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That's history: The roots of common law in Canada

This third column on the roots of Canada’s legal traditions is devoted to the common law, following others on indigenous law and civil law.

That's history: The roots of common law in CanadaThe common law inheritance in Canada goes far beyond a body of law and a set of institutions derived from England, important as those are. Canadians also inherited a legal culture — a set of ideas, ideals and practices about law and its role in society and daily life — that was for a long time summed up in the phrase “British justice.”

The common law did not arrive in any neat package on Canadian shores. In the oldest plantations, Newfoundland (1610) and Rupert’s Land (1670), its infrastructure was simply absent.

There were no counties, freeholders, juries or sheriffs, virtually no law texts, no trained lawyers and no justices of the peace until the first were named in Newfoundland in 1729. That does not mean there was no law.

English law’s recognition of custom meant that those on the ground in effect created their own law; in North America, a custom might arise in as little as a generation.

The overt introduction of the common law into British North America would come all in a rush after the foundation of Halifax in 1749. Attracting British settlers to this new outpost of empire required assuring them that familiar laws and institutions would be in place.

Within a decade, counties were created, lands granted in free and common socage in sufficient quantity to create pools of jurors and electors, a Supreme Court created (1754) and a functioning legislature put in place (1758). Early on it was decided that only English laws that were “suitable” would be received, but the activity of the legislature meant that local statutes soon rendered debates on this point largely unnecessary. This pattern would be repeated when the colonies of Prince Edward Island, New Brunswick and Upper Canada were subsequently created.

One advantage of the common law tradition in early colonial societies was that it provided a ready-made template for the resolution of many legal problems while permitting settler societies to adopt different solutions if they so chose.

Thus, British North American colonies rapidly got rid of primogeniture and entail but extended dower rights for married women even as they were being cut back in England. Meanwhile, registry systems, and later the Torrens system of land titles, spread rapidly even as they stalled in Britain itself.

Ironically, later in the 19th century, this spirit of innovation tended to wane in favour of imitating English jurisprudence and statute law, although Canada did succeed in adopting its Criminal Code of 1892 after all such efforts had failed in the mother country.

The common law was not seen as just a body of law dealing with private relations and dispute resolution, however. As the Halifax jurist Beamish Murdoch wrote in 1832: “Let the Englishman go where he will, he carries as much of law and liberty as the nature of things will bear.”

The common law was seen as the guarantor of the liberty of the subject and inseparable from British justice itself. Thus, for Murdoch and other British North Americans, “ . . . Habeas Corpus, — the freedom of the Press — the trial by jury — the Representative Branch of the legislature, — the viva voce examination of witnesses . . .” together made up the tradition of British justice they so valued.

If the phrase “British justice” has a somewhat antique ring to readers today, it is because Anglo-Canadians discovered their own brand of legal nationalism in the wake of the Second World War.

It entailed suppressing many aspects of the British legal inheritance in favour of “made-in-Canada” labels and solutions. Some of these measures were highly salutary, such as the creation of Canadian citizenship by statute in 1946 and the abolition of appeals to the Privy Council in 1949. But in other respects, this campaign led to the underplaying of the continuities between English law and Canadian law, and to a lack of interest in pre-war Canadian legal history, which was assumed to be too traditionalist or anti-modern to be of interest.

It is sometimes a small step from pride in one’s own traditions to believing they are better than anyone else’s. Certainly, British-descended settlers felt no guilt in trying to impose their concepts of law and justice on others.

In Quebec, French-Canadians managed to accept British traditions of constitutional and criminal law, and an English-inspired court structure, while largely preserving their French civil law traditions in private law. Once respected as a key aspect of internal self-governance, the legal traditions of indigenous peoples were increasingly marginalized, often ignored and sometimes criminalized during the relentless advance of colonization to resurface with the renaissance of indigenous consciousness in the later 20th century. And in the name of liberty, the rights and interests of racialized individuals were often ignored.

Gradually, these excesses have been dialled back, if not eliminated. Indeed, the work of reconciling indigenous traditions with Canadian common law has barely begun.

From the perspective of 2017, however, one can be grateful that the common law tradition in Canada has been flexible enough to share the stage with the civil law tradition of Quebec, to accommodate the needs of millions of immigrants from diverse lands, and finally, haltingly, to recognize aspects of indigenous legal traditions.

Philip Girard is a legal historian and professor at Osgoode Hall Law School. He’s also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca.

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A Law Times column examines whether the Law Society of Upper Canada should change its name to the Law Society of Ontario, in light of different social changes, such as the Truth and Reconciliation Committee’s Calls to Action. Should LSUC change its name?
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