See part one here.
In Canada, most of our legal system is based on a common law legal system which can be contrasted with the civil law system used for aspects of the law in Quebec. However, within the common law system there still exists the body of law known as civil law, which can be contrasted with criminal law, quasi-criminal law, constitutional, and administrative law. Further, common law is also a source of law in a common law system, where as codes or statutes are the sources of law in a civil law system. The common law/civil law/statute law contrast can be confusing to some. Today I am going to try and explain the differences for you.
Legal System and Source of Law
Common Law: The common law legal system is a system of law derived from the English legal system dating back to the medieval period. The system is known as an adversarial system, pitting two or more parties against each other in front of an unbiased decision maker to find the truth. A common law system is based on precedent and stare decisis where previous decisions can be binding on future decisions. Courts are able to make law where no statute exists through precedent, though a court’s willingness to do this varies. The intention of precedent is for similar facts to be interpreted consistently and have similar results. Most of Canada’s laws are dealt with through a common law system. Common law systems are also found throughout the world, including in England and many of its descendant countries. When it is said that common law is the source of the law, it means that the law itself was not derived from a statute, code, or regulation but through judge’s precedent.
Civil Law: The civil law system is derived from systems of law with a history in mainland Europe and can be traced back through Napoleon to ancient Rome. By contrast to the more passive nature of a judge in the common law system, decision makers in a civil law system tends to be more active and investigative in nature. This is known as the inquisitive system. Generally, precedent is not binding in the same way that it is in a common law system. Judges are not supposed to make decisions if a code or statute does provide the authority for the decision. The intention of the civil law system is to judge each situation on it’s unique facts. Aspects of the laws in Quebec are dealt with through a civil law system. Civil law is the most widespread legal system it the world.
Statute Law/Code: Statutes and codes are documents passed by the government that have the effect of laws. One of the earlier preserved statutes or codes is the Code of Hammurabi, dating back to about 1750 B.C.E. Many ideas and principles found in Hammurabi’s Code have survived in both common law and civil law legal systems.
Common law and civil law systems, and statues/codes and common law sources of law have experienced influence from each other, though, with some laws originating in common law being codified in civil law systems, and common law systems increasingly using statutes and codes to modify, add to, or preserve their common law decisions. Additionally, administrative tribunals within the common law system may use a more inquisitive approach than a common law court would.
Divisions of Law
Civil law: Civil law is the body of law concerned with the general rules between individuals and persons in society. This can include things like general commerce, contract law, torts, corporate law, property law, etc. Civil law is, generally, not concerned with punishing those who perform a civil wrong, but with making the wronged party “whole”, or placing them as close as possible to the position they would be in if they had not been wronged. Civil law is also intended to act as a deterrent. Generally, civil law is between two or more private parties, but can include governmental parties, and must be proven on a balance of probabilities. In Saskatchewan, most civil claims worth a principal value of $30,000 or less are considered small claims and are dealt with under The Small Claims Act, 2016, SS 2016, c S-50.12 in the Provincial Court. In Ontario, most civil claims worth a principal value of $35,000 or less are dealt with through the procedure outlined in the Rules of the Small Claims Court, O Reg 258/98.
Criminal law: The body of law dealing with offences deemed to be criminal. These are, generally, prosecuted by the state on behalf of the public, known as “Rex” in Canada (“Regina” when we had a Queen). Criminal law has many purposes including protecting the public, punishing misbehavior, deterring misbehavior, and rehabilitation. Criminal law generally includes the right to be considered innocent until proven guilty and the requirement to prove crimes beyond reasonable doubt, as well as proving both a guilty act and a corresponding guilty mind (actus reus and mens rea). In Canada, criminal offences fall under federal jurisdiction and the most common basis for them is the Criminal Code, RSC 1985, c C-46 and Controlled Drugs and Substances Act, SC 1996, c 19.
Quasi-criminal: Often, quasi-criminal offences, such as administrative, or regulatory offences, are grouped in with criminal law because of the significant overlap in their principles, even though quasi-criminal offences do not result in a criminal record. A notable difference is that there is usually an aspect of the guilty mind which must be proven in relation to a criminal offence. Quasi-criminal offences, on the other hand, may share the guilty mind component, but may have no requirement for a guilty mind (“absolute liability”), or the guilty mind is assumed and the burden is flipped on the defendant to prove that they acted with due diligence (“strict liability”) if the guilty action has been proven. The burden of proving due diligence is based on a balance of probabilities. The burden of proof for the offence varies between proceedings. Some of the most prominent quasi-criminal offences can be found in provincial traffic laws, such as The Traffic Safety Act, SS 2004, c T-18.1 in Saskatchewan or the Highway Traffic Act, RSO 1990, c H.8 in Ontario.
Administrative law: Administrative tribunals are quasi-judicial decision makers that act based on powers derived from statutes or regulations. They are similar to courts but are often described as more relaxed and less formal, though this can vary. There is still a level of formality expected in these proceedings. Administrative law also deals with ensuring that these governmental agencies have oversight in their decision making while ensuring their independence. Generally, this oversight is dealt with through a judicial review, or appeal where available, of a tribunal, board, commission, agency, or ministry. Often, there are administrative tribunals that deal with residential tenancy disputes and evictions. In Saskatchewan, tenancies outlines in the Residential Tenancies Act, 2006, SS 2006, c R-22.0001 can be dealt with through the Office of Residential Tenancies. In Ontario, the Landlord and Tenant Board has exclusive jurisdiction to deal with tenancies outlines in the Residential Tenancies Act, 2006, SO 2006, c 17.
Constitutional law: Constitutional law involves the body of laws that provide the supreme law of Canada, which generally outlines the powers and restrictions of the government as well as the positive and negative rights of its citizens in relation to its government. In Canada, the constitution is not a single document but a group of many different documents. Important constitutional documents include The Constitution Act, 1867, 30 & 31 Vict, c 3 and, commonly referred to as “The Charter of Rights and Freedoms”, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Conclusion
Now you know a bit about Canada’s legal system, sources or law, and divisions of law. Joseph S. Phillip Gelinas is a Limited License Pilot Practitioner (Law Society of Saskatchewan) and Notary Public. Contact Joseph Gelinas of Gelinas Limited Scope Legal Services for a free, no-obligation, to retain 30 minute phone consultation at 705 737 6451, or email joseph@gelinaslegal.ca to schedule a consultation. For information on my acceptable scope of practice under the Limited Licensing Pilot (Law Society of Saskatchewan), click here.
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