The Origin of Canadian Law
Each week in this column I mention whether the law we are dealing with is Federal or Provincial. Sometimes the law covers Ontario, sometimes all of Canada. Have you ever wondered where all this law comes from in the first place? Canada is only 134 years old: Did we invent all the laws on the first day of Confederation?
First of all, consider our original constitution, The British North America Act, 1867, now part of the Constitution Act, (1982). Under it, the Federal Parliament and the Provincial Legislatures were given authority to make new, written laws (Statues and Acts) dealing with different subject matters.
Each Province can make laws, valid only within its boundaries, dealing with matters of more local concern.
So, over the past 134 years we have had the levels of government adding to and changing the laws by making new ones. However, they did not start from scratch. Written laws are not, and never have been, the only type of law we have in Canada.
Along with the written laws, our legal system has always had the common law. The common law is the law which has been created by the judges and which is not based on any statute. It has been developed on a case-by-case basis with previous cases acting as authoritative guides (precedents). Many of the general principles of the common law have existed in England for several hundred years. The common law is not frozen: It is always developing and changing.
How did we get the common law? In the late 1700s, Upper Canada (now Ontario) passed a law adopting the common law of England. The other Provinces (except Quebec) also adopted the common law of England. Since then Canadian judges have developed the Canadian common law, though English cases have always been influential.
The common law applies to the people of Quebec to the extent that it applies to Federal matters. But, not surprisingly, Lower Canada (Quebec) adopted the French civil law for Provincial matters rather than the English common law. The civil law is based on a written civil code.