Mirror of Justice

Difference between Common Law and Civil Law in Canada

July 14th, 2009 at 11:37pm Under Administrative Law

The Canadian legal system in every province except for Quebec is based on the British common law system. The Quebec province retains a civil system for issues of private law, however both of these legal systems are subject to the Constitution of Canada. Inside the commonwealth system everything is divided into areas like criminal law or civil law. It this article we will examine the Civil Law area and the Common Law area in Canada.

Common law

Canada belongs to a group of common law countries, so Canadian law adheres to the doctrine of stare decisis. In this system all the lower courts are bound by the decisions of higher courts and must follow it. But this works only inside one province, lower courts from two different provinces are not bound by each others decisions. The decisions made by a province’s highest court like the Court of Appeal, nevertheless are considered as “persuasive” even though they are not binding on other provinces. There is also the Supreme Court of Canada that authority to bind all courts in the country with a single ruling. If a there is a little or no existing Canadian decision on a legal issue it is possible that the court will look to a non-Canadian legal authority for reference. Most often the decisions on other commonwealth countries like the U.S. and England are utilized. While the decisions of English higher courts like the English Court of Appeal are respected and these courts are considered the be persuasive authority, many of the constitution or privacy related issues are solved basing on the decisions of United States courts, because the there is a much greater body of jurisprudence in U.S. law than English law in these areas. Canadian courts are also particularly bind with the decisions of the House of Lords made before 1867, but practice shows that most of these decisions were overturned by the Canadian Supreme Court or simply not considered serious by any of the Canadian lower courts.

Civil law

Civil Law in Canada involves numerous areas of law that contain disputes between parties (individuals, corporations and government). In such disputes parties seek remedies from the court in contractual matters, tort disputes, and property law cases. Civil Law is opposed to Criminal law that is typically enforced by the government, while the civil law, may be enforced by private parties. In Canada Civil Law also includes a growing sphere called Administrative Law, which deals with things like federal and provincial administrative tribunals, including labour boards, human rights tribunals, and workers’ compensation appeal tribunals. These decisions still can be reviewed by superior courts like the Federal Court Trial Division or the Federal Court of Appeal. Also Civil Law contains the Municipal Law area that covers jurisdiction of the provincial legislatures (that naturally varies from province to province). Established by the Supreme Court of Canada, the Charter of Rights and Freedoms applies to the activities of municipal governments.

Human Rights Law in Canada

July 12th, 2009 at 08:54am Under Civil Rights Law

Worldwide Canada is considered to be one of the leading countries that support the global human rights movement. The history of Human Rights Law in Canada begins in the advent of the Canadian Bill of Rights, before that the human rights issues were usually regulated with single court cases and the verdicts of such cases were used to regulate similar situations. In 1938 by the decision of Reference re Alberta Statutes, the Supreme Court of Canada first recognized an implied bill of rights. The case revolved around an Albertan law that prohibited the press from criticizing the government. Another major step in the Human Rights Law was done in 1948 when the Universal Declaration of Human Rights was signed and from that moment the Canadian Government attempted to make universal human rights a part of Canadian law. While even before that the Government has done lot of thing to solve various racial discrimination problems, with the signing of the Declaration the country turned to equality and problems of homosexual people. Canada by the way was the fourth country in the world to legalize same-sex marriage nationwide with an amendment of the Civil Marriage Act. Despite all these achievements there are still some problems left today. Some Canadian provinces still have religiously segregated schools, there is a certain lack of anti-discrimination laws to protect the disabled and the treatment of Canada’s First Nations people or Aboriginal Canadians attract criticism form the United Nations and other countries. But still the main areas of the Human Rights like the freedom of speech or the workers rights are heavily protected by the appropriate parts of the Canadian Law.

Today there are four key mechanisms in Canada to protect human rights: the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canadian Human Rights Commission, and provincial human rights laws and legislation. The cornerstone of human rights in Canada is the Canadian Human Rights Act. This Act was passed by the Canadian Government in 1977 and the goal of extending the law with this act was to ensure equal opportunity to individuals who may be victims of discriminatory practices based on various grounds such as gender, disability, or religion. The Canadian Human Rights Act applies throughout Canada, but only to federally regulated activities. Each province has its own anti-discrimination law that applies to activities that are not federally regulated. The Act triggered the creation of a Canadian Human Rights Commission that investigates claims of discrimination and also the creation of a Canadian Human Rights Tribunal to judge the cases. Another practice that is used in discrimination cases is the “Meiorin test”, it occurs if a complainant can show a valid case of discrimination and the defendant can rebut it by showing that their practice was for a justified reason. Also every case of discrimination in Canada undergoes several stages of investigation and remediation and only if the parties are not satisfied with the result the case will go to Canadian Human Rights Tribunal.

Maritime Disasters and law

July 10th, 2009 at 05:38pm Under Admiralty Law

While the Titanic is definitely the most famous maritime disaster it is actually not the largest one in the sad history of maritime disasters. Canada also holds a sad record in this history. The infamous Halifax explosion that devastated the city of Halifax, is currently the largest non-nuclear man-made accidental explosion in the history of mankind with the highest death doll of about 2,000 people killed and estimated over 9,000 people were injured. While many people say that maritime disasters are one of the most dangerous, the Halifax Explosion is the one that shows how dangerous they can really be. The tragedy occurred on December 6, 1917 at the time of the First World War. The SS Mont-Blanc, a cargo ship that was chartered by the government to carry munitions to Europe collided with unloaded Norwegian ship Imo, chartered by the Commission for Relief in Belgium to carry relief supplies. While Imo was unloaded at the moment, the SS Mont-Blanc was fully loaded with wartime explosives. The collision itself occurred at 8.40, at 8.50 Mont-Blanc caught fire, drifted toward the peers and exploded fifteen minutes later. The explosion was equivalent to roughly 3 kilotons of TNT, which is actually one fifth of the atomic bomb dropped on Hiroshima, which had estimated power of 15 kilotons. The fireball rose over 1.2 miles into the air and the explosion obliterated all the buildings and structures within 2 square kilometers including buildings in the communities of Richmond and Dartmouth. The explosion also caused an 18 meter high tsunami that covered the harbor. It is impossible to tell what the reason of the explosion was, most probably it was criminal negligence be the crew members of one of the ships. Like many other disasters this one has a very good ground for investigation and even trial, but the devastating power of the explosion was so huge that there is literally no one left to sue.

As for the legal side of such navigation problems as the Halifax explosion, it would be regulated by the Canadian criminal code, because it occurred in the Canadian waters. As for the Maritime Laws in general there are two types of law – Admiralty Law (Maritime Law) and Law of the Sea. The Admiralty Law is a distinct body of law which governs maritime questions and offenses. Because the ships that roam the oceans and seas can belong to various companies and countries this law is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans. The main matters that it deals with are: marine commerce, marine navigation, shipping, sailors, the transportation of passengers and goods by sea and also a number of land based commercial activities that are maritime in character. The Law of the Sea is a body of public international law and has another scope of problems. It is dealing with navigational rights, mineral rights, and jurisdiction over coastal waters and international law governing relationships between nations.