Guide to Foreign and International Legal Citations - New York ...

26
CANADA
I. COUNTRY PROFILE (Common Law)
Canada is a constitutional monarchy. Its monarch (the King or Queen of England) is the
official head of state and is represented in Canada by the Governor General whose functions are
merely formal. It is unanimously understood that the powers conferred upon the Monarch have
fallen into desuetude and can no longer be exercised. Thus, in effect, Canada is governed by a
parliamentary democracy.
Canada is a federation composed of ten provinces and three territories (two are under
federal jurisdiction, one has been granted limited autonomy). The federal Parliament has two
chambers: the House of Commons, where elected deputies sit; and the Senate, which is
composed of individuals nominated by the Prime Minister. The Prime Minister is the head of the
government and is not personally elected, but rather is the leader of the party who has the most
seats in the House of Commons. The government includes members of the House of Commons,
the Senate, and the Prime Minister. The legislative function is exercised by both the House of
Commons (325 deputies) and the Senate. In order for a bill to be adopted, it must pass both
chambers of Parliament and receive royal assent. The Senate, however, rarely refuses to pass a
bill. This system of parliamentary democracy is replicated in all of the ten provinces, except that
most provinces have abolished their senate. At both levels, elections must be held at least every
five years, during which period the Prime Minister or Premier has discretion as to the moment to
call the electors to vote.
The division of powers among the federal and the provincial units are provided for in the
Constitution. Provinces have jurisdiction over, inter alia, administration of justice, hospitals,
schools and education, municipalities, incorporation of companies with provincial objects,
property and civil rights, and natural resources. They also have taxation powers that they
delegate in part to cities and municipalities. Apart from these powers, ad hoc administrative
agreements between the federal government and individual provinces can be concluded to
modify this distribution. The federal government has jurisdiction over, inter alia, currency,
military forces, navigation, fisheries, banks, bankruptcy and insolvency, aboriginal peoples,
naturalization of aliens, divorce, criminal law, and foreign relations. The federal government
also has certain prerogatives such as the power to allocate funds on issues that do not fall under
its jurisdiction but that are of national interest, to adopt laws for peace, order and good
government, and to legislate over matters that do not fall within either federal or provincial
jurisdiction (residual jurisdiction).
The federative nature of the state is also reflected in the judiciary. The federal
government has created common law courts—of first instance and of appeal (Superior Courts
and Courts of Appeal)—in each province (except in Quebec). It has also created a Supreme
Court of Canada. The Prime Minister nominates justices of the superior courts, courts of appeal
of each province, and the Supreme Court of Canada. These justices have lifetime tenure.
Moreover, the federal government has created a Federal Court and Tax Court, both of first
instance and of appeal, for the better administration of the laws of Canada. The provinces have
established their own courts, which deal with most criminal offenses and, in some provinces,
with civil cases involving smaller amounts of money. These provincial courts may also include
specialized courts such as youth and family courts. This division, however, does not
automatically reflect their jurisdiction, as provincial courts apply federal laws and vice versa.