Historical Development of Canadian Law
1) French Colonization of North America
East coast of North America
Jacques Cartier : 1534-35 First European to sail up the St. Lawrence
Purposes of discovery – religious and economic
Looking for a passage to the indies. He was followed by a lot
of fisherman and was looking to open up economic strength to
Samuel de Champlain
Founder of New France 1608
Habitation – habitant
Starting to make alliances and peace treaties with First Nations
Economic activities – fur trade, obtain rights of exploitation
Governance – left to private companies in return for exclusive right
to resources (expensive to set up a government)
Religious – many missionaries, few conversions
Roi Lous XIV 1663 – control of colony returned to king (since privatazation
wasn’t working very well)
Made New France a province of France
Governance – Governeur (making external deals with other
nations) and Intendent (responsible for internal actions)
Filles de Roi – French women to marry settlers (population grew to
2) French Law – Coutume de Paris - 1663
Coutume = custom At this time in France, there were over 300 different legal regimes and each
section had a different idea about the laws. Paris’ system was chosen to apply. It
was very vague and based on customs. The problem is different people think of
different things as customs.
Contract law – fairness over certainty
If there was a dispute over a contract, you would take it to a decision body and
they will decide whether it is fair. Today that’s not the case. The law allows us to
enter into unfair contracts as long as they are certain (did both parties know it was
unfair). If it is certain, the contract is valid.
Preservation of family property
Real Property – land. And any property that can get us resources (personal
property – cattle, horses). An ability to pass on your land to your family members.
The idea that property should remain in family name.
Protection of rights of women and children
Women and children, whose husbands/fathers died, were entitled to their land.
Keeping land in the family is important.
King owns land – all land belongs to the king
Grants to signeurs (lord, people of status)
Further grants to habitants
Strips of land divided amongst the habitants. The habitants pay taxes to the
signeurs and the signeurs pay taxes to the king.
3) Seven Years War (1756- 1763) and Royal Proclamation 1763
1760 – British take over New France
1763 – Royal Proclamation. This had a huge impact on New France. Section I
through iv. (i) New France becomes colony of Quebec
(ii) Established English colonial government (assimilate the French)
(iii) English civil and criminal law imposed
English law cared about certainty and not fairness
(iv) No Roman Catholics can hold office
What languages could be spoken in public
The English imposed their ways of living
The English were not prepared for the French’s response. Because of
all these problems, the English decided to make some changes –
4) Quebec Act 1774
(i) Maintain English criminal law but reinstated French civil law
(ii) Ofiicially recognize French language and Roman Catholic religion
(iii) Locals can participate in government
This is why we have House of Commons, Senate. Quebec has a strong voice because of
this. In the constitution acts, the language, religion and institutions are supported and
recognized. Quebec is the only province that didn’t sign the Canadian Charter. For the
next 100 years, things got along fine. The English system didn’t have that much power,
and there were problems. The class distinctions were being created. English –
businessman. French – agricultures.
5) Adoption of a Civil Code in 1886
Based on Napoleonic Code 1804
Law starts as systems of customs (the ways we normally behave) and these get brought
up to laws. But the problem is they aren’t written down and people believe different
Emperor – we have these customs floating around, so lets gather them up and write them
down – create a legal code that applies to that certain area.
Codification – the organization and writing of laws that are simple, clear, and sufficiently
general and comprehensive that they can be applied to almost every conceivable
situation. Codification makes laws available to everybody. You can make sure all the laws are
internally consistent. You have a way of insuring one custom doesn’t inflict upon another
Napoleonic Code – laws put into the Napoleonic code were based on universal moral
truths of religious teachings.
1886 civil code – took the Paris custom ideas and made them into laws. It looked at the
rise of industry and implemented those as well. Started a system that exists today – a civil
6) Impact on Canadian Legal System
Huge: English French relations
Unique legal system in Quebec as compared to rest of Canada (civil law)
1) Law in Quebec is modelled after the French civil law
2) political: relationship between Quebec and the rest of Canada
English Impact on Canadian Law
Canadian Law is British Law (arises out of English history)
English legal history – evolution of public criminal law and private court law, origins of
the Canadian court system, evolution and origins of common law
43 CE – occupied by the Romans (clan based government systems and customary laws).
Roman invaders had a much more elaborate legal systems. 800 CE – 7 different
kingdoms; each with a different form of a legal structure that represented local customs.
There wasn’t much law in the form of the king giving out power. His power rested on
military authority. He did not have moral authority.
Anglosasins – first emergence of ideas about criminal/tort law. Ex. You have the right
execute someone who has committed theft, adultery, and murder. This wasn’t by state,
the individual had the right to kill the other individual. Ex. – compensation if you hurt
someone, you need to pay them. How much you had to pay depended on the type of
injury and the status of the person.
Two types of compensation: bot – pay it to the injured party itself or go the king (wiet). This is the idea that if you intentionally hurt someone, it hurts the king’s peace and hurt.
Hurting someone isn’t just an injury to the individual, but an injury to the king.
Property – you process something and the resources to keep everyone out of it = you have
Contract law – wasn’t needed because it was very direct and people knew the deals they
were making. Contracts were very simple and made in public (witnesses).
Enforcement procedures – “the hundred” – 100 men whose duty was to enforce the rules.
Trials by ordeal – the accused person must go an impossible human task.
Congregation – if you gather people who think you’re innocent, then you are innocent.
This is the origin of juries (10-12 people).
1066 – invasion of England by William the Normandy
Introduced feudal system
Distributed land to his lutendants/chief. In return they needed to pay taxes and supply the
king with resources. It was a chain of ownership. This system is t