An Introduction to Law and the Justice System

Co-Authored by Carolyn Booth, articling student and Maître Cassandra Modafferi

The legal world around us can seem very complicated, and it is. It’s surprising that the law, a tool designed to protect the rights of individuals, is so difficult to comprehend. Believe you me, lawyers weren’t born with the ability to understand the law upon first read — it takes years of schooling, training, and a lifetime of practice to become experts in law. Not to mention that accessing law schools is still limited to those with the financial resources to enroll and to those who can obtain academic records competitive enough to get accepted. Privilege plays a role even when breaking into the legal world, and as Uncle Ben in Marvel’s Spider-Man (almost) said, “With great [privilege] comes great responsibility.” With that, we’re going to breakdown some key concepts about law and the justice system that the average person should know. We provide a helpful translation of terms borrowed from legal jargon into the layperson’s language in parentheses.

1. Jurisdictions: Federal versus Provincial Laws

First, there are federal laws. These laws are established by the Canadian Parliament and govern matters under federal jurisdiction (e.g. crimes, the army, postal service, quarantine, banking, currency, divorce, certain aspects covering marriage, etc.).

Second, there are provincial laws. These govern areas in which the province has jurisdiction to legislate (e.g. property and civil rights, establishment of hospitals (not marine), licenses (e.g. driving, liquor), certain aspects of marriage, etc.).

These are determined under sections 91 (federal) and 92 (provincial) of the Constitution Act, 1867. This distinction means that if a provincial legislature passes a law in an area that belongs to the federal parliament under section 91 of the Constitution Act, 1867, (or vice versa) an interested person can ask the Courts to strike the law (eliminate it), and declare it inoperative. For example, if a provincial legislature passes a law (or even a section of a law) forcing the province to use a new provincial currency (federal jurisdiction), a Court would have the competence to declare that law unconstitutional.

It is important to note that before federal and provincial laws were established, Indigenous communities used their own legal traditions. As the various levels of government work towards reconciliation with Indigenous groups, Indigenous treaties and customs are gradually becoming recognized in federal and provincial courts, imbuing Indigenous communities with vested rights in their ancient traditions (e.g. logging, fishing, etc.). These judgments rendered by the courts establish case law validating and protecting Indigenous rights, which can be further used as precedent to defend and protect other rights.

2. Traditions: Common Law versus Civil Law

Common law and Civil law are different traditions upon which entire legal systems are based.

Common law derives from precedent established by case law, also known as jurisprudence. Case law is an amalgamation of all judgments rendered by judges in courts to determine how a case should be decided. The total of all those decisions make up the legal rules of a Common law jurisdiction. For example, in a 1935 case called Woolmington v. DPP, the English House of Lords had to decide whether Reginald Woolmington was guilty of murdering his wife. In that case, the House of Lords decided that Woolmington would only be convicted of murder if the State prosecution was able to prove his guilt beyond a reasonable doubt. This meant that the accused’s innocence was presumed, and that all persons accused of a crime would be innocent until proven guilty. This burden of proof exists currently in the Canadian criminal law system. The difference between criminal and penal law is explained below under section 4.

Often, precedents are enshrined into statutes (laws) that are drafted by a legislative body (elected officials who write laws). In fact, the above example can now be found at s. 11d) of the Canadian Charter of Rights and Freedoms, which preserves the right to “be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

Common law jurisdictions include Australia, England, the United States of America (excluding the state of Louisiana), India, among others.

Civil law is codified (e.g. numbered, alphabetized, etc.) by a legislative body. In Quebec, civil law is largely based on the French Civil Code. In fact, many private law rules in Quebec (e.g. contract law, civil liability, property law) mirror those that exist in France. Civil law jurisdictions include Spain, France, the state of Louisiana, Germany, Central and South America, among others.

In Canada, Quebec private law derives from the Civil law tradition, whereas in Common Law is the source of private law in the remaining Canadian provinces.

3. Regulatory laws (or regulations)

A regulatory law is often contrasted with a statute because while a statute is drafted by a legislature (i.e. by elected officials who create laws), a regulatory law is instituted by an administrative body. An administrative body has power to draft regulatory laws only to the extent to which a statute grants them that power.

An administrative body is an agency or authority that exists in order to manage and regulate a specific area of law. They can create rules within their area of expertise.

For example, in Quebec, the Société de l’assurance automobile du Québec (SAAQ) is an administrative body that establishes regulations concerning requirements for obtaining a driver’s license, vehicle registration, etc. This body is granted power through various laws relating to the operation and ownership of automobiles.

4. Criminal versus Penal Law

Canadian criminal law finds its source in the Criminal Code of Canada (federal jurisdiction, Common law). The Criminal Code outlines crimes and their related penalties, which can include fines, prison sentences, parole, etc. Crimes of a severe nature are found in the Criminal Code (e.g. murder, sexual assault, theft).

In contrast to crimes of a severe nature, penal infractions are necessarily less severe. Penal infractions are governed by the provinces or their municipalities. An example of a penal infraction would be failing to keep your pet on a leash, jaywalking, or a noise violation. These are slight annoyances which entail a light penalty like a fine, and generally speaking, do not result in a criminal record or possibility of prison time.

Some offences, like those related to driving, can be either criminal or penal depending on their severity (speed, dangerousness, if others were harmed, etc.).

We hope that we have been able to help you deconstruct these concepts in a more comprehensive way. There are many existing resources to help the public learn and understand the law. Official government sources are a great starting point. For Canadian law, visit Justice Laws at https://laws-lois.justice.gc.ca/eng/. Provinces also offer similar resources, for example, in Quebec, visit to Éducaloi https://educaloi.qc.ca/en/).

Please note that online resources do not give legal advice, and that interpretations of the law may vary according to the jurisprudence. Should you require legal advice, contact us, and we would be happy to help you.