Introduction to the Laws of Canada and Nova Scotia

Colonialism disrupted the transmission of Indigenous laws and traditions in Canada. One of the goals of Indigenous Nations, such as the Mi’kmaq Nation in Nova Scotia, is to rejuvenate Indigenous legal principles and values. Sharing language and traditional knowledge, such as decision-making processes and teachings, held by the Matriarchs and Elders of the Nations is a way of doing that. 

The resurgence of Indigenous laws has already begun in Canada. It will continue as Indigenous persons and Nations begin to heal and thrive by focusing on self-empowerment and rejuvenation of their language, culture and traditional teachings, values and laws. 

Twelve of the thirteen Mi’kmaq Bands in Nova Scotia are self-governing in education, which means they can pass their own education laws (and policies) without approval from the Federal or Provincial Governments. They have created a self-governing authority and hired staff to work collectively on their collective education governance matters: https://www.kinu.ca

On October 1, 2008, the thirteen First Nation Chiefs signed a Mi’kmaq Nationhood Proclamation representing a commitment from the Mi’kmaq of Nova Scotia to develop a system of governance to enhance the quality of life for the Mi’kmaq.

There are several types of legislation in Nova Scotia:

First Nation legislation: Laws passed by First Nation Governments/Bands located on federal Indian reserves in Nova Scotia about matters relating to "Indians", "Indian" Bands and "Indian" reserve lands in Canada.  Examples include:

• local governance laws,
• matrimonial real property laws. The Confederacy of Mainland Mi'kmaq has information about matrimonial real property laws for the following communities: Bear River First Nation, Millbrook First Nation, Paqtnkek Mi’kmaw Nation, Pictou Landing First Nation and Sipekne’katik,
• Indian Act  Band by-laws (must be approved by Indigenous Services Canada before they can be enforced).  A First Nation or band by-law is a local law that is passed by a First Nation Government/Band to regulate affairs within its community.  These by-laws apply to everyone on the reserve, regardless of whether they are a band member or whether they actually live on the reserve. 

Statutes of Canada, which are laws passed by the Canadian Parliament. The Parliament of Canada is divided into two sections, the House of Commons and the Senate. There are usually one or two legislative sessions per year. 

• Visit the “How Parliament works” section on the Parliament of Canada website for more information about the Parliament. 
• Go here for information about how parliament passes laws. 

Statutes of Nova Scotia, which are laws passed by the Nova Scotia Legislature. Each province and territory in Canada has a provincial or territorial legislature. The Nova Scotia government is made up of only one House, called the Legislative Assembly. The way it makes law is similar to the process followed in Parliament. 

• Visit the “How the Legislature Works” section on the Nova Scotia Legislature website for more information about the Legislature.
• Go here for information about how the Legislature passes laws.  
• A unique institution in Nova Scotia is the Law Amendments Committee, a Standing Committee of the Legislature. The Law Amendments Committee reviews bills referred to it by the House after second reading. Members of the public may attend hearings and comment on a bill or make written submissions.  After the hearings, the committee reports back to the Legislative Assembly. Contact the Legislative Counsel's Office for information about participating in Law Amendment Committee hearings.

Finally, there are Municipal By-laws, which are laws passed by municipalities that have law-making powers given to them by provincial law. By-laws deal with local issues such as animal control, parking, and zoning. 

• As of 2024, there are 49 municipalities of various sizes in Nova Scotia. 
• There are different sub-types of municipalities: regional, rural (district or county), and town. 
• Every municipality has a website where you can find the by-laws that apply in that municipality. 
• The Association of Municipal Administrators of Nova Scotia maintains an online library of all the current municipal by-laws in Nova Scotia. 

Legislation usually includes a section giving a Government Minister or other body the power to make regulations related to that law. 

Regulations provide details about how the legislation is applied. They are part of the law and have as much force as the legislation. For example, Nova Scotia’s Consumer Protection Act has regulations outlining specific rules about gift cards, payday lenders and online shopping contracts.

When a regulation is made, it must be filed and published. At the federal level, the regulation is filed with the Clerk of the Privy Council and is published in the Canada Gazette. Exceptions to this rule are listed in Part II – Consolidated Index of the Canada Gazette. At the provincial level, regulations must be filed with the Registrar of Regulations.  In Nova Scotia, regulations are published in the Royal Gazette, Part II.

Case law mainly comes from decisions and judgments made by the different levels of court across Canada; sometimes, the courts will consider case law from other countries as well. 

For example, the Canadian Charter of Rights and Freedoms says an accused is entitled to a trial within a reasonable time. Judges have interpreted what “a reasonable time” means - the Supreme Court of Canada did so in a 2016 case called R v. Jordan.  As the Supreme Court of Canada is the highest in Canada, the legal principles set out in the Jordan decision are law and now govern how that Charter right is to be interpreted and applied.

The development of case law is a never-ending process.

Except for the laws of Quebec and Indigenous laws and traditions, many Canadian laws originate in English common law. William the Conqueror developed common law in England after the Norman conquest in 1066.  At the time, England had few written laws, and William sought to establish a uniform legal system.  The King’s court travelled around England and selected local customs and common traditions to form the basis of the common law system.

Eventually, the common law evolved into a formal system based on the rule of precedent.  The rule of precedent is the custom of judges standing by previous judges’ decisions.  It is also known as stare decisis (which means to stand by things decided). When making a decision, judges refer to the principles and decisions made by judges in previous cases.  These are called “precedents”. Precedents are examples of how laws or by-laws have been interpreted and applied.

The authority or importance of a particular case depends on the level of court that made the decision and where that court is located. A precedent-making case can only be changed by a court higher than the court that made the original decision.  The higher the court, the more weight will be given to its decisions. Courts are not bound by the decision of the following courts:

• Other courts lower than the supreme court of a province;
• Courts outside the jurisdiction or province (the exception is Supreme Court of Canada decisions);
• Courts of equal jurisdiction (for example, a Nova Scotia Court of Appeal judge will not be bound by a previous decision of a judge sitting on the same court - but may be persuaded by it).

In all cases, the court’s decision can still be persuasive, even if it does not follow the precedent.

A judge may also consider decisions from other countries, particularly other common law jurisdictions such as Britain and the United States. 

Different decisions on the same subject matter may conflict. In reaching a decision, a judge may have to choose which previous decision or principle to follow. In doing so, the judge may overrule one of the decisions as being bad law or distinguish one of the cases based on the case facts.

Case law is recorded in law reports, in print or electronic format. A good place to search for case law is the Canadian Legal Information Institute’s website: https://www.canlii.org/en/

A constitution is a special type of law. It is a document that sets out a country's system of government and the civil rights of its residents and citizens. 

In Canada, the Constitution Act was proclaimed on April 17, 1982. This Act consolidated the British North America Act of 1867 and 30 other constitutional Acts and forms the core of the Canadian Constitution. The federal government can alter the Constitution, but it is a long and complicated procedure.

The Constitution Act contains the Charter of Rights and Freedoms, which sets out the rights and freedoms to be enjoyed by all Canadian citizens, and extends some of these rights and freedoms to all Canadian residents. 

In Canada our rights and freedoms are not absolute or limitless. As indicated in Section 1 of the Charter, they are subject to reasonable limits laid down by law, which can be justified in a free and democratic society. The courts must decide what amounts to “reasonable limits”. They must strike a balance between individual rights and the needs of society.

Charter rights only apply to federal, provincial and municipal government actions; they do not apply to the actions of private individuals, such as a dispute between neighbours or between a homeowner and a contractor. The Charter also protects Canadians from the actions of certain agencies regulated and/or funded by the government, such as the Royal Canadian Mounted Police (RCMP).

The federal Parliament, provincial legislatures and municipal governments have the power to declare, within clearly defined limits, that a piece of legislation is not subject to some provisions of the Charter. This power is rarely used.

The Charter is a reminder to all governments and legislators that their powers are limited and must be exercised with respect for the rights of individual citizens. The courts must see that legislation or government actions do not violate the rights and freedoms set out in the Charter. The courts also play an important role in deciding the provisions of the Charter, for example, by interpreting what the rights and freedoms in the Charter mean, what they cover, and how far they extend.

Our constitution divides government powers between the federal and provincial governments. The Constitution Act sets out the legal authority, or “jurisdiction”, of each level of government in sections 91 and 92. Those sections list areas where only the federal or provincial government may make laws. For example, according to section 91(27), only the federal Parliament may make criminal laws and set the criminal procedure for the courts. According to section 92(14), only a province may make laws to administer courts in that province.

The federal government has the power to make laws for the peace, order and good government of Canada, as well as laws regulating trade and commerce. Provinces have the authority to make laws concerning property and civil rights within their province in matters of a local or private nature.

Some powers set out in sections 91 and 92 are narrowly defined. For example, section 91(9) says that the federal Parliament may make legislation about Sable Island off the east coast of Nova Scotia.  However, most powers in sections 91 and 92 are so broad that courts have often been asked to decide whether the federal or provincial government has jurisdiction over a particular area.

The publication How Canadians Govern Themselves, written by former Senator Eugene Forsey, provides more information on the Constitution and our system of government.

Policy is a set of rules, procedures, or guidelines that guide how decisions should be made. Policy is not law. If a policy contradicts the applicable statute or regulations, it can be challenged.
For example, the work of income assistant caseworkers is governed by Nova Scotia’s Employment Support and Income Assistance Act. The Employment Support and Income Assistance Policy Manual details practical procedures caseworkers use in carrying out their work.

Government policies are often available to the public online or in paper format at government offices. If a policy is not already available, you can make an access to information request at the federal or provincial level, depending on the policy.  Requests to federal departments are made under the Access to Information Act. Requests to Nova Scotia’s provincial departments are made under the Freedom of Information and Protection of Privacy (FOIPOP) Act.