The evolution of Canadian law.

Author:Davison, Charles

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.

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...

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