The Groundwork Of Canada’s Great Legal Institutions
Posted on 24.05.2021
To mark the occasion of Victoria Day, Ewan MacLeod, shared with us the significant origins influencing many of our Canadian laws and legal traditions.
Paying Homage to the Queen
Love it or hate it, Canadian law is largely derived from English law and legal traditions.
I remember eating a White Spot burger as a kid thinking, “why is there a photo of the Queen hanging in the lounge of a BC Ferry?”
Well, it turns out that it’s a long story… which you can certainly Google. Canada has definitely evolved in its own way in the decades since 1867 when an act of the British Parliament, the British North America Act (now the Constitution Act, 1867) essentially created Canada and established our legal institutions.
Skipping to a key point at the end of the story, it wasn’t until the Constitution Act, 1982 was signed into law that Canada officially became independent of England.
The Laws and Legal Traditions
We certainly have our own very Canadian system, but let’s look at a few English law traditions that are still very much part of how we do things.
Well, there are our first past the post election and Parliamentary systems. They are taken directly from the UK with our own provincial twist added to the mix.
Our system of wills and dealing with estates and assets when a person dies is undoubtedly rooted in England. Think Downton Abbey and no less riveting in the real world.
Our property law system includes a multitude of English concepts that we still use today. These include how owners are registered on title such as tenants in common or as joint tenants, forms of interests in property such as leasehold or freehold absolute in possession, and how mortgages and other encumbrances are registered and discharged. Even the foreclosure process we follow is based on the similar English process.
Our common law court system is derived from the English court system and follows the principle of stare decisis, which essentially means that similar past cases are used as authority when deciding cases going forward. We can thank the English for the tongue tying Latin used in law.
While we don’t wear wigs in court, it’s undeniable that our legal system has deep roots in English law in all areas including civil and criminal law. Believe it or not, “innocent until proven guilty” did not originate on the tv show Law and Order.
Of course, we have now put our own Canadian twist on things, but this Victoria Day, let’s cheers the Brits for laying the groundwork for some of our great legal institutions that have made our country what it is today.