Introduction

It is important for legal professionals to understand the fundamentals of the law to know where to begin their legal research to find answers for a client’s legal issue or concerns (Blatt & Kurtz, 2020). The Canadian Constitution and its role in guiding the interactions between all levels and branches of government is introduced at the beginning of this chapter. The levels of courts in Alberta and Canada and their interactions with each other are then discussed. Knowing what law governs a client’s problem will help legal professionals know what can be done and what choices to give the client about how to provide (Blatt & Kurtz, 2020, p. 11). At the end of the chapter, the four primary sources of law in Canada are introduced, and the categories of law explained in detail.

Canadian Government

The Canadian Constitution

The Canadian Constitution is the supreme law of Canada. The Constitution consists of a combination of

• Principles of democracy inherited from Britain as traditions;
• The Constitution Act of 1867 (formerly called the British North America Act of 1867); and
• The Constitution Act, 1982.

Two parts of the Constitution determine the validity of laws passed by the federal and provincial governments and municipal bylaws – the division of powers and the Charter of Rights and Freedoms (Nastasi et al., 2019).

Division of Powers

According to Nastasi et. al (2019), the Constitution allocates law-making powers to the federal and provincial governments based on the subject matter. If one level of government passes a law that regulates an area granted to another by the Constitution, the law is considered invalid.  Furthermore, laws are referenced in the Constitution Act as follows:

• Section 91 of the Constitution Act 1867 sets out the subjects governed by federal law, including criminal, bankruptcy law, and patent law.
• Section 92 of the Constitution Act 1867 sets out the subjects governed by provincial law, including property and civil rights, municipal laws, the administration of justice, and the court system.

For ease of reference, the dropdowns below summarizes the powers of the federal government and the provincial governments, according to Government of Canada (2021) The Constitutional Distribution of Legislative Powers:

The Charter

The Canadian Charter of Rights and Freedoms was incorporated into the Constitution in 1982 and sets out a list of fundamental rights and freedoms belonging to all persons (Department of Justice Canada, 2022). The Charter is divided into seven categories: fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, official language rights, and minority language educational rights (Department of Justice Canada, 2022). Any law or government action that infringes these rights to a greater extent than can be justified in a free and democratic society is either invalid or has no effect to the extent that it infringes these rights (Nastasi et al., 2019).

Aboriginal and Treaty Rights

Aboriginal Rights: Refer to Aboriginal peoples’ historical occupancy and use of the land

Treaty Rights: Rights set out in treaties entered into by the Crown and a particular group of Aboriginal people

The Constitution recognizes and protects both aboriginal rights and treaty rights (Department of Justice Canada, 2021). Section 35 of the Constitution Act affirms Aboriginal and treaty rights of Indigenous peoples in Canada and recognizes them as legally binding. Indigenous laws are incorporated into these rights and form an essential part of the tapestry of Canadian law (Queen’s University, 2017).

Indigenous Services Canada (ISC) administers many pieces of legislation, either in whole or part. ISC develops and enforces regulations under authority delegated by the legislation that directly impacts First Nations, Inuit, Metis, and Northerners (Indigenous Services Canada, 2022).

Levels of Government

Canada’s system of government is divided into three levels: federal, provincial or territorial, and municipal, and are outlined as follows:

Branches of Government

Canada’s system of government has three branches: the legislative, the executive, and the judicial. Each has separate powers and responsibilities defined in the Constitution: the legislative branch passes laws, the executive branch implements them, and the judicial branch interprets them (Parliament of Canada, n.d.b).

Every level of government has an executive branch and a legislative branch. The federal, provincial, and territorial governments are all responsible for the judicial system in Canada and have their own judicial branches. Municipal governments, on the other hand, do not have a judicial branch.

Alberta Courts

Canada’s court system is composed of courts and administrative tribunals. People involved in the court process include justices seen in the Alberta Court of Justice and Alberta Court of King’s Bench, judges in the Alberta Court of Appeal, Supreme Court of Canada, and Federal Court, and adjudicators seen in administrative tribunals (Blatt & Kurtz, 2020, p. 44).

Federally enacted laws, regulations, and decisions bind all lower courts in every province and territory; this principle is called stare decisis. Stare decisis refers to the doctrine of precedent formed by judges in previous decisions to be applied in similar cases to ensure consistency and certainty in the law. It evolves from common law judicial decisions, where each court decision binds upon all lower courts when the circumstances of the case are exceedingly similar (Brierley, 2015). For example, a decision made by the Alberta Court of Appeal must be followed for almost identical cases seen later in the Alberta Court of King’s Bench or the Alberta Court of Justice. However, if the Supreme Court or the Alberta Court of Appeal sees an additional almost identical case, it is not required to follow the previous Alberta Court of Justice or Court of King’s Bench decision, as they are lower courts than the Supreme Court of Alberta or the Alberta Court of Appeal.

Provincial or Territorial enacted decisions, statutes, or regulations are not binding in other provinces or territories but can pose persuasive authority to those courts (Blatt & Kurtz, 2020, p. 86). For example, a decision from Saskatchewan may have similar facts and legal issues, but the decision would be considered persuasive rather than binding upon the decision maker.

Binding Law: A pre-existing statute, regulation, or case law that must be followed by lower courts (Blatt & Kurtz, 2020, p. 86).

Binding Decision: An existing court decision that lower courts must follow if the case in question is exceedingly similar (Blatt & Kurtz, 2020, p. 86).

Alberta Court of Justice

The Alberta Court of Justice (ABCJ), previously known as the Alberta Provincial Court, is the lowest court in Alberta. It is split into four divisions: Civil, Criminal, Family, and Youth (Alberta Court of Justice, n.d.a).

Choosing the Alberta Court of Justice over the Alberta Court of King’s Bench for some matters can be appealing for many reasons. The Alberta Court of Justice is more accessible for people who may not have the funds to retain a lawyer for the entirety of a family or civil proceeding, as self-represented litigants are allowed, unlike the Alberta Court of King’s Bench. This allows parties to maneuver the court process at a reduced cost (Lyn, 2023). The Alberta Court of Justice provides fair, accessible, and efficient justice to all Albertians (Alberta Court of Justice, n.d.a).

There are 21 base point locations and 51 circuit point locations. This means 21 courthouses in Alberta are full-time Alberta Court of Justice locations. Circuit point locations are secondary courthouses that offer most, but not all, services as the base point locations. On the Alberta Courts website, you can view the Alberta Court of Justice court practice and schedules and the locations map.

Each of the above benefits or risks regarding the Alberta Court of Justice and Alberta Court of King’s Bench can be seen as an advantage or disadvantage, depending on the parties’ situations.

Civil Division

Civil law is when private individuals and/or businesses choose to sue another individual or business by beginning a court action. The Alberta Court of Justice Civil Division provides an accessible, affordable, simplified means to resolve private matters. Parties to the action may choose to represent themselves or hire a lawyer at their own expense. The maximum amount to claim in the Alberta Court of Justice is $100,000. Any claim higher than that amount must be brought before the Alberta Court of King’s Bench (Alberta Court of Justice, n.d.b). Civil litigation matters can evolve from the following, but are not limited to:

For the court to find in favour of a party in civil litigation, the case must be proven on the balance of probabilities (Alberta Court of Justice, n.d.b).

Criminal Division

All criminal court appearances start in the Alberta Court of Justice, where pleas, bail hearings, and preliminary inquiries are entered. Only less serious indictable and summary conviction offences can be heard in the Alberta Court of Justice Criminal Division (Alberta Court of Justice, n.d.c).

Family Division

The Alberta Court of Justice hears applications for child and spousal support, parenting arrangements, guardianship, and child protection matters. This court does not have jurisdiction to decide divorce or property claims arising out of divorce (Department of Justice Canada, 2024). On the Alberta Court of Justice website, numerous brochures and information pamphlets are available to assist self-litigants in the family process (Alberta Court of Justice, n.d.d).

Youth Division

In Canada, offenders aged 12 to 17 must be tried in the youth justice system. The Youth Criminal Justice Act (YCJA) was created for young offenders to outline their applicable consequences that are separate from the Criminal Code, which is adult-specific. The Youth Criminal Justice Act focuses on rehabilitation and the prevention of recidivism. Youths are also held in a separate remand center from adults, but are transferred if they are held in custody past their 18th birthday (Alberta Court of Justice, n.d.e).

Alberta Court of King’s Bench

The Alberta Court of King’s Bench is the Province’s Superior Court. This court hears complex criminal matters, family matters, civil matters dealing with more than $100,000, surrogate matters regarding Wills, Estates, and Guardianships, and appeals from the Alberta Court of Justice (Court of King’s Bench of Alberta, n.d.a). To present a matter in this court, natural persons are entitled to represent themselves or to retain a lawyer, whereas corporations must retain a lawyer (Lyn, 2023).

The 11 base point locations for the King’s Bench include Fort McMurray, Peace River, Grande Prairie, Edmonton, St. Paul, Wetaskiwin, Red Deer, Calgary, Drumheller, Lethbridge, and Medicine Hat. Additionally, two circuit point locations assist within their jurisdiction. High-Level circuit point assists with Peace River jurisdiction, and the Hinton circuit point helps with the Edmonton jurisdiction. Every additional base point location manages all cases within its specified jurisdiction (Court of King’s Bench of Alberta, n.d.a). The circuit point locations only have King’s Bench Justices on a scheduled travelling rotation from the central seating location, meaning they are not readily available in either location.

Alberta Court of Appeal

The Alberta Court of Appeal (ABCA) is the highest Alberta court, with two locations, each in Calgary and Edmonton. An appeal is not simply another chance at trial. Instead, judges review the previous decision and evaluate if an error of fact or law appeared in the case (Court of Appeal of Alberta, n.d.). Depending on whether the appeal is in criminal or civil law, the process for an appeal differs and is discussed in depth in the Alberta Rules of Court.

Not only does the Alberta Court of Appeal evaluate criminal, civil, and family cases from both the Alberta Court of Justice and Alberta Court of King’s Bench, but it also appeals from administrative boards or tribunals (Court of Appeal of Alberta, n.d.).

Supreme Court of Canada

The Supreme Court of Canada (SCC) is the highest appeal court in Canada, located in Ottawa. To appear for an appeal in the Supreme Court, an appellant must seek leave from the court. Leave is only generally received if the case involves a significant issue of the law or an issue of public importance (Blatt & Kurtz, 2020, p. 86).

The Supreme Court of Canada consists of nine judges and hears between 65 – 80 appeals per year involving 5, 7, or 9 judges. Judgments are published in both French and English in the Canada Supreme Court Reports (Supreme Court of Canada, 2017).

The Federal Court System

The federal court system specializes in federal laws, such as intellectual property, maritime law, and tax assessments. It includes the Federal Court, the Tax Court, and the Federal Court of Appeal (Parliament of Canada, n.d.b).

Federal Court

The Federal Court is Canada’s national trial court. It hears and decides federal legal disputes whose subject matter has been assigned to the Court by Parliament (Department of Justice Canada, 2021). The Court is based in Ottawa, but its members travel throughout Canada to hear cases and render decisions (Federal Court, 2022).

Tax Court of Canada

The Tax Court of Canada is a superior court that determines cases and appeals about matters that arise under federal tax and revenue legislation, as defined under the Tax Court of Canada Act. It is independent of the Canada Revenue Agency and all other government departments (Department of Justice Canada, 2021a).

Federal Court of Appeal

The Federal Court of Appeal hears appeals from the Federal Court and the Tax Court of Canada and judicial reviews of certain federal tribunals. Like provincial and territorial courts of appeal, its decisions can only be appealed to the Supreme Court of Canada (Department of Justice Canada, 2021a).

Administrative Tribunals

Administrative tribunals, called commissions or boards, operate like courts in deciding disputes over statute-based rights, entitlements, and duties (Nastasi et al., 2020). They make decisions on behalf of the federal or provincial governments when it is impractical or inappropriate for the government to do so themselves. Because they engage in fact-finding and have the power to impact personal rights, tribunals are often seen as “quasi-judicial.” The courts may review their decisions (Kuttner et al., 2020). In Alberta, administrative tribunal decisions are reviewed by the Court of King’s Bench of Alberta (Court of King’s Bench of Alberta, n.d.a).

Alberta examples include the Alberta Human Rights Commission, the Appeals Commission for Alberta Workers’ Compensation, and the Tribunal Office of the Law Society of Alberta. This list is not exhaustive.

Sources of Law

Canada has four primary sources of law: statutes, regulations, bylaws, and case law. Lawyers, paralegals, and legal assistants must be familiar with these sources of law. When clients seek legal advice, they need to know what statutes, regulations, bylaws, and case law apply to their legal situation and how they will be affected (Stasiewich, 2023).

Statutes

Statutes set out the law and state methods of doing things that are required or permitted, along with creating penalties for not doing what is required or for doing what has been prohibited (Blatt & Kurtz, 2020, p. 14).

Subordinate Legislation

Regulations

Regulations are the second primary source of law in Canada. Regulations, also called subordinate or delegated legislation, are rules made under the authority of an enabling statute that gives the power to make regulations (Stasiewich, 2023). Alberta regulations include the Alberta Rules of Court, Alta Reg 124/2010 and the Judgment Interest Regulation, Alta Reg 215/2011.

Federal regulations include the Access to Information Regulations, SOR/83-507, and the Gasoline Regulations, SOR/90-247.

Because Canadian society is so complex, it would be nearly impossible for lawmakers to deal with all the laws’ details (Department of Justice Canada, 2021b). As a result, enabling statutes deal with general principles and objectives, while regulations under the statute are concerned with procedural and administrative aspects of the law. The enabling statute, or framework legislation, sets out the purpose, and the regulations set out the details. Because regulations do not need to be brought before Parliament or the legislature to be voted on, the government can create and amend them more quickly and efficiently than statutes can (Blatt & Kurtz, 2020, p. 34). For example, the Alberta Rules of Court’s enabling statute is the Judicature Act, RSA 2000, c J-2. The Judicature Act sets out the jurisdiction and powers of the courts, while the Alberta Rules of Court sets out rules of procedure and processes.

It is essential to read regulations in accordance with the statutes to gather the whole meaning of each provision. Just like statutes, regulations require, prohibit, or permit specific actions and set out methods of doing what is required or permitted. They also create penalties for not doing what is required or for doing what is prohibited (Blatt & Kurtz, 2020, p. 35).

Consolidated Regulations

Like statutes, the consolidated regulations database contains point-in-time versions of the Alberta Regulations (“Alta Reg”) enabled by a consolidated statute, starting on February 17, 2003.

CanLII cites these regulations by their Alta Reg number, for example:

• Alberta Rules of Court, Alta Reg 390/1968
• Dangerous Goods Transportation and Handling Regulation, Alta Reg 157/1997

These are “posted versions,” meaning versions of the text as it was posted on the official printer’s website and downloaded by CanLII at a specific date (CanLII, n.d.b).

Bylaws

The third primary source of law in Canada is bylaws. Bylaws are laws made by a governing body that a legislature grants the power to do so (Blatt & Kurtz, 2020, p. 28). In Alberta, the Municipal Government Act authorizes municipalities like Edmonton and Calgary to legislate on a range of matters for their municipality to maintain the health, safety, and wellness of their communities (City of Edmonton, n.d.). Many cities and municipalities have some or all of their recent bylaws available online. LawCentral Alberta provides online resources for finding municipal bylaws (Law Central, n.d.).

For example, Edmonton’s bylaws and Calgary’s bylaws are found on their respective city websites.

Case Law

The fourth primary source of law in Canada is case law. Case law comprises written decisions by decision-makers like judges, adjudicators, or justices of the peace in court and tribunal proceedings. Each decision, or “case,” is a written record of individual legal proceedings created by the decision maker summarizing the most important details of the proceeding, whether it be a trial, motion, hearing, or decision (Blatt & Kurtz, 2020, p. 44). Examples of influential case law that have changed Canadian society include R. v. Stinchcombe, [1991] 3 SCR 326, R. v. Marshall, [1999] 3 SCR 456, and United States v. Burns, [2001] SCR 287 (Ontario Justice Education Network, 2006).

R v. Stinchcombe dramatically changed the criminal trial process, improved trial fairness, and helped to protect against wrongful convictions by stating that the Crown must disclose all relevant information to the accused prior to trial (Ontario Justice Education Network, 2006).

R v. Marshall is a landmark ruling in Indigenous treaty rights in Canada. The Supreme Court recognized the hunting and fishing rights promised in the Peace and Friendship Treaties signed between the British and Mi’kmaq, Wolastoqiyik, and Peskotomuhkati in 1760-1761 (Conn, 2020).

United States v. Burns is a ruling by the Supreme Court of Canada stating that it is a breach of section 7 of the Charter to send individuals to countries where they may face the death penalty. Many people believe that this decision guarantees that the death penalty will never be brought back into the Canadian justice system (Ontario Justice Education Network, 2006).

Categories of Law

Common Law and Civil Law

Quebec is the only province or territory that follows the civil law system. Courts in the civil law system first examine the civil code, based on the French Code Napoléon. Discussion of the civil law system is outside the scope of this textbook, as that system does not apply to the rest of Canada (Department of Justice Canada, 2021b).

*Note: The Civil Law System and Civil Law Divisions, as a category of law, are not the same.

The common law system that the majority of Canada follows is not written as legislation. Instead, it evolved based on precedent. Other countries that use the common law system include the United States, Australia, and England (after 1949) (Blatt & Kurtz, 2020, p. 89).

Procedural Law and Substantive Law

Procedural and substantive law complement each other’s work.

Substantive law sets out the rights and obligations of members in society where laws are enforced (McShane, 2013). For example, criminal law is concerned with society’s order, safety, and protection.

Procedural law is the step-by-step process of how a case moves through the court system and how to enforce laws properly. For example, Criminal law is enforced through the Criminal Code, and the offender must be properly arrested, given their rights, and the investigation and hearing of their charges handled correctly in a court setting. In the law firm, paralegals and legal assistants are expected to know some substantive law, but there is a greater emphasis on knowledge of procedural law. Lawyers typically take only one class on procedural law during law school. They are expected to have expert knowledge of substantive law, relying upon their support staff to assist with the procedure (Stasiewich, 2023).

Law of Evidence

The Law of Evidence regulates the proof of fact before a court. It forms from federal and provincial legislation and gains power from the Canada Evidence Act. An example of the application of the Law of Evidence is witness testimony. Before a witness testifies in court, they must swear or affirm to tell the truth, as per Section 13 of the Canada Evidence Act. Discussion of the law of evidence is complex and outside the scope of this text. For further reading on this topic, the book Proof – Canadian Rules of Evidence, written by Paul Atkinson, is highly recommended (Atkinson, 2021).

Public Law

Laws are divided into two classes: public Public Lawlaw and private law. Public law governs the relationship between individuals and a body of government (Blatt & Kurtz, 2020, p. 5). Its primary purpose is to keep society running by dealing with human rights and protection crises. Criminal law is a very well-known type of public law (Gulycz & Kelly, 2018, p. 5)

The following seven categories of law all fit under Public Laws.

Private Law

Private law sets out rules between individuals and/or businesses by settling disputes amongst the parties and compensating victims. Private law is also known as Civil law because the dispute is between civilians, not the government (Legal Information Institute, 2022).

The following seven categories of law all fit under Private Laws:

Summary

The Canadian Constitution is the supreme law of Canada, therefore outlining the basic principles that all laws in Canada must follow. Laws are created by either federal or provincial governments, depending on which Section of the Constitution Act the division of power relates to.

Canada’s court system is composed of courts and administrative tribunals. Federally enacted laws, regulations, and decisions bind all lower courts in every province and territory. Following the principles of stare decisis, each court decision binds upon all lower courts if the case is exceedingly similar. However, provincial or territorial enacted decisions, statutes, or regulations are not binding in other provinces or territories but can be persuasive to those courts (Blatt & Kurtz, 2020, p. 86).

Laws are divided into either public or private law. Private law sets rules between individuals and/or businesses by settling disputes amongst the parties and compensating victims. Public law is between individuals and the government. Its primary purpose is to keep society running by dealing with human rights and protection crises. Private and public law are both substantive law, which outlines the rights and responsibilities of individuals during the legal process, and procedural law, which sets out rules for how a case proceeds through the legal system (Gulycz & Kelly, 2018, p. 7).

Canada has four primary sources of law:

• Statutes – written laws created by the Parliament or provincial legislature that state the law, methods of procedure, and consequences for such misbehaviour (Blatt & Kurtz, 2020, p. 14).
• Regulations – rules created under the power of an enabling statute
• Bylaws – laws made under a provincial or territorial power given to a community to maintain health, safety, and wellness (City of Edmonton, n.d. ).
• Case law – written decisions by decision-makers that summarize significant details that can affect future decisions (Blatt & Kurtz, 2020, p. 44).

Reflection Questions

• Think about a legal matter you have worked on or learned about in class. Which level of government had jurisdiction over it, and how would knowing that help you locate the right laws for your supervising lawyer?

• How could understanding the difference between binding and persuasive decisions improve the quality and accuracy of the legal research you prepare?

• Reflect on a task you might complete that involves both substantive law and procedural law. How would your role in gathering information or preparing documents depend on understanding both?

• Why is it important for paralegals and legal assistants to be familiar with all four primary sources of law? Give an example of how relying on only one source might lead to incomplete or inaccurate information for a client matter.

• How might awareness of Indigenous and treaty rights under Section 35 of the Constitution Act help you work more effectively with Indigenous clients or on files involving Indigenous communities?

• Consider the categories of public and private law. Which do you think you encounter more often in your work, and why?

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