L’Encyclopédie de l’histoire du Québec / The Quebec History Encyclopedia
[This article was published in 1948. For the full citation, see the end of the text.]
Law, English. New France, the old Canada, was, of course, governed by French law after the conquest of Quebec in 1759; and until the Treaty of Paris, 1763, made the de facto sovereignty become de jure, Canada was under military rule; this period is generally called the Règne Militaire or Régime Militaire, and the conduct of the conqueror toward the conquered has been absurdly misrepresented. The fact is that during this period, the courts set up by the governor, generally military, applied the Canadian law as nearly as they could ascertain it. This, while it was French law, could not properly be called the law of France, as until the Napoleonic Code placed all France under one law, there were many systems, or coûtumes, every district enjoying its own. The law applied to Canada was the Coûtume de Paris, in force in Paris and its district, with some unimportant modifications to adapt it to the colony.
By Section IV of the Treaty of Paris, February 10, 1763, " Canada with all its dependencies" was ceded to "his Britannick Majesty in full right". It is perfectly obvious from official documents and acts that Canada was expected to cease to be French-speaking and Roman Catholic, and to become English-speaking and Protestant, in a word English instead of French. With that view, immigration from the English colonies to the south as well as from the mother country was encouraged, by grants of land and otherwise. The western portion of New France it was intended to reserve for the Indians and the all-important fur-trade; accordingly when the "Government" or province of Quebec was created by order-in-council, October 5, 1763, its territory was limited on the western boundary by a line drawn from "the South end of the Lake Nipissing" to the St. Lawrence at the 49th parallel of latitude.
From the Labrador coast to this line, it was desired to settle English people.
A royal proclamation, dated October 7, 1763, promised a legislature "to make . . . Laws, Statutes, and Ordinances for the Public Peace, Welfare and good Government" of the colony; and until such legislature could be called, "all Persons Inhabiting in or resorting to" the colony "may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England." This proclamation was considered to have introduced the laws of England, civil and criminal, into the colony.
The French Canadians, especially the higher classes, did not like the new law so intended to be imposed upon them; and, after considerable agitation and not a little confusion, some of the old law was reintroduced. By the well-known Quebec Act of 1774, 14 Geo. III, cap. 83 (Imp.), the province of Quebec was extended south to the Ohio and west to the Mississippi, thereby taking in the present province of Ontario, and much other territory. This Act provided, inter alia, "that in all Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws of Canada , as the Rule for the Decision of the same." It is to be noted that the criminal law was not interfered with; and, consequently, throughout this enormous territory, the English criminal law was, at least in theory, in force; while, in civil matters, the old Coûtume de Paris prevailed.
The American Revolution caused the immigration into the upper parts of the province as well as into certain parts of the lower portion of many Loyalists, most of them English-speaking and Protestant, who had been accustomed to a law based upon and closely resembling that of England. They agitated and petitioned; in some places they applied their own law; and ultimately, the authorities in England decided to divide the large province into two. Accordingly, an order-in-council was passed, on August 24, 1791, dividing the province of Quebec into two provinces, that of Upper Canada and that of Lower Canada, with the dividing line, practically, that now between Ontario and Quebec. An Act of parliament, (1791) 31 Geo. III, cap. 31 (Imp.), provided for the government of these provinces.
The first parliament of Upper Canada met at Niagara-on-the-Lake, re-named Newark by Simcoe, the first lieutenant-governor, in September, 1792; and in its first Act, provided, inter alia, "That from and after the passing of this Act, in all matters of controversy relative to property and civil rights, resort shall be had to the Laws of England, as the rule for the decision of the same" (1792) 32 Geo. III, cap. 1, sec. 3 (U.C.).
It has been pointed out that the criminal law of England was considered to have been introduced by the Royal Proclamation of October 7, 1763; and this legislation removed the Canadian law in civil cases, restoring the laws of England; consequently, the province of Upper Canada was governed by the common law of England, civil and criminal; and this province thus cut herself from the province of Lower Canada in respect of the law in civil cases, though practically the same criminal law prevailed in both. In 1793, provision was made for a court of probate and surrogate courts in the province "to hold cognizance of all matters relative to the granting of the Probate of Wills and Letters of Administration"; this was a distinct deviation from the English method of placing all such matters in the hands of the bishops of the Church of England; (1793) 33 Geo. III, cap. 8 (U.C.).
Before 1792, civil cases were tried in one of the district courts of the four districts, into which Lord Dorchester, the governor, had in 1788, divided the Upper Country, later to become Upper Canada, by three judges-or, in the case of the court of the furthest west district, including Detroit, one judge, the only lawyer of the ten, without a jury; in 1792, provision was made for trial by jury, (1792) 32 Geo. III, cap. 2 (U.C.); and in 1794, further provision was made for juries, (1794) 34 Geo. III, cap. 1 (U.C.). In the same year the district courts disappeared and a court of King's Bench on the English model was constituted, (1794) 34 Geo. III, cap. 2 (U.C.). This, with many statutory modifications, has come to us as part of the Supreme Court of Ontario.
In 1797, a Law Society was formed on the model of the English Inns of Court, which still exists, the Law Society of Upper Canada, (1797) 37 Geo. III, cap. 13 (U.C.).
In 1800, for some reason, which is not evident, a bill was passed for the further introduction of the criminal law of England; it originated in the Legislative Council, being introduced by Cartwright, the grandfather of Sir Richard Cartwright; it provided, inter alia, "That the Criminal Law of England, as it stood on the seventeenth day of September, in the year of our Lord, one thousand seven hundred and ninety-two, shall be, and the same is hereby declared to be the Criminal Law of this Province": (1800) 40 Geo. III, cap. 1 (U.C.). Many men were hanged for what are now almost trivial offences, the first one in Toronto, then York, for a trifling forgery.
On the Union of the two Canadas , by the Act of (1840) 3 & 4 Viet., cap. 35 (Imp.), it was thought proper to consolidate the legislation of Upper Canada in one volume; the result is The Consolidated Statutes of Upper Canada, 1859.
In cap. 9, sec. 1, it is provided: "In all matters of controversy relative to property and civil rights, resort shall continue to be had to the laws of England as they stood on the . . . . fifteenth day of October, one thousand, seven hundred and ninety-two, as the rule for the decision of the same"; the English rules as to evidence as of that day were also directed to be followed. (The 15th day of October, 1792, was the day on which the original Act of 1792, introducing the laws of England in matters of property and civil rights as passed by the parliament of Upper Canada received the royal assent, and so became law.) In cap. 94, sec. 1, it was enacted that the criminal law of England as it stood on September 17, 1792, and as varied since by legislation affecting Upper Canada should be the criminal law of Upper Canada ( September 17, 1792, was the first day of the sittings of parliament of Upper Canada ; and, by the law then in existence, an Act on receiving the royal assent, was retroactive to this first day of the sittings.)
On Confederation, criminal law was placed in the jurisdiction of the Dominion, property and civil rights in the provinces. On the first revision, in 1877, of the laws of Ontario, cap. 92 repeats the provisions of the Consolidated Statutes, 1859, as to the laws of England as of October 15, 1792, and this, with subsequent effective changes, is the rule for the decision of all matters of property and civil rights.
This has been continued in every subsequent revision of the Statutes of Ontario, the latest being Revised Statutes of Ontario, 1927, cap. 130, sec. 1.
The Dominion continued the provisions as to the criminal law of England being applicable to Ontario ; the latest legislation being Revised Statutes of Canada, 1927, cap. 36, sec. 10 (The Criminal Code).
Section 11 of the same Code provides that, in British Columbia, the laws of England are to be taken as of November 19, 1858 ; and sec. 12, that in Manitoba, they are to be taken as of July 15, 1870.
Source : W. Stewart WALLACE, ed., The Encyclopedia of Canada , Vol. IV, Toronto, University Associates of Canada, 1948, 400p., pp. 36-38.
© 2004 Claude Bélanger, Marianopolis College