Johnstone et al. v. Connolly

Quebec Queen’s Bench -- [1869], 17 R.J.R.Q. 266


Quebec Application of laws to AboriginalsFamily law
Summary

This decision recognizes the validity of a Cree marriage, et gives it precedence over a Catholic marriage.

Issue

Can an Aboriginal law be recognized in common law, and if so, is the traditional Cree marriage between William Connolly and Suzanne legal?

Decision

The aboriginal law was applicable since the British Crown had not asserted its sovereignty in the region yet. The Cree marriage was valid (4 judges against 1). 

Parties

Between: Johnstone et al. (Julia Woolrich’s lessees)

And: John Connolly

Facts

Around 1802, William Connolly left Lower Canada, today Quebec, for the Northern Manitoba to work in fur trade. He settled in Arthabaska, a Cree territory which at the time had still not been colonised by the British Crown. There, he met a Cree woman, Suzanne, with whom he lived maritally for thirty-two years following Cree’s tradition. A child, John Connolly, was born from this union.

In 1835, William Connolly left Arthasbaka to go back to Montreal after he accumulated a substantial amount of wealth. He married Julia Woolrich in a Roman Catholic ceremony. The union lasted until 1849, when it was dissolved by William Connolly’s death. Julia Woolrich was named universal successor.

In 1862, Suzanne died without a will. As her legal heir, John, sued Julia Woolrich for his mother’s part in the William Connolly’s estate.

Arguments

John Connolly: Its parents contracted a traditional Cree marriage, which should be considered as legal, making William Connolly marriage to Julia Woolrich void. As Suzanne’s heir, he is entitled to half of William Connolly’s estate.

Julia Woolrich’s succession: The union between William Connolly and Suzanne was never a legal marriage, and it is her union to William Connolly’s that was the valid one. The law in full force and applicable at the moment of William Connolly’s union to Suzanne was common law, and this union did not met the criteria under which a common law marriage can be contracted.

Decision of the lower courts

Quebec Superior Court (1867): The traditional Cree marriage between William Connolly and Suzanne can be recognized is Quebec’s Law. At the time of the union, the British Crown had not imposed itself in Northern Manitoba, meaning that the Cree’s laws and customs were in full force and applicable. William Connolly’s first marriage was contracted under this Aboriginal law, and therefore valid. It is the first union, and not the one to Julia Woolrich that is valid in Quebec’s law. John Connolly can claim his mother’s part in community of property that existed between William Connolly and her.

Reasons for Judgement

Jury

Badgely, Duval, Caron, McKay

Reason

The trial decision is strongly approved. This decision relies strongly on the Cree’s oral tradition. The union between William Connolly and Suzanne respected the Cree’s custom. Consequently, the marriage was valid.

Impact

Woolrich’s heirs appealed to the Judicial Committee of the Privy Council, but an out-of-court settlement was reached before the final decision.

The Connolly decision marked the first time an Aboriginal legal order, in this case the Cree, was found to be autonomous from Canadian common law and civil law. (Lajoie et al., 1998: 67). Other customary marriages have been validated by the courts since then in the Northwest Territories and British Columbia (Casimel v. Insurance Corp. Of British Columbia, par. 33-35). Adoptions according to Aboriginal customs have also been recognized by courts in common law (Id., par. 38-42) and in civil law in Québec (Deer v. Okpik). In 1995, Northwest Territories enacted the Aboriginal Custom Adoption Recognition Act that set a simple procedure to acknowledge any Aboriginal custom adoption. It is also enforce in Nunavut.

This decision is still being referred to. The Court of Appeal in British Columbia referenced it in 1993, as a “leading case” in Casimel (Rapport, 2012). However, since this breakthrough, some 140 years ago, Canadian Courts have been timid in recognizing Aboriginal legal traditions in matters outside of family and criminal law (Grammond, 2008: 94; Burrows, 2005: 160).

In 2012, the government of Quebec brought a bill to recognize Aboriginal peoples’ customary adoption rules and to adjust the Civil Code accordingly. This bill followed the Rapport du groupe de travail sur l’adoption coutumière en milieu autochtone.


Sources

Aboriginal Custom Adoption Recognition Act, S.N.W.T. 1994, c. 26

Casimel v. Insurance Corp. of British Columbia (1993), 106 D.L.R. (4th) 720

Deer v. Okpik (1980), 4 C.N.L.R. 93 (Qué. S.C.)

Burrows John. 2005. “Creating an Indigenous Legal Community”, in McGill Law Journal 50: 153-178.

Grammond Sébastien. 2008. “L’appartenance aux communautés inuit du Nunavik: Un cas de perception de l’ordre juridique inuit”, in Canadian Journal of Law and Society 23 : 93-119

Lajoie Andrée, Melançon Hugues, Rocher Guy and Richard Janda. 1998. “Québec’s Conceptions of Aboriginal Rights”, in Canadian Journal of Law and Society 13: 63-86

Rapport du groupe de travail sur l’adoption coutumière en milieu autochtone. 2012. http://www.cssspnql.com/docs/nouvelles/rapport_adoption-coutumiere-2013_fr.pdf?sfvrsn=2

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