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Wednesday, June 13th, 2018 technology  research  practice

A Research Tip

  • Research & Writing

Periodically the question arises: how does one determine which English acts are still in force in Canada?

The short answer is that there is no comprehensive list of what English statutes are still in force in Canadian jurisdictions. In J.E. Cote, “The reception of English law”, (1977) 15 Alberta Law Review, 29-92, the author lists a number of statutes and the provinces in which they were still in force in 1964. This list is based in part on Appendix C (pages 1060-1064) of W.H.P. Clement, The law of the Canadian constitution, 3d ed. (Toronto: Carswell, 1916) which listed a number of British statutes “the operation of which in the Colonies has been in question in the Courts”. However, Cote’s list was not exhaustive, and some of the acts have subsequently been repealed.

Some English statutes in force in Ontario were published in volume 3 of the Revised Statutes of Ontario 1897. This volume lists imperial constitutional acts, imperial statutes in Ontario ex proprio vigore, and a table of ”imperial statutes in force in Canada ex proprio vigore” as of 1901.

The Revised Statutes of British Columbia 1911, vol. IV contains a collection of English statutes, but “does not purport to be an exhaustive collection of English Acts that may be applicable in the Province of British Columbia.”

The British Columbia Courthouse Library’s “English Acts Applicable in BC” states that:

“The Law & Equity Act, R.S.B.C. 1996 chapter 253, sections 1 to 3, currently states that with the exception of section 28 of the Offences Against the Person Act, 1828 and all sections of the Real Property Act, 1845, the Civil and Criminal Laws of England as they existed on November 19, 1858 and insofar as they are not from local circumstances inapplicable, are in force in British Columbia, subject to change by BC law.”

If you are trying to determine if a specific statute is still in force for a given province, it is worthwhile checking the publications of that province’s law commission. For example, the Law Reform Commission of Saskatchewan’s Report on Disposal of English Statute Law in Saskatchewan (May 2006) lists English statutes that are still in force in Saskatchewan; this is the most extensive list produced by any of the provinces.

The status of a given statute may also be referred to in the case law, for example in McKenzie v. McKenzie, (1970) 11 D.L.R. (3d) 302, 73 W.W.R. 206 (BCCA)  it was concluded that the Poor Relief Act, 1601, 43 Eliz., c. 2, as amended by the Poor Law Amendment Act, 1834 (U.K.), c. 76 was not a part of the laws of British Columbia. It is worth using the international volume of Carswell’s Canadian Statute Citations (or equivalent) to see if the English statute you are interested in has been considered in Canada.

Susannah Tredwell

One comment on Received Law in Canada

  1. John G says:

    At first blush the difficulty of knowing whether old English law is in force in Canada seems bizarre and even unconscionable. Why would governments not make a list (presumably by legislation, so as to be definitive)? Either re-enact it (the best way) or proclaim it (better than having to guess, i.e. depend on historical analysis case by case).

    However, it can be difficult and even (slightly) hazardous to do so.

    When Ontario passed its Legislation Act in 2006, we repealed all unconsolidated and unrepealed Ontario statutes listed in the appendix of the R.S.O. 1990s, except as specifically preserved in a table to the 2006 Act. Those statutes went back to Confederation, if not before (but did not include English statutes).

    It was suprisingly difficult to know whether an old statute still had any effect, or what rights might be affected by its repeal. Century-old statutes determining the Ontario/Manitoba border – and not the most recent ones – turned out to be relevant to current land claims. Mid-century or older statutes allocating land to universities had not necessarily been superseded by later, broader grants.

    So the 2006 statute includes a power to make regulations to undo the harm of a repeal, to the extent possible. I do not believe that power has yet been exercised.

    And that was just for Ontario statutes listed in 1990! Presumably the difficulty for English statutes enacted back to the sixteenth century or before would be much greater, to be sure that no current rights depended on them.

    As a matter of principle, though, clarifying this once and for all seems worth doing – and at least it would not be expensive, just time-consuming. (Yes, I know that time is money, and public servants and academics need to be paid too. But no ongoing bureaucracy or agencies would need to be created.)

    Arguably it would be a cheaper, less controversial, and more useful step away from the vestiges of colonialism than, say, abolishing the Monarchy…

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