Administration of Justice. – So long as Canada consisted of the two provinces of Upper and Lower Canada, even when united for legislative purposes they retained their diverse laws and distinct judicial systems, while the Privy Council of Great Britain constituted the final court of appeal for both. In the province of Quebec the old French law, which was introduced under Louis XIV, is still the basis of the law of property. There the tenure of property remained strictly feudal, until the settlement of the claims of the seigniories by the Act of 1854 brought the old system to an end. But before that was effected new townships had been surveyed and land disposed of to settlers to be held in free and common soccage. The commercial law is regulated partly by the old French code, but modified by the English customs, and by later Canadian legislation. The criminal laws of England, and the right of trial by jury, were introduced by 14th Geo. III c. 83. Since then all additions to the criminal law, modifications of the statutes, have depended on the Acts of the colonial legislature. The religion, laws, language, and customs of the French population were all guaranteed to them at the time of the cession of Canada to England; and the rights and privileges pertaining to the Roman Catholic Church, among a population regarding its creed as their national religion, help to perpetuate essential differences, by maintaining what is still practically an established if not a state church.
By the constitution of the Dominion, as embodied in the British North American Act of 1867, the criminal law, with the establishment, maintenance, and management of penitentiaries; all laws relating to bankruptcy and solvency, marriage and divorce, naturalization, aliens, Indians, and Indian reserves; and generally, all subjects not expressly assigned to the provincial legislatures, pertain to the Dominion parliament. The judges in all the provinces are appointed by the general Government; and the pardoning power is vested in the governor-general per se, whilst his authority in all other respects is exercised under the advice of his privy council, or ministers for the time being. The powers entrusted to the local legislature include generally all strictly local legislation not affecting in any way the rights of other provinces. The judges by whom the laws are administered must in the case of Quebec be selected from the bar of that province; and the judges of the superior courts in all the provinces hold office during good behavior and are removable by the governor-general on address of both houses of Parliament.
The rights and privileges of each provinces being thus secured by its own parliament and courts of law, the provisions of the Act of Confederation have been completed by the establishment of a Supreme Court and Court of Exchequer of Ottawa, consisting of a chief justice and five other judges, two of whom, including the chief justice, have been selected from the bench of Ontario, two from the bench and bar of Quebec, and one each from the bench or bar of Nova Scotia and New Brunswick. The court thus constituted is the supreme and final court of appeal, from all the courts of law in the various provinces, - with this exception that, while no appeal lies from the Supreme Court at Ottawa to the Privy Council, litigants have still the right of choice between the two as their final court of appeal.
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