2.1 - Canada's Legal System is Born

British Parliament and Statute Law

Early British law was in the hands of Kings and noblemen, and open to injustices and abuses by both groups.  The use of circuit judges and assizes, as well as the enactment of the Magna Carta in 1215 CE, were two key steps towards wrestling legal power away from noblemen and Kings.  Another key step was when the British Parliament became the source of new laws, instead of Kings.  The English Parliament became the sole source of statute law in England in the late 1600’s, and thus began the evolution towards the current legal system.

British North America Act (1867)

Fast forward 200 years, and it was an act of the Parliament of Great Britain that gave birth to the nation of Canada.  The British North America Act (BNA Act) of 1867 was the act passed by the British Parliament that set up the Dominion of Canada, and established Canada’s constitution.  A constitution is a document that outlines how a country should be structured, and how it should function.  When the BNA Act was passed into law on July 1, 1867, Canada became a new country and had its own constitution; but it was still a colony of England, and not yet totally independent.

Federal System of Government

The BNA Act outlined what the government in Canada would look like.  The 36 Fathers of Confederation that provided input to the design of Canada (and the BNA Act) considered using either the British or American systems of government.  The British system was a unitary system, where there was only one level of government in the country.  The Fathers of Confederation didn’t like this system for Canada, because Canada was so geographically large that it would be very difficult to govern the entire country with one level of government.  The Fathers also didn’t like the federal system in the U.S., because the states had too much power, while their federal government didn’t have enough.  So instead, the Fathers of Confederation designed a governmental system that took the best of both worlds - it was a federal system, but with a strong central federal government (like England), that shared authority with the provinces (like the U.S.), but did not give them as much authority as in America.

The BNA Act stated specifically what areas of responsibility that each level of government would have.  Consider a few key sections below.  First, section 91 of the BNA Act sets out the powers of the federal government.  Here is a sampling of some of the key federal responsibilities:

• banking

• defense

• postal service

• citizenship

• foreign affairs

• residual powers

• criminal law

• Indian affairs

• taxation

• currency & coinage

• patents & copyrights

• trade & commerce

Second, section 92 of the act sets out the powers of the provincial government.  Below is a sampling of some of the key provincial government responsibilities:

• education

• municipalities

• provincial courts

• hospitals

• natural resources

Finally, section 93 provides the authority for education to the provinces.  Apart from sections 91, 92, and 93; the BNA Act also provides other specific governing guidelines.

Aboriginal Self-Government

Section 91 of the BNA Act provides responsibility to the federal government for Aboriginal governance.  However, some Indian bands established under the Indian Act may operate like a municipal government and make some of their own laws.  Examples of these laws might include local bylaws, marriage laws, adoption laws, and education.

Residual Powers

The BNA Act provides quite a comprehensive outline of the different responsibilities that each level of government in Canada should have.  However, it is impossible to predict how society could change over time.  For example, constant changes in technology are part of modern life; yet who could have predicted this?  The federal government has a special power, called residual power, to take responsibility over new areas of society and governance that hadn’t previously been discovered.  Issues related to the Internet are examples of new areas that have been assumed under federal government control using residual powers.

Statute of Westminster

The BNA Act was very effective in providing Canada with a governmental structure as it began its identity as an almost-independent British colony.  However, as time went on, it became clear that it also had some limitations.  Numerous edits, additions, and deletions were made over the years. One such addition was the Statute of Westminster (1931).  This act, passed in Britain, expanded Canada’s law-making powers in two key areas.  The first is that Canada could now make its own laws independent of Britain.  The second area is that Canada could now make its own deals with other countries.  However, even with these improvements, there were still some problems with the BNA Act.

Problems With BNA Act

The following three key problems with the BNA Act remained:

1. Canada couldn’t change its own constitution without Britain’s permission

2. still some confusion over some of the federal and provincial responsibility areas

3. no guarantee of civil liberties in constitution

The existence of these and other problems led to efforts to transfer Canada’s constitutional power from Britain to Canada.

Bringing Home the Constitution

Canada was able to obtain its own constitutional authority from Britain when the Constitution Act was passed in 1982.  Five key elements of this act included the following:

• a principle of equalization that makes sure that all essential services are available to all Canadians, regardless of how wealthy their province was

• clarification of which level of government controls natural resources

• formula to make changes to the constitution in the future, if necessary

• charter guaranteeing individual rights and freedoms - called the Canadian Charter of Rights & Freedoms

• rights of Aboriginal people were recognized and affirmed.

Summary

The British North America Act of 1867 began the process of developing Canada's legal system apart from England. Although this was the first step, several step followed over the decades, most notably the Constitution Act of 1982. Canada is now able to make all of its own laws, yet remains connected to England as a British colony.