Our Legal System: Canada & Alberta

Law

See the sections below to learn about:

  • The basics of the Canadian legal system, including the “rule of law” and the legal traditions that our democracy is based on
  • The difference between written laws, case law, and the “common law”
  • How written laws are made in Canada and Alberta (the legislative process)
  • How the common law is made
  • How laws are enforced in Canada and Alberta, including the role of the police, the courts, and administrative tribunals

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: October 2016
Who is this Information Page for?

This Information Page will introduce you to Canada’s legal system. Specifically, it provides information about:

  • Canada’s federalist system of government;
  • how laws are made in Canada and Alberta;
  • how federal laws and Alberta laws relate to each other; and
  • how laws are upheld in Canada.

A basic understanding of how our legal system is organized can help you make sense of the laws and processes that influence your legal issue.

You are currently on the Law tab of this Information Page, which explains the legal system in Canada and Alberta. There is also important information in the Common Questions and Myths tabs above.

You may also want to read about these related topics:

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

federal law

Laws that are made by the Government of Canada and apply to all Canadians, no matter which province they live in. Examples include: the Income Tax Act, the Criminal Code of Canada, and the Immigration Act.

provincial law

Laws that are made by a provincial or territorial government. In Alberta, provincial laws are made by the Government of Alberta and apply only in Alberta. Examples include: the Alberta Adult Interdependent Relationship Act, the Alberta Family Law Act, and the Alberta Wills and Succession Act.

Parliament of Canada

The part of the Canadian government that makes federal laws. It has 3 parts:

  • the Monarch (the Queen), who is represented by the Governor General;
  • the House of Commons; and
  • the Senate.

House of Commons

A part (also called a “body” or “house”) of the Parliament of Canada. The people who make up the House of Commons are called Members of Parliament (MPs). MPs are elected by Canadians in federal elections. MPs are responsible for:

  • passing new laws; and
  • making changes to existing laws.

This is done through debates, committee work, and speaking with the public. Any new laws or changes to existing laws must be approved by both the House of Commons and the Senate before taking effect.

Senate

A part (also called a “body” or “house”) of the Parliament of Canada. Senators are appointed by the Governor General based on the recommendation of the Prime Minister. Senators are responsible for:

  • passing new laws; and
  • making changes to existing laws.

This is done through debates, committee work, and speaking with the public. Any new laws or changes to existing laws must be approved by both the House of Commons and the Senate before coming into effect.

Legislative Assembly of Alberta

The governing body of Alberta. The Members of the Legislative Assembly (MLAs) are elected by the people of Alberta in provincial elections. MLAs are responsible for:

  • passing new laws; and
  • making changes to existing laws.

This is done through debates, committee work, and speaking with the public. Unlike in the Parliament of Canada, there is only one “house” in Alberta that needs to approve the laws before they come into effect.

municipal government

The government of a city, town, county, or district. Members of the community are elected to sit on a municipal council. They make decisions about new laws or changes to existing laws that would apply in their city, town, county, or district. This is done through debates, committee work, and speaking with the public. The laws made by municipal governments are called “bylaws.”

Some of the areas that the municipal governments are responsible for include:

  • local parks;
  • community garbage disposal; and
  • libraries.

Like the provincial government, there is only one “house,” so when the council approves the bylaws, they come into effect.

bill

A written proposal for a new law, or for changes to an existing law. Bills are introduced by a representative in a governing body and must be debated before they can become law.

  • In the case of federal laws, a bill needs to be passed by both houses (the House of Commons and the Senate) before it becomes law.
  • In the case of provincial laws, it needs to be passed by the Legislative Assembly.
  • In the case of municipal laws, the proposed bylaw needs to be passed by the local council.

Royal Assent

The final stage of a law being passed. It is the way that the Queen approves what the government has suggested. A bill must receive Royal Assent to become a law.

Federal bills are given Royal Assent by the Governor General (who represents the Queen). In the provinces, a bill is given Royal Assent by the Lieutenant Governor (who represents the Queen).

jurisdiction

The right or ability of a government or a court to make decisions about things. It describes either:

  • a particular government’s right, power, or authority to make laws; or
  • a particular court’s authority to deal with an issue.

The Government of Canada has “federal jurisdiction”—the laws the Government of Canada makes apply to everyone in Canada. On the other hand, the provinces and territories of Canada have “provincial jurisdiction”—the laws those governments make apply only within that province or territory. Sections 91 and 92 of the Constitution Act, 1867 outlines which level of government has jurisdiction over what areas.

The jurisdiction to make laws about First Nations (called “Indians” under the law) lies with the federal government.

paramountcy

Canada has a “federalist” system of government. This means that some law-making power lies with the federal government, and other law-making power lies with the provincial governments.

Sometimes areas of law-making power can overlap, resulting in both the federal and provincial governments trying to make laws about the same things. In some cases, this has led to laws that conflict with one another. When that occurs, the federal law is considered the “higher” law, so the provincial law doesn’t apply. This concept is called “paramountcy.”

This concept is especially important for legal issues on-reserve, as reserve lands fall under the jurisdiction of the federal government, even though the reserve is located within a province. Therefore, some of the laws that apply to the rest of the province may not apply to people who live on-reserve—the federal laws may apply instead.

statutes (also called “acts” or “laws”)

Written rules passed by the government that affect the rights and responsibilities of people and organizations. In general, the laws that apply in Alberta are passed by either:

  • the Legislative Assembly of Alberta (these apply only in Alberta);
  • the Parliament of Canada (these apply across Canada); or
  • “bylaws” passed by Alberta “municipalities” (cities, towns, villages, or counties), and which only apply in those municipalities.
Be Aware

Many people and resources talk about “the law” in general. This usually refers to the whole legal setting. It includes the “laws” (statutes) themselves, regulations, bylaws, and case law (see below).

regulations

The practical details about laws that allow the laws to be enforced. Regulations may include details such as what information to include in forms or how much it will cost to file a document. Regulations are easier to change than laws, but they are just as much “law” as those passed by the Legislative Assembly or Parliament.

Not all laws have regulations, but all regulations are attached a particular law. The law will state who has the authority to make regulations about that particular law.

legislation

Written laws that includes statutes, regulations, and bylaws.

common law

A body of law that is created by court decisions. Common law develops when no written law about a certain topic has been passed by the government. To help decide an issue related to that topic, judges can consider decisions from previous cases that are similar. In this way, a set of rules is created by these court decisions over time. This is known as the “common law.” For example: much of the law about contracts is common law.

Be Aware

Both “common law” and “case law” (see below) are created based on the decisions in previous court cases. Both may be called “judge-made law” or the “law of precedent.” But they are not exactly the same thing.

The term “common law” is also sometimes used to mean the “British tradition of common law” that much of Canada uses. This is not the same thing as described above. For more information about this tradition, see the section called “The rule of law in Canada” below.

case law

This term refers to court decisions that are made about a written law. This often happens as the judges work with the written laws to make sure they understand what is meant. It also happens when the written law is not straightforward or clear, or needs further clarification.

Judges hearing cases can decide:

  • the exact meaning of the words in the laws (this is called “interpretation”); and
  • how that meaning applies to the people in specific cases (this is called “application”).

These decisions can then be considered by judges in deciding future cases dealing with that same law.

Be Aware

Both “common law” and “case law” are created based on the decisions in previous court cases. Both may be called “judge-made law” or the “law of precedence.” But they are not exactly the same thing—see the definition of “common law” above.

precedent

A decision from one legal case that may either be “binding” or “persuasive” on other courts.

  • If a decision is binding on other courts, the other courts have to follow the same method of deciding similar cases.
  • If a decision is persuasive for other courts, other courts will strongly consider applying the result of that case when they later decide cases with similar issues or facts.

This “law of precedence” is meant to increase fairness in the justice system. If the facts of the cases within a jurisdiction are the same, then the outcome should usually be the same.

In general, cases are binding on all lower courts within the same jurisdiction. For example, the highest court in Alberta is the Alberta Court of Appeal. So any decisions made in the Alberta Court of Appeal must be followed in the future by all the courts in Alberta (including the Court of Queen’s Bench and the Provincial Court of Alberta). Similarly, decisions by the Supreme Court of Canada would be binding on all courts in Canada. This is because the Supreme Court of Canada is the highest court in the country and applies to all Canadian courts. See the following resource for a chart of how Canadian courts are organized.

Web Structure of the Courts
Canadian Superior Courts Judges Association
English

Cases from another jurisdiction (for example, a case in British Columbia) are not binding on courts outside of that jurisdiction. But some judges may still consider the facts of the case anyway if they are similar. For example, a court decision made by a court in British Columbia could be a “persuasive” case. This means that it may be considered by Alberta judges if the facts of the cases are similar. But an Alberta judge may choose to use a different method of deciding the case. In general, the higher the court that made the decision, the more persuasive the decision will be.

appeal

The act of asking a higher court to review and change a decision from a lower court.

You cannot appeal a decision simply because you do not like it. You must have a valid legal reason to appeal a decision. These reasons are called “grounds to appeal.” To appeal a decision, the person must show that the judge:

  • made a legal error in deciding the case; or
  • made a significant error about the facts of the case.

In rare cases, the parties have an automatic right to appeal.

administrative tribunals and boards

Something similar to a court that only deals with matters about a specific type of law or regulation. The people who make decisions in tribunals or boards are not judges. Instead, they are people who have specialized knowledge about the particular area that the tribunal or board deals with.

The federal government and the provincial/territorial governments create tribunals and boards to deal with certain types of laws that fall within their jurisdiction.

Some examples of administrative tribunals and boards are:

  • the Alberta Labour Relations Board;
  • the Workers Compensation Board - Alberta; and
  • the Immigration and Refugee Board of Canada.

Decisions of administrative tribunals and boards can generally be appealed to the courts.

The laws that may apply to you

As you learn about the legal system, you may wish to read the laws (also called “statutes” or “acts”) that apply. The laws included on this Information Page are:

Web Constitution Acts, 1867 to 1982
Government of Canada
English

Web Judicature Act (and associated Regulations)
Government of Alberta
English

Web Indian Act
Government of Canada
English

Web Municipal Government Act
Government of Alberta
English
Our foundation: The “rule of law”

The foundation for all law in Canada is called the “rule of law.” This term refers to the idea that law should govern a nation and all the people in it (including those in power). This is different than being governed by the random decisions of people in power. All democracies are based on the rule of law.

Being governed by law means that people and institutions:

  • can know the laws that govern them;
  • must follow these laws; and
  • will be held accountable under those laws.

Having the rule of law means that when there is a dispute, people can turn to the law for answers. For example, a tenant knows that the landlord must follow the rental agreement and the laws about renting. If there is a dispute between a landlord and tenant, turning to the law helps decide how the problem should be resolved.

For more detailed information about the rule of law, see the following resources.

Web The Rule of Law: What is it? Why should we care?
Centre for Public Legal Education Alberta
English

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 1.



Web What is the Rule of Law?
World Justice Project
English

Web Rule of Law Definition
Duhaime.org
English
This is a private source. Learn more here.
The rule of law in Canada: The British, French, and Aboriginal traditions

All democracies are based on the rule of law, but not all democracies work in exactly the same way. There are differences in the way the legal systems are set up.

Canada’s legal system is based mainly on a combination of “common law” and “civil law.”

  • The “common law” system comes from our British heritage. This is used in all provinces and territories except Quebec.
  • The “civil law” system comes from our French heritage. This is used in Quebec.

In addition, in some parts of our law, Aboriginal traditions and processes are also used.

“Common law”: The British tradition

This legal system has 3 sources of law:

  • laws made by governments (statutes, acts, and regulations);
  • law made through court decisions (common law); and
  • the “law of equity.”
     

Laws made by government

The government makes written laws (also called “statutes,” “acts,” or “legislation”). These laws are rules passed by governments that describe what can and can’t be done. This is often what most people think of when they think of “the law.”

The courts also have a role in interpreting these written laws. This is called “case law.” It can affect how the written laws are applied in future cases. For more information about case law, see the “What the words mean” section above.
 

Law made in court decisions: “Common law”

However, not all of the law that governs us comes from statutes, acts, or legislation. There is also “common law.” Common law is a set of rules, created by court decisions over time, that address issues when there is no written law that applies. For example: much of the law about contracts is based on common law.

As a result, the common law cannot be found in any code, statute, act, or legislation. Instead, it is found in past court decisions.

Be Aware

The term “common law” is also often used for 2 other things: the British tradition of common law that much of Canada uses, or “case law” (see the “What the words mean” section above). As a result, when you see the term “common law,” be sure to carefully read the context so you know what the author means.

The law of equity

The common law system also includes the “law of equity.” The word “equity” means fairness. The “law of equity” is rooted in the history of the British tradition. This part of the law started several hundred years ago. People began to complain that sometimes when the court settled cases using the existing law (written laws and common law), the results were clearly not “fair.” In response to such cases, the Court of Equity was created.

At that time, the Court of Equity was different from the other courts because it didn’t have strict rules, and it didn’t have to make decisions based on what had been decided in previous cases. Over the years, however, the Court of Equity developed its own rules that still apply today (even in Alberta). Today, the common law and equity have merged, and can be argued in the same court.

Be Aware

Arguments about equity can only be heard in the Alberta Court of Queen’s Bench. They cannot be argued in the Alberta Provincial Court.

An example of a rule of equity is the “clean hands doctrine.” With this rule, a person making a claim to the Court must themselves be free from unfair conduct. In other words, they must have “clean hands” in the matter that they are making a claim about. For example: Bob got Peter to sign a contract that Bob knew was illegal. But Peter did not know this. Normally, a court would support Bob’s claim that Peter must follow the contract that he signed. But in this case, the court would not support Bob’s contract. Bob had lied to Peter, so Bob did not have “clean hands.”

For more information about the law of equity, see the following resources.

Web Equitable Doctrines and Maxims
Centre for Public Legal Education Alberta
English

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 1.

Presentation Common Law and Equity: A Very Short History
Matthew LeMieux
English

Web The Reasons Behind The Creation Of Equity
All Answers Ltd
English
This is a private source. Learn more here.

Web The Nature And Purpose Of Equity
All Answers Ltd
English
This is a private source. Learn more here.

 

“Civil law”: The French tradition

In this system, the law comes from written “codes” that are meant to set out complete rules. There are different codes for different areas of law, and each of these codes set out basic rights and duties.

Under the civil law system, judges decide cases primarily by using the code that applies. As a result, past judgments have far less influence than they do in a common law system. The codes are meant to cover all potential situations and to be the main tool for deciding cases.

In Canada, Quebec is the only province with a civil code. The rest of the provinces are under the common law.

Be Aware

The term “civil law” is also used to refer to all law that is not “criminal” law. For example, family law, employment law, and personal injury law are all “civil” law matters. This meaning of the word is completely different from, and has nothing to do with the French system of codified law. As a result, when you see the term “civil law,” be sure to carefully read the context so you know what the author means.

Aboriginal traditions and processes

Canadian law is not based on any Aboriginal traditions and processes, but we do see some of these processes used in our legal system. Two examples are described below.
 

Self-Government

Long before European contact, Aboriginal people had their own systems of government. The Canadian Constitution partly reflects this system by providing some rights for Aboriginal people to self-govern. This allows Aboriginal groups to have better control over their people, land, resources, and political/legal systems. Each Aboriginal community can work with the federal government to establish its own way of self-governing.

For more information about Aboriginal traditions and processes, see the following resources.

Web Fact Sheet: Aboriginal Self-Government
Government of Canada
English


Web Self-Government: Indigenous Peoples
The Canadian Encyclopedia
English

Web Aboriginal Rights
University of British Columbia
English

Web Self-Government
BC Treaty Commission
English
This resource is from outside Alberta. Learn more here.

Web Law of Indigenous People
The Canadian Encyclopedia
English

Web Indigenous People: Justice
The Canadian Encyclopedia
English

Web Rights of Indigenous Peoples
The Canadian Encyclopedia
English


Web The Charter and Aboriginal Peoples
Centre for Public Legal Education Alberta
English

 

Aboriginal laws and restorative justice

Aboriginal people have long had their own systems of rules and consequences. These can be very different from the current Canadian laws. For many Aboriginal communities, culture and tradition form a large part of the way disputes are resolved.

For example, the legal system based on European tradition responds to certain crimes by putting people in jail. Some Aboriginal communities emphasize “restorative justice” instead. This means that the person who committed the crime should recognize the harm they have caused and understand why their actions were wrong. Community connection and conversation, rather than just imprisonment, are emphasized. Over time, there have been efforts to include some restorative justice practices in the Canadian criminal justice system.

For more information about restorative justice, see the following resources.

Web Aboriginal Concepts of Justice
Aboriginal Justice Inquiry of Manitoba
English

PDF Canada's System of Justice
Government of Canada
English
See p. 31.

PDF Le système de justice du Canada
Government of Canada
French
Voir : p. 31.



PDF Restorative justice in Urban Aboriginal Communities
Aboriginal Legal Services
English

Web The Effects of Restorative Justice Programming: Brief Overview of Restorative Justice
Government of Canada
English
This resource can be a challenge to read. Learn more here.

Web Les effets des programmes de justice réparatrice : bref aperçu de la justice réparatrice
Government of Canada
French
This resource can be a challenge to read. Learn more here.

 

More information

For more information about the common law and civil law systems, see the following resources.

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English
See p. 6-8.

PDF Canada's System of Justice
Government of Canada
English
See p. 4-6.

PDF Le système de justice du Canada
Government of Canada
French
Voir : p. 4-6.

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 1.

Web How the Law Works in Canada
Clicklaw
English

Web The Canadian Legal System
J.J.'s Complete Guide to Canada
English
This is a private source. Learn more here.

Web What is the difference between common and civil law?
The Economist Newspaper
English
This is a private source. Learn more here.

Web Common law systems
TransLegal
English
This is a private source and can be a challenge to read. Learn more here.

Web What is the Civil Law?
Louisiana State University
English
This resource can be a challenge to read. Learn more here.
Who makes the laws in Canada?

Understanding how laws are made can help you find and learn about the laws that govern you. This is important if you are trying to solve a legal problem, or avoid a legal problem.

In Canada, all 3 levels of government are responsible for making laws:

  • federal;
  • provincial/territorial; and
  • municipal.

Canada’s federalist system of government

To understand how laws are created, you need to know about Canada’s “federalist” system of government. Having a federalist system means that the law-making power is divided between the different levels of government.

  • Some powers are given to the federal government.
  • Other powers are given to the provincial and territorial governments.
  • The provincial and territorial governments can then give some of their powers to municipal governments.

This is often called the “division of powers.”

In general, the federal government (that is, the Government of Canada) is responsible for the things that affect Canada as a whole. For example: trade and immigration. On the other hand, the provincial and territorial governments are responsible for the things that happen within their boundaries. For example: property rights and taxes within the province. Sections 91 and 92 of the Constitution Act, 1867 lay out which level of government is responsible for what.

Sometimes, different levels of government can share the law-making power. For example, in family law, some of the laws that affect separating couples are federal laws, while others are provincial laws.

  • The Divorce Act is a federal law. It deals with the process of divorce itself, as well as some of the related topics (such as child support and spousal support).
  • However, the law-making power over “property in the province” was given to the provinces. This means that, although the law of divorce is the same throughout Canada, the law around the division of property is not.
  • The power over “civil rights in the province,” including non-married romantic relationships, was also given to the provinces. In Alberta, the law in this area is called the Family Law Act. It deals with family breakdown (but not divorce), including child support and partner support. It does not deal with the division of property.

For more information about how law-making powers are divided, see the following resources.

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English
See p. 3-5.

Web Distribution of Powers
The Canadian Encyclopedia
English


Web Powers of the National and Provincial Governments
Government of Canada
English

Web Provincial Government
The Canadian Encyclopedia
English

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 2.

French resources:

Web Partage des pouvoirs
The Canadian Encyclopedia
French



Web Gouvernement provincial
The Canadian Encyclopedia
French

 

The 3 branches of government

In Canada, there are 3 “branches” of the government that are responsible for different parts of the legal process:

  • The legislative branch, which makes the laws.
  • The executive branch, which puts laws into place and makes sure they are followed.
  • The judicial branch, which interprets laws and hears cases about the law.

These 3 branches exist at the federal, provincial/territorial, and municipal levels of government.

See the following resources for charts showing the different branches of government in Canada.

Web Canada's Branches of Government
Open School of BC
English


PDF Canada's System of Government
Government of Canada
English

 

The legislative branch

The legislative branch of government is the branch that creates new laws and makes changes to existing laws.

The legislative branch of the federal government is known as the Parliament of Canada, and is made up of 3 parts.

  1. The “Sovereign”: the King or Queen (who is represented by the Governor General).
  2. The Senate: the “upper” house of Parliament, whose members are appointed by the Governor General.
  3. The House of Commons: the “lower” house of Parliament, whose members are elected by the people of Canada in federal elections.

The legislative branches of the provincial or territorial governments are known as the Legislative Assemblies. For example, the “Legislative Assembly of Alberta.” These Legislative Assemblies have only one house of elected members. The Sovereign is represented by the Lieutenant Governor of each province.

The legislative branches of the municipal governments are generally called “councils.” Members are also elected.
 

The executive branch

The executive branch of government is the part of government that makes sure the law is put in place and followed. They also do much of the research involved with making new laws.

The executive branch is made up of the following.

The head of state (the king or queen). In the federal government, the king or queen’s interests are represented by the Governor General. In the provincial and territorial governments, the king or queen’s interests are represented by the Lieutenant Governor.

The head of government. In the federal government, this is the Prime Minister. In the provinces and territories, the head of government is called the Premier. The Prime Minister and Premiers are more directly involved in running the government, while the king or queen plays a more ceremonial role.

The Cabinet. The Cabinet is made up of government ministers who are chosen by the Prime Minister or Premier. It is a body of advisers to the Prime Minister or Premier.

Government ministries. Ministries are smaller parts of the government that deal with a specific topic. For example, in Canada there is a Ministry of Foreign Affairs, a Ministry of Finance, a Ministry of Justice, and more. Similarly, in Alberta, there is a Ministry of Health and a Ministry of Education, and more.
 

The judicial branch

The judicial branch of government is what most people think of as the court system. The judges in these courts are neutral decision-makers. They interpret the law (both legislation and common law) and apply that law to different cases. The federal government and the provincial/territorial governments share the power of appointing judges to the courts. For more information about Alberta’s court system, see the Provincial Court of Alberta and the Alberta Court of Queen's Bench Information Page.
 

More information

For more information on Canada’s 3 branches of government, see the following resources.

Audio How Canadians Govern Themselves
Government of Canada
English

Web Canada's court system
Canadian Judicial Council
English

Interactive Explore Our Country, Our Parliament
Government of Canada
English

Web Canada's Branches of Government
Open School of BC
English


PDF Canada's System of Government
Government of Canada
English

Web Democratic Governance: The Constitution and Canada’s Branches of Government
Centre for Public Legal Education Alberta
English

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 2.

French resources:

Audio Les Canadiens et leur système de gouvernement
Government of Canada
French

Web Le système judiciaire du Canada
Canadian Judicial Council
French

Interactive Explorez Notre pays, notre Parlement
Government of Canada
French

For more information about the legislative branch in particular, see the following resources.

Web Legislative Branch of the Canadian Government
Gale Cengage Learning
English

Web Legislative Branch
A Country by Consent
English

PDF What does the legislative branch do?
St. Joseph's Catholic School
English

For more information about the executive branch in particular, see the following resources.

Web The Monarchy in Canada: God Save the Queen?
University of Alberta
English

Web The Powers of the Canadian Prime Minister
University of Alberta
English

Web Executive Branch of Government in Canada
Government of Canada
English

Web Organe exécutif du gouvernement du Canada
Government of Canada
French

For more information about the judicial branch in particular, see the following resources.

Web Judiciary
The Canadian Encyclopedia
English

Web Magistrature
The Canadian Encyclopedia
French

PDF Canada's System of Justice
Government of Canada
English
See p. 21-23.

PDF Le système de justice du Canada
Government of Canada
French
Voir : p. 21-23.

Web The Judiciary
Government of Canada
English

Web La magistrature
Government of Canada
French

Web Judicial Independence
University of Alberta
English
How laws are made in Canada: The legislative process

Laws are made by the “legislative branch” of government at the federal, provincial/territorial, or municipal level. The process of creating a new law or changing an existing one is similar between these levels of government. However, there are some important differences between them.

The federal process

A proposal for a new law or for changes to an old one is written down (this is called a “bill”). Then, the bill is introduced in either the House of Commons or the Senate. This is called the “first reading.”

After this, the bill moves to a “second reading” in the house where it was introduced. When that happens, members will discuss general points about the bill. For example: whether it meets public needs and whether it actually fulfills the purpose it is supposed to.

If the members vote for the bill to move forward, it goes to the committee stage. The committee studies the bill and discusses it in close detail. At that stage, experts and witnesses are invited to share their thoughts on the bill. Changes may be made to the bill, if necessary.

Afterward, the bill moves to the report stage, and, finally, to the third reading. At these stages, the bill is debated and voted on again.

If the bill moves through these stages in the first house, then it is passed onto the other house, where it has to go through these same stages again. For example, if it started in the House of Commons, it now needs to move to the Senate.

If the bill gets approved by the other house without any changes, it is given to the Governor General for final approval before becoming law. This is called “Royal Assent.” It will not be given to the Governor General for final approval if the wording is not the same. If the wording has changed, the bill will need to be debated again, until both houses agree on the specific wording that will be used.

In many cases, the law (also called a “statute” or an “act”) is in force as soon as it gets Royal Assent. But in some cases, the law may state a different day that it is in force. Or, different parts of the law may come into force at different times. There are various reasons for this. For example, the government may decide that the law will not come into force until it has properly informed Canadians of changes to laws that would affect them. Or, the government may need time to set up a system to administer the law. As a result, it may come into force weeks or months later.

Tip

To find out if a law is in force, you will need to look at the text of the law itself. There will be a section called “Commencement” or “Coming into force” that will describe when the law, or parts of the law, will be in effect.

For more information on the federal law-making process, see the following resources.

Web Process of Passing a Bill
Government of Canada
English

Web How a Government Bill becomes Law - Canada
Queen's University
English

PDF Guide to the Canadian House of Commons
Government of Canada
English

Interactive How does a bill become a law?
Government of Canada
English

Web How a Bill Becomes Law in Canada
Courthouse Libraries BC
English

Web Legislative Process
Government of Canada
English

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 2.

French resources:

Web Le processus d’adoption d’un projet de loi
Government of Canada
French

PDF Guide de la Chambre des communes du Canada
Government of Canada
French

Interactive Comment un projet de loi devient-il une loi?
Government of Canada
French

Web Processus législatif
Government of Canada
French

 

The provincial/territorial process

The process of making laws at the provincial or territorial level is similar to the federal process. The main difference is that there is only one house (the Legislative Assembly).

When a member of the Legislative Assembly of Alberta wants to make a law, he or she has to start the process by introducing a “bill” to the Legislative Assembly. This is called a first reading.

Once the bill has been introduced, the bill must pass 3 stages:

  1. the second reading; 
  2. the Committee of the Whole; and
  3. the third reading.

During these stages, the members of the Legislative Assembly debate and make changes to the bill. After each debate, the members vote on whether they want the bill to pass onto the next stage. The bill can only move from one stage to the next if over half of the members vote for it to pass. If it does not pass one of the stages, the process stops. The bill must be reintroduced into the Legislative Assembly to restart the process. Sometimes, the bill is dropped and it is never reintroduced to the Legislative Assembly.

After the bill passes the third reading, it receives Royal Assent from the Lieutenant Governor and becomes law.

Be Aware

Even if the bill has received Royal Assent, it still may not be in effect. Sometimes, the government will decide to delay when the law comes into effect. For example, it may decide that this law will not come into effect until the government has had a chance to properly inform Canadians of changes to laws that would affect them. As a result, it may come into effect weeks or months later.

For more information on Alberta’s law-making process, see the following resources.

PDF The Citizen's Guide to the Alberta Legislature
Government of Alberta
English


PDF The Mock Legislature: Student Handbook
Government of Alberta
English

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 2.

 

The municipal process

Creating a new municipal law, or making change to an existing municipal law, also requires moving through various stages. This can include speaking with the public and committee review. Each municipality may have different law making processes. Like the provincial process, bills only have to pass through one house to be approved.

For more information on municipal law-making, see the following resources.

Web Provincial and Local Governments in Canada
J.J.'s Complete Guide to Canada
English

PDF Your guide to municipal institutions in Canada
Federation of Canadian Municipalities
English



Web Facts about the Municipal Government Act
Government of Alberta
English

Web Legal Studies 479: Local Government Law in Alberta
Athabasca University
English
This resource can be a challenge to read. Learn more hereSee “Study Materials.”
Laws and regulations: What are the differences?

The words “statutes,” “acts,” and “laws” are all names for the same thing: written rules passed by the government that affect the rights and responsibilities of people and organizations.

In general, the laws that apply in Alberta are passed by either:

  • the Legislative Assembly of Alberta (these apply only in Alberta);
  • the Parliament of Canada (these apply across Canada); or
  • “bylaws” passed by Alberta “municipalities” (cities, towns, counties, or villages), and which only apply in those municipalities.

Passing laws is a lot of work. As described above, any new laws or changes to existing laws have to go through a very long and detailed process before they can take effect. If every small legal change had to go through this process, very little would ever get done.

As a result, “laws” create the foundation for a legal issue. That way, the government can be sure that the basic approach has the support of Canadians. This is because Canadians elected the people who created the new law.

For many laws, there are smaller “details” that are needed to apply and enforce the law. These details are written in “regulations” instead. Regulations include practical information, such as:

  • what to include in forms;
  • how much the fine will be if you break certain parts of the law; or
  • how much it will cost to file a document.

Not all laws have regulations, but all regulations are attached a particular law.

Regulations are not passed by the government in the same way that laws are. Instead, each law says who has the power to create regulations about that particular law. For example, the power may be given to:

  • the Cabinet (which is also called the “Governor in Council” or the Lieutenant Governor in Council”);
  • a Minister; or
  • a government agency.

These smaller bodies have much simpler and faster processes. This makes it easier to make small changes to respond to changing needs.

These people or agencies cannot make regulations about anything they want. They can only make regulations about the specific topics that are listed in the law itself.

For more information about regulations, and how they relate to laws, see the following resources.

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English
See p. 1-2.

Web Regulations
The Canadian Legal Research and Writing Guide
English


PDF Canada's System of Justice
Government of Canada
English
See p. 6.

Web Difference Between an Act and a Regulation
Difference Between
English
This resource is from a private source outside Alberta. Learn more here.

Web Understanding the Regulation Making Process
Canadian Parliamentary Review
English
This resource can be a challenge to read. Learn more here.

Web Guide to Making Federal Acts and Regulations: Part 3 - Making Regulations
Government of Canada
English
This resource can be a challenge to read. Learn more here.

 

French resources:

PDF Le système de justice du Canada
Government of Canada
French
Voir : p. 6.

PDF Comprendre le processus de réglementation
Canadian Parliamentary Review
French
This resource can be a challenge to read. Learn more here.

Web Lois et règlements : l'essentiel: Partie 3 - Élaboration des règlements
Government of Canada
French
This resource can be a challenge to read. Learn more here.
How “common law” is made in Canada

Where it comes from

The process of making common law is different from the legislative process, because there are no bills or debates involved. Instead, the common law is made in court decisions.

A historical example of common law is the law of “negligence.” Simply put, this is the legal concept of a person:

  • failing to use reasonable care,
  • in a situation where an average person would use reasonable care,
  • which results in damage or injury to another.

When this concept was first applied, there were no government-made laws about it. Instead, it happened in a courtroom.

This does not mean that judges can make whatever law they feel like making. They have to consider previous decisions about similar cases that have been made by other judges to guide their decisions.

Today, it is rare for courts to create completely new common law principles. However, there are still many legal topics that are mainly governed by the “common law.” For example: negligence, contract law, and tort law. This means that most of the legal rules and principles about those topics are still found in court judgments. Some of these judgments date back hundreds of years. Also, changes or developments in those areas of law continue to be worked out in new court judgments (and not through government action). As a result, to learn about the common law, you must look at court judgments. You can also learn about the law from articles and books that explain how these cases have shaped the law over time.

However, in some cases, there is legislation about these topics. Governments may take common law principles and include them in laws. For example, many cities’ bylaws require property owners to clear snow from their sidewalks. This is based on the law of negligence. However, there is no federal, provincial, or municipal legislation about “negligence” on the wholethat is part of the common law.

How it continues to develop

Common law develops through court judgments. When deciding a case about a common law issue, judges have to consider previous decisions about similar cases that have been made by other judges.

For the following example, the case and its judgment have been made up.

  • Years ago, there was a case involving Tom, a shelter volunteer with a previous injury that made his arm weak. While Tom was volunteering, the injury acted up. This caused him to spill a boiling cup of coffee on someone else. That person then sued Tom.
  • The judge saw that Tom was aware that his arm was weak. So the judge decided that Tom had a responsibility when he was on shift to make sure that his condition wouldn’t hurt other people. He said that Tom could have only served cold food or not carried things that were too heavy for him.
  • You’re now in a similar situation. You have a weak left arm caused by an injury that happened when you were young. You were working at the food bank. Your injury caused your arm to give out and you spilled a boiling pot of soup on someone sitting nearby. Now that person is suing you.

In this case, because the situation is really similar, the judge can’t make a decision that completely ignores the first case. Judges have to look at previous cases and use similar cases to guide their decision.

However, not all cases are equally important to consider. Judges look at several factors to determine how much influence or “weight” a previous case will have on what needs to be decided now. These factors include:

  • Whether the previous case was heard in the same province. A case that was heard in your province will have more “weight” than a case heard in another province
  • How similar the cases are. Using the above example: did you know that your injury would cause you to drop things, or was this the first time that had happened?
  • What level of court heard the first case. The higher the level of court, the more “weight” the case will be given. For more information about the different “levels” of court, see the “How the law is enforced in Canada” section below.
Be Aware

Just because a similar case has been heard before doesn’t mean that the judge must make the exact same judgment in this case. A judge may make a different decision for many reasons, and will usually explain those reasons.

Once a judge has made a decision, you can find the law by reading the judgment itself. You can also learn about the law from other sources, such as articles and books that explain how these cases have shaped the law over time. For information about finding case law, see the Educating Yourself: Legal Research Information Page.

For more information on how the common law is made, see the following resources.

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 3.

Web What is the difference between common and civil law?
The Economist Newspaper
English

Web Common Law Definition
Duhaime.org
English
How the law is enforced in Canada

Once laws are made in Canada, there are different people and places that are responsible for making sure they are followed. These include:

  • police and bylaw officers;
  • administrative tribunals; and
  • courts.

Each of these are described in more detail below.

Police and bylaw officers

Police are responsible for enforcing laws. For example:

  • In Canada, the Criminal Code says what actions are “crimes.” If you commit one of these crimes, you can be arrested by the police.
  • In Alberta, the Traffic Safety Act governs how drivers must behave on the roads. If a police officer catches you travelling at twice the speed of what’s allowed, he or she can pull you over and write you a ticket for violating the maximum limit.

Bylaw officers are also responsible for enforcing municipal laws. For example, many municipalities have a bylaw about maintaining the sidewalk in front of your property during the winter months. If your neighbour has not cleaned off the snow according to the bylaw, you can file a report with a bylaw officer, who will address your complaint. This may involve giving your neighbour a warning or a fine.

Administrative tribunals

Administrative tribunals and boards are something similar to a court that only deal with matters about a specific type of law or regulation.The people who make decisions in tribunals or boards are not judges. Instead, they are people who have specialized knowledge about the particular area that the tribunal or board deals with.

The federal government and the provincial/territorial governments create tribunals and boards to deal with certain types of laws that fall within their jurisdiction.

Some examples of administrative tribunals and boards are:

  • the Alberta Labour Relations Board;
  • the Workers Compensation Board - Alberta; and
  • the Immigration and Refugee Board of Canada.

Administrative tribunals are intended to be faster and less expensive than the court system. Like courts, one of the main responsibilities of an administrative tribunal is to make decisions about disputes. For example, the Alberta Labour Relations Board could make a decision about situations involving unions. On the other hand, the Alberta Human Rights & Citizenship Commission may appoint tribunals to hear complaints about discrimination in the workplace.

When a decision needs to be made by a board or tribunal, parties are often given a chance to present their case at a hearing. Once a decision is made, the parties involved must follow the tribunal’s decision. Sometimes, the tribunal’s decision can be appealed to another tribunal, or can be reviewed by a court.

For more information on administrative tribunals, see the following resources.

Web Administrative Tribunals
The Canadian Encyclopedia
English

Web Tribunaux administratifs
The Canadian Encyclopedia
French

Presentation The Law that Rules (a narrated presentation)
Centre for Public Legal Education Alberta
English
See Part 3.

Web Tribunals VS. Courts
Justice Education Society
English

PDF Powers and Procedures for Administrative Tribunals in Alberta
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here.

 

Courts

There are both provincial and federal courts in Canada.

The provincial courts are similar across Canada. Each province and territory (except Nunavut) has 3 levels of court. The court system in Alberta includes:

  • the Provincial Court;
  • the Court of Queen’s Bench; and
  • the Court of Appeal.

The federal court system includes the Federal Court, specialized courts such as the Tax Court, and the Federal Court of Appeal.

For both provincial and federal courts, the final court of appeal is the Supreme Court, which is the highest court in Canada.

An introduction to these courts is given below.
 

The Provincial Court of Alberta

The Provincial Court is the lower trial court in Alberta. This may be the only court that a person goes to. Or, it may be the first court a person goes to before they go to a higher court.

The Provincial Court only deals with certain types of cases. These include:

  • some family matters (but not divorce or division or property);
  • all criminal matters begin in Provincial Court;
  • some civil matters (if the total amount you are suing for is less than $50,000);
  • traffic matters; and
  • all criminal matters for youth.
     

The Court of Queen’s Bench

The Court of Queen’s Bench is the higher trial court, or the “superior” court in Alberta. For some legal issues, you can only go to the Court of Queen’s Bench. Superior courts have the power to deal with any type of legal issue unless there is a law that says they cannot deal with a particular issue. Because superior courts are higher courts, they often deal with more serious cases or cases that only they have the power to deal with.

For example, you must go through the Court of Queen’s Bench for:

  • divorce;
  • division of property;
  • exclusive possession of a home or household goods;
  • declarations of parentage;
  • Queen’s Bench Protection Orders; and
  • restraining orders.
Tip

For detailed information about the differences between these 2 courts, see the Provincial Court of Alberta and the Alberta Court of Queen's Bench Information Page.

 

The Alberta Court of Appeal

The Alberta Court of Appeal is the highest court in Alberta. An “appeal” is the act of asking a higher court to review and change a decision from a lower court. The Alberta Court of Appeal hears appeals from the Provincial Court, the Court of Queen’s Bench, and sometimes decisions made by an administrative tribunal.

The Justices of the Court of Appeal are appointed by the federal government.

This court is not a trial court. In other words, cases do not start in this court. If someone has grounds to appeal a decision granted in the Alberta Court of Appeal, the case would then go to the Supreme Court of Canada.

You cannot appeal a decision simply because you do not like it. You must have a valid legal reason to appeal a decision. These reasons are called “grounds to appeal.” To appeal a decision, the person must show that the judge:

  • made a legal error in deciding the case; or
  • made a significant error about the facts of the case.
Be Aware

In rare cases, the parties have an automatic right to appeal.


 

The Supreme Court of Canada

The Supreme Court of Canada is the highest court in Canada. Like the Alberta Court of Appeal, it only hears appeals. This means that any matter that is heard at the Supreme Court must have been previously heard by a lower court.

If the Supreme Court decides to hear the matter, its decision is binding. This means that there is no way for you to take the matter further. Once the Supreme Court has made a decision, all parties involved must follow the decision that was made. Also, the decision will be considered a precedent for all future Canadian cases.

For more information on the Supreme Court of Canada, see the following resources.

PDF General Information about the Court (information available in Arabic, Chinese, Cree, English, French, German, Inuktitut, Italian, Japanese, Korean, Ojibway, Polish, Portuguese, Punjabi, and Spanish)
Government of Canada
Arabic, Chinese, English, French, German, Inuktitut, Italian, Japanese, Korean, Plains Cree, Polish, Portuguese, Punjabi, Spanish, Other languages

Web Role of the Court
Government of Canada
English

Web Rôle de la Cour
Government of Canada
French

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English
See p. 11.

Web Supreme Court of Canada
The Canadian Encyclopedia
English

Web Cour suprême du Canada
The Canadian Encyclopedia
French

Web 10 Facts about the Supreme Court of Canada
Patriot Law Group
English
This is a private source. Learn more here.

Web The Supreme Court of Canada: A History
Centre for Public Legal Education Alberta
English

 

Federal Court

The Federal Court hears matters that affect the federal government and deal with federal laws. It is a trial court. In other words, cases can start in the Federal Court.

Examples of matters that can be heard at the Federal Court include:

  • disputes between provinces and territories;
  • disputes between a province or territory and the federal government;
  • intellectual property law issues (such as copyright matters);
  • citizenship appeals;
  • matters involving the Competition Act; and
  • cases that involve federal Crown Corporations or federal government departments.

Decisions made by the Federal Court can be appealed to the Federal Court of Appeal. Afterward, if the parties involved are able to appeal again, the case would go to the Supreme Court of Canada.
 

Tax Court

The Tax Court deals with companies or people that have tax-related disputes. Most of these disputes involve income tax, goods and services tax, or federal employment insurance benefits.

More information

For more information about Canada’s court system, see the following resources.

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English
See p. 9-12.

Web Courts of Law
The Canadian Encyclopedia
English

Web The Canadian Judicial System
Government of Canada
English

 
Web Canada's Court System
Government of Canada
English

Web Canada's court system
Canadian Judicial Council
English

Web What do judges do?
Canadian Judicial Council
English

Web Structure of the Courts
Canadian Superior Courts Judges Association
English

French resources:

Web Cours de justice
The Canadian Encyclopedia
French

Web Le système judiciaire canadien
Government of Canada
French

Web L'appareil judiciaire du Canada
Government of Canada
French

Web Le système judiciaire du Canada
Canadian Judicial Council
French

Web Le rôle des juges
Canadian Judicial Council
French

Web Structure des tribunaux
Canadian Superior Courts Judges Association
French

For more information about Alberta’s court system, see the following resources and the Provincial Court of Alberta and the Alberta Court of Queen’s Bench Information Page.

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English
See p. 9-12.

Audio/Web The Court System in Alberta
Calgary Legal Guidance
English

PDF Alberta's Justice System and You
Government of Alberta
English

Web Chart of Courts in Alberta
Government of Alberta
English

Process

There is no specific “process” for Canada’s legal system. See the Law tab of this Information Page for information about:

  • The basics of the Canadian legal system, including the “rule of law” and the legal traditions that our democracy is based on
  • The difference between written laws, case law, and the “common law”
  • How written laws are made in Canada and Alberta (the legislative process)
  • How the common law is made
  • How laws are enforced in Canada and Alberta, including the role of the police, the courts, and administrative tribunals
Last Reviewed: October 2016

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