Sources of Law

Laws in Canada come in four main forms:

·          Constitution – Defined in Canada’s Constitution Acts and associated documents, the Constitution is the highest law of Canada and defines the relationships between the federal and provincial governments. 

·          Statutes – Also known as acts, a statute is a written statement of the law which has been passed through the Parliament (federally) or the Legislature (provincially);

·          Regulations – Regulations, also known as sub-ordinate legislation, are statements of the law that are passed by the Executive (Cabinet or an individual Minister) under the authority of a Statute.  Usually a regulation provides more detail to what the Legislature or Parliament has enacted in a Statute.  Together Statutes and Regulations are known as legislation [link to glossary].

·          Common Law – The rules that a community has to govern itself can take on a legal character.  The community rules of England were, and continue to be, interpreted and applied by the courts, becoming the judge-made “common law” of Canada.  Canadian courts are currently grappling with the question of the extent to which the community rules of First Nations cultures – the original laws of Canada – are enforceable as part of the common law of Canada.

These forms of laws should be viewed as a hierarchy.  All legislation must be consistent with the Constitution (although it is less clear whether the common law must be consistent with it in cases where the government is not involved as a party.)  All regulations must be consistent with the statute that created it (and with other statutes generally).  And any legislation can change the common law. 

Where there are conflicts between statutes (or between regulations) the situation gets more complicated and you should consult a lawyer if that situation arises. 

Constitution

Because of Canada’s historic status as a colony of Great Britain, the Constitution Acts are actually statutes of the British Parliament.  However, the Constitution Act, 1982 provides rules for how the Canadian federal and provincial governments can change the Constitution Acts in the future. 

Statutes

A Statute begins its existence as a “Bill”, which is basically a proposed piece of legislation.  Before a Bill becomes law it will need to be:

·                      Introduced to the Parliament/Legislature with limited discussion and published in a government publication known as the Gazette (First Reading);

·                      Debated in the Parliament/Legislature with concerns being referred to a committee for further discussion (Second Reading); in B.C. the whole Legislature may sit as a committee to consider the bill;

·                      Report received, and Bill is reviewed by the Parliament/Legislature one last time (Third Reading), with any necessary amendments being made; and

·                      Receive Royal Assent (official approval from the Queen’s representative, as advised by cabinet).

At the federal level the First through Third Reading will need to be done twice, to allow the Bill to pass through both the House of Commons and the Senate separately.  In addition, the above description of the process is an oversimplification, but is generally accurate. 

Any Member of Parliament or Senator (federally) or Member of the Legislative Assembly (provincially) can introduce a Bill.  However, because Cabinet controls the process, and must recommend final approval (royal assent) of a Bill before it becomes law, it is extremely unusual that “Private Member’s Bill”, a Bill introduced by someone other than a member of Cabinet, ever becomes law.  

In practice, then, most Bills (and virtually all that become law) are introduced by the Cabinet Ministers responsible for the subject matter of the Bill. 

Regulations

Statutes typically give authority to the “Lieutenant Governor” or “Governor General” “in Council” (read Cabinet) to enact regulations.  Sometimes individual Ministers will also have the ability to pass regulations. 

While the process is not identical at the federal and provincial levels, regulations will generally be published, once passed, in the BC Gazette or Canada Gazette.  The Gazette is the official publication of the Legislature and Parliament respectively, and are where many other types of announcements will be published as well.

If validly enacted, and falling within the powers granted by the Statute under which the Regulation was made, then a regulation has the same force of law that the Statute would.

Common Law

The common law evolves based upon what the judges say about cases that are brought before them.  Other pages provide more information about the judiciary and the common law.

For more information about Sources of Law in Canada:

·                      How a federal Bill becomes law – an on-line description of how the federal Parliament makes laws. 

·                      How a Bill becomes law in British Columbia – A B.C. government publication describing how the Legislature makes laws.

·                      “Discover your Legislature” (BC Government flash or pdf presentation)

·                      British Columbia Statutes and Regulations or Bills;

·                      Government of Canada Statutes and Regulations or Bills.