Past as Prelude: Canadian Legal History Proves Law Has Always Been Innovative

This summer, Appara has been sharing a series of tidbits about Canadian legal history over on our LinkedIn page. But some of the most exciting parts of Canadian legal history are still being written.

The history of law in Canada is filled with unique and compelling stories. Some of them are awe-inspiring, some of them are amusing, and some of them are a shameful reminder of Canada’s history of colonialism – but all of them make up the fabric and tradition of Canadian law. Canadian legal history tells a story of continual improvement and innovation; from the abolition of military courts in Quebec in 1764, to the Supreme Court affirming refugees’ rights in the 1985 Singh case; the evolution of law has long challenged what has been in the name of discovering what should be.

Of course, not all Canadian legal history is positive in nature; tales of discrimination, prejudice, and the influence of colonialism abound – even in more recent legal history. But through a series of pivotal events, and through the hard work of dedicated lawyers, judges, and advocates, Canadian law continues to be shaped in a more equitable and just direction.

Here are three of the events in Canadian legal history that prove the law has always been innovative – and that embracing progress makes for more equitable laws and a better legal industry.

1971: Alfie Scow Breaks Barriers for Aboriginal Lawyers

The Honourable Alfred J. Scow, OC, OBC, better known as “Alfie”, was born in Alert Bay, B.C., in 1927. The son of a First Nations Chief, Scow was a member of the Kwicksutaineuk First Nation. Scow’s father, William, was a provincial magistrate with a passion for education. Scow attended St. Michael’s Indian Residential School before transferring to public schools in Richmond and Vancouver.

For years, Scow worked on fishing boats to finance his education. A student at UBC, he completed three years of an arts degree before graduating with a Bachelor of Laws in 1961 at the age of 34; he was the first Indigenous person to graduate from the University of British Columbia’s law school.

Scow told UBC Law Alumni Magazine in 2005 that while finishing law school was challenging, his timing ended up being flawless: Prior to 1960, First Nations people were not Canadian citizens, and therefore if he had graduated on time he could not have been called to the bar.

But finishing law school would only be the start of Scow’s pattern of breaking barriers. After spending a few years in private practice, Scow became New Westminster’s first full-time prosecutor, despite going up against several more experienced applicants for the job. Later, he would spend two years on the Amerindian Lands Commission in Guyana, aiding the Guyana government in establishing indigenous land policy. On his return to Canada, Scow became the Chair of the Board of Review for the Workers’ Compensation Board of B.C.

In 1971, Scow became the first Aboriginal person in British Columbia to be appointed to a provincial judgeship. He would serve on the court for over 20 years, developing a reputation as a kind, respectful, and fair judge who gave equal treatment to all who stood in his courtroom.

On February 26, 2013, Alfred Scow died peacefully in his home at the age of 85. The Law Society of British Columbia published a tribute to Scow approximately one week later. On September 14, 2021, the 50th anniversary of Scow’s appointment as a provincial court judge, the B.C. Provincial Court published an article describing Scow’s impact on and contributions to the practise of law in Canada.

1985: Supreme Court Establishes Refugee Rights

For much of Canadian history, refugee claimants were not afforded human rights protections under the law. Many claimants were also denied oral hearings, instead being dealt with through written applications and responses. Several flaws in Canada’s immigration system came to light in the late 1970s and early 1980s, during what’s known as the Singh case.

The Singh case involved seven Sikh refugee claimants, all with the last name Singh. Six of the claimants were from India, while one was from Guyana. Each of the seven Singhs filed a separate claim for refugee status; all of them were fleeing religious, racial, or political persecution. The Refugee Status Advisory Committee (RSAC) recommended that the federal government deny their refugee claims, and the federal government complied with that recommendation. The seven Singhs filed separate appeals to the Immigration Appeal Board (IAB), which concluded that none of them met the criteria for admission to Canada as refugees.

The entire process took place through a series of written applications, one-on-one interviews with a single immigration official, and secret deliberations by the RSAC and IAB. At no point did any of the applicants have the opportunity to present an oral argument, and at no point did any of the applicants have the opportunity to provide counter-arguments to RSAC/IAB objections. Each of the seven applicants appealed the rulings against them; these cases worked their way through the court system individually before arriving at the door of the Supreme Court of Canada (SCC). The SCC recognized the commonalities among all seven immigration cases, and therefore condensed all seven appeals into one Supreme Court decision.

In this 1985 case, Singh v. Minister of Employment and Immigration, the court unanimously agreed to permit the immigration appeals with full oral hearings. Half of the six sitting Supreme Court justices determined that Section 7 of the Charter applies equally to everyone in Canada, regardless of citizenship status. The other three justices, while not ruling specifically on the Charter issue, ruled that the 1960 Bill of Rights guarantees a full oral hearing for all refugee applicants.

1995: Ontario Becomes First Province to Permit Same-Sex Couples to Adopt

In the province of Ontario, child adoptions are governed by the Child and Family Services Act of 1990 and the Intercountry Adoption Act of 1998. Prior to the mid-1990s, provincial adoption laws prohibited same-sex couples from filing a joint adoption application – anywhere in Canada. If a same-sex couple wanted to adopt a child, only one person in that couple would be permitted to apply; that person would have been required to apply as a single parent, and their partner would not have parental rights to the adopted child.

All of that changed in the summer of 1995, when four same-sex couples challenged the law in court. Four of the plaintiffs were the birth mothers of the children at the center of the case; the other four plaintiffs were the birth mothers’ same-sex partners. (This case came on the heels of the spring 1995 Supreme Court ruling in Egan v. Canada, which established that the anti-discrimination protections in Section 15 of the Charter of Rights and Freedoms do indeed extend to sexual orientation.)

The core issue of this case revolved around the technical wording of the Ontario Child and Family Services Act. At the time, the act did not recognize same-sex partners as spouses; therefore, the same-sex partners of the birth mothers were not eligible to adopt.

Ontario Provincial Court Judge David Nevins ruled that the act violated the couples’ Charter right to equal treatment under the law. The ruling permitted gay and lesbian couples in Ontario to file for adoption individually starting in May 1995; later, in 2000, changes to the Child and Family Services Act permitted same-sex couples to file for joint adoption. Then, in 2017, the Ontario Legislature enacted the All Families Are Equal Act, which codified new regulations around determining parentage in situations involving assisted reproduction (for instance, surrogacy).

Canadian legal history is filled with stories of both triumph and loss, both progress and pain, both right and wrong. While the law has not always worked equally in the interests of all Canadians, these stories prove that Canada’s legal system continues to progress. Just as the law itself evolves, though, the practice of law is also rapidly changing. Lawyers, paralegals, and other legal practitioners must continue to be forward-thinking and innovative if the Canadian legal profession is to honour its progressive roots.

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