Confederation and the Development of Canadian Law (1867–1982)

Introduction

The period from Confederation in 1867 to the patriation of the Constitution in 1982 represents the foundational era of Canadian law as a distinct national legal system. During this period, Canada established its highest court, created a unified criminal code, achieved independence from British legislative control, and developed a domestic constitutional jurisprudence.

The British North America Act, 1867

The British North America Act (now the Constitution Act, 1867) created the Dominion of Canada by uniting the provinces of Canada (Ontario and Quebec), Nova Scotia, and New Brunswick. The BNA Act established:

• A federal system dividing legislative powers between Parliament and provincial legislatures (sections 91 and 92)
• A Westminster parliamentary system with the Crown, Senate, and House of Commons
• The principle of constitutional supremacy (though without an express supremacy clause until 1982)
• Protection for denominational schools (section 93)
• Recognition of Quebec’s distinct legal system (civil law for private matters)

The division of powers in sections 91 and 92 has generated the most litigation in Canadian constitutional history. Federal powers include criminal law, trade and commerce, banking, and the peace, order, and good government (POGG) clause. Provincial powers include property and civil rights, local matters, and the administration of justice.

The Creation of the Supreme Court of Canada

The Supreme Court of Canada was established in 1875 by the Supreme Court Act. Initially composed of six judges, the Court had limited jurisdiction and was not the final court of appeal — that role belonged to the Judicial Committee of the Privy Council (JCPC) in London.

The early Supreme Court was overshadowed by the JCPC, which heard appeals from Canada until 1949. The JCPC played a significant role in shaping Canadian federalism, generally favouring provincial autonomy over federal power. Key JCPC decisions include:

• Citizens Insurance Co. v. Parsons (1881): Interpreted the trade and commerce power narrowly
• Hodge v. The Queen (1883): Recognized provincial authority over local matters
• Attorney General for Ontario v. Attorney General for Canada (the Local Prohibition Case, 1896): Restricted federal POGG power
• Edwards v. Attorney General for Canada (the Persons Case, 1929): Held that women were “persons” eligible for appointment to the Senate

The JCPC’s narrow reading of federal powers shaped Canadian federalism in a decentralized direction, a legacy that persists today.

The Criminal Code of 1892

Canada enacted its first Criminal Code in 1892, consolidated by Sir John Sparrow David Thompson. The Code was a comprehensive codification of criminal offences, procedures, and defences, drawing on English criminal law but adapted to Canadian conditions.

The Criminal Code represented a significant legal achievement:

• It created a unified criminal law applicable across all provinces
• It established procedural uniformity for criminal proceedings
• It reflected the federal criminal law power under section 91(27) of the BNA Act
• It codified the burden of proof, presumption of innocence, and other fundamental principles

The Criminal Code has been regularly amended and remains the primary source of Canadian criminal law.

The Statute of Westminster, 1931

The Statute of Westminster (1931) was a landmark in Canada’s evolution from colony to independent nation. The statute:

• Recognized Canada’s legislative autonomy — Parliament could enact laws with extraterritorial effect
• Removed the Colonial Laws Validity Act restriction (Canadian laws no longer required consistency with British law)
• Preserved the JCPC appeal (at Canada’s request)
• Stated that no future British act would apply to Canada without Canada’s consent

However, the Statute of Westminster did not include a domestic amending formula for the BNA Act, meaning that certain constitutional amendments still required a British statute — a constitutional limitation that would not be resolved until 1982.

The Abolition of JCPC Appeals

Criminal appeals to the JCPC were abolished in 1933, and civil appeals were abolished in 1949. The 1949 amendment made the Supreme Court of Canada the final court of appeal for all Canadian cases.

The end of JCPC appeals allowed the Supreme Court to develop a distinct Canadian jurisprudence, particularly in:

• Federalism: The Court adopted a more flexible approach to the division of powers
• Criminal law: The Court developed Canadian interpretations of Criminal Code provisions
• Constitutional interpretation: The Court began to develop a distinct Canadian constitutional methodology

The Canadian Bill of Rights, 1960

Prime Minister John Diefenbaker’s government enacted the Canadian Bill of Rights in 1960. The Bill of Rights was a federal statute (not constitutional), guaranteeing fundamental freedoms and legal rights:

• Freedom of speech, assembly, association, and religion
• Right to life, liberty, and security of the person
• Equality before the law
• Due process rights in criminal proceedings

However, the Bill of Rights had limited effectiveness. It was a statute that could be amended by ordinary legislation, and courts were reluctant to use it to strike down federal laws. The Supreme Court applied the Bill of Rights in only a handful of cases, most notably:

• R v. Drybones, [1970] SCR 282: Striking down a Criminal Code provision that discriminated against Indigenous persons
• Attorney General of Canada v. Lavell, [1974] SCR 134: Declining to strike down Indian Act provisions discriminating against Indigenous women

The Bill of Rights’ limited impact demonstrated the need for a constitutionally entrenched charter of rights.

The Movement to Patriation

The failure of the Bill of Rights, combined with the inability to amend the BNA Act domestically, drove the movement for patriation — bringing the Constitution fully under Canadian control. Prime Minister Pierre Trudeau made patriation a central goal.

Key developments included:

• The Fulton-Favreau formula (1965): A failed attempt to agree on a domestic amending formula
• The Victoria Charter (1971): A near-agreement that fell apart over division of powers issues
• The 1980 Quebec referendum: The “Non” vote (60%) for sovereignty-association strengthened Trudeau’s resolve to proceed with constitutional renewal
• The Gang of Eight: Eight provinces opposed Trudeau’s unilateral patriation plan
• The Patriation Reference, [1981] 1 SCR 753: The Supreme Court held that while the federal government could legally proceed unilaterally, a constitutional convention required substantial provincial consent

The Patriation of 1981–82

Following the Patriation Reference, a First Ministers’ Conference in November 1981 reached the November Accord, leading to the Constitution Act, 1982. Quebec did not consent to the accord.

The Constitution Act, 1982:

• Patriated the Constitution by ending British legislative authority over Canada
• Established a domestic amending formula (the 7/50 formula)
• Enacted the Canadian Charter of Rights and Freedoms
• Recognized and affirmed existing Aboriginal and treaty rights (section 35)
• Established constitutional supremacy (section 52(1))

Conclusion

The period from 1867 to 1982 saw Canada’s transformation from a British colony to a fully independent constitutional state. The development of Canadian law during this period established the institutional framework — the Supreme Court, the Criminal Code, the division of powers, and ultimately the Charter — that defines Canadian law today. The patriation of 1982 marked the culmination of this process and the beginning of a new era in Canadian constitutional law.