Canadian justice system

SIGNIFICANCE: As a neighbor of the United States and one with which the United States shares a long border, Canada is a nation whose criminal justice system is of great importance to many Americans.

A democratic federation comprising ten provinces and three territories, Canada occupies the northern half of North America. Most of Canada’s 31.8 million people reside in urban areas as of 2022, and the vast majority live within 100 miles of the U.S. border. North of this band of settlement, geographic conditions grow increasingly harsh, and the population is sparse in most areas. Canada’s land mass of about 3,855,081 square miles makes it the second largest country in the world. However, its population is smaller than that of the state of California, which is one-twenty-fifth its size.

The first inhabitants of Canada were First Nations and Inuit peoples. European involvement in Canada began in 1497, when the Italian navigator John Cabot landed on the Atlantic coast of North America and claimed it for England. Four decades later, France began claiming parts of North America and introducing its own settlers. European ownership of Canada was settled by the Seven Years War, whose 1763 treaty gave Great Britain control of the region. Most of the European settlers were of French and English descent, a fact that left Canada with a dual cultural heritage. The right of Canada to self-government was recognized in 1849. In 1867 Canada became a fully self-governing dominion within the British Empire. Canada is now fully independent but still recognizes British monarchs as its titular heads of state.

Legal Tradition

Canada’s modern criminal justice system grew out of two distinct traditions: Roman law and English common law. The common legal tradition is based upon the tenants of Roman civil law and was put into practice in England by William the Conqueror in 1066. With this system, law was originally defined through immemorial custom. Judges, as did everyone else in the community, knew what behavior was acceptable. The common law is unique in that it cannot be found in any written codes or legislation; it exists only in past judicial decisions. This makes it flexible for an evolving society.

The tradition of civil law is quite different. Crime in the civil legal tradition is defined through codification. Questions as to what constitutes criminal acts are relatively simple. By contrast, civil law has been associated with a “civil code,” containing almost all private law. Unlike common-law courts, courts in civil-law systems look first to the codes and only then refer to previous court decisions for consistency. Other than in the province Quebec, whose civil law was codified on the model of France, Canada’s criminal and private law has its basis in English common and statutory law.

Canada's indigenous peoples had their own sets of laws and customs. Aboriginal rights and treaty rights are protected under Canada’s modern constitution. Aboriginal rights are those relating to the historical occupancy and use of the land by Aboriginal peoples, and treaty rights are those set out in treaties entered into between the British crown and individual groups of Aboriginal people. However, the Aboriginal population has been disproportionately incarcerated under Canadian law.

Government

Like the United States, Canada is a federal system. The nation as a whole is governed by Parliament, which is led by a prime minister. The prime minister is the head of the government, and the monarch of Great Britain is the head of state. The British monarchs appoint governor generals to represent them in Canada’s parliament. Like the U.S. Congress, parliament is divided into two chambers, the Senate and the House of Commons. All members of the Senate are appointed; members of the House of Commons are elected. In contrast to the U.S. system of government, members of parliament are not elected to fixed terms. Elections can be held whenever the party in power calls them. Also in contrast to the American political system, elected members of the Canadian House of Commons follow strict party discipline and have difficulty voting against the party line. Members of the prime minister’s party who vote against their own party’s legislation may be expelled from the party.

In addition to the national parliament in the capital city of Ottawa, every province and territory has its own legislature to make local laws. Whenever the national parliament or provincial legislatures pass laws, the new laws take the place of common law dealing with the same matters. Because of the complexity of modern society, more laws are made today than ever before. To solve this problem, parliament and provincial legislatures often pass general laws delegating authority to make more specific laws called regulations. Regulations serve to carry out the purposes of or expand on the general laws.

Like the United States, Canada operates under the rule of law, which means that everyone is subject to the same laws. No one, no matter how important or powerful, is above the law. Also like the United States, but unlike Britain, Canada has a written constitution. Its constitution does not contain any information on prime ministerial qualifications, methods of election or removal, or most of the prime minister’s powers. Moreover, none of these matters is addressed in any act of parliament, aside from the provision of the prime minster’s salary, pension, and residence. Every other aspect of the office is a matter of convention. In fact, there is not even a law requiring prime ministers, or any other ministers, to have seats in parliament. The fact that all ministers do have seats in parliament is simply a custom.

Police

Canada has a decentralized police system, whose forces are divided among provincial, municipal, and federal units. The Royal Canadian Mounted Police (RCMP) is the national police service and an agency of the Ministry of Public Safety and Emergency Preparedness Canada. Its primary responsibilities include enforcing federal statutes and executive orders, providing protective services, policing airports and government buildings, and policing remote regions. The RCMP sometimes works with municipal and provincial forces. The RCMP is the only policing agency serving the Yukon and Northwest Territories, which combined account for more than one-third of Canada’s entire territory—a region larger than all of Mexico.

Municipal police forces have jurisdiction over the most heavily populated areas and comprise city, village, county, and township police forces. By law, the provinces must financially support municipal police forces. Police services can be contracted out on the municipal level as well. For example, some cities and towns contract for the services of their provincial police or of the RCMP, which provides provincial police services in eight provinces.

In cases in which the RCMP is contracted to provide police services to a municipality, its local unit is accountable to the municipal chief executive. The contracting system is highly cost effective, for both the provinces and the municipalities. Provincial policing is largely decentralized. In 2005, Ontario and Quebec were currently the only provinces that operated their own provincial police. Generally, the duties of provincial police cover those areas not already covered by municipal police forces, although there are continuous exchanges of information among the provincial and local agencies.

Canada’s solicitor general is accountable to parliament for the operation of four ministry agencies: the Royal Canadian Mounted Police, the Correctional Service, the National Parole Board, and the Canadian Security Intelligence Service. The Canadian Security Intelligence Service (CSIS) is a government agency dedicated to protecting the national security interests of Canada. It has a mandate to collect, analyze, and retain information or intelligence on activities that may on reasonable grounds be suspected of constituting threats to Canada’s security. The CSIS can also provide security assessments to all federal departments and agencies, with the exception of the RCMP.

Courts

Canada’s criminal courts are adversarial common-law courts, which are divided among four levels. Provincial courts handle the great majority of cases that come into the system. These cases are mainly the less serious and nonviolent crimes. Second are the provincial and territorial superior courts, which handle more serious crimes and also take appeals from provincial court judgments. At the same level, but responsible for different issues, are the federal trial division courts. The next level contains the provincial courts of appeal and the federal court of appeal. The highest level is occupied by the Supreme Court of Canada.

Constitutional authority for Canada’s judicial system is divided between the federal and provincial governments. The provincial governments have jurisdiction over the administration of justice within their own territories, but the federal government has the exclusive authority to appoint and support the judges of the superior courts based in the provinces. Parliament also has the authority to establish a general court of appeal and courts for the better administration of the laws of Canada. Parliament created the Supreme Court of Canada, the federal courts, and the tax courts. In addition, parliament has exclusive authority over procedures in courts of criminal jurisdiction. The federal government has the authority for criminal law and procedures to ensure reasonable and consistent treatment of criminal behavior across the country.

The Canadian Charter of Rights and Freedoms guarantees protection against unreasonable search and seize, unreasonable laws, arrest without reasonable suspicion, and cruel and unusual punishment. The charter also grants arrestees the rights to legal counsel, one speedy trial, bail (unless there is reasonable cause against it), the choice not to testify, and impartial jury trial only for the worst offences, among other rights.

Criminal trials in Canada are similar to those in the United States. The prosecution has the burden of proving that the accused are guilty beyond a reasonable doubt. Also, if any evidence introduced in trials is obtained in ways that violate the defendants’ rights, judges may refuse to admit it. Juries are typically composed of twelve jurors selected from a jury pool, which are narrowed down through peremptory challenge (dismissal without reason) or challenge for cause (wherein a lawyer must give reasons and can cross-examine the potential juror for bias).

Canadian trial judges have discretionary power to pass sentences, regardless of whether juries are present. However, for certain offenses, the judges’ discretion may be limited by maximum, minimum, and fixed penalties provided under statute. When imposing sentences, judges refer to the principle “justice must always be tempered with mercy” for direction; it is a sentiment not often heard in American courts.

A method of keeping cases out of the courts is to utilize alternative dispute resolution (ADR). ADR allows people to settle their differences through means such as mediation, arbitration, and negotiation. The courts themselves often make use of ADR. However, for serious or violent crimes, or when mediation or arbitration is rejected, the formal court system remains indispensable.

Sentencing and Corrections

Prison sentences are generally regarded as a last resort in sentencing. Except in cases of capital and other serious crimes, it is unusual for first-time offenders to be incarcerated. The majority of offenders serve four or five probationary terms before they are given their first prison sentences. The primary goal of Canadian corrections is to reintegrate offenders into the community, through guidance, supervision, and training. Some inmates with sentences of ninety days or less are given intermittent sentences in which they serve their prison time on the weekends. After completing at least one-sixth of their sentences, federal and provincial inmates can be released on full or day parole.

The Mandatory Release Program is a federal program in which prison inmates who complete two-thirds of their sentences with good behavior are released into the community but remain under correctional authority until their time warrants expire. Although they are accountable to parole officers, they are technically not “on parole,” as no parole boards make decisions concerning their release. Their parole officers serve mainly as resources for the released inmates, helping them to find housing and employment and acting as counselors, rather than as wardens.

An innovative corrections program is the Land Program, in which offenders in the Northwest Territories are often placed. This plan is designed to accommodate members of hunter-gatherer cultures, which are still prevalent among the Aboriginal peoples of those regions. Inmates in the Land Program are allowed to carry firearms to hunt caribou, which provide meat for the hunters, their families, and their communities. The guards who oversee inmates in this program are not armed. Despite the ostensibly dangerous situation, no incidents of escapes or violence occurred during the first fifteen years after the program began in 1990.

Canada’s death penalty was fully abolished on December 10, 1998. On this day, all remaining references to the death penalty were removed from the country's National Defence Act. The maximum sentence for first-degree murder convictions is called “Life-25”—life imprisonment with the first chance of parole set at twenty-five years.

Provisions in the criminal code and federal legislation have allowed for restorative justice as an alternative to criminal sentencing. Under restorative justice, an offender accepts their guilt, acknowledges the wrongdoing, and makes reparations or restitution to either victims of the crime or the community at large. In sentencing circles, community members, law enforcement and criminal justice officials, the offender, the victim, and supporters provide input to inform the judge's decision regarding the sentence to hand down for an offense. Restorative justice is often pursued in Aboriginal communities.

International Cooperation

The United States and Canada have long-standing agreements on law-enforcement cooperation that include treaties on extradition and mutual legal assistance. Both countries participate in the Cross-Border Crime Forum. A logical approach to law enforcement and border cooperation ensures an effective and efficient way to target cross-border crime, including attempts by transnational criminal organizations to move arms, drugs, and human cargo across the border.

Canada’s Transfer of Offenders Act (1978) allows for the prison transfer and exchange of Canadian and foreign offenders to their home countries. Canada has prison transfer agreements with the United States, Mexico, most of the nations of Western Europe, and several other nations.

Not only has Canada abolished capital punishment, it refuses to extradite most prisoners wanted for capital offenses to other countries without first obtaining assurances that they will not be executed. This prohibition extends to the United States, which is one of the few industrialized nations that still has capital punishment. In 1999, the Supreme Court of Canada ruled unanimously that a Canadian teenager and his friend could not be extradited to the state of Washington for a triple-murder case unless the state first assured Canada that the accused would not be executed.

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