The Evolution of Canadian Law

With the 150th anniversary of Confederation upon us, it is perhaps appropriate to reflect on the high points of 150 years of legal change in Canada.  Such an exercise is always a challenge, of course, because what might be considered significant to some may be seen as minor or less important to others.

In this brief review, I will focus first upon “the grand scale”: those developments and changes which seem to me to have had the most impact on our national and social evolution over the last 150 years, and then discuss specific areas which likely have the most impact on the daily lives of Canadians.

What changed with the 1982 Charter of Rights and Freedoms was that our essential rights and freedoms were elevated to the status of constitutionally-protected interests, capable of being enforced by applications to the courts.  Canada in 1867 was focused mainly in the centre (what became the provinces of Ontario and Quebec); was predominantly white and was mainly of British extraction and English-speaking.   While we think of 1867 as the year we became a new country, many of the powers we now take for granted as a completely sovereign state were still reserved for Britain to exercise on our behalf.  Legally, the highest judicial authority in the United Kingdom – in the form of the Judicial Committee of the Privy Council – was also the highest court of appeal for Canada.  The legislation which is considered to be our founding document was an Act of the British Parliament – the British North America Act (now, The Constitution Act, 1867) – and it described the division of powers between the national Parliament and the provincial legislatures.  It also set out some basic rules about how we would be governed but many other basic principles remained unwritten and were encompassed by the broad, general statement that our constitution was to be “similar in principle to that of the United Kingdom.”

Canada on its 150th birthday is a hugely different place. Constitutionally, we have moved from the status of being “almost still a colony” of Great Britain, to being a completely independent and sovereign entity. While this evolution has, of course, also included major events in other areas (politics, military, and so on) the most important legal steps have been in the form of both statutory and common (“judge-made”) law.   One of the most significant took place in 1931, with the passage of the Statute of Westminster.  Until 1931, the British Parliament had retained ultimate authority in most areas of jurisdiction, reserving to the government in London the authority to override or nullify laws passed in Canada (and the other Commonwealth Dominions) as it saw fit.  The Statute of Westminster removed most of this authority from Great Britain and passed it to the legislative bodies in each country, including Canada.  The exception for Canada was in relation to the power to amend our Constitution: by agreement among the provinces and Ottawa, the United Kingdom Parliament  continued to retain this authority.

When it came to legal rulings and decisions, however, the Judicial Committee continued to be our final court of appeal until 1949.  That year, Parliament (in Ottawa) amended The Supreme Court Act to abolish appeals to the Judicial Committee in London, making the Supreme Court of Canada our ultimate judicial decision-maker.

A case from Alberta decided in the 1930s advanced the freedom of the press, and a number of decisions originating in Quebec in the 1950s addressed our freedoms of speech, association, and religion – as well as affirming the most fundamental principle for a society ruled by law: that everyone, from the highest office holder to the lowliest citizen, is equally bound to obey the law of the land, without exception.The final, and perhaps most important, milestone in our constitutional development as an independent country occurred in the early 1980s with the so-called “repatriation” (or  transfer) of our final constitutional authority from the United Kingdom to Canada. Prime Minister Pierre Trudeau led the way towards a truly “made in Canada” Constitution which included, for the first time, a written list of our most basic rights and freedoms, as well as a method for changing the Constitution itself.   The Constitution Act, 1982 was signed into law by The Queen in Ottawa on April 17, 1982.  The remaining legal ties to Britain were severed and Canada was finally independent.

A significant aspect of the 1982 landmark was the inclusion of a written listing of our most fundamental rights and freedoms, and a way to meaningfully enforce them, in the form of the Canadian Charter of Rights and Freedoms.  While in 2017 we tend to take “the Charter” for granted, it too represents the culmination of 150 years of legal change.

With a few, isolated exceptions, in 1867 – and for decades afterwards – laws were enacted, applied and enforced by white (usually British) men over all others who lived in this country.   Women had few rights, and non-white members of society faced many barriers, legal and otherwise, to equality. Aboriginal Canadians were subjected to various regimes of discrimination and racial abuse more usually associated with apartheid South Africa and the darkest days of racial strife in the southern United States.

The steps toward equality and the protection of rights were many and often small.  One of the more significant developments along the way towards full legal equality for women was the well-known “Persons Case” decided in 1929 by the Judicial Committee of the Privy Council in London.   Five women challenged the section of the British North America Act, 1867 defining the qualifications for membership in Canada’s Senate, which had been interpreted so as to restrict the meaning of “persons” to “males”.  The J.C.P.C. ultimately ruled, however, that the word “persons” had to be read to include all persons, of both genders: women were persons too!  None of the “Famous Five” who took up this challenge was appointed to the Senate, but about a year after the decision the first female senator was named by the Governor General.

Other court rulings over the years recognized and affirmed the existence of various rights and freedoms for Canadians.  A case from Alberta decided in the 1930s advanced the freedom of the press, and a number of decisions originating in Quebec in the 1950s addressed our freedoms of speech, association, and religion – as well as affirming the most fundamental principle for a society ruled by law: that everyone, from the highest office holder to the lowliest citizen, is equally bound to obey the law of the land, without exception.

Prime Minister John Diefenbaker hoped, when he oversaw enactment of the Bill of Rights in 1960, to secure more protection for the rights and freedoms of individual Canadians. However, this legislation was little more than mere symbolism because it was only “ordinary” legislation, passed by Parliament like any other statute.  It was considered not to be sufficient to assert and enforce the rights it described over any other enactment of Parliament.

While in 2017 we tend to take “the Charter” for granted, it too represents the culmination of 150 years of legal change.

What changed with the 1982 Charter of Rights and Freedoms was that our essential rights and freedoms were elevated to the status of constitutionally-protected interests, capable of being enforced by applications to the courts.  Unlike the situation of the Bill of Rights, once the Charter became part of our Constitution, any legislation along with any other governmental or state action which infringed upon or violated the enshrined rights of individuals could be struck down and declared invalid.  Only where the government could demonstrate a reasonable justification for the limitation of rights in a democracy like ours, would the violation of rights be allowed. Otherwise, the courts were given the task of fashioning an appropriate remedy for persons whose rights or freedoms had been infringed or breached.

The changes in Canadian laws and society flowing from the enactment of the Charter in 1982 touch virtually all aspects of our modern lives.  Things which we take for granted in 2017 which resulted from enshrining our fundamental rights and freedoms include:

  • Sunday shopping (a result of our freedom of religion);
  • protection from improper and arbitrary government prying into our private affairs and the requirement for a search warrant before state officials can snoop around our private property (all parts of our rights to be protected from unreasonable search or seizure);
  • our right to speak with a lawyer if we are arrested or detained; to know all aspects of the case against us if we are charged with an offence, and to be treated fairly in the court system (all parts of our rights to fair trials);
  • the legalization of abortion (the rights of women to decide for themselves what will be done with their bodies); and
  • protection of the media from harassment or persecution for investigating and exposing government and political wrong-doing (part of the freedom of the press).

More recent Charter developments touching the most basic aspects of life in Canada include the legalization of gay marriage; the introduction of physician-assisted death; and innovations such as supervised injection sites.

To move from these general areas of how we govern ourselves, to more particular areas of law which touch our daily lives, reveals just as many examples of monumental change from 1867 to where we are today.

In the field of criminal law, for example, in 1867 most of our legal provisions were taken from the rulings of English judges, and the British Parliament.  In 1892, however, Parliament enacted the first Canadian Criminal Code, which continues to be the main source of our criminal law today.   Over the years since 1892, the Code has been amended often, in order to address new situations not foreseen in earlier years (it now includes computer offences, for example).  Other amendments have included the abolition of all forms of physical punishment (flogging and hard labour, for example), and, in 1976, the death penalty.

Family law, and divorce in particular, have also changed immensely since 1867.  Until 1968 divorce was mainly governed by provincial laws which differed across the country.  Many could only be divorced by an Act of Parliament: Someone wanting out of an abusive or otherwise bad marriage had to seek the assistance and support of their Member of Parliament who would introduce a Private Members Bill in the House of Commons declaring the marriage ended and the parties divorced. However, with the passage of the Divorce Act in 1968, the rules and procedures across the country were standardized, and all such matters were placed into the hands of the courts.  Divorce became far more available and further change followed in 1986, when the Divorce Act was amended to simplify the situation even further through “no fault” divorces.

Prime Minister Pierre Trudeau led the way towards a truly “made in Canada” Constitution which included, for the first time, a written list of our most basic rights and freedoms, as well as a method for changing the Constitution.. Another significant development over the last 150 years is the evolution of legal protections for spousal partners when it comes to the division of family assets.  In 1867, after a divorce the ex-wife, and any children she might attempt to have living with her, were often left penniless.  In the last 150 years, however, various support laws have been enacted so that now both former partners must  share the obligations of child support and neither party is able to benefit unfairly from the marriage and its termination.  In addition, property acquired during the marriage is to be divided equally between the former spouses, unless one side or the other can prove in court a significantly greater contribution.

Another major change in the area of family law is the recognition and acceptance under our laws that marriage need not be restricted to a man and a woman, but that other equally valid and binding unions are possible.  As a result of a number of rulings under the equality provisions of the Charter of Rights, Canada was one of the first countries to legalize same-sex marriages.  It is now well-accepted in Canadian law – and in society at large – that non-heterosexual couples can marry and parent children as well and as validly as in the more traditional forms of marriage.

When it decided the Persons Case in 1929, the Judicial Committee of the Privy Council described our Constitution as a “living tree” which would grow and adapt to changing circumstances and values.  The analogy can be applied to our laws in general.  Just as they have grown and modified in the last 150 years in ways no one living in 1867 could have imagined, so too will they continue to change and adapt to the challenges and developments in society which will take place in the future as well. I wonder what a review like this one will discuss at Canada’s 200th or 250th birthday?

Authors:

Charles Davison
Charles Davison is the Senior Criminal Defence Counsel with the Somba K’e office of the Legal Services Board in Yellowknife, NWT.
 


A Publication of CPLEA