Talk:Law of Canada

Human Rights?

What about human rights in canada-- 70.168.88.100 (talk) 19:07, 9 June 2007

Bijuralism

Perhaps a few sentences about Bijuralism would be helpful to introduce the common law and civil law traditions in Canada? We may also want to start a separate article on Bijuralism in Canada. It seems that the fact that the Supreme Court of Canada decides cases based on common law but also civil law principles appears to be lost on most Canadians, as was apparent in some of the recent coverage and commentary on the Marc Nadon appointment and removal.--Darryl Kerrigan (talk) 23:37, 22 December 2014 (UTC)

Deletion of "English law" box

A sock recently added the "Template: English Law" to the page. I deleted it, but another editor has re-inserted it, saying "there is a connection". I think it should be deleted.

• First, yes, there is an historical connection, that's not in doubt. However, putting the template on the page over-emphasises the connection, in my opinion. I've found that a lot of people outside Canada are not clear on the relationship between Canada and the UK and think that Canada is still some sort of dependency of the UK. Putting that template there in my opinion over-emphasises the role of English law, by making it seem part of the Canadian legal system, contrary to Wikipedia:BALASP.
• Second, when you open the template and actually look at the contents, I would say there is not a lot of connection to Canadian law:
  • Core subjects
    • UK Constitution - aside from the principles of monarchical government, the UK Constitution law and Canadian are quite different, notably that Canada has a written constitution that allows judicial review of statutes, which is completely lacking in UK constitutional law
    • Administrative law - Canadian law has diverged significantly in the principles of standards of review of admin action, compared to English law; as well, the English have reformed their mechanisms for judicial review of admin action, changing names and terminology, so no longer has much influence on Canadian law
    • Criminal law - while the two systems have the same roots, there are fundamental differences, such as the fact that the courts in the UK still have the power to create crimes, which is not possible in Canada's codified system; also, the British do not have an equivalent of the Canadian Charter of Rights and Freedoms, which allows the courts to review not just the conduct of the police, but also to ensure the Criminal Code itself meets certain basic consitutional standards, which is lacking in English criminal law
    • Contract law - again, both systems have common roots, but with the development of Canadian statutes governing contracts over the past 155 years, and the abolition of appeals to the JCPC, English contract law is of limited use in Canadian contract law; it is the Supreme Court of Canada which develops the common law of contracts, not the JCPC or the House of Lords
    • Tort law - much the same as for Contract
    • Privacy - privacy laws are a relatively recent development; English privacy laws have never applied in Canada, which has developed its own law of privacy
    • Property law - much the same as for Contract; plus, much of Canada uses the Torrens system of land titles borrowed from Australia, not England
    • Trust - much the same as for Contract
    • EU law - unique and extensive area of law that has never had any application in Canada
    • Case law - basic characteristic of all common law systems, not just England; could just as easily cite US law as an example of case law
  • Further subjects
    • Company law - Canadian corporations law has been heavily influenced by US corporate law; influence of English company law is in the rear-view mirror
    • Competition law - Canadian competition law has been influenced more by US law, and by the intricacies of the Canadian division of powers, than by English law
    • Labour law - Canada labour law is largely modelled on the US Wagner Act, plus a constitutional guarantee of freedom of assocition, which the UK does not have; little relevance
    • Commercial law - Canadian commercial law has been influenced by US commercial law; English law rarely has any relevance
    • Civil procedure - each court develops its own civil procedure, based on its own basic statute; English law rarely of any relevance
    • Family law - has developed in Canada largely by provincial statutes enacted since the 1970s; major influence is the division of powers, which allocates divorce to federal Parliament, but law of property and support to provinces; English law of little relevance
    • Courts of England and Wales - no application in Canada
  • Related systems
    • UK-wide - no application in Canada
    • Northern Ireland - no application in Canada
    • Scotland - no application in Canada
    • Wales - no application in Canada
    • Australia - no application in Canada; plus, interesting to see that the authors of the template still have an imperial mind-set and treat Australia as part of English law
    • British Virgin Islands - no application in Canada
    • Canada - again, the template adopts an imperial attitude and classifies Canada as part of English law
    • Hong Kong - further example of imperial mind-set in the template
    • India - ditto
    • New Zealand - ditto
    • Singapore - ditto
    • United States - ditto
    • Anglo-Saxon law - legal systems from over a millennium ago have no relevance in Canada
    • Common law - common law is not unique to England; Canada's common law has evolved separately from the English common law, especially since the abolition of JCPC appeals in 1949
    • Equity - same as for common law
    • Bloody Code - English criminal law from the 18th century has no application in Canada
    • Hue and cry - English common law from the Norman period has no application in Canada.
• In summary, given the lack of strong ongoing connections between English law and Canadian law, and the imperialistic mind-set of the template, I see no reason to include it in the page on Law of Canada, and have deleted it. Mr Serjeant Buzfuz (talk) 14:19, 23 April 2022 (UTC)

I agree with the deletion, but ultimately I think a larger discussion is needed on the template's talk page. I see, for example, they have included United States other jurisdictions that are arguably less related than Canada. It seems the template's editors have by default interpreted "closely related" as any common law country. I would think three should be a separate template for common law, rather than under the heading "English law", but that's a discussion for another time on that template's talk page. Singularity42 (talk) 15:09, 25 April 2022 (UTC)

There is a Common Law category already. I think what’s happened is people are adding the English Law category thinking they’re making a Common law connection (i.e. they should be adding the (existing) Common Law category instead). English law should be limited to literally English law topics. DeCausa (talk) 16:59, 25 April 2022 (UTC)

I think @Mr Serjeant Buzfuz was raising the {{English law}} template. There is a {{Common law}} template, but it is not a bottom of the page template and does link to countries. Again, though, we should probably have a discussion on the template talk pages, starting with the English law template. Singularity42 (talk) 17:06, 25 April 2022 (UTC)

To that end, I have started a discussion at Template talk:English law#"Related systems". Singularity42 (talk) 17:13, 25 April 2022 (UTC)

I'm the user who undid Mr Serjeant Buzfuz's removal of the template to this page, and I've already apologized on his talk page for having done so. For some reason I must have thought it was it was a See also link when I mistakenly restored it. It does not belong here. Meters (talk) 21:45, 25 April 2022 (UTC)

It's all good. It hopefully leads us to making improvements to other Wikipedia templates on this topic and related topics! Singularity42 (talk) 02:16, 26 April 2022 (UTC)

As I replied on my Talk page, there's no need for any apology! Wikipedia develops by different editors raising different points of view for discussion. Mr Serjeant Buzfuz (talk) 02:20, 26 April 2022 (UTC)

The fact that Canada operates as a unitary state with respect to the common law

I put in that information a few years ago with a cite to Peter Hogg's treatise and someone else took it out.

Wikipedia is not censored. See WP:NOTCENSORED. I'm going to restore that information unless someone else has a good argument to the contrary. --Coolcaesar (talk) 17:41, 6 January 2023 (UTC)

What's it got to do with NOTCENSORED? Somone just disagreed with you about it. Per WP:ONUS there's no right to have anything included. And there could be a number of reasons why your edit wasn't accepted eg WP:UNDUE and WP:FRINGE. I can't see any recent edit by you to the article. Can you provide a diff so we can review it? DeCausa (talk) 18:32, 6 January 2023 (UTC)

I added that information on 9 May 2015 (this is the last of my three edits on that date). I'm challenging this deletion on 14 August 2021. It's a very important point. Otherwise, Canadian case law makes no sense to American lawyers who are accustomed to the notion that federalism means each constituent unit of the federation is the final expositor of its own law through all three branches: executive, legislative, and judicial (it's the last one which doesn't hold in Canada). Americans are even more shocked to learn that each premier lacks the ability to appoint the judges of the superior courts in their province, but then that practice makes more sense once one understands that Canada is operating as a unitary state with respect to the common law. --Coolcaesar (talk) 19:37, 7 January 2023 (UTC)

Pinging User:Mr Serjeant Buzfuz who deleted it for comment. On the face of it the edit summary of the deletion seems logical. Seems overly US-centric to think that is a point that needs making. Making "Canadian case law... sense to American lawyers" is not a Wikipedia objective. As an English lawyer none of this is a "shock" and even if it was I wouldn't presume the differentiations from my own jurisdiction is necessary. I don't recall anything in Law of the United States targetted to make sure it "makes sense" to me as an English lawyer or to Canadian lawyers for that matter. DeCausa (talk) 20:28, 7 January 2023 (UTC)

I agree with DeCausa. The basic point is that Wikipedia is not an American encyclopedia, designed to explain the world to an American audience. It's an international encyclopedia. It covers a tremendous range, but Neutral Point of View means that articles cannot be written solely from the perspective of one country. Citing a very technical part of US Supreme Court jurisprudence in an article about Canadian law just struck me as very much out of place, and actually against NPOV: "we've got to explain this un-American foreign law to our American readers".

There's parts of US law that I've had to explain to Canadians, for instance, that the Speaker of the House of Representatives is not an impartial presiding officer, but instead is a partisan head of the majority position. It's fair to say that some of them have been shocked from that departure from the norm of an impartial presiding officer. Despite the fact that I've had to explain the different nature of the Speaker, it wouldn't be appropriate for me to edit the article on the US Speaker to say something like, "From the perspective of Canadians, the Speaker is a departure from the normal rule that the presiding officer is impartial, as is the case in the Canadian House of Commons." If I were to add something like that, it would be deleted quickly, and rightly so, because Wikipedia articles aren't written from the perspective of one country.

I would also say that the comment I deleted was not NPOV because it assumed that the American model of federalism is the only real federalism, and anything that departs from it is a departure from federalism. I don't agree with that. Different federal states have different models, and the US model is not the defining feature of all federations. That made the comment leap out to me as breach of NPOV.

Finally, there was another reason for the deletion: it was just too technical for an ordinary Wikipedia article. Citing Erie, which spawned a tremendous amount of litigation, law review articles, and headaches for law students? It's way too technical for the ordinary readership of Wikipedia, in my opinion, whether they are Americans, Canadians, or other nationalities. Mr Serjeant Buzfuz (talk) 22:56, 7 January 2023 (UTC)

Went back and reviewed it again. There were two parts in particular that leapt out at me:

"A major difference between U.S. and Canadian common law is that Canada does not follow the doctrine of Erie Railroad Co. v. Tompkins (1938),..."

Why the hell would Canada follow the doctrine of the US Supreme Court, in the interpretation of the Constitution of Canada? Completely illogical.

"From the American perspective, Canadian federalism is thus relatively incomplete,..."

Who cares what Americans think about Canadian constitutional law? Including that in the article is a breach of NPOV. Mr Serjeant Buzfuz (talk) 23:33, 7 January 2023 (UTC)

Actually, most editors would disagree with you. Asking that last question implies that the Canadian perspective on Canadian constitutional law is the only legitimate one. If you look broadly at the WP jurisdiction-specific articles, we have traditionally written for a global audience for over 20 years, taking into account the perspective of reasonably intelligent readers outside of a particular jurisdiction. There are literally hundreds if not thousands of such points of comparative law scattered all over Wikipedia. We have had many discussions over these issues (in which I'll frankly acknowledge that when I was younger, I sometimes opposed keeping such points of comparative law) and the consensus was invariably to keep. Are you trying to imply that we should limit comparative analysis only to articles expressly focused on comparative law? --Coolcaesar (talk) 20:49, 11 February 2023 (UTC)

No, that's not the issue. What you added was a very narrow comparison with one particular jusrisdiction of no general interest unless you happened to be an American lawyer and which presumed that the American perspective was in some way the "norm". It fails on multiple levels, not least NPOV/WP:UNDUE. DeCausa (talk) 22:01, 11 February 2023 (UTC)