Accounts of the
Indigenous law governing
dispute resolution in the area now called
Ontario
Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
, Canada, date from the early to mid-17th century. French
civil law court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s were created in
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, the colony of
New France
New France (french: Nouvelle-France) was the area colonized by France in North America, beginning with the exploration of the Gulf of Saint Lawrence by Jacques Cartier in 1534 and ending with the cession of New France to Great Britain and Spai ...
, in the 17th century, and
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
courts were first established in 1764. The territory was then known as the
province of Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirteen p ...
.
A portion of the province of Quebec was designated
Upper Canada
The Province of Upper Canada (french: link=no, province du Haut-Canada) was a part of British Canada established in 1791 by the Kingdom of Great Britain, to govern the central third of the lands in British North America, formerly part of the ...
by the
Constitutional Act 1791
The Clergy Endowments (Canada) Act 1791, commonly known as the Constitutional Act 1791 (), was an Act of the Parliament of Great Britain which passed under George III. The current short title has been in use since 1896.
History
The act refor ...
. Almost immediately after the colony was created, Upper Canada's colonial government abolished the French civil law and established English common law courts in
private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
matters. The union of
the Canadas
The Canadas is the collective name for the provinces of Lower Canada and Upper Canada, two historical British colonies in present-day Canada. The two colonies were formed in 1791, when the British Parliament passed the '' Constitutional Act'', ...
had little effect on the court system in what became
Canada West
The Province of Canada (or the United Province of Canada or the United Canadas) was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham, in the Report on the ...
. Periodic reform continued in the region's courts before and after Canada West was renamed Ontario upon
Confederation
A confederation (also known as a confederacy or league) is a union of sovereign groups or states united for purposes of common action. Usually created by a treaty, confederations of states tend to be established for dealing with critical issu ...
in 1867.
Ontario's courts were reformed and reorganized on several occasions in the 19th century. Major changes included the creation of the
Court of Chancery of Upper Canada
The Court of Chancery of Upper Canada was a court of equity in Upper Canada. It was established in 1837.
The idea of introducing a court of equity in the province had been around since at least 1801, when Henry Allcock suggested it. On Allcock's ...
, a court of
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
, in 1837, and the fusion of common law and equity in 1881. Periodic reform continued in the 20th century. In 1972, Ontario acquired another new court, the
Divisional Court
A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...
. Its courts' current names and roles were largely settled by the 1990s.
Indigenous law
Evidence of human activity in what is now Ontario dates to approximately 9000 BCE. Summarizing the Indigenous approach to dispute resolution, with particular reference to the
Mohawk people
The Mohawk people ( moh, Kanienʼkehá꞉ka) are the most easterly section of the Haudenosaunee, or Iroquois Confederacy. They are an Iroquoian-speaking Indigenous people of North America, with communities in southeastern Canada and northern Ne ...
, the authors of ''A History of Law in Canada'', volume 1, explain that, "All important matters had to be discussed openly, though after consultation some final council deliberations could occur in secret, at least among the Mohawk. Councils of elders consulted broadly before making decisions, and their authority usually rested on understanding 'public opinion,' while that of chiefs rested on the power of persuasion."
In
Anishinaabe
The Anishinaabeg (adjectival: Anishinaabe) are a group of culturally related Indigenous peoples present in the Great Lakes region of Canada and the United States. They include the Ojibwe (including Saulteaux and Oji-Cree), Odawa, Potawatomi, ...
law, governance and dispute resolution occur at councils and
council fire
A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/shire level, but most legislative bodies at the state/provincial or natio ...
s. Historian Heidi Bohaker describes a distinction
Peter Jones drew between common councils, where people could resolve disputes and adopt and modify legal rules within a given territory; and general councils, where leaders of common councils would go to form and renew alliances between territories. Both forms of council were "consensus-based deliberative bodies that were expected to receive and consider advice from the people they represented". Jones wrote in the early 19th century, but Bohaker notes that the council structure was much older—dating at least from the early to mid-17th century.
In
Haudenosaunee
The Iroquois ( or ), officially the Haudenosaunee ( meaning "people of the longhouse"), are an Iroquoian Peoples, Iroquoian-speaking Confederation#Indigenous confederations in North America, confederacy of First Nations in Canada, First Natio ...
law, the
Great Law of Peace
Among the Haudenosaunee (the "Six Nations," comprising the Mohawk, Onondaga, Oneida, Cayuga, Seneca, and Tuscarora peoples) the Great Law of Peace (Mohawk: ''Kaianere’kó:wa''), also known as Gayanashagowa, is the oral constitution of the Iroqu ...
governs dispute resolution, emphasizing, among other things, that matters that may result in disputes should be discussed and negotiated before they become disputes proper.
Canada (New France) (1608–1763)
Between the first French settlement at
Quebec City
Quebec City ( or ; french: Ville de Québec), officially Québec (), is the capital city of the Provinces and territories of Canada, Canadian province of Quebec. As of July 2021, the city had a population of 549,459, and the Communauté métrop ...
in 1608 and the
conquest of New France in 1758–60, the French colony of
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
followed the
coutume de Paris
Old French law, referred to in French as ''l'Ancien Droit'', was the law of the Kingdom of France until the French Revolution. In the north of France were the ''Pays de coutumes'' ('customary countries'), where customary laws were in force, while ...
, a
codified version of French
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
; and French
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
law. From 1608, Quebec's governor-general was in effect legislator and judge, since he held responsibility for making civil and criminal law and adjudicating cases.
Seigneuries
''Seigneur'' is an originally feudal title in France before the Revolution, in New France and British North America until 1854, and in the Channel Islands to this day. A seigneur refers to the person or collective who owned a ''seigneurie'' (o ...
also held manorial courts with jurisdiction within the seigneur's land grant. In 1651, Governor
Jean de Lauson
Jean de Lauzon or de Lauson (; 2 January 1586 – 16 February 1666) was the governor of New France from 1651 to 1657, one of the most challenging times for the new colony. He also was born into being the lord of Lirec.
As a prominent lawyer in ...
created the sénéchaussée, a court at Quebec City with both trial and appellate jurisdiction. New France became a French
crown colony
A Crown colony or royal colony was a colony administered by The Crown within the British Empire. There was usually a Governor, appointed by the British monarch on the advice of the UK Government, with or without the assistance of a local Counci ...
in 1663 and the new colonial administrators were keen to reform its legal system. From that date, the colony's sovereign council held "broad and unified legislative, executive, financial, and judicial powers".
According to
Edmond Lareau, justice in early New France was dispensed "more or less arbitrarily by the governor", since the
sénéchal Senechal or Sénéchal may refer to:
People
* Florian Sénéchal
Florian Sénéchal (born 10 July 1993) is a French racing cyclist, who currently rides for UCI WorldTeam .
Career
He rode at the 2013 UCI Road World Championships, and was named i ...
—from whose name the sénéchaussée was taken—was appointed by, and answered to, the governor. In important matters, the sénéchal adjudicated matters in a council with the
Jesuit
, image = Ihs-logo.svg
, image_size = 175px
, caption = ChristogramOfficial seal of the Jesuits
, abbreviation = SJ
, nickname = Jesuits
, formation =
, founders ...
superior and "notable city residents".
Quebec (1763–1791)
In 1763,
James Murray was empowered, by a letter from
George III
George III (George William Frederick; 4 June 173829 January 1820) was King of Great Britain and of Ireland from 25 October 1760 until the union of the two kingdoms on 1 January 1801, after which he was King of the United Kingdom of Great Br ...
, as the captain-general and governor-in-chief of the
province of Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirteen p ...
, to create courts of civil and criminal jurisdiction within the province. Accordingly, on 17 September 1764, Murray established a Court of King's Bench for the province with jurisdiction in all civil and criminal cases. Appeals lay from his decisions to the provincial cabinet in cases where the amount in dispute was over £300. Where the amount in dispute was over £500, an appeal lay from cabinet to the Privy Council.
At the same time, the Court of Common Pleas was established, with civil jurisdiction in cases above £10. In cases above £20, an appeal lay to the Court of King's Bench; in cases over £300 to the provincial cabinet, with a further appeal to the Privy Council in cases over £600. The Court of Common Pleass had three judges and sat at
Quebec City
Quebec City ( or ; french: Ville de Québec), officially Québec (), is the capital city of the Provinces and territories of Canada, Canadian province of Quebec. As of July 2021, the city had a population of 549,459, and the Communauté métrop ...
and
Montreal
Montreal ( ; officially Montréal, ) is the List of the largest municipalities in Canada by population, second-most populous city in Canada and List of towns in Quebec, most populous city in the Provinces and territories of Canada, Canadian ...
. The province was divided into two judicial districts by the
Godefroy and
Saint-Maurice rivers, and
courts of quarter sessions were formed for these districts, to sit at Quebec City and Montreal every three months.
In the Court of King's Bench, all cases were to be decided "agreeable to the laws of England and to the ordinances of
heprovince". In the Court of Common Pleas the judges were "to determine according to equity haying regard nevertheless to the law of England as far as the circumstances and present situation of things will admit". In criminal cases, the existing criminal law of England governed.
In 1770, Governor
Guy Carleton, 1st Baron Dorchester
Guy Carleton, 1st Baron Dorchester (3 September 1724 – 10 November 1808), known between 1776 and 1786 as Sir Guy Carleton, was an Anglo-Irish soldier and administrator. He twice served as Governor of the Province of Quebec, from 1768 to 177 ...
, abolished the civil jurisdiction of the justices of the peace and directed all cases not exceeding £12 to be tried by the judges of the Courts of Common Pleas. The former Court of Common Pleas had sat both in Quebec and in Montreal, but now there were to be two independent courts: one in Quebec, the other in Montreal, limited in jurisdiction to their own districts. On 3 January 1775, Lord Dorchester was instructed to create a Court of King's Bench for the province for criminal cases; and, dividing the province into two districts, to establish a Court of Common Pleas for each district with jurisdiction over all civil cases that would be "cognizable by the Court of Common Pleas in Westminster Hall".
The
Treaty of Paris Treaty of Paris may refer to one of many treaties signed in Paris, France:
Treaties
1200s and 1300s
* Treaty of Paris (1229), which ended the Albigensian Crusade
* Treaty of Paris (1259), between Henry III of England and Louis IX of France
* Trea ...
brought a large number of immigrants from the American colonies. This increase in population increased the demand for courts. In 1788, Lord Dorchester addressed this problem by dividing the
province of Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirteen p ...
into four judicial districts: Luneburg "to the mouth of the
River Gananoque", Mecklenburg to the
Trent River, Nassau "to the extreme projection of
Long Point into the
Lake Erie
Lake Erie ( "eerie") is the fourth largest lake by surface area of the five Great Lakes in North America and the eleventh-largest globally. It is the southernmost, shallowest, and smallest by volume of the Great Lakes and therefore also has t ...
", and Hesse west of Nassau. In each of these districts, a court of common pleas was established, with unlimited civil jurisdiction; and a court of quarter sessions, which handled "local government and criminal matters". The first Upper Canada legislature renamed them the "Eastern", "Midland", "Home", and "Western" districts, respectively.
The courts of common pleas and quarter sessions were overseen mainly by judges without legal training. Common pleas judges modified the common law
received from England to reduce some of the technicalities associated with the
forms of action
The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery (or file a bill) which would set in ...
. They avoided using technical
Law Latin
Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively called Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, many of the words and much of the vocabulary stem from English. L ...
or
Law French
Law French ( nrf, Louai Français, enm, Lawe Frensch) is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, be ...
terms, such as
assumpsit
Assumpsit ("he has undertaken", from Latin, ''assumere''), or more fully, action in assumpsit, was a form of action at common law used to enforce what are now called obligations arising in tort and contract; and in some common law jurisdictions, u ...
or
trover
Trover () is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value ...
, in favour of vernacular terminology. As compared to its English counterpart,
civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
in the common pleas was "relatively simple and informal".
Upper Canada (1791–1840)
Upper Canadians were largely
United Empire Loyalists
United Empire Loyalists (or simply Loyalists) is an honorific title which was first given by the 1st Lord Dorchester, the Governor of Quebec, and Governor General of The Canadas, to American Loyalists who resettled in British North America duri ...
who found the French civil law "alien". Accordingly, the first statute of the legislature of Upper Canada abolished the
coutume de Paris
Old French law, referred to in French as ''l'Ancien Droit'', was the law of the Kingdom of France until the French Revolution. In the north of France were the ''Pays de coutumes'' ('customary countries'), where customary laws were in force, while ...
, a body of
civil law that had governed non-criminal matters in the province of Quebec before the Constitutional Act 1791. The second statute required jury trial in civil matters; juries were already required in civil trials.
According to historian William N. T. Wylie, the two principal figures in the design of Upper Canada's court system were
William Osgoode
William Osgoode (March 1754 – January 17, 1824) was the first Chief Justice of Upper Canada (now known as Ontario, Canada).
Life and career
He was born William Osgood in London, England, in 1754 to William Osgood (died 1767). His family was ...
, who became chief justice of Upper, then Lower, Canada; and Lieutenant-Governor
John Graves Simcoe
John Graves Simcoe (25 February 1752 – 26 October 1806) was a British Army general and the first lieutenant governor of Upper Canada from 1791 until 1796 in southern Ontario and the Drainage basin, watersheds of Georgian Bay and Lake Superior. ...
. Osgoode and Simcoe aimed to create an Upper Canadian legal system that was centralized, professionalized, and based in the English common law.
The courts of common pleas were gradually abolished between 1792 and 1794. In 1794, pursuant to the ''Judicature Act, 1794'', the Court of King's Bench was created for the province. The Court of King's Bench, a
superior court
In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
, was given the powers of the courts of
King's Bench
The King's Bench (), or, during the reign of a female monarch, the Queen's Bench ('), refers to several contemporary and historical courts in some Commonwealth jurisdictions.
* Court of King's Bench (England), a historic court court of commo ...
,
Common Pleas
A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
, and
Exchequer
In the civil service of the United Kingdom, His Majesty’s Exchequer, or just the Exchequer, is the accounting process of central government and the government's ''current account'' (i.e., money held from taxation and other government reven ...
in England, and had as judges the chief justice of the province and two puisne justices. These three judges were appointed by the imperial
Colonial Office
The Colonial Office was a government department of the Kingdom of Great Britain and later of the United Kingdom, first created to deal with the colonial affairs of British North America but required also to oversee the increasing number of col ...
and were given substantial salaries.
The Court of King's Bench took up most of the actions that would previously have gone to the courts of common pleas, except actions for small amounts of money (no more than £15, later increased to £40 in some circumstances). Actions between £2 and £15 were heard by District Courts, which sat in each of the province's four judicial districts. By contrast with King's Bench judges, District Court judges were appointed by provincial officials and the posts were not salaried. Their compensation came only from court usage fees.
Judges of the Court of King's Bench went on
circuit throughout the province's four judicial districts in meetings termed
assizes
The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes e ...
. The assizes handled civil and criminal matters, conducting civil
''nisi prius'' trials and acting as courts of
oyer and terminer
In English law, oyer and terminer (; a partial translation of the Anglo-French ''oyer et terminer'', which literally means "to hear and to determine") was one of the commissions by which a judge of assize sat. Apart from its Law French name, the ...
and general gaol delivery. Assizes initially met only once a year; they became biannual in 1837. Decisions at the assizes could be appealed to a full panel of the Court of King's Bench, sitting at York (which became Toronto).
Upper Canada's court of quarter sessions, officially the General Sessions of the Peace, handled some "less serious cases" that were not dealt with at the assizes. Finally, the courts of requests, presided over by
justices of the peace
A justice of the peace (JP) is a judicial officer of a lower or ''puisne'' court, elected or appointed by means of a commission ( letters patent) to keep the peace. In past centuries the term commissioner of the peace was often used with the sa ...
, met every other Saturday to handle
small claims
Small-claims courts have limited jurisdiction to hear civil cases between private litigants. Courts authorized to try small claims may also have other judicial functions, and go by different names in different jurisdictions. For example, it may b ...
. (A "small claim", in early Upper Canada, was a claim for less than £2.) Their jurisdiction was limited to portions of each of the four judicial districts. The courts of requests were abolished in 1841.
The Court of King's Bench only had
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdiction. The lack of an equity court in Upper Canada, and the consequent absence of
equitable remedies Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry VIII to provide more flexible responses to changing social conditions than was possible in precedent-based common law.
Equitable remedies were gr ...
in the law of property, made it difficult for creditors to foreclose on mortgaged property and prevented debtors from exercising the right of
equity of redemption The equity of redemption refers to the right of a mortgagor to redeem his or her property once the debt secured by the mortgage has been discharged.
Overview
Historically, a mortgagor (the borrower) and a mortgagee (the lender) executed a conveyanc ...
. Without these remedies, property held as collateral for a loan was often seized by the local
sheriff
A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...
, pursuant to a writ of ''
fieri facias
A ''fieri facias'', usually abbreviated ''fi. fa.'' (Latin for ''that you cause to be made''), is a writ of execution after judgment obtained in a legal action for debt or damages for the sheriff to levy on goods of the judgment debtor.
The ter ...
'', if a borrower defaulted—and sold at auction for rock-bottom prices.
Equity was not officially introduced into the law of Upper Canada until 1837, when the
Court of Chancery of Upper Canada
The Court of Chancery of Upper Canada was a court of equity in Upper Canada. It was established in 1837.
The idea of introducing a court of equity in the province had been around since at least 1801, when Henry Allcock suggested it. On Allcock's ...
was created.
William Renwick Riddell called that year an "
annus mirabilis
''Annus mirabilis'' (pl. ''anni mirabiles'') is a Latin phrase that means "marvelous year", "wonderful year", "miraculous year", or "amazing year". This term has been used to refer to several years during which events of major importance are rem ...
" for Ontario's court system.
Officials of the justice system in Upper Canada, including judges, sheriffs, and magistrates, were appointed by colonial administrators and could be dismissed at will. Historian David Murray describes them as "in every sense royal officials". They were not selected primarily for legal expertise or competence, but rather for wealth and loyalty to the British Crown. Thus, there was no
judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...
in early Upper Canada: judges could be dismissed by administrative fiat. This, among other factors, led to calls from
William Warren Baldwin
William Warren Baldwin (April 25, 1775 – January 8, 1844) was a doctor, businessman, lawyer, judge, architect and reform politician in Upper Canada. He, and his son Robert Baldwin, are recognized for having introduced the concept of "respon ...
and others for
responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy. Governments (the equivalent of the executive bran ...
, whereby ministers and other officials would be answerable to an elected legislature, as opposed to imperial superiors in London. London did not initially grant responsible government to Upper Canada, but it did increase judicial job security. As of 1834, judges of the Court of King's Bench held office on good behaviour.
Canada West (1840–1867)
The union of Upper Canada and Lower Canada into the
province of Canada
The Province of Canada (or the United Province of Canada or the United Canadas) was a British North America, British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham ...
, pursuant to the
Act of Union 1840
The ''British North America Act, 1840'' (3 & 4 Victoria, c.35), also known as the ''Act of Union 1840'', (the ''Act'') was approved by Parliament in July 1840 and proclaimed February 10, 1841, in Montreal. It abolished the legislatures of Lower ...
, had little effect on the administration of justice in what was now termed Canada West. Canada East (formerly Lower Canada, now Quebec) and Canada West (formerly Upper Canada, now Ontario) had different courts, attorneys general, and solicitors general, as they had before union.
In 1849, a new court, the Court of Common Pleas, came into existence,
[12 Vict, c 64](_blank)
(Province of Canada) presided over by a chief justice and two puisne justices and with the same powers and jurisdiction as the Court of King's (now Queen's) Bench, while the number of puisne justices in the Queen's Bench was reduced to two. A second statute, passed at the same time, created the
Court of Chancery of Upper Canada
The Court of Chancery of Upper Canada was a court of equity in Upper Canada. It was established in 1837.
The idea of introducing a court of equity in the province had been around since at least 1801, when Henry Allcock suggested it. On Allcock's ...
, for which the province's governor was the chancellor and a judge was to be appointed "the vice chancellor of Upper Canada". This was not found wholly satisfactory and accordingly the 1849 statute
reconstituted the court with a chancellor and two vice chancellors.
Finally, again in 1849, Ontario's system of county courts was created. The county courts replaced an analogous system of district courts, which operated from 1794 to 1849. This change was presumably due in part to the fact that the old system of judicial districts—which, with increases in population since they were established, had now grown from four to twenty districts—was abolished by statute in 1849. By that time, as the act abolishing the districts itself noted, the "boundaries" of districts "
ad in many cases, become identical with the boundaries of counties". The courts of Queen's Bench, Common Pleas, and Chancery continued in existence as separate courts, the two former as courts of common law, the last as a court of equity, until 1881.
The 1849 statute abolished the court of appeal and established the Court of Error and Appeal to hear appeals from both the two common law courts and the court of chancery. This new court was composed of the judges of the three courts, like the
Court of Exchequer Chamber
The Court of Exchequer Chamber was an England, English appellate court for common law civil actions before the reforms of the Judicature Acts of 1873–1875. It originated in the fourteenth century, established in its final form by a statute of 15 ...
in England. The Court of Error and Appeal first sat at
Osgoode Hall
Osgoode Hall is a landmark building in downtown Toronto, Ontario, Canada. The original -storey building was started in 1829 and finished in 1832 from a design by John Ewart and William Warren Baldwin. The structure is named for William Osgoode, ...
on 8 March 1850.
Christopher Moore describes it as "the first independent and professional court of appeal for the future Ontario". Before this court was established, the final appeal of a decision within soon-to-be Ontario (some decisions could be appealed to the
Privy Council
A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
) lay to the province's executive council; thus, executive and judicial functions were fused, in a manner typical in the common law world at the time. In 1874, the Court of Error and Appeal was reconstituted and thereafter consisted of five judges who had no other duties than to sit as judges of the Court of Appeal. Its name was changed to the Court of Appeal in 1876.
Ontario (1867–present)
In 1881 came the ''Judicature Act, 1881'', which was modelled after the English
Judicature Acts
In the history of the courts of England and Wales, the Judicature Acts were a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of England and Wales. The first two Acts were the Supre ...
. It came into force on 22 August 1881. Historian
Margaret A. Banks describes this statute as "a landmark in the history of the Ontario courts", but notes that "it cannot be regarded as a sudden or unexpected development". The ''Judicature Act, 1881'', abolished the distinction between law and equity, giving preference to the rules of equity. It united and continued the three courts of original jurisdiction (Queen's Bench, Chancery, and Common Pleas) and the Court of Appeal into a single Supreme Court of Judicature for Ontario, with two divisions: (1) the Court of Appeal, with five judges; and (2) the High Court of Justice, with twelve judges. Banks notes that the Supreme Court of Judicature, later simply the
Supreme Court of Ontario
The Supreme Court of Ontario was a superior court of the Canadian province of Ontario. Created in 1881 pursuant to the Ontario Judicature Act (1881), the Supreme Court of Ontario had two branches: the High Court of Justice Division and the Appell ...
, was "purely theoretical" in operation. That is, no court termed simply the "Supreme Court of Judicature" or the "Supreme Court of Ontario" adjudicated cases; rather, the "theoretical" court exercised jurisdiction only through its divisions.
Jurisdiction to consider
reference questions was conferred on the Supreme Court of Judicature by statute in 1890.
By the ''Law Reform Act, 1909'', which came into force on 1 January 1913, the Supreme Court of Judicature for Ontario became the
Supreme Court of Ontario
The Supreme Court of Ontario was a superior court of the Canadian province of Ontario. Created in 1881 pursuant to the Ontario Judicature Act (1881), the Supreme Court of Ontario had two branches: the High Court of Justice Division and the Appell ...
, with two branches: (1) the Appellate Division; and (2) the High Court Division. The former was only appellate while the latter was a court of original jurisdiction; however, any judge of the Supreme Court of Ontario could sit in any division or branch. The divisions of the High Court of Justice were abolished. The Appellate Division consisted of two divisional courts which had the same jurisdiction. The names of the Appellate Division and High Court Division were changed to "
Court of Appeal for Ontario
The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Societ ...
" (its current name) and "High Court of Justice for Ontario", respectively, in 1931.
Banks, referring to an unpublished paper by
Horace Krever, a justice of the High Court of Justice and Court of Appeal for Ontario, says that "the structure of the Supreme Court of Ontario remained pretty much the same from 1931 until April 1972". On 17 April 1972, a 1970 statute came into force implementing the recommendation in the
McRuer report
The McRuer commission, officially the Royal Commission Inquiry into Civil Rights, was a royal commission conducted in Ontario, Canada, headed by James Chalmers McRuer.
Premier John Robarts asked McRuer to head the commission. Robarts made his req ...
(1968), a review of the Ontario court system, that the Divisional Court be created. The Divisional Court had then, and still has, a complex statutory appellate and judicial review jurisdiction.
The ''Courts of Justice Act'', which presently constitutes Ontario's courts, was first enacted in 1984, replacing the ''Judicature Act''.
By a 1989 amendment to the ''Courts of Justice Act'', Ontario's superior court, county courts, and district courts were consolidated into the Ontario Court (General Division), while the family and criminal courts formed the Ontario Court (Provincial Division).
These names were changed to their current names—the
Ontario Superior Court of Justice
The Superior Court of Justice (French: ''Cour supérieure de justice'') is a superior court in Ontario. The Court sits in 52 locations across the province, including 17 Family Court locations, and consists of over 300 federally appointed judges.
...
and
Ontario Court of Justice
The Ontario Court of Justice is the provincial court of record for the Canadian province of Ontario. The court sits at more than 200 locations across the province and oversees matters relating to family law, criminal law, and provincial offences. ...
, respectively—by section 8 of the ''Courts Improvement Act, 1996''.
Special criminal courts for Indigenous offenders, known as ''Gladue'' courts following the decision of the Supreme Court of Canada in ''
R v Gladue
''R v Gladue'' is a decision of the Supreme Court of Canada on the Criminal sentencing in Canada, sentencing principles that are outlined under s. 718.2(e) of the Criminal Code (Canada), ''Criminal Code''. That provision, enacted by Parliament in ...
'' and sometimes as Indigenous persons courts,
have existed in Ontario since 2001, when the first such court was established in Toronto.
These courts apply the criminal law of Canada but follow different sentencing principles for Indigenous offenders.
[ These principles emphasize ]alternatives to incarceration
Decarceration in the United States involves government policies and community campaigns aimed at reducing the number of people held in custody or custodial supervision. Decarceration, the opposite of incarceration, also entails reducing the rate ...
and the distinctive history of Indigenous peoples in Canada
In Canada, Indigenous groups comprise the First Nations, Inuit and Métis. Although ''Indian'' is a term still commonly used in legal documents, the descriptors ''Indian'' and ''Eskimo'' have fallen into disuse in Canada, and most consider them ...
.[ ''Gladue'' courts do not conduct criminal trials, but may be involved in sentencing or bail hearings.
]
See also
* Court system of Canada
The court system of Canada forms the country's judiciary, formally known as "The King on the Bench", which interprets the law and is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts ...
* History of Ontario
The history of Ontario covers the period from the arrival of Paleo-Indians thousands of years ago to the present day. The lands that make up present-day Ontario, the most populous province of Canada as of the early 21st century have been inha ...
* Law of Canada
The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous la ...
Notes
Sources
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Further reading
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External links
{{Commons category, Courthouses in Ontario
Official website of Ontario's court system
Ontario courts
Ontario law