Canadian Legal History: An Introduction to Canadian Legal History

An Introduction to Canadian Legal History

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SHORT TITLES

1611, The First Laws

Newfoundland's first English governor, John Guy, established the first law, which attempted to regulate the fishing industry and control the deforestation of the shoreline.

The First Councils (1647)

In 1628, King Louis the 13th of France approved a new company called Company of the Hundred Associates. The Company was given the right to settle all land from Florida to the Arctic and to make all efforts to populate New France. Major settlements of New France were briefly conquered by English troops but returned to France by a treaty between England and France signed in 1632. Two years later, the Company of the Hundred Associates implemented the seigniorial system of land ownership to New France. Large land grants were made to lords (called "seigniors") who rent out parts. Seigniors acted as judges for minor disputes between their tenants. The land property system would last until 1854.

The first "provincial" government was created by the Company of the Hundred Associates in 1647. A local council was made up of the governors of Quebec City and of Montreal and the senior representative of the Jesuit order. The Council had lawmaking power over the entire French colony. Meanwhile French explorers pushed deeper and deeper into North America and, by 1659, had reached the western end of Lake Superior. By 1663, New France was declared a province of France and a Sovereign Council replaced the local council. The Sovereign Council was given the mandate to oversee the implementation of French law in New France. The new Council was presided by a governor selected by the King and included a senior church representative. The arrival of French law included the payment of a "tithe" or a tax of eight per cent of the annual produce from land owned by the church. One of the first laws of the Sovereign Council was to prohibit straw and manure from city streets. Another threatened men with the loss of their trading rights if they refused to marry.

Charter of the Hudson's Bay Company (1670)

The Royal Charter of the Company included law-making powers for the territory then known as "Rupert's Land." The 7,000-word charter was granted to a group of 18 investors which included King Charles II's cousin. The main purpose of the charter was to grant a fur, fish and mining monopoly to the Hudson's Bay Trading Company. Lawmaking power was to be exercised by the Governor of the Company in conformity with the laws of England. One curious exception provided that the serious crimes committed by a "white man' had to be tried in England. The English rapidly settled the Hudson's Bay area and establish a long network of trading posts deep into the land.

Montreal Hangs a Slave (1734)

To protest her slavery and pending sale, a black slave burnt down her master's house in Montreal. Unfortunately for Marie-Joseph-Angelique, the fire spread and destroyed 46 houses including a historic church. First sentenced to have her hands cut off and be burnt alive, she appealed the conviction and her sentence was "reduced" to death by hanging. This was typical of the harsh justice then meted out not only in the colonies, but also in Europe. Even in 1824, an 18-year old New brunswick boy was "hung by the neck until dead" for having stolen 24¢. In Upper Canada, theft can mean being branded with a red-hot iron on the palm of the hand or a public whipping.

Slavery of blacks was prevalent in New France. After the 1759 conquest by England, slavery was protected in the surrender documents. Even by 1766, English Governor Murray owned slaves. It would be 1793 before Upper Canada began phasing out slavery. In 1800, the Chief Justice of Lower Canada James Monck ruled that slavery was illegal on the legal grounds that a British law dated 1797 had prohibited all slavery legislation. The legal argument was apparently flawed. In 1834, the British government formally abolished slavery in the Empire. Racism was not restricted to blacks either. The legislature was surprised by the election, in 1808, of a Jew, Ezekial Hart. Hart made the mistake of wearing his religion on his sleeve. For example, he insisted on omitting "in the year of our Lord" when dating documents. When he was sworn in a member of the Lower Canada assembly, he replaced the word "Christian" with "Jewish" in the text of his oath of member. Hart was re-elected, took the proper oath. When the assembly resolved to expel him again, the Governor dissolved the assembly and called an election.

Cruel and unusual punishment was rare except for treason. For example, on July 21, 1797, an American spy, David McLane was publicly hung, his stomach cut open and his head cut off. McLane's arguments, that he could not be convicted of treason since he was not a citizen of His Majesty, the King of England, fell on deaf ears.

A Legislature Takes Root in the Maritimes (1758)

An influx of New Englanders urged on Nova Scotians to ask and to establish their own law-making legislature, which gathered for the first time on October 2, 1758. One British observor wrote back to England that "too many of the members chosen are such as have not been the most remarkable for promoting obedience to His Majesty's government here."

New France Falls to the English (1759)

Inspired by victory at Quebec at the famous Plains of Abraham battle on September 13, 1759, the English promised the captive French habitants "mild and just government." Meanwhile, the defeated French troops fled to Montreal. A few months later, the British military commander ordered the disarming of all French Canadians living on the south side of the Saint Lawrence River. Worse, all residents were required to swear allegiance to the British Crown. Suspected of masterminding insurrection, Jesuit priests were ordered to leave Quebec City. Montreal was surrendered in September of 1760, with most of the citizens of the town in favour of surrender. New France was renamed "Quebec" and formally delivered to England by the Treaty of Paris, 1763. Curiously, neither side really wanted the colony because it was considered too expensive to maintain. The Treaty ended French rule in Canada. A Royal Proclamation in the same year stated that North American will have legal title to all lands then occupied by them and which were outside the territory of the colony and the Hudson's Bay Company.

Getting The Judge's Ear (1764)

Judge Thomas Walker was attacked in his home on December 6, 1764 by men disguised with blackened faces. Walker tried to get to his guns but the men subdued him and cut off his ear. The attack was in retaliation for a legal decision which resulted in the jailing of a ship captain who refused to leave a judge's residence. The incident results in the recalling of Governor Murray to London.

The Quebec Act (1774)

Ever since the conquest of New France by England, the status of French law in Quebec was uncertain. The Quebec Act clarified matters a great deal by stating that property and civil rights were to be resolved by reference to the laws of Canada; i.e. the French law that had been in force. The seigniorial land system is continued and calls for a council of 17 to 23 members to which the French are to enjoy access as members. The Quebec Act also said that for criminal law, the law of England would apply. British merchants are furious as are the Americans, who are rallying for independence from England. The Act also enlarged Quebec to include Labrador and the Roman Catholic population was guaranteed religious freedom.

Upper Canada Says "No" to French Civil Law (1791)

As soon as England had separated Quebec into Upper and Lower Canada by the Constitutional Act of 1791, the new legislature of Upper Canada (Ontario) used their first statute to reject French civil law and to introduce English common law and English rules of evidence. Each province is given a lieutenant-governor which is supported by an elected assembly.

Upper Canada gave the right to vote to those who own land or pay £10 in rent. Most women did not vote anyway but just in case, the province of New Brunswick enacted a law which excluded them. This is in stark contrast to Iroquois law which not allows women the right to vote, but Indian women were alone in selecting the political leaders.

British North America was now comprised of four colonies: Upper and Lower Canada, New Brunswick (since 1784) and Nova Scotia. Meanwhile, George Vancouver was charting new land at the other end of continent.

A King's Counsel Nomination Rebuked (1815)

Politicians tried to appoint a 23-year old as King Counsel, bringing the practise to ridicule. The man had but a few months of call to the bar.

Impartial Judiciary (1831)

The British government announced that it will no longer appoint judges to law-making assemblies, ensuring the independence of the judiciary from political parties. The only exception is to be the chief justice "for the purpose of giving legal advice in framing the laws."

The People's Choice (1835)

In 1835, the popular Halifax Newspaper editor Joseph Howe published a letter critical of local government and faced libel charges. He could not find a lawyer prepared to defend him so he defended himself. During the two day trial, Howe gave a six-hour speech and was cheered on by the crowd in the public gallery. He said local magistrates were "the most negligent and imbecile that ever managed a people's affairs." The judge recommended a conviction but the jury took only 10 minutes to return with a "not guilty" verdict.

Rebellion Ends At The Gallows But Results In Unification (1837)

A short-lived 1837 rebellion in Upper and Lower Canada, against British rule, both ended in failure. Several of the ring-leaders in both Canadas were hung. The constitution is suspended in Lower Canada for a 1½-years. Lord Durham was appointed to study the situation in the Canadas. His report, issued in 1839, proposed the assimilation of the French Canadians and the union of the two provinces. The British government united the two provinces into "Canada" in 1840.

British Columbia A Colony (1858)

In August 1858, the British government declared Vancouver Island a colony and appointed Sir James Douglas as its first governor. Matthew Begbie was sent from England to be the first British judge of the colony. Begbie was kept busy with the excitement of gold rushes causing frontier justice. The new legislative assembly opened in 1860. By 1866, the colony would be joined with British Columbia, the mainland colony.

Colonial Laws Validity Act (1865)

A law passed by the British Parliament that said that any law of a British colony that differed with a British law specifically aimed at that colony, was null and void to the extent of the difference. This was important because it set aside the older rule that colonial laws that were inconsistent with English common law could be set aside.

British North America Act (1867)

A hastily organized series of meetings in Charlottetown and Quebec in 1864 produced a consensus between delegates from Nova Scotia, New Brunswick, Canada (Quebec and Ontario), Newfoundland and Prince Edward island to recommend to England that they be joined in political union. British Columbia expressed some interest but then did not attend the meetings.

Although P.E.I. and Newfoundland would later bow out of union, the rest of the signatories were united as Canada by the British North America Act, passed in the spring of 1867.

Canada was adrift, master of her own political destiny.

A year later, the new House of Commons on Wellington Street in Ottawa was officially opened, the seat of the new Dominion of Canada.

John A. MacdonaldIn actual fact, the debate over the British North America Act had bored British parliamentarians.

As essential as it was to residents of the colony, the proposal reached the House of Lords at a time when they were preoccupied with the loss of their navigational dominance, and faced a backlog of domestic legislative action. As official delegates of the Charlottetown consensus, John A. Macdonald (pictured, right) and George Brown returned to Canada in the year preceding confederation almost with an impression of having inconvenienced. Historians recall only too well the disinterest Canadian emissaries caused as they meekly knocked on the door of the legislative assembly of England.

Only ten of 400 members were present in the British House when the BNA Act received Third Reading! Amongst suggestions of New Britain, Laurentia, Britannia, Acadia, Cabotia, Columbia, Canadia or Ursalia, the British House chose "Canada".

Of much more importance were the clauses that gave the citizens the right to elect their own law-making bodies called "legislatures." The BNA Act divided up law-making powers between a new federal government to be head-quartered in Ottawa, and provincial governments, to be head-quartered in the capitals of each province. Law -making powers of each were divided as follows:

  • Federal Government: peace, order and good government laws in all areas not specifically given to Provinces in the Constitution Act, 1867; regulation of trade and commerce; unemployment insurance; taxation; postal service; census and statistics; military and defense matters; navigation and shipping; seacoast and inland fisheries; money making and banking; weights and measures; bills of exchange (e.g. cheques); bankruptcy; patents; copyright; Indians; marriage and divorce; criminal law including penitentiaries.
  • Provincial Government: taxation for provincial purposes; hospitals; municipalities; store and alcohol licenses; solemnization of marriage; property and civil rights; administration of justice; education; all matters of a private or local nature; nonrenewable natural resources (e.g. forestry and hydro-electricity).

The Trial of Thomas Scott (1870)

Arrested by the provisional government of the Red River Colony (Manitoba), Thomas Scott was charged with insubordination. Scott was extremely arrogant with his captors when he was first arrested for not recognizing the new government set up by Louis Riel. The execution was called a murder throughout the rest of Canada and raised the ire of the protestant-dominated population of Ontario. It would also haunt Louis Riel in later years as he himself was hung, partly for his role in enforcing the judgment against Scott. In the short term, the actions brought Canada to expedite negotiations for bringing Manitoba into Confederation, which was formalized in 1870. British Columbia was to follow in 1872 and P.E.I. in 1873.

The British Empire's First Woman Lawyer (1897)

Clara Brett Martin was first refused admission as a student-at-law with the Law Society of Upper Canada. In 1893, after a special law was passed to force the Law Society to accept her, she was admitted and was called to the bar in 1897.

B.C. Allows Lawyers to Discard the Wig (1905)

British Columbia enacts a law which prohibits the use of wigs in B.C. courts.

Women Are Not Persons (1928)

At least that's what the Supreme Court in Canada decided in April of 1928. In a unanimous decision, Canada's highest court said that women were legally incapacitated for the purposes of appointment to the Senate. The decision was appealed to the highest court in England and it was there overturned. the British court said that to deny rights to women was "a relic of days more barbarous then ours."

Statute of Westminster (1931)

The English Parliament has actually given the title of "Statute of Westminster" to four different laws. Three of them were passed in the 1200s. the one that concerns Canada was passed in 1931. Its main importance lay in stating that Canada was an independent country for the purposes of international affairs. Canada has full legal freedoms and its acts, or those of its provinces, are no longer subservient to British law. The only legal connection laid in the retention by the British Parliament of the authority of amending the Canadian constitution, the BNA Act.

The War Measures Act (1970)

Ottawa invokes the War Measures Act on October 16, 1970, and for a short time and at the request of the Premier of Quebec, to respond to Quebec separatist terrorists. The Act suspends many civil rights including the right to be heard within a reasonable time. Many Quebeckers are held in jail for long periods of time. The terrorists kidnap two officials killing one but al are captured and punished.

Bill 101 (1974)

Quebec National Assembly votes Bill 101 into law making French the only official language of the province. Severe restrictions are placed on access to English education for which special government issued certificates are required.

Introdutory Note:

This part of the DUHAIME.ORG web site was prepared by Lloyd Duhaime, a Victoria, B.C. lawyer and author of Hear! Hear! 125 Years of Debate in Canada's House of Commons. All material in Canadian Law: A History is protected under copyright by Mr. Duhaime.

Some of the narratives refer to debates in the House of Commons.

The House is Canada's national and federal law-making body. It is in this building that laws are proposed (routinely canned),developed and approved. The Debates of the House of Commons provides a unique looking-glass into the history of Canadian law; warts and all.

Through the use of verbatim excerpts from the transcript of the debates presented in these pages, the reader will have a distinct feeling of "being there"; watching Canadian law being made.

Before you venture into the Canadian Law: A History, you should be reminded of what Otto von Bismarck once said:

"If you like laws and sausages, you should never watch either one being made."

Lloyd Duhaime
March 8, 2009
Montréal, Quebec and Victoria, British Columbia

Published: Friday, October 20, 2006
Last updated: Friday, April 18, 2014
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