 |
PDF Version | Word
Version | Rich Text Format | Text
Format
Canada has inherited two systems of law: civil law from the French
and Common law from the English. This page will describe and give
the history of each system as it relates to Canada
British Common law
Civil Law
Bibliography
Related topics:
The Judicial Committee of the Privy Council
The Written and Unwritten Constitution
Representative Government
Responsible Government
Canada's Constitutional
History
British Common law
Definition
British Common law, also called traditional law, is law that has
evolved from decisions of English courts going back to the Norman
Conquest in 1066. These earlier decisions set "precedents,"
which are used in future cases of a similar nature. Precedents can
be overruled by new laws, or statutes, passed by the appropriate
government.
Today Common law is applied in most countries settled or ruled
by the British. In Canada, law in all the provinces except Québec
is based on Common law.
The Early History of Common law
Canadian Common law started in England, and until 1949, decisions
and developments in English law were incorporated into Canadian
Common law. Other legislative documents and decrees also have an
effect, going as far back as 800 years. As time passes and new laws
are enacted, though, this influence decreases. Some examples:
-
Magna Carta, 1215 (England)
-
Petition of Right, 1629 (England)
-
Bill of Rights, 1689 (England)
-
Act of Settlement, 1701 (England)
According to British tradition, it has been the responsibility
of Parliament
to protect individual rights. This practice was followed in Canada
until the passing of the Constitution
Act, 1982, which set down individual rights along American
lines in the Canadian Charter of Rights and Freedoms.
Common law in Canada Before 1867
Newfoundland, Prince Edward Island, New Brunswick and Nova Scotia
all followed Common law before Confederation. The Province of Quebec,
however, had begun as a French colony - New France - which used
civil law.
After the conquest, the British guaranteed the survival of civil
law in the Québec
Act, 1774. The Constitutional
Act, 1791, however, split the province of Québec into Upper
and Lower Canada. Lower Canada retained civil law; Upper Canada
quickly switched to Common law.
Other Influences on Canadian Common law
Normally courts are required to apply legislation as passed. However,
the Canadian Charter of Rights and Freedoms, part of the
Constitution Act, 1982, has given courts the responsibility
of ensuring that legislation does not violate the individual rights.
The Judicial Committee
of the Privy Council (JCPC) also played a part in Common law.
It took until 1949 for all appeals to the JCPC to end.
|
To learn more about Common law:
|
Civil Law
Definition
Civil law is the kind of law that evolved from Roman law, based
on a written "civil code". This was adopted in France
after the French Revolution in 1789. Called the Code Napoléon,
it covered only matters of private law:
-
The legal attributes of a person (e.g.: name, age of majority)
-
The relationship between individuals (e.g.: marriage, adoption,
parentage)
-
Property (e.g.: possession, land boundaries)
-
The legal institutions governing or administering these relationships
(e.g.: wills, sales, leases, partnerships)
Through plain language and the specific nature of each regulation,
civil codes are intended to be easy to understand and apply. It
does not rely on precedents to the same extent as Common law.
Civil law is used in many countries in Europe as well as in Québec.
Civil Law in New France: the Custom
of Paris
New France became a royal province in 1663, well before the Revolution.
Louis XIV decreed that it would follow the Custom of Paris. This
was the body of laws which governed the region around Paris (Île
de France) at the time. There were different "customs"
in different areas, but after 1580 the Custom of Paris was becoming
more important in case of conflict between customs. Also important
were royal ordinances and edicts and decisions from the Conseil
Souverain (Sovereign Council) of New France. The code was changed
to reflect circumstances in New France in 1667, 1678 and 1685.
The administration of justice in New France was the responsibility
of the intendant and followed the inquisitorial
method. This meant that guilt was presumed until the accused
could prove innocence. Trials lasted until the justice presiding
decided that enough evidence had been heard to pass judgement. The
system was relatively cheap, efficient and quick, with judgements
and sentences sometimes being carried out the same day.
Justice was generally well administered as the officials were well
trained and professional. The Conseil Souverain was the court of
appeal.
Some texts on the Custom of Paris and its evolution in New France:
The Civil Code
A civil code sets out the organizing concepts, principles, rules
and ideals of law. The development of a bilingual civil code for
Canada East
(still called Lower Canada in its title) began in 1857, and was
intended to reconcile the problems that had developed from the mixing
of British Common law and the Custom of Paris. It also abolished
the seigneurial
system.
Inspired by the 1804 Code Napoléon, the Civil Code of
Lower Canada was enacted in 1866. It had four books governing:
The Civil Code of Lower Canada remained unchanged until
1955, when changes began to be made. By the late 1980s, it was realized
that a major revision was required. A new Civil Code of Québec
came into force on February 1, 1994. It contains ten books:
1. Persons (e.g.: basic individual rights, residence
rules, privacy)
2. The Family (e.g.: marriage, parentage, adoption)
3. Successions (e.g.: wills, inheritance, estates)
4. Property (e.g.: possession, land boundaries,
right-of-way)
5. Obligations (e.g.: contract law, civil liability
(tort law), sales, leasing)
6. Hypothecs (i.e.: mortgages and the sale of
land)
7. Evidence (e.g.: burden of proof, rules of
evidence)
8. Prescription (i.e.: statutes of limitations)
9. Publication of Rights (e.g.: registration
of property)
10. Private International Law (governs the resolution
of legal issues involving persons outside Canada)
This new code integrates some concepts from Common law. It is still
under debate as some of its regulations fall under the sphere of
the federal government as determined by the British
North America Act, 1867 (now renamed Constitution Act,
1867) and Constitution
Act, 1982.
|
To learn more about the Civil Code:
|
Bibliography
Beaudoin, Gérald-A.. Constitution. The Canadian Encyclopedia.
Historica Foundation of Canada, 2000. (Online: <http://www.thecanadianencyclopedia.com/index.cfm?TCE_Version=A>,
accessed November 1, 2002).
Brierley, John E.C. Constitution. The Canadian Encyclopedia.
Historica Foundation of Canada, 2000. (Online: <http://www.thecanadianencyclopedia.com/index.cfm?TCE_Version=A>,
accessed November 1, 2002).
Gérald-A. Beaudoin. Constitution. The Canadian Encyclopedia.
Historica Foundation of Canada, 2000. (Online: <http://www.thecanadianencyclopedia.com/index.cfm?TCE_Version=A>,
accessed November 1, 2002).
Macdonald, Roderick A. Civil Code. The Canadian Encyclopedia.
Historica Foundation of Canada, 2000. (Online: <http://www.thecanadianencyclopedia.com/index.cfm?TCE_Version=A>,
accessed November 1, 2002).
Waddams S., and Brierley, J. Law. The Canadian Encyclopedia.
Historica Foundation of Canada, 2000. (Online: <http://www.thecanadianencyclopedia.com/index.cfm?TCE_Version=A>,
accessed November 1, 2002).
Zuber, Thomas G., Zuber, David, Zuber, John, Jennings, W.H. Canadian
Law. Fifth edition. Toronto: McGraw-Hill Ryerson, 1991.
|
