SERVING CANADIANS · Ottawa,Ontario K1A 0H8 ©Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada,2005 Library and Archives

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

Published by authority of the Minister of Justiceand Attorney General of CanadaGovernment of Canada

by

Communications BranchDepartment of Justice CanadaOttawa, OntarioK1A 0H8www.canada.justice.gc.ca

©Her Majesty the Queen in Right of Canada,represented by the Minister of Justice and Attorney General of Canada, 2005

Library and Archives Canada Cataloguing in Publication

Main entry under title :

Canada’s system of justice

Rev. ed.Text in English and French on inverted pages.Title on added t.p.: Le système de justice au Canada.ISBN 0-662-68904-6Cat. no. J2-23/2005JUS-645

1. Law – Canada.2. Justice, Administration of – Canada.I. Canada. Dept. of Justice.II. Title : Le système de justice au Canada.

KE444.C32 2005 349.71 C2005-980099-2E

C A N A D A’ S

S Y S T E M o f

J U S T I C E

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

Note to reader: This booklet provides general informationabout Canada’s justice system. It is not intended as legaladvice. If you have a legal problem, you should consult alawyer or other qualified professional.

IC A N A D A’ S S Y S T E M o f J U S T I C E

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

What is the Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2• Why do we need laws? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2• What other goals do laws achieve? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2• Public law and private law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Where Our Legal System Comes From . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4• The common-law tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4• The civil-law tradition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4• Aboriginal traditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5• Parliament. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Keeping the Law Up to Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7• Law reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7• Changing laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Canadian Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8• What type of government is described by our Constitution?. . . . . . . . . . . . . . . 8• What is a federal system? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Rights and Freedoms in Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11• The role of the Canadian Charter of Rights and Freedoms. . . . . . . . . . . . . . . . 11• What rights does the Charter protect? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

• Fundamental freedoms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12• Democratic rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12• Mobility rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13• Legal rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13• Equality rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14• Language rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14• Minority-language educational rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15• Aboriginal rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

• Other rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Judicial Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16• How the courts are organized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16• What do the federal courts do? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16• Provincial and territorial courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17• Administrative boards and tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CO N T E N TS

Civil and Criminal Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19• How do civil cases proceed?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19• What happens at a civil trial? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20• Decisions in civil cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20• How do criminal cases proceed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21• What happens in a criminal trial?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22• Victims of crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22• Decisions in criminal cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23• Can a decision be appealed? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23• How does restorative justice fit in? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24• Youth justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

The Role of the Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26• What are our duties under the law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26• Jury duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26• Testifying in court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27• Knowing the law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

C A N A D A’ S S Y S T E M o f J U S T I C EI I

1C A N A D A’ S S Y S T E M o f J U S T I C E

The law affects nearly every aspect of our lives every day. On the one hand, wehave laws to deal with crimes such asrobbery or murder and other threats andchallenges to society. On the other hand,laws regulate common activities such asdriving a car, renting an apartment,getting a job or getting married.

Understanding the law, and the ideasand principles behind it, is everyCanadian’s business. This booklet willhelp readers understand what the law is,where it comes from, what it is for, andhow it operates. It does not givecomplete answers to these questions,but offers a brief outline of Canada’slaws and the whole justice system.

Another purpose of this booklet is tosuggest that we need to take a wider viewof the law. Laws are often thought of ascommands, but they are more than that.A law balances individual rights with the obligations that people share asmembers of society. For example, whena law gives a person a legal right todrive, it may also restrict that rightwith traffic laws, and make it a duty forher or him to know how to drive.

Our legal system functions well whenpeople both understand their legal rightsand live up to their legal responsibilities.In fact, the basis of much of our law iscommon sense. But before we can createnew laws or change old ones, we need tounderstand the basic principles of ourlegal heritage.

IN T RO D U C T I O N

WH AT I S T H E L AW?

Why we need lawsAlmost everything we do has a set ofrules. There are rules for games, forsocial clubs, for sports and for the work-place. Rules of morality and custom tellus what we should and should not do.

Rules made by government are called“laws.” Laws are meant to control orchange our behaviour and, unlike rulesof morality, they are enforced by thecourts. If you break a law – whether youlike that law or not – you may have topay a fine, pay for the damage you havedone, or go to jail.

Ever since people began to live togetherin society laws have been necessary tohold that society together. Imagine thechaos – and the danger – if drivers justchose which side of the street to driveon. Imagine trying to buy and sell goodsif no one had to keep promises or fulfillcontracts. Imagine trying to hold ontoyour personal property or even to keepyourself safe if there were no laws againstrobbery or assault.

Even in a well-ordered society, peoplehave disagreements, and conflicts arise;the law provides a way to resolve disputespeacefully. If two people claim the samepiece of property, rather than fight theyturn to the law and the courts to decidewho is the real owner and how theowner’s rights are to be protected.

Laws help to ensure a safe and peacefulsociety in which people’s rights arerespected. The Canadian legal systemrespects individual rights, while at thesame time ensuring that our societyoperates in an orderly manner. An essen-tial principle is that the same law appliesto everybody, including the police, governments and public officials, whomust carry out their public dutiesaccording to the law.

What other goals do laws achieve?In Canada, laws not only govern ourconduct; they are also intended to carryout social policies. For example, lawsprovide for benefits when workers areinjured on the job, for insurance whenworkers are unemployed, for health care,and for loans to students.

Laws are also aimed at ensuring fairness.By recognizing and protecting basicindividual rights and freedoms, such asliberty and equality, our laws ensure thatstronger groups and individuals do notuse their powerful positions to takeunfair advantage of weaker groups or people.

Our legal system, based on a traditionof law and justice, gives Canadian societya valuable framework. The rule of law,freedom under the law, democraticprinciples, and respect for others formthe foundations of this importantheritage.

C A N A D A’ S S Y S T E M o f J U S T I C E2


Public law and private lawLaws can be divided into public andprivate law. Public law is concernedwith matters that affect society as awhole. It includes criminal, constitu-tional and administrative law. Publiclaws set the rules for the relationshipbetween the individual and society orfor the roles of different governments.For example, if someone breaks acriminal law, it is regarded as a wrongagainst society as a whole.

Private law, also called “civil law,”deals with the relationships betweenindividuals. Civil laws set the rules forcontracts, property ownership, therights and obligations of familymembers, damage to someone or totheir property caused by others and soon. A civil case is an action betweenprivate parties, primarily to settleprivate disputes.

WH E R E OU R LE G A L SY S T E M CO M E S FRO M

The common-law traditionCanada’s legal system derives fromvarious European systems brought tothis continent in the 17th and 18th cen-turies by explorers and colonists.Although the indigenous peoples whomthe Europeans encountered here eachhad their own system of laws and socialcontrols, over the years the laws of theimmigrant cultures became dominant.After the Battle of Quebec in 1759, thecountry fell almost exclusively underEnglish law. Except for Quebec, wherethe civil law is based on the FrenchCode Napoléon, Canada’s criminal andcivil law has its basis in Englishcommon and statutory law.

The common law, which developed inGreat Britain after the NormanConquest, was based on the decisionsof judges in the royal courts. It evolvedinto a system of rules based on “prece-dent.” Whenever a judge makes adecision that is to be legally enforced,this decision becomes a precedent: arule that will guide judges in makingsubsequent decisions in similar cases.The common law is unique because it

cannot be found in any code or body oflegislation, but exists only in past deci-sions. At the same time, common law is flexible and adaptable to changingcircumstances.

The civil-law traditionThe tradition of civil law is quite differ-ent. It is based on Roman law, whichhad been scattered about in manyplaces – in books, in statutes, in procla-mations – until the Emperor Justinianordered his legal experts to consolidateall the laws into a single book to avoidconfusion. Ever since, the civil law hasbeen associated with a “civil code.”Quebec’s Civil Code, first enacted in1866 just before Confederation andamended periodically, was recentlythoroughly revised. Like all civil codes,such as the Code Napoléon in France, itcontains a comprehensive statement ofrules, many of which are framed asbroad, general principles, to deal withany dispute that may arise. Unlikecommon-law courts, courts in a civil-law system first look to the Code, andthen refer to previous decisions forconsistency.


The term “civil law” is used to mean two quite different things, which can be a little confusing at first for peopletrying to understand the justice system.Sometimes the term is used in contrast to “common law” to refer to the legalsystem that is based on a civil code, suchas the Justinian Code or the Civil Code of

Quebec. In its other sense, civil law refers to matters of private law asopposed to public law, and particularlycriminal law, which is concerned withharm to society at large. It is usually clear from the context which type of civil law is intended.

The two meanings of civil law


The Quebec Act of 1774 made Canada a “bijural” country, one with two typesof law. The Quebec Act stated thatcommon law was to be applied outsideQuebec in matters of private law, whilesimilar matters in Quebec were to bedealt with under Civil Code law. Forpublic law, on the other hand, thecommon law was to be used in andoutside Quebec.

Aboriginal traditionsAboriginal peoples in Canada have also contributed to our legal system.Aboriginal rights and treaty rights arerecognized and protected under theConstitution. Aboriginal rights arethose related to the historical occu-pancy and use of the land by Aboriginalpeoples; treaty rights are those set outin treaties entered into by the Crownand a particular group of Aboriginalpeople. Reserves, for example, are the responsibility of the federal government.

Aboriginal customs and traditions havealso contributed to new ways of dealingwith people, such as healing and sen-tencing circles, community justice andrestorative justice.

ParliamentDemocratic countries usually have a“legislature” or “parliament,” which hasthe power to make new laws or changeold ones. Since Canada is a federation(a union of several provinces with acentral government), it has both afederal parliament in Ottawa to make

laws for all of Canada and a legislaturein each province and territory to dealwith local matters. Laws enacted ateither level are called “statutes,” “legis-lation,” or “acts.” When Parliament or aprovincial or territorial legislaturepasses a statute, that statute takes theplace of common law or precedentsdealing with the same subject. InQuebec as well, much legislation hasbeen passed to deal with specificproblems not covered by the Civil Code.

Making laws this way can be a compli-cated process. Suppose, for example,the federal government wanted tocreate a law that would help controlpollution. First, government ministersor senior public servants would beasked to examine the problem carefullyand suggest ways in which, underfederal jurisdiction, a law could dealwith pollution. Next, they would draftthe proposed law. This would then haveto be approved by the Cabinet, which iscomposed of Members of Parliament orSenators chosen by the Prime Minister.This version would then be presentedto Parliament as a “bill” to be studiedand debated by members. Bills onlybecome laws if they are approved by a majority in both the House ofCommons and the Senate and“assented to” by the Governor Generalin the name of the Queen.

A similar process is used in everyprovince. Royal assent for laws enactedby provincial legislatures is provided bythe Lieutenant Governor.

But law is more than a number ofstatutes, as we have seen from thedescription of common law. Judgesdevelop common law, such as the lawsof contracts, through referring to andsetting precedents. They also interpretand apply the statutes.

Because of the complexity of modernsociety, more laws are being enactedtoday than ever before. If our lawmak-ers had to deal with all details of alllaws, the task would be nearly impossi-ble. To solve this problem, Parliament,provincial and territorial legislaturesoften pass general laws delegatingauthority to departments or other gov-ernment organizations to make specificlaws called “regulations.” Regulationscarry out the purposes of the generallaws or expand on them, but are limitedin scope by these laws.



Law reform Although much of our law was inheritedfrom European legal traditions, associety grows and develops it cannotrely entirely on tradition. Sometimesthere is an urgent need for new laws orfor old laws to be changed. Even as gov-ernment enacts reforms to addresschanging ethics and morality, societycontinues to evolve dynamically, makingit necessary to reform laws constantly.

As Canadian society changes, we mustmake sure that our system of law andjustice meets the challenges of our newsociety. Every day, we hear about socialissues, medical developments, newtypes of technology – all of which mayraise moral and legal questions. Forexample, we are increasingly becomingaware of the effects of modern societyon our environment and of theimmense threat of pollution andwasteful habits.

As people change the way they live andwork, some laws may become obsoleteor new situations may arise that are notdealt with by any existing law. Forexample, the same computer technol-ogy that enables one person to findinformation about another may alsomake it possible to “steal” informationthat was meant to be private. Old lawsagainst theft did not foresee stealingcomputer files or indeed storing ormoving information by such means.This kind of technological and socialchange makes it necessary to reformour laws.

More than just changing laws, we mayneed to change the system of law andjustice itself. For instance, in ourcomplex society it can take years tosettle disputes. As our court system isstretched to the limit, other, less formalways may help people settle theirdisputes. Some informal mediationmethods, such as in landlord-tenantdisputes, are already being used.

Changing laws Government legal experts are constantlyexamining our laws, looking for ways toimprove them. Law reform committeesreview laws and recommend changes.Lawyers bring questions of law to courtto bring about change. Social actiongroups seek changes to laws that theyconsider unfair to members of Canadiansociety. Legislators at the federal,provincial and territorial governmentsrespond by introducing new laws oramendments to old ones to be consid-ered and debated in Parliament and the legislatures.

Ultimately, though, the responsibilityfor changing our laws is not left entirelyto the lawyers, the experts or theinterest groups. It is the people ofCanada who elect the lawmakers; weneed to decide what we want from thelaw and then make sure it reflects thosewishes. Everyone has the right to pointout flaws in the law and to worktowards changing these laws – lawfully,of course.

KE E PI N G T H E L AW UP TO DAT E

TH E CA N A D I A N CO N S T I T U T I O N

In many countries formed by revolutionor an act of independence – the UnitedStates is the best example – most consti-tutional law is contained in a singledocument. In a democracy with a writtenconstitution, legislators cannot make justany laws they wish. A country’s constitu-tion, among other things, defines thepowers and limits of powers that can beexercised by the different levels andbranches of government.

Canada, in contrast, became a countryby an act of the Parliament of GreatBritain. Consequently, the closest thingto a constitutional document would bethe British North America Act of 1867(the BNA Act, now known as theConstitution Act, 1867), by which theBritish colonies of Upper and LowerCanada, Nova Scotia, and NewBrunswick were united in a confedera-tion called the Dominion of Canada.(Prince Edward Island, although amember of the team that shapedConfederation, did not join until later.)

Although there is no single constitutionin Canadian law, the Constitution Act –a part of the Canada Act of 1982 –finally “patriated” or brought homefrom Great Britain Canada’s constitu-tion as created by the BNA Act. TheConstitution Act declares the Constitutionof Canada to be the supreme law ofCanada and includes some 30 acts andorders that are part of it. It reaffirmsCanada’s dual legal system by statingprovinces have exclusive jurisdictionover property and civil rights. It also

includes Aboriginal rights, those relatedto the historical occupancy and use of the land by Aboriginal peoples, treaty rights, agreements between theCrown and particular groups ofAboriginal people.

Confederation of the colonies into theDominion of Canada did not involveany break with the Imperial govern-ment. The new country was still part ofthe British Empire, governed by author-ity appointed by the monarch on theadvice of the British Colonial Secretaryat Westminster. The BNA Act providedfor confederation, but it did not codifya new set of constitutional rules forCanada or even include a clause foramending or changing the Act. For thisreason, until 1982 any amendments tothe BNA Act had to be enacted by theParliament in England.

What type of government isdescribed by our Constitution?The Constitution sets out the basic prin-ciples of democratic government inCanada when it defines the powers of thethree branches of government: the exec-utive, the legislative and the judicial.The executive power in Canada isvested in the Queen. In our democraticsociety, this is only a constitutional


Because of Canada’s dual legal system(bijuralism), every federal law must bedrafted in both official languages but itmust also respect both the common-lawand civil-law traditions in the provinces.

Bijuralism


convention, as the real executive powerrests with the Cabinet. The Cabinet, atthe federal level, consists of the PrimeMinister and Ministers who are answer-able to Parliament for governmentactivities. As well, Ministers are respon-sible for government departments, suchas the Department of Finance and theDepartment of Justice. When we say“the government” in a general way, weare usually referring to the executive.

The legislative branch is Parliament,which consists of the House ofCommons, the Senate and the Monarchor her representative, the GovernorGeneral. Most laws in Canada are first examined and discussed by theCabinet, then presented for debate andapproval by members of the House ofCommons and the Senate. Before a billbecomes a law, the Queen or her repre-

sentative, the Governor General, mustalso approve or “assent to” it. Thisrequirement of royal assent does notmean that the Queen is politicallypowerful; by constitutional convention,the Monarch always follows the adviceof the government.

In the provinces, the same processapplies but the Queen’s provincial representative is called the LieutenantGovernor.

Our Constitution also provides for ajudiciary, the judges who preside overcases before the courts. The role of thejudiciary is to interpret and apply thelaw and the Constitution, and to giveimpartial judgments in all cases,whether they involve public law, suchas a criminal case, or private (civil) law,such as a dispute over a contract. Theyalso contribute to the common lawwhen they interpret previous decisionsor set new precedents.

The Constitution provides only for fed-erally appointed judges. Provincialjudges are appointed to office underprovincial laws.

What is a federal system?Under Canada’s federal system of gov-ernment the authority or “jurisdiction”to make laws is divided between theParliament of Canada and the provin-cial and territorial legislatures.Parliament can make laws for allCanada, but only about mattersassigned to it by the Constitution. A provincial or territorial legislature,

The Minister of Justice is responsible for the Department of Justice, whichprovides legal services such as draftinglaws and providing lawyers for the government and its departments. This

department also develops policies andprograms for victims, families, childrenand youth criminal justice. The Ministerof Justice is also the Attorney General orchief law officer of Canada.

The Department of Justice

likewise, can make laws only aboutmatters over which it has been assignedjurisdiction. This means these lawsapply only within the province’s borders.

The federal Parliament deals, for themost part, with issues concerningCanada as a whole, such as tradebetween provinces, national defence,criminal law, money, patents and thepostal service. It is responsible as wellfor the Yukon, the Northwest Territoriesand Nunavut.

The provinces have the authority tomake laws concerning education,property, civil rights, the administrationof justice, hospitals, municipalities andother matters of a local or privatenature within the provinces. Federallaw allows territories to elect councilswith powers similar to those of theprovincial legislatures, and citizens ofterritories thus govern themselves.

There are also local or municipal gov-ernments. They are created underprovincial laws and can make bylawsregulating a variety of local matters,such as zoning, smoking, pesticide use,parking, business regulations, and con-struction permits.

Finally, Aboriginal peoples in Canadahave different types of government. For example, Indian bands can have arange of governmental powers overreserve lands under the federal IndianAct. Other Aboriginal governments,such as self-governments, exercise governmental powers as a result ofspecific agreements negotiated with the federal and provincial or territorialgovernments.

C A N A D A’ S S Y S T E M o f J U S T I C E1 0

Australia and the United States alsohave federal systems in which jurisdic-tion is divided between the federalgovernment and the various states. In contrast, in the United KingdomParliament has sole authority to passlaws for the entire country.

Other federal systems

1 1C A N A D A’ S S Y S T E M o f J U S T I C E

In Canada, both federal and provincialor territorial governments protect theindividual’s rights and freedoms. Theterritorial governments may also legis-late to protect human rights, since thefederal government has delegated thosepowers to them.

The Canadian Bill of Rights, passed in1960, was the first federal law thatspecifically set out fundamental humanrights for Canadians. The CanadianHuman Rights Act (CHRA), firstenacted in 1977, also protects humanrights, particularly in the areas ofemployment, housing and commercialpremises. Unlike the Canadian Bill ofRights, the CHRA applies not only tothe federal government but also to theprivate sector in matters that are regu-lated directly by the federal govern-ment, such as banking.

All provinces and territories also havehuman rights legislation to prohibitdiscrimination on various grounds withregard to employment and the provi-sion of goods, services and facilities.The Québec Charter of Human Rightsand Freedoms, passed in 1975, protectsall fundamental human rights as well assome political, social and economicrights. In addition, Saskatchewan andAlberta enacted bills of rights in 1947and 1972, respectively. This legislationapplies to discrimination both by indi-viduals in the private sector and byprovincial or territorial governments.

Nevertheless, the protection providedby all of this legislation is limited.Because the Canadian Bill of Rights, theCHRA, and all provincial human rightscodes are only legislation, it is possibleto repeal them. It was not until theadvent of the Canadian Charter ofRights and Freedoms that human rights in Canada were protected in the Constitution.

The role of the CanadianCharter of Rights andFreedomsWhen the Constitution was patriated in1982, the Canadian Charter of Rightsand Freedoms became a fundamentalpart of it. The Charter takes precedenceover other legislation because it is“entrenched” in the Constitution, thesupreme law of Canada. It applies tothe provincial legislatures as well as toParliament. This means that when anindividual who believes that Parliamentor a legislature has violated guaranteedrights asks the courts for help, thecourts may declare the law invalid asfar as it conflicts with the Charter. Inaddition, courts may provide otherappropriate remedies to individualswhose rights have been violated or infringed.

However, the Charter also recognizesthat even in a democracy rights and freedoms are not absolute. Forinstance, freedom of expression is guaranteed, but no one is free to yell“fire” in a crowded theatre, to slander

RI G H TS A N D FR E E D O M S I N CA N A D A

someone, or to spread hate propa-ganda. Therefore, Parliament or aprovincial legislature can limit fundamental rights, but only if thatgovernment can show that the limit isreasonable, is prescribed by law, andcan be justified in a free and demo-cratic society. The interests of societymust be balanced against the interestsof individuals to see if limits on individ-ual rights can be justified.

The Constitution affirms that we are amulticultural country and that Charterrights must be interpreted consistentlywith this ideal.

Under the agreement between thefederal and provincial governmentsthat resulted in the Constitution Act,both Parliament and the provincial leg-islatures keep some limited power topass laws that may violate Charterrights. This is democratic because itgives the elected legislatures the lastword. However, their power is stilllimited because Parliament or a provin-cial legislature must specifically declarethat it is passing a law “notwithstand-ing” specified provisions of the Charter.This declaration must be reviewed andre-enacted at least every five years or itwill not remain in force. These limitsact as a kind of warning to Canadians,and force the government to explainitself, to accept full responsibility for its actions, and to take the politicalconsequences.

What rights does theCharter protect?The Charter protects fundamentalfreedoms, democratic rights, the right to move from one province or territory to another in Canada, legal,equality and language rights, andAboriginal rights.

• Fundamental freedoms The Charter gives constitutional pro-tection to freedoms that custom andlaw over the years had made almostuniversal in our country. Everyone inCanada has a right to practise anyreligion or no religion at all. We arefree to speak our minds, to gatherpeacefully into groups and to associ-ate with whomever we wish, as longas we do not infringe the legal andconstitutional rights of others. Thefreedom of the media to print andbroadcast news and other informa-tion is guaranteed as well under the Charter.

• Democratic rightsThe Charter also guarantees ourdemocratic tradition. Canadiancitizens have a constitutional rightto vote in elections for Members ofParliament and representatives inprovincial and territorial legislatures,and to seek election themselves. Afew restrictions – such as those onminors and the mentally incapaci-tated, or on election officials, whomay have to cast a deciding ballot ona citizen’s right to vote or to run in



an election – have been found to bereasonable in a democratic society. Another protection of democracy isthat our elected governments cannothold power indefinitely. The Charterrequires governments to call anelection at least once every fiveyears. (The only exception is in anational emergency, such as war, if two-thirds of the Members ofParliament or a legislature agrees todelay the election.) The Charter alsospecifies that Parliament and legisla-tures must sit at least once a year.This ensures that our governmentsdo the work for which they wereelected, and that they have toanswer questions and explain themselves in public.

• Mobility rights Canadian citizens have the right toenter, remain in or leave the country.Citizens and permanent residentshave the constitutional right to live or seek work anywhere in Canada,including the right to live in oneprovince and work in another. TheCharter stops provinces and territo-ries from discriminating against new-comers. For example, if a person is aqualified professional, such as anaccountant, in one province, anotherprovince cannot prevent him or herfrom working there because thatperson does not live there. However,provinces can make a residencyrequirement for certain social andwelfare benefits. Provinces with anemployment rate below the national

average may set up programs forsocially and economically disadvan-taged residents as well.

• Legal rightsThe Charter also protects the indi-vidual and ensures fairness duringlegal proceedings, particularly incriminal cases. The rights to habeascorpus, or the right to challengebeing detained or held, and to bepresumed innocent until provenguilty – always recognized as part of our law – are now guaranteed inour constitution.

No one can be deprived of the rightto liberty and security of his or herperson except through proper legalprocedures. Canadians are protectedagainst unreasonable searches andseizures, and against police usingexcessive force, even when a searchor seizure is authorized by law. Weare also protected against beingdetained or arrested arbitrarily. Inother words, a police officer musthave a reasonable suspicion that wehave committed a crime beforeholding us in custody.

The Charter also protects us againstarbitrary actions by law enforcementagencies. It guarantees our rights tobe told why we are being arrested ordetained, to consult a lawyer withoutdelay, to be informed of this right,and to have a court determinequickly whether the detention is lawful.

If you are charged with an offenceunder federal or provincial law youalso have the right • to be told promptly of the offence, • to be tried within a reasonable

time, • not to be compelled to testify at

your own trial, • to be presumed innocent until

proven guilty beyond a reason-able doubt in a fair and publichearing by an independent andimpartial tribunal,

• not to be denied reasonable bailwithout cause,

• not to be subjected to any crueland unusual punishment,

• to be tried by a jury for seriouscharges, and

• not to be tried or punished twicefor the same offence.

Any witness, as well as the accused,at trial has the right to an interpreterif he or she does not understand thelanguage or is hearing-impaired.Witnesses also have the right not tohave incriminating evidence usedagainst them in later proceedings.

• Equality rights Everyone, regardless of race,national or ethnic origin, colour,religion, sex, age, or mental orphysical disability, is equal beforethe law and has equal protection andbenefit of the law. This means thatlaws and government programs,such as pension plans, must not be discriminatory.

The Charter does not require that all people always have to be treatedin exactly the same way. For example,it is constitutional to create specialprograms for individuals or groupswho may be at a disadvantage insociety, such as women, visibleminorities or people with disabilities.

• Language rights English and French are Canada’sofficial languages, according to the Charter. Both languages haveequal status and equal rights andprivileges in Parliament and theGovernment of Canada. In addition,everyone has the right to use Englishor French in the debates and pro-ceedings of Parliament, and allstatutes and parliamentary recordsand journals must be printed andpublished in both languages.Everyone has the right to use Englishor French in proceedings before anycourt established by Parliament.Moreover, members of the publichave a right to communicate withand receive services in English orFrench from the central offices offederal institutions and from otherfederal offices where there is a sig-nificant demand in either languageor where it is reasonable.

The same conditions apply on theprovincial level in New Brunswick,the only province which is officiallybilingual under the Charter. Thepublic has the same right to servicesin English or French from all offices



of New Brunswick legislative andgovernmental institutions.

The Constitution Act of 1867 and theManitoba Act in 1870 gave people inQuebec and Manitoba, respectively,the right to use English and Frenchin debates and proceedings of thelegislatures, in the courts of thoseprovinces, and require that provin-cial laws be enacted and publishedin both languages. The Charter pre-serves these rights and obligations.

• Minority-language educational rights In the predominantly English-speaking provinces and all the terri-tories, citizens whose mother tongueis French or who attended French-language primary schools, or whosechild has or is receiving primary orsecondary school instruction inFrench, have a constitutional right to send all their children to French-language schools. In Quebec,citizens who received their primaryeducation in English, or who have achild who was or is being taught inEnglish, have the constitutional rightto send all their children to English-language schools.

This right to minority-languageinstruction applies wherever thereare enough other children in thesame situation to warrant the provision of such instruction, andincludes the right of those children

to receive their education inminority-language schools and educational facilities.

• Aboriginal rights A number of provisions in theCharter, and elsewhere in theConstitution, specifically protect the rights of the Aboriginal peoples(Indian, Inuit, and Métis) of Canada.These provisions• recognize and protect the

Aboriginal and treaty rights ofAboriginal peoples and

• help Aboriginal peoples preservetheir cultures, identities, customs,traditions and languages.

The Charter specifically states thatthe rights and freedoms it guaran-tees cannot be used to take away anyrights that Aboriginal peoples nowhave or may acquire in the future(for example, from the settlement ofland claims).

Other rights The Charter does not embody all ourrights as Canadians; it only guaranteesbasic minimum rights. We all haveother rights derived from federal,provincial, territorial, international andcommon law. Similarly, Parliament or aprovincial or territorial legislature canalways add to our rights.

TH E JU D I C I A L ST RU C T U R E

How the courts are organizedConstitutional authority for the judicialsystem in Canada is divided betweenthe federal and provincial governmentsin this way: • The federal government has the

exclusive authority to appoint andpay the judges of the superior orupper-level courts in the provinces.Parliament also has the authority toestablish a general court of appealand courts for the better administra-tion of the laws of Canada. It has usedthis authority to create the SupremeCourt of Canada, the Federal Courtand the Federal Court of Appeal, aswell as the Tax Court. In addition, aspart of its criminal-law power,

Parliament has exclusive authorityover the procedure in criminal courts.Federal authority for criminal lawand procedure ensures fair and consistent treatment of criminalbehaviour across the country.

• The provinces have jurisdiction overthe administration of justice in theprovinces, including the organiza-tion and maintenance of the civiland criminal provincial courts andcivil procedure in those courts.

What do the federal courts do? The Constitution Act of 1867 authorizedParliament to establish a general courtof appeal for Canada, as well as any


Outline of Canada’s Court System

Supreme Court of Canada

Court MartialAppeal Court

Provincial Courtsof Appeal

Federal Courtof Appeal

Federal CourtTax Courtof Canada

Provincial / TerritorialSuperior Courts

Military Courts Provincial Courts

Provincial AdministrativeTribunals

Federal AdministrativeTribunals


additional courts for better administra-tion of the laws of Canada.

The Supreme Court of Canada servesas the final court of appeal in Canada.Its nine judges represent the five majorregions of the country, but three ofthem must be from Quebec, in recogni-tion of the civil law system. As thecountry’s highest court, it hears appealsfrom decisions of the appeal courts inall the provinces and territories, as wellas from the Federal Court of Appeal.Supreme Court judgments are final. Ordinarily, parties must apply to thejudges of the Supreme Court for per-mission (or leave) to appeal. In certaincriminal cases, the right to an appeal isassured.

The second function of the SupremeCourt is to decide important questionsconcerning the Constitution and con-troversial or complicated areas ofprivate and public law. The governmentcan also ask the Supreme Court for itsopinion on important legal questions.

The federal government also estab-lished the Federal Court, the FederalCourt of Appeal, and the Tax Court.The Federal Court specializes in areassuch as intellectual property andmaritime law and federal-provincialdisputes, while the Tax Court special-izes in tax cases. The Federal Court ofAppeal reviews decisions of both thesecourts, as well as federally appointedadministrative tribunals such as theImmigration Appeal Board and theNational Parole Board.

Provincial and territorial courts Although the names of the courts arenot identical in each province, thecourt system is roughly the same acrossCanada. There are two levels: provincialcourts and superior courts.

Provincial courts Provincial courts try most criminaloffences and, in some provinces, civil cases involving small amounts of money. Provincial courts may alsoinclude specialized courts, such asyouth courts, family courts and small claims court. The provincial governments appoint the judges forprovincial courts.

Superior courts Superior courts, the highest level in aprovince, have power to review thedecisions of the provincial or lowercourts. The federal government appointsthe judges to these courts, and theirsalaries are set by Parliament.

Superior courts are divided into triallevel and appeal level. The trial levelhears civil and criminal cases and hasauthority to grant divorces. The appeallevel hears civil and criminal appealsfrom the superior trial court. These levelsmay be arranged as two separate courts:the trial court named the Supreme Courtor the Court of Queen’s Bench and theappeal court called the Court of Appeal.In some provinces there is a single court,generally called a Supreme Court, with atrial division and an appeal division.

Do these courts try both civil and criminal cases? In Canada, our courts deal with bothcivil and criminal cases. In civil orprivate cases involving breach ofcontract or other claims of harm (torts), the courts apply common-lawprinciples in nine provinces and theterritories. In Quebec, courts apply the Quebec Civil Code. In criminal, or public, cases, on the other hand, thecommon law is applied throughoutCanada.

Administrative boards and tribunals Many administrative rules and regula-tions are often dealt with outside formaltrials. Disputes concerning such mattersas broadcasting licences, employmentinsurance, occupational safety standardsor health regulations, may be reviewedby federal, provincial or territorial gov-ernment departments or by specialadministrative boards like the CanadaEmployment Insurance Commission,the Canadian Radio-Television andTelecommunications Commission,labour relations boards, tenancy tribunals, and refugee tribunals.

Procedure before these administrativebodies is usually simpler and lessformal than in the courts. However, toensure that such bodies exercise onlythe authority given to them by law andthat their procedures are fair, the courtsmay review their decisions and pro-ceedings. In the case of federal boards,the Federal Court and the Federal Courtof Appeal do this review.



The difference between private andpublic law has already been described.Another important distinction is thatbetween “civil” and “criminal” cases. Acivil case is another way of referring toa private case or “suit” – that is, wheresomeone sues someone else. A criminalcase involves a prosecution by theCrown under a public-law statute suchas the Criminal Code, the ControlledDrugs and Substances Act or theCompetition Act.

How do civil cases proceed?A civil action or suit can be startedwhen individuals or corporationsdisagree on a legal matter, such as theterms of a contract or the ownership ofa piece of property. A civil suit can alsoresult from damage to private propertyor physical injury to someone. Forexample, someone who breaks a legwhen he or she slips on an icy stairwellmay sue for compensation. The personwho sues is called the “plaintiff” andthe person being sued is called the“defendant.”

The procedure in a civil case can becomplex, and the terminology describ-ing the steps varies across Canada.Generally, a suit goes through plead-ings, discovery, and the trial itself.

A suit begins when the plaintiff files apleading with the court to set out thecomplaint against the defendant andthe remedy the plaintiff is seeking. This pleading may be called a writ of summons, a statement of claim,

a declaration or an application. Whenthe pleading is filed, a court officerissues the claim by affixing the seal ofthe court and signing the pleading onbehalf of the court. Copies are thendelivered to, or “served on,” the defendant.

The defendant is responsible to providethe court with a “statement of defence.”If she or he does not, the court willassume that the plaintiff’s allegationsare true, and the defendant may thuslose by default.

Both the plaintiff and the defendant areentitled to consult a lawyer for assis-tance. Lawyers representing each sideoften discuss the lawsuit in an effort tosettle it before a trial is necessary. A settlement can be reached at any timebefore the judge makes his or herdecision. In fact, only about twopercent of civil suits are actually triedbefore the courts.

After statements of claim and defenceare filed, each party is entitled to an“examination for discovery” before thetrial. This examination is intended toclarify the claim against the defendantand to let each side examine theevidence that the other side intends touse in court.

The dispute may then proceed to trial.During the trial, it is up to the plaintiffto present facts to support the claimagainst the defendant. In a civil suit,the plaintiff must prove that it is

CI V I L A N D CR I M I N A L CA S E S

probable that the defendant is legallyresponsible, or “liable,” as a civil case isdecided on a balance of probabilities.

If the facts justify the remedy the plain-tiff is seeking, the court will hold thedefendant liable.

What happens at a civil trial? The trial begins with the plaintiff pre-senting evidence against the defendant.The plaintiff may call witnesses totestify to facts and present papers, pho-tographs or other kinds of evidence.The defendant may cross-examine theplaintiff’s witnesses to test theirevidence. The defendant then presentshis or her own evidence, including wit-nesses. The plaintiff has the same rightto cross-examine.

Throughout the trial, the judge mustmake sure that all the evidence pre-sented and all the questions asked arerelevant to the case. For example, inmost situations, the judge will not allow “hearsay” evidence, testimonybased on what a witness has heardfrom another person.

At the conclusion, both the plaintiffand the defendant summarize theirarguments. The judge must thenconsider the evidence presented beforemaking a decision, based on what hasbeen proven to be most probable. He orshe must decide whether the facts showthat the defendant has broken a civillaw, such as a law that we are bound tofulfill our contracts.

Depending on what the suit is aboutand the court in which the action istaken, the defendant may have a rightto a trial by judge and jury. In suchcases, the jury must decide whichversion of the facts it believes. Thejudge decides what law applies. At theend of the trial, the judge will explainthe evidence and the relevant laws tothe jury. The jury must then considerthe matter and reach a verdict.

Decisions in civil cases If the defendant is found to be notlegally responsible or liable on abalance of probabilities, the judge willdismiss the case. If the defendant isfound liable, the judge or jury mustconsider the remedy that the plaintiffasked for in the pleadings, the facts,and the authority to grant specific reliefbefore deciding how to compensate the plaintiff.

Remedies can be monetary, declaratoryor injunctions. Monetary remedies,called “damages,” are the mostcommon. The judge or jury whodecides the case normally fixes theamount of damages. The judge or jurywill take into account the expensesincurred by the plaintiff and, where the law permits, an additional sum tocompensate the plaintiff for the losssuffered or that might be suffered in thefuture as a result of the wrongdoing ofthe defendant.



The judge or jury is not required toaward the amount asked for by theplaintiff; they may, in fact, award lessthan the amount claimed. In Canada, a judge or jury may occasionally award“punitive” or “exemplary” damagesbeyond compensation to the plaintiff.Such damages are usually awardedwhen possible under a law or when thejudge or jury feels that the conduct ofthe defendant was so offensive that anincreased award is required to expressthe disapproval of the community.

Declaratory remedies state the rights of the parties. For example, when acourt interprets a will or a contract, its decision is declaratory. The court’sdecision on the ownership of personalproperty or land is also declaratory.

Some remedies require a person to do or not do something. The mostcommon of these is the “injunction.”An injunction can prohibit someonefrom doing something, such asannoying his or her neighbours byburning garbage. Injunctions can alsomake someone do something, such asremove a junk heap from the plaintiff’sproperty.

Another remedy that requires a personto do something is known as “specificperformance.” This is most commonlyapplied when the defendant hasbreached a contract with the plaintiff.For example, if the defendant, Mr.Jones, has broken his contract to sellhis house to the plaintiff, Mrs. Smith,

the judge could order Mr. Jones to sell the house to Mrs. Smith at theagreed price.

Injunctions and specific performanceremedies are not given automatically.In each case, the court has the discre-tion to make such an order or to awarddamages according to precedent.

How do criminal cases proceed? Since a crime is considered to be anoffence against society as a whole, it isusually the state that starts a criminalprosecution.

Criminal offences are set out in theCriminal Code or in other federal laws.They are divided into “summary con-viction” and “indictable” offences.Some offences that may be prosecutedeither summarily or by indictment areknown as “hybrid” or “dual-procedureelective” offences.

The person charged with a criminaloffence is called the “accused,” and isalways presumed innocent until provenguilty. If the accused is charged with asummary conviction offence, he or shewill appear before a provincial courtjudge for a trial that will normallyproceed “summarily,” that is, withoutfurther procedures. The maximumpenalty for this type of offence isnormally a $2,000 fine, six months inprison, or both.

More serious offences are prosecutedby indictment. In most cases theaccused may choose to be tried by aprovincial court judge, by a superiorcourt judge or by a judge of a superiorcourt with a jury. For indictableoffences, there may be a “prelimi-nary hearing” during which a judgeexamines the case to decide if there isenough evidence to proceed with thetrial. If the judge decides there is notenough evidence, the case will be dismissed. Otherwise, a full trial will be ordered.

A person accused of a crime may notalways be arrested. The accused maysimply receive a “summons” after acharge has been laid before the court. A summons is an order to appear incourt at a certain time to answer to the charge.

If the accused is arrested by the police,certain procedures must be followed to protect his or her rights. When thepolice arrest or detain an individual,they must tell the person that he or she has the right to consult a lawyerwithout delay and explain the reasonsfor the arrest and the specific charge ifone is being made.

Anyone arrested and held in custodyhas the right to appear before a justiceof the peace or judge as soon aspossible (usually within 24 hours unlessreleased sooner by the police) to havepre-trial release or bail determined. Bailhearings are sometimes referred to as

“show-cause” hearings because theprosecutor usually must show why the accused should remain in custody.However, in certain situations theaccused must show why he or sheshould be released. If a judge decideson release, the accused may be releasedwith or without conditions. Release onbail will only be refused if there are verystrong reasons for doing so.

Anyone accused of a crime also has the right to stand trial within “a reason-able time.”

What happens in a criminal trial?A criminal trial is a particularly seriousmatter because liberty, as well as thestigma of a criminal conviction, is atstake for the accused. Recognizing this,both common law and the Charterprovide appropriate protection. Forexample, the prosecution must provethat the accused is guilty of the chargebeyond a reasonable doubt. Also, if any evidence is obtained in violation ofthe accused’s Charter rights, such asthrough an unreasonable search andseizure, the judge may refuse to admitthe evidence.

In a criminal trial, an accused personcannot be required by the prosecutionto give evidence.

Victims of crimeAlthough the legal system appears tofocus on the offender and the state, the



role of victims is also recognized, andlegislation and services are in place thatmay help victims.

For example, under the Criminal Codethe victim’s safety must be consideredin bail decisions; a victim’s identity maybe protected in appropriate circum-stances; victim impact statements maybe submitted and must be consideredat sentencing; and offenders may beordered to pay restitution (an amountof money to compensate the victim) aspart of the sentence.

Decisions in criminal cases If the accused is found not guilty, he or she will be acquitted and is then free to go.

If the accused is found guilty of a crime,the judge must decide the appropriatesentence. When making this decision,the judge must consider the serious-ness of the crime, the range of sen-tences possible in the Criminal Code orother statutes, preventing or deterringthe offender or others from committingsimilar crimes and the prospects forrehabilitation.

Judges may impose many different kindsof sentences or a combination of penal-ties that may include such penalties as: • A fine (a sum of money), • restitution (an order requiring the

offender to compensate for injuriesor to pay compensation for loss of ordamage to property as a result of the offence),

• probation (release of the offender onthe conditions prescribed), whichmay include community service,

• community service (an order thatthe offender perform a certainnumber of hours of volunteer workin the community), or

• imprisonment (confinement in aprison or penitentiary).

An offender who is sentenced to morethan two years will be sent to a federalpenitentiary; one who is sentenced to two years or less will go to a provin-cial prison.

However, the judge does not alwayshave to convict, even if the accusedperson has pled guilty or been foundguilty. The judge may give an offenderan absolute or conditional discharge.Under a conditional discharge, theoffender must obey conditions imposedby the judge or face a more severesentence. An offender who is given adischarge will not get a criminal recordfor the offence.

Can a decision be appealed?Because it is possible that a court maymake an error in a trial, the right toappeal a court’s decision is an impor-tant safeguard in our legal system.

In most civil and criminal cases, adecision made at one level of the courtsystem can be appealed to a higherlevel. Where there is no right to appeal,permission or “leave” to appeal must besought. The higher court may deny

leave to appeal, affirm or reverse theoriginal decision. In some cases, it willorder a new trial.

Both sides in a civil case and either the prosecution or the accused in acriminal case may appeal.

Sometimes, it is only the amount ofdamages or the severity of the sentencethat is appealed. For example, theaccused may ask a higher court toreduce a sentence, or the prosecutionmay ask to have the sentence increased.

How does restorative justice fit in? Restorative justice, which has recentlycome into our system from Aboriginaljustice traditions, is another way torespond to criminal acts. Restorativejustice puts emphasis on the wrongdone to a person as well as on thewrong done to the community. It recog-nizes that crime is both a violation ofrelationships between specific peopleand an offence against everyone (the state).

In restorative justice programs, thevictim of the crime, the offender and,ideally, members of the community vol-untarily participate in discussions. Thegoal is to restore the relationship, fixthe damage that has been done, andprevent further crimes from occurring.

Restorative justice requires wrongdoersto recognize the harm they havecaused, to accept responsibility for

their actions and to be actively involvedin improving the situation. Wrongdoersmust make reparation to victims andthe community.

Youth justiceSpecial considerations come into playwhen young people commit acts thatare considered criminal. This is whyParliament passed the Youth CriminalJustice Act in 2003. It applies to youngpeople aged 12 to 17 years, inclusive.The Act recognizes that young personsmust be held accountable for criminalacts, although they need not always beheld accountable in the same manneror to the same extent as adults. It is insociety’s interest to ensure that as manyyoung offenders as possible are rehabil-itated and become productivemembers of society.

The Act recognizes that young peoplelack the maturity of adults, and that theyouth justice system should includeenhanced procedural protections andmeasures of accountability that areconsistent with this reduced level ofmaturity. The Act also recognizes thatyoung people have special needs andcircumstances that must be consideredwhen any decision is made under theAct. These principles are set out in the Act’s Declaration of Principle. To protect the rights of young people,youth justice proceedings requirespecial guarantees: courtesy, compas-sion and respect for victims; the oppor-tunity for victims to be informed and toparticipate; and assurance that parents



will be informed and encouraged toparticipate in addressing the youngperson’s offending behaviour. Youngpersons are given the same rights andprotections as adults, such as the pre-sumption of innocence and the onuson the prosecution to prove its casebeyond a reasonable doubt. Of course,young people are also entitled to berepresented by a lawyer.

Proceedings under the Act are con-ducted in special youth courts. A youthcourt has the power to impose an adultsentence. For the most serious offencescommitted by a young person who is 14years of age or more (this age variesfrom 14 to 16, as determined by eachprovince), there is a presumption thatan adult sentence will be imposed. TheCrown may also choose to renouncethe application of this presumption. Inthis case, the judge who finds theyoung person guilty has to impose ayouth sentence.

The Act allows for youths to be dealtwith outside the formal court systemthrough the means of “extrajudicialmeasures.” These measures are gener-ally restricted to relatively minor, firstoffences. They are expeditious andoften informal, and minimize the stig-matizing effects of an appearance incourt. They also reserve the costliercourt process for more serious cases.

The Act says that young people are tobe held accountable in ways that arefair and in proportion to the serious-ness of their offences. These interven-tions should reinforce respect forsocietal values, encourage the repair ofharm done, be meaningful to theoffender, respect gender, ethnic,cultural and linguistic differences andrespond to the needs of Aboriginalyoung persons and of young personswith special requirements.

TH E RO L E O F T H E PU B L I C

What are our duties under the law?

In Canada, law and justice is not onlythe business of Members of Parliament,judges, lawyers and police services.Each of us has a part in ensuring thatthe law works properly and justice is done.

Jury duty Serving on a jury is one way a citizencan carry out his or her role. One of theoldest institutions of our justice system,a jury enables those who have beencharged with a criminal offence to betried by a group of fellow citizens. InCanada, a criminal law jury is made upof 12 jurors selected from amongcitizens of the province or territory inwhich the court is located. Generally,any adult Canadian citizen is qualifiedto be considered for jury duty. Theprovinces determine the precise way ofselecting jurors.

A citizen who is called for jury dutymust show up for selection. Beingcalled for jury duty does not mean aperson will be selected to serve as ajuror. Some prospective jurors may not be required to do so by the laws oftheir province. Also, the prosecutor orthe defence counsel may object to aparticular juror if they believe there is a reason why he or she should be disqualified.

During the trial, jurors must not allow themselves to be influenced byanything except the evidence presentedin court. Jurors must make up their ownminds about the truth or honesty of thetestimony given by witnesses.

Finally, after both sides have called alltheir witnesses and presented theirarguments, the judge instructs the jury on the law and on what they musttake into account when making theirdecision. Then the jurors meet bythemselves in a room outside the courtroom to decide, in a criminal case, whether the prosecutor hasproven beyond a reasonable doubt that the accused is guilty. In a civil case, they must decide whether theplaintiff has proven that the defendantis liable, or responsible, on a balance of probabilities.

All the jurors must agree on thedecision or verdict – in other words,their decision must be unanimous. Ifthey cannot all agree, the judge maydischarge the jury and direct a new juryto be empanelled (chosen) for a newtrial. After a trial, no juror is allowed totell other people about the discussionsthat took place in the jury room.

A jury in a civil case is slightly different.It has, for example, only six jurors, andthe decision does not have to be unani-mous, as long as five of them agree onthe verdict.



Testifying in court A person who has information thateither party in the case believes to beuseful may be called to give evidence in a civil or criminal trial. For example,someone might have witnessed theevent, know something that is impor-tant to the case, or have a documentkey to the trial. People whose knowl-edge about a particular subject canhelp the court with answers to techni-cal questions may also be called as anexpert witness. Usually, though, peoplecome forward voluntarily when theyhave information they believe is relatedto the case. If they do not, they can besummoned by “subpoena” to giveevidence in court. A person subpoe-naed must testify or face a penalty.

Witnesses’ testimony is taken underoath or by affirmation that they will tell

the truth. Witnesses are required toanswer all questions they are asked,unless the judge decides that aquestion is irrelevant or not necessaryto the case.

Sitting on a jury or testifying in courtgives citizens an opportunity to makesure Canada’s justice system is workingas it should.

Knowing the law People do not have to be experts in thelaw. However, in our system, ignoranceof the law is no excuse or defence. Ifyou are charged with an offence, forexample, you cannot be excused byclaiming that you did not know youwere breaking the law (although thecourt will consider honest mistakes of fact). Because our laws are publiclydebated before being passed inParliament or a legislature, the public is expected to know what is permittedor legal and what is not.

The duty to know the law means thatcitizens should take steps to be surethey are acting legally. Information isavailable from federal, provincial andterritorial government offices, publiclibraries, public legal education andinformation associations, and thepolice. If, after consulting these sourcesof information, you are still uncertainabout the law, then you should consulta lawyer.

Most civil cases in Canada are tried by judges without a jury. However, • anyone charged with a criminal

offence for which there can be aprison sentence of five years or morehas the right to a trial by jury,

• in some cases, a person charged witha criminal offence for which there canbe a prison sentence of less than fiveyears may have the right to choose atrial by jury, and

• some civil cases can also be tried byjudge and jury.

Trial by jury


Lawyers are qualified to give legal advice through many years of study and training. They may represent theirclients in both civil and criminal cases.They can also help and advise theirclients in any situation where knowledgeof the law is necessary, such as buying or selling a house.

In Quebec, the legal profession consistsof both lawyers and notaries. Notariesdeal with contractual matters, especiallyin real estate, and cannot appear in courtexcept in non-contentious matters. In therest of the country, lawyers can provideany kind of legal service. However, many lawyers specialize in one type of

law, such as criminal law, or only give tax advice.

A lawyer’s advice is important to anaccused since a conviction can haveserious consequences, but some accusedpeople are not able to pay for one. Forthis reason, the federal and provincialgovernments have set up a program toshare the cost of legal services for thosewho qualify for such assistance. Anyperson who meets the financial criteriaand who is accused of a crime for whicha conviction might mean jail or loss oflivelihood may get legal aid. Someprovinces also offer legal aid for civilcases, particularly in family-law matters.

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SERVING CANADIANS · Ottawa,Ontario K1A 0H8 ©Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada,2005 Library and Archives