How Does Canadian Law Differ From U.S. Law?
Ever wondered what a Canadian version of Law and Order would be like?
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Last episode, we discussed the Declaration of Independence. This week: we turn our gaze northwards, where our neighbors have just finished celebrating Canada Day -- or the Fete du Canada, as they say in Quebec.
Is Canadian Law Similar to U.S. Law?
Ariel, who is “an avid listener from Montreal, Quebec,” writes: “I was wondering how many of the issues you discuss in your episodes (or, how many of the things I see in Law and Order) apply to Canada?”
That is an excellent question, Ariel. But then, I would expect nothing less from an avid listener to Legal Lad. When it comes to comparing Canadian and U.S. law, I can only skim the surface. But the short answer is that many of the issues I discuss in this podcast -- and many of the things you see in Law and Order -- apply in Canada, since Canadian law is generally derived from the same common law principles as U.S. law.
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The Canadian Constitution
On July 1, Canadians celebrate “Canada Day,” which commemorates the enactment of the British North America Act of 1867, which was the first step towards full Canadian independence. The final step occurred in 1982, when Canada adopted its own Constitution.
So that’s one point of similarity: each country has a written constitution. Whereas the U.S. Constitution has a “Bill of Rights” appended to the end of it, the Canadian Constitution has a “Charter of Rights and Freedoms.” The Canadian Charter guarantees virtually the same individual rights as the US version, except, notably, the “right to bear arms.”
In addition to individual rights, the Canadian Charter includes a number of “group rights.” These include linguistic and cultural rights for the French Canadian populations in Quebec and New Brunswick, as well as rights for aboriginal groups. The concept of group rights doesn’t really have recognition in US law.
English Common Law
The day to day law governing things like contracts and negligence in most Canadian provinces is very similar to that found in the United States. The reason is that both the American and Canadian legal systems spring from the same source: English common law.
One important exception is the province of Quebec -- which by the way is where Ariel, an avid listener to this podcast, lives. Because of its French heritage, Quebec retained some elements of the French civil law tradition. In the U.S., Louisiana also has a French (and Spanish) legal heritage, some of which remains in force, but without the type of constitutional protection that Canada gives to Quebec.
Differences Between U.S. and Canadian Law
Despite these similarities, there are many areas where the law of the U.S. and Canada differ. For example, in Canada, juries are almost exclusively used for criminal cases, whereas in the U.S., juries often are used for non-criminal cases. Employment law is also different. The U.S. concept of “employment at will” -- that is, an employee can be dismissed for no reason and with no notice, is apparently non-existent in Canada. You either have to give your employee a reason why you’re dismissing him, or give him advance notice. One other notable difference: same-sex marriage is legal throughout Canada.
Canadian Law and Order?
As for criminal law, well, the drama you see in Law and Order is analogous to the Canadian criminal justice system, but there are differences. For example, in the U.S., prosecutors act in the name of “the people” whereas Canadian prosecutors act in the name of “the Crown.” You see, although it is an independent nation, Canadians chooses to have the British Queen as their sovereign. Thus, the famous opening line of Law and Order would have to be translated to “In the criminal justice system, the Crown is represented by two separate yet equally important groups: the Mounted Police who investigate crime and the Public Prosecutors who prosecute the offenders. These are their stories.”
The episodes in Law and Order center on a group of New York city cops and prosecutors; many of the storylines involve jurisdictional clashes with neighboring states (like when a suspect flees to New Jersey) or with federal agents. That type of turf battle is much less common in Canada, which has a single criminal code that applies to all provinces, and that is administered by the federal Public Prosecution Service.
The substance and terminology of criminal law is much the same in the two countries, owing to the influence of English common law. That applies even in Quebec because, again, Canada has a single criminal code. One notable difference is that Canadian lawyers don’t refer to the judge as Your Honor, but rather, My Lord. Hard to imagine Jack McCoy saying that.
Ariel, thanks for the question and keep listening!
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