Sources and References

• Philip Girard, Jim Phillips, and R. Blake Brown, A History of Law in Canada, Volume One: Beginnings to 1866 (Toronto: Osgoode Society for Canadian Legal History, 2018).
• Philip Girard, Jim Phillips, and R. Blake Brown, A History of Law in Canada, Volume Two: Law for a New Dominion, 1867–1914 (Toronto: Osgoode Society, 2022).
• Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Women’s Press, 1991).
• Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: University of Toronto Press, 1999).
• Jim Phillips and Rosemary Gartner, Murdering Holiness: The Trials of Franz Creffield and George Mitchell and related scholarship on homicide in Canadian legal history.
• Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880–1929 (Chicago: University of Chicago Press, 1993).
• Mary Anne Poutanen, Beyond Brutal Passions: Prostitution in Early Nineteenth-Century Montreal (Montreal: McGill-Queen’s University Press, 2015).
• John McLaren, essays on moral regulation, vice, and the law in Canada.
• Sarah Carter, The Importance of Being Monogamous: Marriage and Nation Building in Western Canada to 1915 (Edmonton: University of Alberta Press, 2008).
• James W. St. G. Walker, “Race,” Rights and the Law in the Supreme Court of Canada (Waterloo: Wilfrid Laurier University Press, 1997).
• Robert J. Sharpe and Kent Roach, The Charter of Rights and Freedoms, 7th ed. (Toronto: Irwin Law, 2021).
• Richard Gwyn, John A: The Man Who Made Us and Nation Maker, biographies of John A. Macdonald relevant to Confederation-era law.
• Carissima Mathen, Courts Without Cases: The Law and Politics of Advisory Opinions (Oxford: Hart Publishing, 2019).
• Emmett Macfarlane, Governing from the Bench: The Supreme Court of Canada and the Judicial Role (Vancouver: UBC Press, 2013).
• Gary Kinsman and Patrizia Gentile, The Canadian War on Queers: National Security as Sexual Regulation (Vancouver: UBC Press, 2009).
• John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010); Val Napoleon on Indigenous legal orders.
• Amir Attaran, “Unanimity on Death with Dignity — Legalizing Physician-Assisted Dying in Canada,” New England Journal of Medicine 372, no. 22 (2015): 2080–2082.

Chapter 1: Introduction — Law as Historical Evidence

Why Study Legal History?

Law is one of the most enduring archives a society leaves behind. Statutes, case files, coroners’ inquests, and the judge’s bench book all record, in unusually concrete language, what a community was willing to punish, tolerate, or celebrate. Reading these documents as historical evidence rather than as settled rules is the central move of the “new legal history,” a scholarly tradition associated with Philip Girard, Jim Phillips, and R. Blake Brown. Their multi-volume A History of Law in Canada insists that legal institutions cannot be separated from the social, economic, and cultural worlds in which they operate.

Law in Books and Law in Action

A persistent theme throughout the course is the gap between law in books — the printed statute or reported case — and law in action, the way rules are actually enforced on the ground by police officers, magistrates, coroners, and juries. A statute criminalizing infanticide may look uniform on paper, but whether a specific woman was charged, convicted, and punished depended on her class, her race, the sympathies of her neighbours, and the discretion of a local prosecutor. The new legal history argues that only by tracing law in action can we see how legal rules have actually shaped lives.

Law as Moral Regulation

Following scholars such as John McLaren, the course treats law as a technology of moral regulation. Criminal law, family law, immigration law, and public health regulation have all been used to define what kinds of bodies, desires, and households count as respectable. The arc suggested by the course title — “from infanticide to MAID” — invites us to see how the same legal apparatus that once punished a desperate unmarried mother for concealing a stillborn child now authorizes physicians to end the lives of consenting, suffering adults. Both are moments when the state decides who may live, who may die, and who decides.

Chapter 2: Colonial Foundations

The Pluralistic Inheritance

Canada has never had a single legal tradition. Before European contact, Indigenous nations governed themselves through sophisticated legal orders rooted in kinship, ceremony, and oral teaching — legal systems that John Borrows and Val Napoleon argue remain living law today. Onto this existing plurality, French and British empires layered their own traditions.

French Civil Law in Lower Canada

After the Conquest of 1760, the British allowed the Coutume de Paris and French civil law to survive in what became Quebec. The Quebec Act of 1774 formally recognized this, preserving civil-law rules over property, contract, and family while imposing English criminal law. The result is Canada’s enduring bijural character: Quebec private law remains civilian and codified (now in the Civil Code of Quebec, 1994), while the rest of the country operates within the English common law tradition of judge-made precedent.

English Common Law in the Other Colonies

In Nova Scotia, New Brunswick, Upper Canada, and later the western territories, colonial legislatures “received” English common law as of a specific date, inheriting centuries of accumulated precedent. Reception statutes made English common law the default, but colonial judges adapted it to frontier realities — smaller courts, fewer trained lawyers, and pressing questions of land, debt, and slavery that English precedents had not anticipated.

The BNA Act and the Division of Powers

Confederation in 1867 was itself a legal event. The BNA Act (now the Constitution Act, 1867) allocated legislative authority between Ottawa and the provinces. Section 91 gave Parliament jurisdiction over criminal law, leading to a single national Criminal Code (first enacted in 1892 under Sir John Thompson and described in Richard Gwyn’s biographies of Macdonald as one of Confederation’s most ambitious legal achievements). Section 92 gave provinces jurisdiction over “property and civil rights,” which in practice meant family law, professional regulation, and much of what touches daily life. This division created a distinctive federal architecture in which moral regulation is often shared: Parliament writes the offence, but provinces run the police, prosecutors, and hospitals that apply it.

Chapter 3: Infanticide and the Unmarried Mother

The Nineteenth-Century Prosecution

Constance Backhouse’s Petticoats and Prejudice and Jane Nicholas’s work on Ontario coroners’ inquests show that infanticide prosecutions in nineteenth-century Canada were almost never about wealthy married women. The defendants were overwhelmingly domestic servants, farm help, and unmarried mothers without resources, and the most common charges were not murder but “concealment of birth” under legislation inherited from the English Offences Against the Person Act.

The Gendered Construction of the Unfit Mother

Prosecutors and juries imagined infanticide through the lens of the fallen woman. A grand jury might refuse to indict if the accused was sympathetic and her employer vouched for her; another woman, judged insufficiently remorseful or racially marked, could be sent to an asylum or prison. Karen Dubinsky’s Improper Advances argues that the same social anxieties produced the treatment of rural seduction cases — pregnancies that could ruin a young woman’s prospects while leaving the father legally untouched.

The 1948 Infanticide Offence

In 1948, Parliament created a distinct Infanticide offence, now section 233 of the Criminal Code (originally s. 237). The section applies only to a mother who causes the death of her newly-born child while her mind is disturbed by childbirth or lactation. Treated as a lesser homicide with a maximum of five years, the offence was a rare moment of medicalized mercy inside the criminal law — but it also pathologized mothers and kept the legal gaze fixed on individual women rather than on the social conditions that drove concealment.

Chapter 4: Moral Regulation, Sexuality, and the Female Body

Vagrancy, Prostitution, and the Streets

Mary Anne Poutanen’s research on nineteenth-century Montreal shows how vagrancy law was used as a flexible tool to police poor women. A woman “wandering” after dark or “without visible means of support” could be jailed for months, effectively criminalizing poverty. Vagrancy provisions dovetailed with increasingly specific prohibitions on keeping a common bawdy-house, procuring, and living off the avails.

The Age of Consent and Section 206

In 1886, Parliament added a seduction offence to the Criminal Code (later section 206 and related provisions) that criminalized sexual relations with a young woman “of previously chaste character” under promise of marriage. Debates over the age of consent ran from twelve to fourteen to sixteen across the late nineteenth century, driven by social-purity reformers influenced by the contemporaneous British campaigns against the “white slave trade.” The statutes protected some young women while punishing others; a working-class complainant whose chastity could be challenged often lost in court.

The Female Refuges Act and Carceral Reform

Ontario’s Female Refuges Act (1897) allowed magistrates to commit women between sixteen and thirty-five to a “refuge” for “incorrigibility.” Women could be held until age twenty-one with minimal due process. The statute survived until 1958 and was used disproportionately against Indigenous, Black, and poor white women. It is a paradigmatic example of moral-regulatory law: framed as welfare, lived as punishment.

Chapter 5: Indigenous Peoples and the Law

The Indian Act as a Parallel Legal System

The Indian Act of 1876 consolidated a patchwork of earlier colonial statutes into a single piece of federal legislation that purported to regulate almost every aspect of Indigenous life — land, band governance, membership, education, and wills. Girard, Phillips, and Brown describe it as a legal system running alongside general Canadian law, a regime administered by Indian agents with quasi-judicial powers.

The Pass System and the Ceremonial Bans

From 1885, without legislative authority, the Department of Indian Affairs imposed a pass system requiring Indigenous people on the prairies to obtain written permission from their agent before leaving a reserve. In 1884 Parliament amended the Indian Act to ban the potlatch on the Northwest Coast; later amendments outlawed the Sun Dance and other ceremonies. The bans remained in force until 1951. Archival photographs and seized regalia, some of them still being repatriated, stand as physical evidence of how deeply the law penetrated ceremonial life.

Status, Enfranchisement, and Bill C-31

Indigenous women who married non-status men lost their status under the Indian Act, while non-Indigenous women who married status men gained it — a rule that Sandra Lovelace successfully challenged before the United Nations Human Rights Committee in 1981. Parliament responded with Bill C-31 in 1985, restoring status to many women and their children, though critics note that the amendment created new categories (sections 6(1) and 6(2)) that continue to cut off status in the second generation.

Section 35 and the Modern Jurisprudence

The Supreme Court’s 1973 decision in Calder recognized that Aboriginal title had existed before Confederation. Delgamuukw v British Columbia (1997) accepted oral histories as evidence and outlined the content of Aboriginal title. Haida Nation v British Columbia (2004) articulated the Crown’s duty to consult when contemplating conduct that might adversely affect claimed rights. Tsilhqot’in Nation v British Columbia (2014) issued the first declaration of Aboriginal title over a specific tract of land. Together these cases reshape property and administrative law across resource-rich parts of Canada.

Chapter 6: Race, Immigration, and Citizenship

Legal Discrimination and the Chinese Head Tax

Constance Backhouse’s Colour-Coded and her chapter in Calling Power to Account trace how federal immigration law was used as an instrument of racial exclusion. The Chinese Immigration Act of 1885 imposed a fifty-dollar head tax on Chinese entrants; the fee rose to five hundred dollars by 1903. The 1923 Chinese Immigration Act — remembered in Chinese Canadian communities as the Exclusion Act — halted almost all Chinese immigration until its repeal in 1947.

The Komagata Maru

In 1914, the Japanese steamship Komagata Maru arrived in Vancouver carrying 376 passengers from British India, most of them Sikh. Officials refused to let them disembark, invoking a continuous-journey regulation designed to exclude South Asian migrants. After two months in the harbour the ship was escorted out by a naval cruiser. The incident is a textbook example of how facially neutral rules can be engineered to produce racial exclusion.

Japanese Canadian Internment

During the Second World War, the federal government invoked the War Measures Act to forcibly relocate more than 20,000 Japanese Canadians from coastal British Columbia, seize their property, and in many cases deport them. Orders-in-council, not ordinary legislation, supplied the legal backing — an early demonstration of how emergency powers can bypass rights. Jim Walker’s “Race,” Rights and the Law traces the slow repudiation of these laws and the 1988 redress agreement.

Viola Desmond and Segregation

On 8 November 1946, Viola Desmond sat in the whites-only section of the Roseland Theatre in New Glasgow, Nova Scotia, was arrested, and was convicted of a tax offence for refusing to pay the one-cent difference between the balcony and the floor. Her case, rediscovered by Backhouse and now commemorated on the Canadian ten-dollar bill, illustrates how ordinary regulatory law could be weaponized for racial segregation in the absence of explicit Jim Crow statutes.

Chapter 7: Marriage, Divorce, and Sexual Citizenship

Divorce and the Family

Until 1968, divorce in most of Canada required a private Act of Parliament or proof of adultery under a patchwork of nineteenth-century rules. The Divorce Act of 1968 created uniform federal grounds, and the 1985 Divorce Act introduced “marriage breakdown” measured by a one-year separation — an enormous liberalization that transformed the demographics of Canadian families.

The 1969 Omnibus Bill and Decriminalization

Pierre Trudeau’s famous remark that “there’s no place for the state in the bedrooms of the nation” accompanied the 1969 Criminal Law Amendment Act (the Omnibus Bill), which decriminalized private homosexual acts between consenting adults aged twenty-one and over, legalized contraception, and liberalized abortion (through therapeutic-abortion committees later struck down in Morgentaler). Gary Kinsman and Patrizia Gentile’s The Canadian War on Queers shows how, despite this reform, the RCMP’s “fruit machine” security purges continued to target gay and lesbian civil servants well into the 1980s.

Toward Same-Sex Marriage

Egan v Canada (1995) held that sexual orientation was an analogous ground of discrimination under section 15 of the Charter, even while declining to extend spousal benefits. M v H (1999) struck down Ontario’s opposite-sex definition of spouse in family-support legislation. Halpern v Canada (Ontario CA, 2003) held that the common-law definition of marriage as between a man and a woman violated the Charter. In Reference re Same-Sex Marriage (2004), the Supreme Court confirmed that Parliament had jurisdiction to legislate a gender-neutral definition, leading to the Civil Marriage Act of 2005.

Monogamy, Polygamy, and Nation-Building

Sarah Carter’s The Importance of Being Monogamous argues that monogamous Christian marriage was a tool of Canadian nation-building on the prairies, used to discipline Indigenous, Mormon, and immigrant households. The 2011 British Columbia reference on the constitutionality of Criminal Code s. 293 (polygamy) reopened the debate, with the court upholding the prohibition largely on harm-to-women grounds.

Chapter 8: From the Bill of Rights to the Charter

The Bill of Rights, 1960

John Diefenbaker’s Canadian Bill of Rights (1960) was an ordinary federal statute, not a constitutional document. It applied only to federal law, and courts mostly read it narrowly — famously failing to protect Jeannette Lavell from the Indian Act’s discriminatory marrying-out rule in 1973. Still, it primed the Canadian legal imagination for a more robust rights instrument.

Patriation and the Constitution Act, 1982

The road to patriation, captured in the NFB film Road to Repatriation, was deeply contested. Provinces resisted; Indigenous nations argued that patriation without their consent violated treaty relationships. The eventual compromise produced the Constitution Act, 1982, including the Charter of Rights and Freedoms, an amending formula, and section 35 on Aboriginal rights. The Charter’s notwithstanding clause (section 33) permits Parliament or a legislature to override certain rights for five-year renewable periods — a concession that made patriation politically possible and has become increasingly contentious in recent decades.

Chapter 9: The Charter Era

The Oakes Framework

In R v Oakes (1986), Chief Justice Dickson articulated the test under section 1 for justifying limits on Charter rights: the objective must be pressing and substantial, and the means must be rationally connected, minimally impairing, and proportionate in their overall effects. Oakes remains the grammar of Canadian constitutional review.

Morgentaler and the Body

R v Morgentaler (1988) struck down the therapeutic-abortion-committee regime as a violation of section 7 (life, liberty, and security of the person). Chief Justice Dickson’s judgment emphasized that forcing a woman to carry a fetus against her will, subject to delay and geographic lottery, was a profound interference with bodily integrity. Parliament has never replaced the struck-down provisions, leaving abortion effectively unregulated by criminal law.

Equality Jurisprudence

Vriend v Alberta (1998) read sexual orientation into Alberta’s human-rights statute. M v H (1999) extended family-law protections to same-sex couples. Emmett Macfarlane’s Governing from the Bench argues that these decisions reflect not so much unbridled “judicial activism” as a dialogue in which legislatures often welcomed the court’s cover for politically difficult reforms. Critics, by contrast, question the democratic legitimacy of rights-based remedies imposed on reluctant majorities — a debate Carissima Mathen explores in her work on reference cases and the Court’s institutional role.

Chapter 10: Assisted Dying — From Rodriguez to MAID

Rodriguez and the First Refusal

In Rodriguez v British Columbia (1993), Sue Rodriguez, a woman living with ALS, challenged the Criminal Code ban on assisted suicide. A bare five-to-four majority upheld the prohibition, reasoning that the sanctity of life and the risk to vulnerable persons justified the ban. Justice Cory and Justice McLachlin dissented powerfully, foreshadowing the later reversal.

Carter v Canada

In Carter v Canada (2015), a unanimous Supreme Court overturned Rodriguez and struck down Criminal Code sections 241(b) and 14 insofar as they prohibited physician-assisted dying for competent adults with a grievous and irremediable medical condition causing enduring suffering. The Court gave Parliament a year (later extended) to craft a response.

Bill C-14 and Bill C-7

Parliament’s response was Bill C-14 (2016), which legalized medical assistance in dying (MAID) for competent adults whose natural death was “reasonably foreseeable.” The Quebec Superior Court’s 2019 Truchon decision struck down the reasonably-foreseeable-death requirement, and Parliament replied with Bill C-7 (2021), opening MAID to people whose death is not reasonably foreseeable while excluding those whose sole underlying condition is mental illness. The mental-illness extension has been repeatedly deferred and remains politically contested as of the current legislative calendar.

Chapter 11: Contemporary Issues

Cannabis, Consent, and Legal Pluralism

The Cannabis Act (2018) ended nearly a century of criminal prohibition of recreational cannabis and created a licensed federal-provincial regulatory regime — a reminder that decriminalization is not the same as the absence of law but often means its proliferation into health, taxation, and trade regimes.

#MeToo and Sexual Assault

Since 2016, appellate courts have revisited the law of consent, capacity, and myth-based reasoning in sexual-assault cases. R v Barton (2019) and R v Goldfinch (2019) tightened the rules on evidence of prior sexual activity. These decisions reflect the persistent tension between the adversarial rights of accused persons and the historically thin protection afforded to complainants traced back through Dubinsky’s Improper Advances.

Indigenous Legal Pluralism

John Borrows and Val Napoleon argue that Canadian law will only become legitimate when it is read alongside Anishinaabe, Cree, Gitxsan, and other Indigenous legal orders rather than above them. The Truth and Reconciliation Commission’s Calls to Action and the 2021 federal United Nations Declaration on the Rights of Indigenous Peoples Act gesture in this direction, but the harder work of operationalizing legal pluralism — in courts, law schools, and statute books — remains ongoing.