The Canadian legal
system is founded on a number of sources of law which collectively dictate the
manner in which the country is to be governed.
The Constitution
The source of all sources is
the country’s fundamental law, the Constitution, which establishes the
foundational tenets to which all other laws must adhere to. The Constitution
Act, 1867, divides the legislative abilities between the federal and provincial
governments.
For example, under s. 91, the federal government is responsible for many
matters of interest to the nation including the post office, currency, census,
and under s. 91(25): naturalization and aliens. It is also granted residual
powers to confirm its power and ability to legislate in areas not explicitly
mentioned as provincial powers. Conversely, provincial powers are outlined
under s. 92, and provinces are often responsible for legislating in practice as
most laws affecting daily life are under the purview of provincial governments.
Certain areas, such as immigration, are shared between federal and provincial
governments, but federal law prevails in the case of a conflict.
Additionally, under s. 8 of the Immigration and Refugee Protection Act
(“IRPA”), the federal government can make agreements with the provinces and
territories to accommodate their unique immigration needs.
The Canadian Charter of Rights and Freedoms
The Charter forms a significant part of the Canadian legal foundation, as it sets out fundamental rights and freedoms that embody Canadian values. These include:
- Legal rights (life, liberty, and security of the person)
- Equality rights
- Mobility rights (the right to enter, remain in, and leave Canada)
- Fundamental freedoms (for example, of expression and of religion)
Importantly, the Charter
applies to everyone in Canada. Certain rights, such as mobility rights and
right to enter, apply specifically to citizens and permanent residents. But
others, such as the right to life, liberty, and security of the person and the
right not to be subjected to any cruel and unusual treatment or punishment,
apply to everyone including temporary residents, protected persons, refugees,
and even detainees. The first remedy most often sought under the Charter is
that a law be declared unconstitutional.
The Charter has a significant impact on immigration law, since government
decisions regarding immigration status, detention, and removal must respect the
rights protected in the Charter. Under s. 1, rights and freedoms may only be
restricted to the extent that the government can justify the restriction as a
reasonable limit in a free and democratic society. When a law is declared
unconstitutional, it cannot be enforced.
Statutes and
Regulations
Statutes and Regulations are laws made by legislatures,
and regulations are made to dictate the enforcement of statutes. Regulations
often outline procedures and forms and are necessary for statutes to function
practically. In Canada, we are governed by federal laws and provincial laws,
including those of the territories. Conflict of laws rules determine where and
when each set of laws applies. The main statutes which govern citizenship and
immigration law in Canada, all of which are federal statutes, are:
The Immigration and
Refugee Protection Act
Immigration and Refugee
Protection Regulations
· The Citizenship Act
· Citizenship Regulations
· The Judges Act
· The Department of Citizenship and Immigration Act
· The Financial Administration Act
Importantly,
regulations must be enabled by a statute and cannot stand alone. In cases where
the meaning of a statute is unclear, or there is a disagreement, case law may
be used to interpret the words.
Case Law
Case law refers to
legal interpretations found in decisions made by judges in courts and by
members of administrative tribunals. It is an important part of the common law
system in Canada. The principle behind case law is that similar cases should be
decided in a similar way, or according to precedent. Decisions of higher-level
courts, such as the Supreme Court of Canada or the federal or provincial courts
of appeal, must be followed by lower courts.
Policy
Policy refers to
non-binding guidelines created by government departments and administrative
tribunals to aid in the application of laws. Although not enforceable by law,
policy is intended to be followed by decision-makers.
Policies may be:
· Formal or informal
· Written or unwritten
· Subject to change with changing government priorities
In the area of
immigration, policy is extremely important to the interpretation and
application of legislation to real-life scenarios.
Conclusion
A country’s legal
system is defined by its sources of law. In Canada, these include: the
Constitution, the Charter of Rights and Freedoms, statutes and regulations,
case law, and policy. The interplay between these sources defines how laws are
to be interpreted and enforced, particularly in the context of immigration. If
you require assistance in understanding the application of law to your personal
situation, contact A&M Canadian Immigration Law Corporation to book a free,
in-person consultation.
