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Legal History of Canada

Canada is a nation governed by laws, and the Canadian legal system is the means through which those laws are written, organized, enforced, and interpreted. As a country founded by England, the fundamental principles of Canadian law are not terribly different from those governing the legal system of Great Britain, the United States, or any other country with a history of British rule. This English tradition states that laws must be clear and rational, that all accused persons are innocent until proven guilty, that incriminating evidence must meet very high standards, and that the law’s power over the individual is limited by precedent and the constitution

Canadian Legal History

The evolution of Canadian law unfolded in sync with Canada’s political evolution as a colony of Britain.

In the early colonial period, “Canada” didn’t really exist, legally speaking. The nation was simply an overseas chunk of British territory, governed by British law. Things began to change in the late 18th century when Britain allowed its Canadian colonies to have their own parliaments, which permitted Canadian politicians to write some of their own laws for the first time. In 1867 Britain authorized the creation of the Constitution of Canada and Canada gained a lot of new lawmaking powers. In 1931 Canada officially stopped being a colony of Great Britain and the U.K. parliament lost its powers to pass any laws for Canada. The last cord was cut in 1982 when Britain gave up the power to change Canada’s constitution.

Canada’s Three Legal Systems

Canada has three distinct legal traditions: common law, civil law, and aboriginal law. Common law, derived from English law, it is a body of law based on judicial precedent and custom. It is distinct from statutory law, which is the written law as established by enactments expressing the will of the legislature.

  • Civil law is based solely on codified law which is a comprehensive statement of rules such as the Civil Code of Quebecor the Criminal Code of Canada. Many are framed as broad, general principles to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisions to see if they’re consistent. Quebec is the only province with a civil code.
  • Aboriginal law concerns the First Nations, Métis, Inuit, and other indigenous people (Aboriginals). The practice area is generally understood to encompass treaties and other legal rights, including land and property rights, as well as traditions and customs.
  • The existence of these three distinct legal traditions in modern Canada can be traced back to Canadian history, our Indigenous Peoples, and Canada’s colonial roots. Indigenous law was practiced and continues to be practiced by Canada’s indigenous peoples. The intersection of Indigenous legal orders and the civil and common law legal systems are complex and evolving.
  • In some aspects of their lives, Indigenous Peoples may be subject to traditional laws and customs, but in others, they may be subject to the common law or civil law. Some Indigenous communities are self- governing; some are not. Our materials on Indigenous law and property rights in Canada highlights some key dimensions of Indigenous legal order.
  • The colony of New France, the first European colony in what is now Canada, was subject to a civil law regime. After France ceded New France to Britain, however, the civil law system was replaced by the common law, as per the Royal Proclamation of 1774.
  • The British aimed to make the new world more homogenous with British culture and values and thus attract settlers from the old world. However, the people of former New France resented the British for this act and protested.
  • Turmoil in the American colonies shifted Britain’s calculus. Facing the risk that Lower Canada (formerly New France) would side with the Americans, Britainmadeconcessions. The Quebec Act of 1774 re-instated the civil law system in Lower Canada, protected French-language rights, and protected the Roman Catholic Church.

FACTS:

  • Canada’slegalsystemisbasedaroundBritish”common law” traditions, and Canadians’ legal rights are protected by a written constitution and a Charter of Rights and Freedoms.
  • Only the Canadian federal government has the ability to make criminal law. For other types of law, Canada’s federal, provincial, and municipal divide up the responsibilities.
  • Laws that violate the Constitution can be overturned by Canadian courts, with the Supreme Court of Canada being the highest authority.
  • Policing in Canada is either run by the federal government, provincial government, or city government, depending on what part of the country you’re in.
  • Magna Carta: The cornerstone of Common Law is the Magna Carta of 1215, an ancient list of regulations on the British monarch which, although mostly obscure and irrelevant today, still serves as a symbolic monument to the idea that government power should be controlled and limited. Similar in status is the British government’s Royal Proclamation of 1763, which though equally out-of-date, is respected as a general statement that the Canadian government must treat aboriginal people with fairness and due process (indeed, it’s been dubbed the “Indian Magna Carta”).

Criminal Records and Pardons:

The names of Canadians who are convicted of a criminal offense are entered into an electronic database run by Canada’s police departments, and — with the
convict’s permission — this information is shared with anyone who requests it. This
can be quite a handicap in life, as many Canadian employers demand prospective employees to release their police profiles and refuse to hire people with a criminal
record. Eliminating a criminal record can be done through an appeal to the Parole Board of Canada, or in much rarer cases, through a personal appeal to the Canadian minister of public safety.

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