Canadian Legal System

All of the provinces of Canada were colonies of Britain (Quebec, a French colony, being conquered by the British in 1673), and it hardly surprising that our dominant model of national and provincial government and law is inherited from the British.  The notable exception to this general rule occurs in the province of Quebec, which draw heavily on the French approach to law. 

The British Parliament passed the British North America Act (now called the Constitution Act, 1867) in 1867, creating the Dominion of Canada and giving Canada limited self-government and a constitutional framework.  When British Columbia joined Canada as a province in 1871 it did so under the terms of this Act.  The Constitution Act, 1867 departed from the British model in one major respect:  it divided the powers of government between a central government (the federal government) and regional governments (the provincial governments).  Thus the government of British Columbia is responsible for making laws in respect of certain topics, while the government of Canada is responsible for others.  There are some areas of overlap, although where there is a conflict the federal government’s powers prevail. 

The British model of government, at least in theory, revolves around the Queen.  The Queen is represented in Canada by the Governor General of Canada at the federal level, and the Lieutenant Governor at the provincial level.  In practice, however, the Queen’s representatives follows the recommendations of Cabinet (discussed below) and will only refuse to do so where the recommendation is clearly illegal or unconstitutional.  Indeed, the Queen even appoints the Governor General and Lieutenant Governor on the basis of recommendations of Cabinet.

Both the federal and provincial governments center around a body of elected and/or appointed representatives who ostensibly advise the Queen on what laws should be passed.  At the federal level this body is known as Parliament, and includes both elected officials (the House of Commons) and appointed officials (the Senate).  In B.C. the equivalent body is known as the Legislature and is made up of only elected officials (known as Members of the Legislative Assembly).  It is Parliament or the Legislature that has the power to create new laws or modify old ones (provided they fall within the power of the Federal or Provincial government’s respectively). 

Representatives in the House of Commons (known as an Member of Parliament or M.P.) or the Legislature (Member of the Legislative Assembly, or M.L.A.) select a leader, known at the federal level as the Prime Minister and at the provincial level as the Premier.  The elected officials are almost always members of a political party, and the Prime Minister or Premier, by convention, is the leader of the political party with the most “seats” or representatives elected. 

The Prime Minister or the Premier then selects a team from among the members of the Legislature or Parliament, who are designated as “Ministers” and are given responsibility for making key decisions on behalf of the government.  Collectively the Ministers are known as “Cabinet” or sometimes the “Executive”.  In legal terms the Cabinet advises the Queen’s representative and therefore is also known as the Governor General-in-Council (federally) or the Lieutenant Governor-in-Council (provincially). 

The Parliament frequently delegates key decisions under its laws to specific Ministers or to the Executive (Cabinet).  Most of the ongoing operations of the government is overseen by various Ministers, with a number of far reaching decisions being made by the Executive.  Each Minister is generally responsible for one or more Departments (federally) or Ministries (provincially) that advise the Minister and assist in the exercise and implementation of specific legislation.  

To summarize:

·         Parliament or the Legislature create new laws or change old ones.  This body is generally controlled by the political party with the most seats;

·         The Prime Minister (federally) or Premier (provincially) is selected by the Parliament or Legislature, respectively;

·         The Prime Minister or Premier appoint Ministers responsible for various government decisions, known collectively as Cabinet;

·         The Cabinet is given key decision-making powers by Parliament or the Legislature, and is responsible for implementing the laws. 

Both the Government of Canada and the Government of British Columbia are given different responsibilities under the Constitution Act, 1867, and there are other differences as to how they operate and how they have organized themselves.  These differences can be explored in further detail by following the above links. 

In 1982 Britain passed the Constitution Act, 1982 which gave Canada the ability to amend its own Constitution, as well as creating a Charter of Rights and making various other amendments to the Constitution.  

The federal and provincial governments are discussed in some detail in the Constitution Act, 1867.  However, there are other levels of governments and of laws which will need further discussion:

·         The Courts interpret the laws passed by the Governments of Canada and British Columbia. 

·         Local governments, such as cities, districts, regional districts, have an important role in protecting the local environment and planning for smart development. 

·         Similarly, First Nations Governments have rights and law making abilities that can impact on watershed law and planning – positively or negatively.

·         Agreements and customs between nations can give rise to International Law.  While there are limits on its application in Canada, knowledge of relevant International Law can be useful in advocating effective Watershed Protection. 

Related Guide Pages:

·         Government of Canada’s Authority

·         Government of British Columbia’s Authority

·         Sources of the Law

·         Implementation of Legislation

·         Structure and Powers of Local Government

·         Structure and Powers of First Nations Government

·         International Law

 

For more information about the Parliamentary System

·         Electronic copies of the Constitution Acts.

·         Parliament’s  Parliamentary Process Page.

·         “How Canadians Govern Themselves”

·         The Governor General of Canada’s web page.

·         The Lieutenant Governor of British Columbia’s web page.

·         “Discover your Legislature” – a BC Government Flash or PDF presentation