Law Times

Law Times • February 13, 2017 Page 7 www.lawtimesnews.com The roots of common law in Canada BY PHILIP GIRARD T his third column on the roots of Canada's legal traditions is devoted to the common law, fol- lowing others on indigenous law and civil law. The common law inheritance in Can- ada goes far beyond a body of law and a set of institutions derived from England, important as those are. Canadians also inherited a legal culture — a set of ideas, ideals and practices about law and its role in society and daily life — that was for a long time summed up in the phrase "Brit- ish justice." The common law did not arrive in any neat package on Canadian shores. In the oldest plantations, Newfoundland (1610) and Rupert's Land (1670), its infrastruc- ture was simply absent. There were no counties, freeholders, juries or sheriffs, virtually no law texts, no trained lawyers and no justices of the peace until the first were named in New- foundland in 1729. That does not mean there was no law. English law's recognition of custom meant that those on the ground in effect created their own law; in North America, a custom might arise in as little as a gen- eration. The overt introduction of the common law into British North America would come all in a rush after the foundation of Halifax in 1749. Attracting British settlers to this new outpost of empire required as- suring them that familiar laws and insti- tutions would be in place. Within a decade, counties were cre- ated, lands granted in free and common socage in sufficient quantity to create pools of jurors and electors, a Supreme Court created (1754) and a function- ing legislature put in place (1758). Early on it was decided that only English laws that were "suitable" would be re- ceived, but the activity of the legislature meant that local statutes soon rendered de- bates on this point largely un- necessary. This pattern would be repeated when the colonies of Prince Edward Island, New Brunswick and Upper Canada were subsequently created. One advantage of the common law tra- dition in early colonial societies was that it provided a ready-made template for the resolution of many legal problems while permitting settler societies to adopt dif- ferent solutions if they so chose. Thus, British North American colo- nies rapidly got rid of primogeniture and entail but extended dower rights for mar- ried women even as they were being cut back in England. Meanwhile, registry sys- tems, and later the Torrens system of land titles, spread rapidly even as they stalled in Britain itself. Ironically, later in the 19 th century, this spirit of innovation tended to wane in fa- vour of imitating English jurisprudence and statute law, although Canada did succeed in adopting its Criminal Code of 1892 after all such efforts had failed in the mother country. The common law was not seen as just a body of law dealing with private rela- tions and dispute resolution, however. As the Halifax ju- rist Beamish Murdoch wrote in 1832: "Let the Englishman go where he will, he carries as much of law and liberty as the nature of things will bear." The common law was seen as the guarantor of the liberty of the subject and inseparable from British justice itself. Thus, for Murdoch and other British North Americans, " . . . Habeas Corpus, — the freedom of the Press — the trial by jury — the Represen- tative Branch of the legislature, — the viva voce examination of witnesses . . ." togeth- er made up the tradition of British justice they so valued. If the phrase "British justice" has a somewhat antique ring to readers today, it is because Anglo-Canadians discovered their own brand of legal nationalism in the wake of the Second World War. It entailed suppressing many aspects of the British legal inheritance in favour of "made-in-Canada" labels and solu- tions. Some of these measures were highly salutary, such as the creation of Canadian citizenship by statute in 1946 and the ab- olition of appeals to the Privy Council in 1949. But in other respects, this campaign led to the underplaying of the continuities between English law and Canadian law, and to a lack of interest in pre-war Cana- dian legal history, which was assumed to be too traditionalist or anti-modern to be of interest. It is sometimes a small step from pride in one's own traditions to believing they are better than anyone else's. Certainly, British-descended settlers felt no guilt in trying to impose their concepts of law and justice on others. In Quebec, French-Canadians man- aged to accept British traditions of consti- tutional and criminal law, and an English- inspired court structure, while largely preserving their French civil law tradi- tions in private law. Once respected as a key aspect of internal self-governance, the legal traditions of indigenous peoples were increasingly marginalized, often ignored and sometimes criminalized during the relentless advance of colonization to re- surface with the renaissance of indigenous consciousness in the later 20 th century. And in the name of liberty, the rights and interests of racialized individuals were of- ten ignored. Gradually, these excesses have been di- alled back, if not eliminated. Indeed, the work of reconciling indigenous traditions with Canadian common law has barely begun. From the perspective of 2017, however, one can be grateful that the common law tradition in Canada has been f lexible enough to share the stage with the civil law tradition of Quebec, to accommodate the needs of millions of immigrants from diverse lands, and finally, haltingly, to rec- ognize aspects of indigenous legal tradi- tions. LT uPhilip Girard is a legal historian and pro- fessor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. COMMENT Canadian insight on U.S. executive order BY TANYA WALKER AND K.J. CHONG A ll eyes are on the U.S. court system after an executive order by U.S. President Donald Trump barred citizens from seven Mus- lim-majority countries from entering the United States for 90 days. It stopped refugee processing for 120 days and put a complete halt on Syrian refugee processing. There was no guidance on dual citizens or U.S. permanent residents, which caused concern and confusion at the borders. Canadian lawyers have their own questions. The Canadian Prime Minister's Office has clarified that Canadians who have dual citizenship with these seven countries will not be affected. Also, those with a valid Canadian permanent resident card and a passport from one of the seven countries will not be affected. This went against earlier reports that the U.S. would in- clude dual citizens from the seven countries in the ban. The U.S. has now altered its stance to allow Canadian dual citizens as long as they present valid passports. This does not necessarily mean there is no longer any lingering confusion at the border though. And despite this ban, Canada will not increase its refugee quotas. More than a year ago, Trump called for a "total and complete shutdown of Muslims entering the United States." Despite this, it appears that the ban was hastily passed by an exclusive group and taxpayers are left to pay for the cleanup that is before the judiciary. We appreciate the democratic process. Sometimes, a leader with whom we agree will be elected; sometimes, that will not occur. The same thought goes with discre- tionary orders. Our concern is that the ban infringes on constitutional rights and is overreaching. Therefore, it should not be upheld in its entirety. In terms of those following what is happening in the U.S. judiciary, the executive order was stopped, pursuant to a temporary restraining order from Federal District Court Justice James Robart, until the injunction may be argued. The restraining order was an emergency step made by the states of Washington and Minnesota. The analysis for a restraining order is similar to an injunction in that the moving party must demonstrate that the mat- ter is likely to succeed on the merits, irreparable harm will be suffered, the balance of equity tips in the favour of the moving party and an injunction is in the public interest. In our opinion, Robart's order is not the full-f ledged analysis that the public seeks. In his ruling, Robart said the executive order adversely affects the residents in the states of Washington and Minnesota by virtue of the fact that the public power (parens patriae) must protect citizens who are unable to protect themselves. Under- standably, the adverse effect is in various areas includ- ing employment, education and the freedom to travel. Without providing an explanation, Robart stated the executive order damages the operations and missions of public universities, as well as injury to the states' opera- tions, tax bases and public funds. He then granted the motion for the TRO. We believe that the main problem with Robart's ruling is that it fails to elaborate on how there will be damage to the residents in the states of Washington and Minnesota. After the restraining order was made at the District Court, the federal government lawyers representing the Trump administration requested a stay on the restrain- ing order at the higher-level Ninth Circuit Court. Re- gardless of the decision, we may all assume that the rul- ing will continue to be appealed to the Supreme Court. In Robart's remarks, there are important insights into the U.S. constitution and it is agreed that there should be minimal infringement on one's constitutional rights. For example, there are arguments based on the equal protec- tion claim (the constitutional prohibition on discrimi- nation, like s. 15 of the Canadian Charter of Rights and Freedoms, which states every individual has the right to the equal protection and equal benefit of the law without discrimination). There are also arguments on the establishment clause (how the government should not favour one religious group over another) and due process (the notion that the right to travel should not be taken away without some kind of due process). The states argued that it was not possible to find that rational basis given the motivation behind this was particularly driven to target Muslims. In our analy- sis, it appears more likely than not that the restraining order will remain in place in some form. That's due to comments of Circuit Judge Michelle Friedland, Senior Circuit Judge William Canby and Senior Circuit Judge Richard Randall Clifton, who are on the Ninth Circuit Court of Appeal. A decision is expected at any time. Canadian immigration lawyers may face a challenge in that Canadian family members who enter the U.S. on a visitor visa can make a refugee claim in Canada as an exception to the Canada-U.S. Safe Third Country Agreement, provided that they have close family mem- bers in Canada. Refugee claimants in the U.S. who have lost their case may now be actively hunted by the De- partment of Homeland Security to be deported back to their respective countries. We believe that the until the restraining order is finally adjudicated, the Canada-U.S. Safe Third Country Agree- ment should be suspended so that refugee claimants do not have to make a refugee claim through the Canada- U.S. border and may enter Canada directly instead. Cases like these test the depth of the roots of a na- tion's constitution. Even the most temporary orders can cause significant impact on individuals. It remains to be seen what kind of harms will be caused to people who will have to get visas to these seven countries and for processing refugee claims. This is the U.S. federal gov- ernment's burden to prove. LT uTanya Walker is a Toronto litigation lawyer at Walker Law PC and a bencher of the Law Society of Upper Can- ada. K.J. Chong is a litigator at Walker Law PC. u SPEAKER'S CORNER That's History Philip Girard

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