The Quebec Conference 1864
Wrong. Another simple question at the Reference Desk last week. But we all know English law was received into Canada at some point, don’t we? We may think we know that, but I didn’t have any idea just how complicated the answer to the question of what law was received and when until I went looking for a quick confirmation of what I thought I “knew”. The shortest answer I found was the seventeen page summary of the rules of reception in volume 1 of Professor Hogg’s Constitutional Law of Canada, which only touched on the major issues discussed in J. E. Cote’s two major studies of the subject ((1963-1964) 3 Alta L Rev 262-292 and (1977) 15 Alta L Rev 29-92). In fewer than seventeen pages, this is what I found out: 1. There are British common law rules governing when and how English law becomes the law of a colony. 2. These rules don’t apply to Imperial statutes that were passed by the English Parliament and intended by it to be applicable in one or more of its colonies (i.e. they don’t form part of the law of England). 3. The Statute of Westminster, 1931dealt with these statutes and prohibits future Imperial statutes from having effect in self-governing (former) colonies unless that government requests it. 4. The British common law rules on reception depend on whether the colony in question was “settled” as a colony or was “conquered/ceded.” 5. For “settled” colonies, the rules deem the law of England to have been brought to the colony with the settlers, unless, of course, English law was unsuitable for the colony. [Pages and pages of discussion on what “settled” means (Nova Scotia is deemed to be “settled” even though it was ceded by France to Britain in 1713) and what “unsuitable” means omitted.] English statutes enacted after that time were inapplicable (except the type described in point 2). [Pages and pages on whether it is the date of settlement of the colony or the date on which it established its first legislature that prevails.] 6. For “conquered/ceded” colonies, e.g. New France, the general rule was to leave the existing law in force to the extent possible except for constitutional laws or barbaric ones until the authorities changed them. [Pages and pages of discussion on which colonies were considered to have been conquered and which laws were left intact and which not (existing Aboriginal rules were simply disregarded and Scots law apparently didn’t count where Scottish settlers colonized) and what happened when places switched back and forth between French rule and English rule, ensue. Note English criminal law was substituted for French criminal law by the Quebec Act 1774.] 7. Things get really messy when boundaries change or English statutes were repealed or amended after the date of reception. 8. By and large, the date of reception of English law into what is now Ontario is October 15, 1792, but don’t quote me on any of this!