The Historic Roots of Canada's Three Legal Systems

Canada has three distinct legal traditions: common law, civil law, and aboriginal law. Common law, derived from English law, it is a body of law based on judicial precedent and custom. It is distinct from statutory law, which is the written law as established by enactments expressing the will of the legislature. Civil law is based solely on codified law which is a comprehensive statement of rules such as the Civil Code of Quebec or the Criminal Code of Canada. Many are framed as broad, general principles to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisions to see if they're consistent. Quebec is the only province with a civil code. Aboriginal law concerns the First Nations, Métis, Inuit and other indigenous people (Aboriginals). The practice area is generally understood to encompass treaty and other legal rights, including land and property rights, as well as traditions and customs.

Royal Proclamation, 1763

The Royal Proclamation, 1763

This is a transcript of the Royal Proclamation, 1763

Quebec Act, 1774: An Act for making more effectual Provision for the Government of the Province of Quebec in North America (photo)

The Quebec Act, 1774

The existence of these three distinct legal traditions in modern Canada can be traced back to Canadian history, our Indigenous Peoples, and Canada's colonial roots. Indigenous law was practiced and continues to be practised by Canada's Indigenous Peoples.  The intersection of Indigeneous legal orders and the civil and common law legal systems is complex and evolving.  In some aspects of their lives, Indigenous Peoples may be subject to traditional laws and customs, but in others, they may be subject to the common law or civil law.  Some Indigenous communities are self-governing; some are not. Our materials on Indigenous law and property rights in Canada highlights some key dimensions of Indigenous legal order.

The colony of New France, the first European colony in what is now Canada, was subject to a civil law regime.  After France ceded New France to Britian, however, the civil law system was replaced by the common law, as per the Royal Proclamation of 1774.  The British aimed to make the new world more homogenous with British culture and values and thus attract settlers from the old world. However, the people of former New France resented the British for this act and protested.  

Turmoil in the American colonies shifted Britain's calculus.  Facing the risk that Lower Canada (formerly New France) would side with the Americans, Britain made concessions.  The Quebec Act of 1774 re-instated the civil law system in Lower Canada, protected French language rights, and protected the Roman Catholic church.

Image: Bijuralism: A Timeline

"Bijuralism: A Timeline"

The Historic Roots of Canada's Three Legal Systems