspect Why We Need Laws


of our lives every day. We have laws Laws are rules made by government
to deal with crimes like robbery that forbid certain actions and are
and murder. And we have laws that enforced by the courts. Laws apply to
govern activities like driving a car, everyone equally. If you
getting a job, and getting married. break a law, you may
Laws give us rules of conduct that have to pay a fine, pay The law provides
protect everyone’s rights. for the damage you have
done, or go to jail. a way to resolve
The rule of law, freedom under
the law, democratic principles, and Imagine the chaos – disputes
respect for others form the founda- and the danger –
tions of Canada’s legal heritage. peacefully.
if there were no laws.
Every Canadian should understand The strongest people
the law, and the ideas and principles would be in control and
behind it. This publication will help people would live in fear. Drivers
readers understand could choose which side of the street
• what the law is; to drive on and no one could stop
them. Imagine trying to buy and sell
• where it comes from; goods if no one had to keep promises.
• what it is for; and Or trying to hold onto your personal
property or even to keep yourself safe
• how it operates. if there were no laws against robbery
or assault.
Laws also balance individual rights
with our obligations as members Even in a well-ordered society, people
of society. For example, when a law disagree, and conflicts arise. The law
gives a person a legal right to drive, provides a way to resolve disputes
it also makes it a duty for a driver to peacefully. If two people claim the
know how to drive and to follow the same piece of property, rather than
rules of the road. fight they turn to the law. The courts

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CA N A DA’ S SY ST E M O F J U ST I C E

can decide who the real owner is and and equality. This helps prevent
how to protect the owner’s rights. stronger groups and individuals from
taking unfair advantage of weaker
Laws help to ensure a safe and groups or people.
peaceful society. The Canadian legal
system respects individual rights and
Public Law and Private Law
ensures that our society is orderly.
It applies the same law to everybody. Laws can be divided into public law
This includes the police, governments and private law.
and public officials. All of them must
Public law sets the rules for the
carry out their duties according to
relationship between the individual
the law.
and society. If someone breaks a
criminal law, it is seen as a wrong
What Other Goals Do against society. It includes
Laws Achieve? • criminal law, which deals with
In Canada, laws also carry out social crimes and their punishments;
policies. Laws allow systems to be put
• constitutional law, which defines
in place for governments
the relationship between various
to provide, for example,
branches of government, as well
Our laws also • benefits when workers as between federal and provincial
are injured on the job; governments; it also limits the
recognize and
exercise of governmental power
• insurance when
protect basic over individuals through the
workers are
protection of human rights and
unemployed;
individual rights fundamental freedoms;
• health care; and
and freedoms, • administrative law, which deals
• loans to students. with the actions and operations
such as liberty of government.
Our laws also recognize
and equality. and protect basic If someone runs away from a store
individual rights and with unpaid goods, that’s theft.
freedoms, such as liberty It violates public law because it affects

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CA N A DA’ S SY ST E M O F J U ST I C E

other people. If you back up your Private law sets the rules between
car into somebody’s fence, you could individuals. It is also called civil law.
be violating their right to enjoy Private law settles disputes among
their property. That falls under groups of people and compensates
private law. victims, as in the example of the
fence. A civil case is an action that
settles private disputes.

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WHERE OUR LEGAL SYSTEM COMES FROM

DID YOU KNOW?


Canada’s legal system is based on the English and French systems.
Explorers and colonists brought these systems to Canada in the
17th and 18th centuries. After the Battle of Quebec in 1759, the country
fell under English common law, except for Quebec, which follows
civil law.

Canada’s legal system is based on The Civil-Law Tradition


a combination of common law Civil codes contain a comprehensive
and civil law. statement of rules. Many are framed
as broad, general principles to deal
The Common-Law Tradition with any dispute that may arise.
Unlike common-law courts, courts in
The common law is law that is not a civil-law system first look to a civil
written down as legislation. Common code, then refer to previous decisions
law evolved into a system of rules to see if they’re consistent.
based on precedent. This is a rule that
guides judges in making later deci- Quebec is the only province with
sions in similar cases. The common a civil code, which is based on the
law cannot be found in any code or French Code Napoléon (Napoleonic
body of legislation, but Code). The rest of Canada uses the
only in past decisions. common law. The Criminal Code is
Quebec is the only At the same time, it is also considered a code, and it is used
flexible. It adapts to throughout Canada.
province with a changing circumstanc-
es because judges can
civil code. announce new legal Aboriginal and Treaty Rights
doctrines or change Aboriginal rights refer to Aboriginal
old ones. peoples’ historical occupancy and use
of the land. Treaty rights are rights

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CA N A DA’ S SY ST E M O F J U ST I C E

set out in treaties entered into by make new laws or change old ones.
the Crown and a particular group of Canada is a federation – a union of
Aboriginal people. The Constitution several provinces and territories with
recognizes and protects Aboriginal a central government. So it has both
rights and treaty rights. a federal parliament in Ottawa to
make laws for all of Canada and a
legislature in each of the ten provinces
How Parliament Makes Laws and three territories that deals with
Democratic countries have a legisla- laws in their areas. Laws enacted at
ture or parliament, with the power to either level are called
statutes, legislation, or
acts. When Parliament The Constitution
or a provincial or terri-
The Two Meanings torial legislature passes recognizes and
of Civil Law a statute, it takes the
The term “civil law” is used to mean place of common law or protects Aboriginal
two quite different things, which precedents dealing with
rights and treaty
can be a little confusing at first for the same subject.
people trying to understand the rights.
justice system. Sometimes the term Making laws this way can
is used in contrast to “common law” be complicated. Let’s use
to refer to the legal system that is an example to explain
based on a civil code, such as the how it works. Suppose the federal
Justinian Code or the Civil Code government wanted to create a law
of Quebec. In its other sense, civil that would help control pollution.
law refers to matters of private 1. Government ministers or senior
law as opposed to public law, and public servants examine the
particularly criminal law, which is problem carefully and suggest
concerned with harm to society ways in which, under federal
at large. It is usually clear from the jurisdiction, a law could deal
context which type of civil law with pollution.
is intended.
2. They would draft the proposed law.

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CA N A DA’ S SY ST E M O F J U ST I C E

3. The law has to be approved by What Are Regulations?


the cabinet, which is traditionally Because our society is so complex,
made up of members of Parliament more laws are being enacted today
chosen by the prime minister. than ever before. If our lawmakers
4. This version is then presented to had to deal with all the details of all
Parliament as a bill to be studied the laws, the task would be nearly
and debated by members. impossible. To solve this problem,
Parliament and provincial and territorial
5. The bill becomes law if it is legislatures often pass laws to give
approved by a majority in both departments or other government
the House of Commons and the organizations the authority to make
Senate. It also needs to be assent- specific laws called regulations.
ed to by the Governor General in Regulations carry out the purposes
the name of the Queen. All laws of the general laws or expand on
need royal assent. them. They have the force of a law.
For example, there are regulations
Every province uses a similar process. that keep our food safe or outline
The Lieutenant Governor of each what kind of storage tank to use for
province gives royal assent for laws oil products.
passed by provincial legislatures.

Judges develop common law by


referring to and setting precedents.
They also interpret and apply statutes.

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KEEPING THE LAWS UP TO DATE

Law Reform resolution and landlord-tenant


Every day, we hear about social issues, disputes, are already being used.
medical developments, and new types
of technology. All of these raise moral Aboriginal customs and traditions
and legal questions. These kinds of have also contributed to new ways of
changes mean we need to constantly dealing with people, such as healing
reform our laws so we can make sure and sentencing circles, community
that our system of law and justice justice, and restorative
meets the challenges of our society. justice.
We need to
As our society grows and develops, The Aboriginal Justice
it cannot rely entirely on tradition. Strategy (AJS) is a way constantly reform
Sometimes new laws are needed or of diverting low-risk
old laws need to be changed. non-violent offenders our laws so we can
from mainstream justice
As people change the way they live to restorative justice. make sure that our
and work, some laws may become As a result, offenders
obsolete. Or new situations may arise
system of law and
don’t get a criminal
that no existing law deals with. record, they can instead justice meets the
For example, old laws against theft make amends to their
did not foresee identity theft or online community, and funds challenges of
harassment. The same technology that and resources are freed
enables one person to find informa- up to deal with more our society.
tion about another also makes it serious offences.
possible to steal information that
was meant to be private. The goals of the AJS are
• to give Aboriginal people a greater
Alternative Approaches to Laws role in administering justice in
We may even need to change the their communities;
system of law and justice itself.
• to help decrease the rates of victim-
In our court system, it can take years
ization, crime, and imprisonment
to settle disputes. People can settle
among Aboriginal people;
disputes by using less formal
methods. Some informal mediation • to provide better and more timely
methods, such as alternative dispute information about community

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CA N A DA’ S SY ST E M O F J U ST I C E

justice programs funded by the and other stakeholders meet with


AJS; and government decision makers in an
effort to present their opinions on the
• to reflect and include Aboriginal
direction of public policy. Legislators
values within the justice system.
in the federal, provincial, and
territorial governments respond by
Changing Laws introducing new laws or changing
Government legal experts are old ones.
constantly examining our laws and
looking for ways to improve them. Ultimately, though, it is the people
Law reform committees also review of Canada who elect the lawmakers.
laws and recommend changes. We as Canadians need to decide
Lawyers bring questions of law to what we want from the law and then
court to create change. Social action make sure it reflects those wishes.
groups seek changes to laws that Everyone has the right to work
they consider unfair to members of toward changing the law.
Canadian society. Industry groups

8
THE CANADIAN CONSTITUTION

DID YOU KNOW?


Canada was created by an act of the Parliament of the United Kingdom
called the British North America Act, 1867 (now known as the Constitution Act,
1867), uniting the British colonies of the United Province of Canada, Nova
Scotia, and New Brunswick.

A constitution provides the fundamental The Queen has the executive power
rules and principles that govern in Canada, but in our democratic
a country. It creates many of the insti- society the Queen’s powers are
tutions and branches of government, exercised by constitutional convention
and defines their powers. on the advice of Ministers who enjoy
the confidence of the House of
The Constitution of Canada includes Commons. Together, the Prime
the Constitution Act, 1867, and the Minister and other Ministers form
Constitution Act, 1982. It is the the cabinet, which is responsible to
supreme law of Canada. It reaffirms Parliament for government business.
Canada’s dual legal system and Ministers are also responsible for
also includes Aboriginal rights and government departments, such as
treaty rights. the Department of Finance and the
Department of Justice. When we say
“the government,” we are usually
What Does Our Constitution Say? referring to the executive branch.
The Constitution sets out the basic
principles of democratic government Parliament is the legislative branch
in Canada when it defines the powers of the federal government. Parliament
of the three branches of government: consists of the Queen (who is
usually represented by the Governor
• the executive
General), the Senate and the House
• the legislative of Commons. Bills are debated and
passed by the Senate and the House
• the judiciary
of Commons. The Governor General
must also give royal assent to a bill

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CA N A DA’ S SY ST E M O F J U ST I C E

DID YOU KNOW?


The Constitution was “patriated” from the United Kingdom in 1982.
When Canada was created, it was a self-governing British colony. The British
North America Act, 1867 codified many constitutional rules for Canada,
but major changes to the Constitution could only be made by the United
Kingdom Parliament. In 1982, the Charter was enacted as part of Canada’s
Constitution along with a set of procedures allowing the Constitution to be
amended in Canada.

in order for it to become a law. Provincial judges are appointed under


By constitutional convention, royal provincial laws.
assent is always given to bills passed
by the Senate and the House of
What is a Federal System?
Commons.
The Parliament of Canada and the
Our Constitution also includes provincial and territorial legislatures
provisions relating to the judicial both have the authority or jurisdic-
branch of government, composed of tion to make laws. Parliament can
judges. The judiciary must interpret make laws for all of Canada, but
and apply the law and the Constitu- only about matters the Constitution
tion, and give impartial assigns to it. A provincial or
judgments in all cases, territorial legislature can only
whether they involve make laws about matters within
Parliament is the the province’s borders.
public law, such as a
legislative branch criminal case, or private
law, such as a dispute The federal Parliament deals mainly
of the federal over a contract. with issues that concern Canada as
a whole: trade between provinces,
government. The Constitution only national defence, criminal law,
provides for federally money, patents, and the postal
appointed judges. service. It is also responsible for

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CA N A DA’ S SY ST E M O F J U ST I C E

the three territories: Yukon, the zoning, smoking,


Northwest Territories, and Nunavut. pesticide use, parking, It was only with
Federal law allows territories to elect business regulations, and
councils with powers like those of construction permits. the Canadian
the provincial legislatures.
Aboriginal peoples in Charter of Rights
The provinces have the authority to Canada have different
make laws about education, property, types of government. and Freedoms
civil rights, the administration of For example, First
justice, hospitals, municipalities, and Nations can have a range
that human
other local or private matters within of governmental powers rights in Canada
the provinces. over reserve lands under
the federal Indian Act. were protected
There are also local or municipal Other Aboriginal
governments. They are created under governments, such as in the written
provincial laws and can make bylaws self-governments,
that regulate a variety of local matters: exercise these powers as Constitution.
a result of agreements
they have negotiated
with the federal and
The Department of Justice provincial or territorial
The Minister of Justice is responsi- governments.
ble for the Department of Justice,
The Constitution Act includes protec-
which provides legal services such
tion for the rights of the Aboriginal
as drafting laws and providing peoples (Indian, Inuit, and Métis)
legal advice to the government of Canada. Section 35 of the
and its departments. The depart- Constitution Act recognizes and
ment also develops criminal law affirms Aboriginal rights, which are
and public law, as well as policies rights related to the historical occu-
and programs for victims, families, pancy and use of the land by Aboriginal
children and youth criminal justice. peoples. This is to help Aboriginal
The Minister of Justice is also the peoples preserve their customs and
Attorney General or chief law traditions for future generations,
officer of Canada. as continuing cultural practices.

11
CA N A DA’ S SY ST E M O F J U ST I C E

DID YOU KNOW?


The Constitution Act, 1867 authorized Parliament to establish a general court
of appeal for Canada, as well as any additional courts to better administer
the laws of Canada. It was under this authority that the Federal Courts, the
Tax Court, and the Supreme Court of Canada were established.

Section 35 also recognizes and affirms


treaty rights, which are specifically
set out in agreements between the Other Federal Systems
Crown and particular groups of Australia and the United States
Aboriginal people. also have federal systems where
jurisdiction is divided between
Bijuralism the federal government and the
Canada is a bijural country – that various states. In contrast, the
means it has both common and civil United Kingdom has a unitary
law systems. Matters of private law in system where there is only one
Quebec are governed by the civil law, level of government.
while the common law applies in the
other provinces. Federal bills and
regulations must respect both types
of systems, and the legal concepts
within these laws must be expressed
in both English and French.

12
RIGHTS AND FREEDOMS IN CANADA

In Canada, the Constitution, as well and freedoms. But like any legislation,
as federal, provincial and territorial these laws can be repealed or changed,
laws, protect our human rights and so their protection can be limited.
fundamental freedoms. It was only with the Canadian Charter
of Rights and Freedoms that human
The Canadian Bill of Rights, passed rights in Canada were protected in
in 1960, was the first federal human the written Constitution.
rights law in Canada. It guarantees
many basic rights and freedoms,
including the “right of the individual What Does the Canadian Charter
to life, liberty, security of the person of Rights and Freedoms Say?
and enjoyment of property” and the The Constitution says that the
right not to be deprived of any of Charter takes priority over all other
those rights except in accordance legislation in Canada because it is
with “due process,” meaning basic part of the “supreme law
procedural fairness. of Canada.” It applies to
all government action, The interests of
The Canadian Human Rights Act, meaning to the provincial
passed in 1977, also protects human legislatures and Parlia- society must always
rights in the federal public and ment, and to everything
private sectors (for example, banking, done under their be balanced against
rail, telecommunications, inter- authority. This means
provincial transportation), that governments must the interests of
particularly the right to equality take the Charter into
individuals to see
and non-discrimination in the areas account in developing
of employment, housing and the all laws and policies. It if limits on
provision of services. also means that when an
individual goes to court individual rights
All provinces and territories also because he or she
have human rights legislation which believes that Parliament can be justified.
prohibits discrimination in employ- or a legislature or a
ment, housing and in providing government official
goods, services, and facilities to the has violated rights or
public. Some provincial and territorial fundamental freedoms guaranteed
laws protect a broader range of rights in the Charter, the court may declare

13
CA N A DA’ S SY ST E M O F J U ST I C E

the law invalid if it conflicts with Under the Constitution, both


the Charter or provide any other Parliament and the provincial legisla-
“appropriate and just” remedy. tures still have a limited power to pass
laws that may violate certain Charter
However, section 1 of the Charter also rights. However, this can only be
recognizes that even in a democracy, done if Parliament or a provincial
rights and freedoms are not absolute. legislature specifically declare that it
For example, no one is free to yell is passing a law notwithstanding
“fire” in a crowded theatre, to slander certain provisions of the Charter.
someone, to engage in religious This declaration must be reviewed
practices which cause harm to others, and re-enacted at least every five
to spread child pornography or hate years or it will not remain in force.
propaganda or to enter or leave The declaration informs Canadians
Canada without any restrictions of the limits being imposed on
whatsoever. Parliament or a provincial Charter-protected rights or freedoms.
legislature can limit fundamental It also requires the government to
rights, but only if it can show that explain itself, to accept full responsi-
the limit bility for its actions, and to take the
• is set out in a law; political consequences. So far,
Parliament has never used the
• pursues an important goal which notwithstanding clause.
can be justified in a free and
democratic society; and
What Rights Does the
• pursues that goal in a reasonable
Charter Protect?
and proportionate manner.
The Charter protects
The interests of society must always • fundamental freedoms
be balanced against the interests
of individuals to see if limits on • democratic rights
individual rights can be justified. • mobility rights

The Charter also affirms that we are • legal rights


a multicultural country and that • equality rights
the Charter must be interpreted
consistently with this ideal. • language rights

14
CA N A DA’ S SY ST E M O F J U ST I C E

It also recognizes and affirms to call an election at least once


Aboriginal and treaty rights. every five years. The only exception
is in a national emergency, such as
Fundamental freedoms war, if two-thirds of the Members
of the House of Commons or a
• Everyone in Canada is free to
legislative assembly agree to delay
practise any religion or no
the election.
religion at all.
• Every citizen has the right to have
• We are free to think our own their elected representatives sit
thoughts, speak our minds, at least once a year in Parliament
to gather peacefully into groups and legislatures, so Parliament and
and to associate with whomever we government are held to account.
wish, as long as we do not infringe
valid laws which protect the rights Mobility rights
and interests of others.
• Canadian citizens have the right
• The media are free to print and to enter, remain in, or leave
broadcast news and other informa- the country.
tion, subject only to reasonable and
justifiable limits set out in law. • Canadian citizens and permanent
residents have the right to live or
Democratic rights seek work anywhere in Canada.
Governments in Canada can’t
• Every Canadian citizen has the discriminate on the basis of some-
right to vote in elections for one’s current or previous province
Members of Parliament and of residence. For example, if a
representatives in provincial and person is a qualified professional,
territorial legislatures, and to seek such as an accountant, in one
election themselves, subject to province, another province cannot
certain limited exceptions (for prevent him or her from working
example, minimum voting age), there because that person does not
which have been found to be live there.
reasonable and justifiable.
• However, laws can set reasonable
• Our elected governments residency requirements for certain
cannot hold power indefinitely. social and welfare benefits. Provinces
The Charter requires governments with an employment rate below the

15
CA N A DA’ S SY ST E M O F J U ST I C E

national average may also set up that you have committed a crime
programs for socially and economi- before holding you in custody.
cally disadvantaged residents, The right to challenge the legality
without having to extend them of your detention (also called
to non-residents. “habeas corpus”) is expressly
guaranteed in the Charter.
Legal rights
• The Charter also protects against
• The Charter also protects the basic random or arbitrary actions by law
human rights to life, liberty and enforcement agencies. For example,
physical and psychological safety you have the right to be told why
(or “security of the person”). you are being arrested or detained,
to consult a lawyer without delay,
• No one can be deprived of these
to be informed of this right, and
rights except through fair legal
to have a court determine quickly
procedures and based on clear,
whether this detention is lawful.
fair laws.
• Everyone has the right not to be
• The right to be presumed innocent
subjected to any cruel and unusual
until proven guilty is a basic
punishment, including torture,
constitutional guarantee.
excessive or abusive use of force
• The Charter also protects everyone’s by law enforcement officials and
reasonable expectation of privacy sentences of imprisonment which
in their homes, private spaces and are “grossly disproportionate”
personal information. This includes to the seriousness of the crime
protection against unreasonable committed.
searches and seizures by police and
• If you are charged with an offence
other government authorities,
under federal or provincial law
who generally need a judge-
you also have the right:
approved warrant to enter your
home or take other actions which – to be told promptly of the
interfere with your privacy. offence;
• Everyone is also protected – to be tried within a reasonable
against being detained or arrested time;
arbitrarily. A police officer must – not to be compelled to testify
have reasonable grounds to believe at your own trial;

16
CA N A DA’ S SY ST E M O F J U ST I C E

– to be presumed innocent until Equality rights


proven guilty beyond a reasonable Everyone, regardless
• Equality rights are at
doubt in a fair and public hearing
the core of the Charter.
by an independent and impartial They are intended to of race, national
tribunal; ensure that everyone is or ethnic origin,
– not to be denied reasonable bail treated with the same
without cause; respect, dignity and colour, religion, sex,
consideration (i.e.
– to be tried by a jury for serious without discrimina- age, or mental or
charges; tion), regardless of
personal characteristics physical disability,
– to be convicted only for an act
such as race, national or
or omission that was a crime at is equal before
ethnic origin, colour,
the time it was committed;
religion, sex, age, or
the law.
– not to be tried or punished twice mental or physical
for the same offence; disability, sexual
orientation, marital
– to the benefit of the lesser status or citizenship.
punishment if the punishment
for a crime changes between the • This usually means that everyone
time you committed the offence should be treated the same by law
and the time you are sentenced; and that everyone is entitled to the
same benefits provided by laws or
• Everyone has the right, as a witness government policies. However,
in legal proceedings, not to have the Charter does not require that
any incriminating evidence you government always treat people in
give used against you in later exactly the same way. For example,
proceedings, unless you are charged sometimes protecting equality
with perjury (lying during legal means that rules or standards must
proceedings). be reasonably adapted to take
account of people’s differences,
• Everyone has a right to an inter- including by allowing people to
preter in legal proceedings if you observe different religious holidays
do not understand the language or without losing their job, or putting
are hearing-impaired. specific supports in place to enable

17
CA N A DA’ S SY ST E M O F J U ST I C E

people with visual disabilities or before any court established by


hearing impairments to access Parliament.
government services.
• Members of the public have a right
• It is also constitutional to create to communicate with and receive
special programs aimed at improving services in English or French from
the situation of individuals who any head office of an institution of
are members of groups that have Parliament or government of
historically experienced discrimina- Canada. They have this same right
tion in Canada, including from any office of an institution
on the basis of the where there is a significant demand.
Everyone has grounds listed above. Depending on the nature of the
office, it might also be reasonable
the right to use Language rights that communications and services
English and French be available in both English
English or French and French.
are Canada’s official
in the debates and languages, according • Similar rights apply in New Bruns-
to the Charter. Both wick, the only officially bilingual
proceedings of languages have equality province in Canada. In fact, people
of status and equal rights
in New Brunswick have the right to
Parliament. and privileges to be
communicate and obtain services
used in all institutions
of Parliament and in either English or French from
government of Canada. any office of an institution of the
legislature or government of New
• Everyone has the right to use Brunswick. Under section 16 of the
English or French in any
Charter, the English and French
debates and other proceedings
linguistic communities in New
of Parliament.
Brunswick also have equality of
• The statutes, records and journals status and equal rights and privileges,
of Parliament must be printed including the right to distinct
and published in both languages educational institutions and
and both language versions have cultural institutions that are needed
equal authority. to preserve and promote those
• Everyone has the right to use communities.
English or French in proceedings

18
CA N A DA’ S SY ST E M O F J U ST I C E

• The Constitution Act, 1867 and the • In Quebec, citizens


Manitoba Act also grants people in who received their The Charter and
Quebec and Manitoba the right to primary education in
use English and French in debates English in Quebec, or the Constitution
and proceedings of the legislatures who have a child who
and the courts of those provinces. was or is being taught protect the rights
These provisions also require that in English in Quebec,
provincial laws be enacted and have the constitutional of the Aboriginal
published in both languages, and right to send all
their children to
peoples (Indian,
that both languages be used in
the Records and Journals of English-language Inuit, and Métis)
their legislatures. schools.
of Canada.
Minority-language This right to minori-
educational rights ty-language instruction
applies where numbers
• Every province and territory warrant, and can include
has official language minority the right to receive that instruction
communities (French-speaking in minority-language educational
communities outside Quebec facilities provided out of public funds.
and English-speaking minorities
in Quebec). Aboriginal and treaty rights
• Outside Quebec, citizens whose As noted earlier, section 35 of the
mother tongue is French, or who Constitution Act, 1982 recognizes
have attended French primary and affirms the Aboriginal and
or secondary schools in Canada, treaty rights of Aboriginal peoples.
have a constitutional right to have
all their children receive primary The Charter cannot take away or
or secondary instruction in that diminish those rights, or any other
language. This is also true if their rights or freedoms that Aboriginal
children are, or have, attended peoples may acquire in the future
French primary or secondary (for example, from the settlement
schools in Canada. of land claims).

19
CA N A DA’ S SY ST E M O F J U ST I C E

Other Rights
The Charter guarantees many basic
human rights and fundamental
freedoms. But we all have other rights
that come from federal, provincial,
territorial, international, and
common law. Also, Parliament or
a provincial or territorial legislature
can always add to our rights.

20
HOW THE COURTS ARE ORGANIZED

The federal and provincial and terri- Parliament also has exclusive
torial governments are all responsible authority over the procedure in
for the judicial system in Canada. courts that try criminal cases.
Federal authority for criminal law
Only the federal government can and procedure ensures fair and
appoint and pay judges of the consistent treatment of criminal
superior, or upper-level, courts in behaviour across the country.
the provinces. Parliament can also
establish a general court of appeal The provinces administer justice
and other courts. It has created the in their jurisdictions. This includes
Supreme Court of Canada, the organizing and maintaining the civil
Federal Court and the Federal Court and criminal provincial courts and
of Appeal, as well as the Tax Court. civil procedure in those courts.

Outline of Canada’s Court System


Supreme Court of Canada

Court Martial Provincial/Territorial Federal Court


Appeal Court Courts of Appeal of Appeal

Provincial/Territorial Federal Tax Court


Superior Courts Court of Canada

Military Provincial/Territorial
Courts Courts

Provincial/Territorial Federal Administrative


Administrative Tribunals Tribunals

21
CA N A DA’ S SY ST E M O F J U ST I C E

What Do the Federal Courts Do? The Tax Court specializes in hearing
The Supreme Court of Canada appeals from tax assessments.
is Canada’s final court of appeal.
Its nine judges represent the four The Federal Court of Appeal reviews
major regions of the country. the decisions of both these courts.
Three of them must be from In fact, it is the highest court of the
Quebec, to adequately represent land for about 95 percent of all cases.
the civil law system.
Provincial and Territorial
The Supreme Court has two main Level Courts
functions.
The court system is roughly the same
• It hears appeals from decisions across Canada. Except for Nunavut,
of the appeal courts in all the each province has three levels: provincial
provinces and territories, as well and territorial, or lower, courts;
as from the Federal Court of Appeal. superior courts; and appeal courts.
Supreme Court judgments are final. The Nunavut Court of Justice has
• It decides important questions about a single-level trial court.
the Constitution and controversial
or complicated areas of private and Provincial and Territorial Courts
public law. The government can Provincial courts try most criminal
also ask the Supreme Court for offences, money matters and family
its opinion on important legal matters. In private-law cases involving
questions. breach of contract or other claims of
harm, the courts apply common-law
The federal government also principles in nine provinces and the
established the Federal Court, the territories. In Quebec, courts apply
Tax Court and the Federal Court the Quebec Civil Code.
of Appeal.
Provincial courts may also include
The Federal Court specializes in specialized courts, such as youth
areas such as intellectual property, courts, family courts, and small
maritime law, federal–provincial claims courts. Each provincial
disputes, and civil cases related government appoints the judges
to terrorism. for its own courts.

22
CA N A DA’ S SY ST E M O F J U ST I C E

Superior Courts Administrative Boards


and Tribunals
Superior courts are the highest level
of courts in a province or territory. There are other kinds of disputes
They deal with the most serious that do not need to be dealt with
criminal and civil cases and have in the courts. Different kinds of
the power to review the decisions administrative tribunals and boards
of the provincial and territorial courts. deal with disputes over
the interpretation and
Superior courts are divided into two application of laws and Administrative
levels: trial level and appeal level. regulations, such as enti-
tlement to employment tribunals play an
• The trial-level courts hear civil and
insurance or disability
criminal cases. They may be called essential role in
benefits, refugee claims,
the Supreme Court, the Court of
and human rights.
Queen’s Bench, or the Superior resolving disputes in
Court of Justice.
Administrative tribunals Canadian society.
• The appeal-level courts, or Courts are less formal than
of Appeal, hear civil and criminal courts and are not part
appeals from the superior trial of the court system.
courts listed above. However, they play an
essential role in resolving disputes
Although the provinces and territories in Canadian society. Decisions of
administer superior courts, the administrative tribunals may be
federal government appoints and reviewed in court to ensure that
pays the judges. tribunals act fairly and according
  to the law.

23
CIVIL AND CRIMINAL CASES

A civil case is a private case where court. Copies are then delivered to,
someone sues someone else. This is or served on, the defendant.
also known as a suit or action. In a
criminal case, the Crown prosecutes The defendant must provide the
an accused under a public-law statute court with a statement of defence.
such as the Criminal Code or the If she or he does not, the court will
Controlled Drugs and Substances Act. assume that the plaintiff’s allegations
are true. The defendant may thus
lose by default.
How Do Civil Cases Work?
A civil action or suit starts when Both the plaintiff and the defendant
individuals or corporations disagree are entitled to consult a lawyer.
on a legal matter, such as the terms of Lawyers often discuss the lawsuit to
a contract or the ownership of a piece settle it before a trial is necessary.
of property. A civil suit can also result The two sides can reach a settlement
if someone is injured or property is at any time before the judge makes his
damaged. For example, someone who or her decision. In fact, 98 percent of
breaks a leg when he or she slips on civil suits never make it to the courts.
an icy stairwell may sue for compen-
sation. The person who sues is called
the plaintiff. The person being sued is Discovery
called the defendant. Each party is then entitled to an
examination for discovery before the
Civil cases are complex. A suit goes trial. Its purpose is to clarify the claim
through several stages: pleadings, against the defendant and lets each
discovery, and the trial itself. side examine the evidence that the
other side intends to use in court.
Pleading
First, the plaintiff files a pleading Trial
with the court. This sets out the During the trial, it is up to the
complaint against the defendant and plaintiff to present facts to support
the remedy the plaintiff is seeking. the claim against the defendant. In a
A court officer then issues the claim civil suit, the plaintiff must prove that
by affixing the seal of the court and it is probable that the defendant is
signing the pleading on behalf of the legally responsible, or liable, because

24
CA N A DA’ S SY ST E M O F J U ST I C E

a civil case is decided on a balance At the end, both the plaintiff and
of probabilities. This is the standard the defendant summarize their
of proof for a civil case, just as the arguments. The judge must then
standard of proof for a criminal consider the evidence presented
case is proof beyond a reasonable before making a decision, based on
doubt. what has been proven to be most
probable. He or she must decide
If the facts justify the remedy the whether the facts show that the
plaintiff is seeking, the court will defendant has broken a civil law,
hold the defendant liable, or legally such as a law that says we are obliged
responsible. to fulfill our contracts.

Depending on the suit and the court,


What Happens at a Civil Trial?
the defendant may have a right to a
The trial begins with the plaintiff trial by judge and jury. It is then up
presenting evidence against the to the jury to decide which version
defendant. The plaintiff may call of the facts it believes. The judge
witnesses to testify to facts and still decides which law applies and
present evidence: papers, photographs explains the evidence and the relevant
or other documents. The defendant laws to the jury. The jury must
may cross-examine the plaintiff’s then consider the matter and reach
witnesses to test their evidence. a verdict.
The defendant then presents his or
her own evidence, including witnesses.
The plaintiff has the same right to How a Trial Ends
cross-examine. If the defendant is found not liable,
the judge will dismiss the case.
Throughout the trial, the judge If the defendant is found liable,
must make sure that all the evidence the judge or jury must consider
presented and all the questions asked
three things:
are relevant to the case. For example,
in most situations, the judge will • the remedy that the plaintiff asked
not allow testimony based on what for in the pleadings;
a witness has heard from another
• the facts; and
person – this is called hearsay
evidence. • how to compensate the plaintiff.

25
CA N A DA’ S SY ST E M O F J U ST I C E

Remedies • Declaratory remedies simply state


A remedy is a means of resolving a the rights of the parties. For example,
civil case. There are three different when a court interprets a will or
types. decides who owns personal property
or land, its decision is declaratory.
• Monetary remedies, called damages,
are the most common. The judge • An injunction is a restraining order
or jury who decides the case fixes that says that someone can or
the amount of damages. The judge cannot do something. You could get
or jury will take into account the an injunction to stop your neigh-
expenses incurred by the plaintiff. bours from burning garbage or to
Where the law permits, order them to remove a junk heap
they can also award an from your property. Injunctions are
In 2011–12, cases additional sum to not given automatically. In each
compensate the plaintiff case, the court has the discretion to
involving impaired for the loss suffered as a make such an order or to award
result of the wrongdoing damages according to precedent.
driving (11%),
of the defendant.
theft (10%), The judge or jury is not
What Are Criminal Cases?
required to award the
common assault plaintiff the amount A crime is considered to be an offence
he or she asks for. They against society as a whole, so it is
(10%), and failure might even award less usually the state that starts a criminal
than that amount. In prosecution.
to comply with an Canada, a judge or jury
may occasionally award Criminal offences are set out in the
order (9%) were “punitive” damages. Criminal Code or in other federal
This is a larger award that laws. There are two types:
the most common
expresses the disapproval
• Summary conviction offences,
types of cases of the community. These
which are the most minor cases,
damages are meant to
for example causing a disturbance;
completed in adult punish the defendant
and
because the defendant’s
criminal court. behaviour was so • Indictable offences, which are more
offensive. serious and include theft, break and
enter, and murder.

26
CA N A DA’ S SY ST E M O F J U ST I C E

The person charged with a criminal What Happens in an Arrest?


offence is called the accused. The police must follow certain
The accused is always presumed procedures to protect the rights of
innocent until proven guilty. the accused. A person who has been
arrested is first read their rights.
Summary Offences The police must
The accused appears before a provincial • tell the person that he
or she has the right to
court judge for a trial that will A crime is
consult a lawyer
normally proceed immediately.
without delay;
The maximum penalty for this type considered to be
of offence is normally a $5,000 fine, • explain the reasons for
six months in prison, or both. the arrest and the an offence against
specific charge, if one
is being made. society as a whole,
Indictable Offences
so it is usually
An accused has three choices: What Happens in
• Have a judge alone hear the case Custody? the state that
in provincial court. A person who is taken
into custody goes to a starts a criminal
• Have a judge and jury hear the holding cell in a deten-
case in a superior court. tion centre. He or she prosecution.
• Have a judge alone hear the case has the right to appear
in superior court. before a justice of the
peace or judge as soon as
possible (usually within
There may be a preliminary hearing
24 hours). At that time a judge
before a trial, during which a judge decides on pre-trial release or bail.
examines the case to decide if there In a bail hearing, the prosecutor
is enough evidence to proceed with must show why the accused should
the trial. If the judge decides there is remain in custody. If a judge decides
not enough evidence, the case will the accused should be released,
be dismissed. the accused may be released with or
without conditions. Release on bail
Otherwise, the judge will order a will only be refused if there are very
full trial. strong reasons for doing so.

27
CA N A DA’ S SY ST E M O F J U ST I C E

Anyone accused of the charge beyond a reasonable


The median a crime also has the doubt. Also, if any evidence is
right under the Charter obtained that violates the accused’s
amount of time to to stand trial within Charter rights, such as through an
“a reasonable time.” unreasonable search and seizure,
complete an adult The Charter does not the judge may refuse to admit the
say what this means but evidence. In a criminal trial, an
criminal court case the courts have provided accused person cannot be required
some guidance. A judge by the prosecution to give evidence.
declined in 2011– considers four factors
12, down two days to determine if a trial
is happening within a Decisions in Criminal Cases
from the previous reasonable time: If the accused is found not guilty,
• the length of the delay; he or she will be acquitted and is
year, to 117 days. then free to go.
• the reason for the
delay; If the accused is found guilty of a
• whether the accused agreed to crime, the judge must decide the
a delayed trial date; appropriate sentence. When making
this decision, the judge must consider:
• whether the delay affected the
accused’s ability to put forward • the seriousness of the crime;
to a fair defence. • the range of sentences possible in
the Criminal Code or other statutes;
What Happens in a • preventing or deterring the offender
Criminal Trial? or others from committing similar
A criminal trial is a very serious crimes;
matter. After all, the accused has
• denouncing the harm to the victim
a lot to lose: his or her liberty and
and the illegal conduct; and
the stigma of a criminal conviction.
Because of that, both common law and • the prospects for rehabilitation.
the Charter protect the rights of the
accused. For example, the prosecution Judges may impose many different
must prove that the accused is guilty of kinds of sentences or a combination

28
CA N A DA’ S SY ST E M O F J U ST I C E

of penalties. These may include: Can You Appeal a Decision?


• A fine (a sum of money); The right to appeal a court’s decision
is an important safeguard in our legal
• Restitution: asking the offender system because a court could make
to pay costs of injuries or loss of an error in a trial.
damage to property;
• Probation: release of the offender In most civil and criminal cases,
a decision made at one level of the
with conditions;
court system can be appealed to a
• Community service: an order higher level. Where there is no right
that the offender perform a certain to appeal, permission or
number of hours of volunteer “leave” to appeal must
work in the community; be sought. The higher The right to appeal
court may deny leave to
• Imprisonment: confinement in
appeal, affirm or reverse a court’s decision
a prison or penitentiary.
the original decision. In
some cases, it will order is an important
An offender who is sentenced to a new trial.
more than two years will be sent to safeguard in our
a federal penitentiary. An offender Both sides in a civil case
who is sentenced to two years or less legal system because
and either the prosecu-
will go to a provincial prison. tion or the accused in a court could
a criminal case may
A judge does not always have to appeal. make an error
convict, even if the accused person
has pleaded guilty or been found Sometimes, it is only in a trial.
guilty. The judge may give an the amount of damages
offender an absolute or conditional or the severity of the
discharge. An offender given a sentence that is appealed.
conditional discharge must obey For example, the accused may ask
the conditions imposed by the judge a higher court to reduce a sentence,
or face a more severe sentence. or the prosecution may ask to have
An offender who is given a discharge the sentence increased.
will not receive a criminal record  
for the offence.

29
VICTIMS OF CRIME

The criminal law process is funda- an offender if it is relevant to the


mentally between the accused and victim’s safety – for example, if the
the state. But there is increasing offender is released once a week for
recognition of the importance of counselling. Even if the victim
hearing victims and they are starting is not in harm’s way, he or she could
to have a greater voice and role in still be traumatized by seeing the
the legal process. offender shopping in the same
neighbourhood. The victim’s physical
There is federal legislation and well-being and psychological safety
services to help victims. are considered equally important.

For example, under the The federal government and provinces


Criminal Code: work together on how victims are
served. For example, Canada and the
• the victim’s safety must be
provinces agreed to a baseline set of
considered in bail decisions;
principles that govern all policies
• a victim’s identity may be protected and legislation called the Canadian
in appropriate circumstances; Statement of Basic Principles.
• judges must consider victim impact
The Canadian Victims Bill of Rights
statements and the harm to the
came into force in 2015 to improve the
victim; and
experiences of victims of crime across
• offenders may be ordered to pay the country by creating, at the federal
restitution (an amount of money level, clear rights for victims of crime
to reimburse the victim for losses – a first in Canadian history. To read
caused by the offender) as part of the Canadian Victims Bill of Rights
the sentence. They also have to in full, please visit the Justice Laws
pay a victim surcharge. website. You can find out more about
victim-related issues in Canada at
Victims are not allowed to decide if canada.ca. There are also many services
an appeal is brought or not because available across the country for victims
the process is between the accused of crime - consult the Victim Services
and the state. Directory at the site above to search
for services by postal code and by type.
The victim can receive some information
about an offender while that person is

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RESTORATIVE JUSTICE

Restorative justice came into the Restorative justice requires


system from Aboriginal justice wrongdoers
traditions. Restorative justice empha-
• to recognize the harm they
sizes the wrong done to a person as
have caused;
well as the wrong done to the
community. It recognizes that crime • to accept responsibility for
is both a violation of relationships their actions;
between specific people and an
• to be actively involved in
offence against everyone (the state).
improving the situation; and
In restorative justice programs, the • to make amends to victims and
victim of the crime, the offender and, the community.
ideally, members of the community
voluntarily participate in discussions.
The goal is
• to restore the relationship;
• to fix the damage that has been
done; and
• to prevent further crimes from
occurring.

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YOUTH JUSTICE

Special considerations come into play adult criminal justice systems, the
when young people commit acts that YCJA establishes special procedures
are considered criminal. The Youth to ensure that young people are
Criminal Justice Act (YCJA) is the treated fairly and to promote their
federal law that governs Canada’s rehabilitation. For example, as a
youth justice system. It applies to general rule, the privacy of young
youth aged 12 to 17 who get into offenders and young victims and
trouble with the law. The YCJA witnesses is protected through
recognizes that young persons must publication bans on their identity.
be held accountable for criminal acts,
although not in the same way or to The YCJA says that young people are
the same extent as adults. It is in to be held accountable in ways that
society’s interest to ensure that as are fair and in proportion to the
many young offenders as possible are seriousness of their offences. These
rehabilitated and become productive interventions should
members of society.
• reinforce respect for societal values;
The YCJA recognizes • encourage the repair of harm done;
The Youth that young people lack
the maturity of adults. • be meaningful to the offender;
Criminal Justice The youth justice system • respect gender, ethnic, cultural, and
includes measures that linguistic differences; and
Act says that young are consistent with this
reduced level of maturi- • respond to the needs of Aboriginal
people are to be ty. The YCJA also young persons and of young
recognizes that young persons with special requirements.
held accountable in
people have special
ways that are fair needs and circumstances The YCJA encourages the use of
that must be considered measures outside of the formal court
and in proportion when any decision is system for less serious offences.
made under the Act. These measures are often the most
to the seriousness of appropriate and effective way to respond
While many aspects of to youth offending, and include options
their offences. criminal procedure are such police warnings and referrals to
similar in the youth and community-based programs.

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CA N A DA’ S SY ST E M O F J U ST I C E

Youth cases that do end up in the impose an adult


formal court system are conducted in sentence. If an adult Canadian youth
special youth courts. If a youth is sentence is imposed, the
found guilty of a criminal offence, Criminal Code penalties courts completed
the youth court judge must deter- for adult offenders are
mine the appropriate sentence. The applied to the young about 48,000
YCJA has specific sentencing provi- person. This can include
sions for young offenders that are mandatory minimum cases in 2011–12,
different than the adult sentencing penalties and sentences
down 10% from
provisions in the Criminal Code. up to life imprisonment.
However, a young the previous
In most cases, judges impose one of person cannot serve any
the youth sentencing options in the portion of a sentence in year. The largest
YCJA. However, in very serious cases, an adult prison before he
the court does have the power to or she is 18 years old. decreases were in the
territories, where
declines ranged from
23% to 36%.

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THE ROLE OF THE PUBLIC

In Canada, each of us has a part in in court. Jurors must make up


ensuring that the law works properly their own minds about the truth
and that justice is done. Two ways or honesty of the testimony given
of contributing to justice in Canada by witnesses.
are being on a jury and testifying
in court. After both sides have called all their
witnesses and presented their arguments,
Jury Duty the judge instructs the jury on the
law and on what they must take into
Serving on a jury is one way a citizen account when making their decision.
can carry out his or her role. A jury
is a group of citizens who try an Criminal Cases
accused charged with a criminal
offence. In Canada, a criminal law The jurors meet in a room outside
jury is made up of 12 jurors selected the courtroom to decide whether
from among citizens of the province the prosecutor has proven beyond
or territory in which the court is a reasonable doubt that the accused
located. Any adult Canadian citizen is guilty.
can be considered for jury duty.
All the jurors must agree on the
Being called for jury duty does not decision or verdict – their decision
mean a person will be selected to must be unanimous. If they cannot
serve as a juror but he or she must all agree, the judge may discharge
show up for the selection process. the jury and direct a new jury to be
Some people may not be required chosen for a new trial. After a trial,
to do jury duty by the laws of their jurors are not allowed to tell anyone
province. Also, the prosecutor or the else about the discussions that took
defence counsel may object to a place in the jury room.
particular juror if they believe there
is a reason why he or she should be Civil Cases
disqualified. The jury must decide whether the
plaintiff has proven that the defendant
During the trial, jurors must not is liable, that is, responsible, on a
allow themselves to be influenced by balance of probabilities.
anything except the evidence presented

34
CA N A DA’ S SY ST E M O F J U ST I C E

People whose knowledge about a


particular subject can help the court
Trial by Jury with answers to technical questions
Most civil cases in Canada are tried may also be called as expert witnesses.
by judges without a jury. However,
anyone charged with a criminal If people have information they
offence for which there can be a believe is related to the case, they may
prison sentence of five years or come forward voluntarily. If they
more has the right to a trial by jury. do not, they can be summoned by
subpoena to give evidence in court.
In some cases, a person charged
A person who is subpoenaed must
with a criminal offence for which
testify or face a penalty.
there can be a prison sentence of
less than five years may have the Witnesses must take an oath or affirm
right to choose trial by jury. that they will tell the truth. They
Some civil cases can also be tried must answer all questions they are
by judge and jury. asked, unless the judge decides that
a question is irrelevant.

There are only six jurors in a civil


Know the Law
case, and the decision does not have
to be unanimous as long as five of People do not have to be experts
them agree on the verdict. in the law. But ignorance of the law
is no excuse or defence. If you are
charged with an offence, for example,
Testifying in Court you cannot be excused by claiming
A person who has information that that you did not know you were
either party in the case believes to be breaking the law. Because our laws
useful may be called to give evidence are publicly debated before being
in a civil or criminal trial. Someone passed in Parliament or a legislature,
might have witnessed the event, the public is expected to know what
know something that is important to is legal and what is not.
the case, or have a document that is
key to the trial. The duty to know the law means that
citizens should make sure they are

35
CA N A DA’ S SY ST E M O F J U ST I C E

acting legally. You can Who Gets Legal Aid?


find this information Legal help for low-income people
Legal help for
from federal, provincial is as important as health care and
low-income people and territorial government education. The federal and provincial
offices, public libraries, governments have set up a program
is as important as public legal information to share the cost of legal services for
associations, and the those who qualify. Any person who
health care and police. If, after consulting meets the financial criteria and who
these sources of informa- is accused of a crime for which a
education. tion, you are still conviction might mean jail or loss
uncertain about the law, of livelihood may get legal aid.
then you should consult Some provinces also offer legal aid
a lawyer. for civil cases, particularly in
family-law matters.

DEFINITIONS
Jurisdiction: the type of case and the physical area over which the courts
have legal authority.
Legislature: government body with the power to enact, amend, and
repeal laws.
Parliament: legislature, in Canada made up of the Monarch, House of
Commons and the Senate.
Remedy: the means used by the law to correct injuries or enforce
legal rights.
Restorative justice: an approach to justice that emphasizes healing for
victims, holding offenders to account in a meaningful way, and involving
citizens in the community.
Subpoena: an order to appear in court or give evidence.
Treaty rights: Aboriginal rights set out in a treaty.

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