Influences on Canadian Law
Early British Law Although we have seen influences from Hammurabi, Mosaic, Greek and Roman law, British law has had the greatest influence on Canadian law Early British law saw a great reliance on God s judgement to determine guilt or innocence
Trial by... Ordeal Only used if sentence was the death penalty The person must go through some form of physical ordeal such as trial by hot iron or trial by hot water or trial by swimming If God healed them, they were innocent Oath Helping Used for less serious charges A person could swear an oath on the Bible that stated a person s innocence
Trial by... Combat The two parties involved in a dispute engaged in a physical duel It was presumed God would favour the innocent one and protect them Since the weaker usually would die, a person would often hire stronger individuals to fight for them The present day adversarial system of justice is based on the same principles. Both sides are represented by lawyers to determine guilt or innocence.
Feudal System After the Romans left England, there was no unified legal system until William the Conqueror invaded England and defeated the Anglo-Saxons At the Battle of Hastings in 1066, William took control of England as king and set out to ensure his word was law He did this through justifying his power as divine right, putting him above the law
Feudal System King Lords Vassals/ Peasants Owned all the land and divided it among the lords Became king s servants Owed military service to the king Acted as judge in any trial of a lower vassalinconsistency among judgements Farmed the land Gave part of their produce to lords and the Church
Common Law The inconsistency among judgements from lords brought complaints and riots so King Henry II authorized a set of judges in towns to settle disputes The courts were known as assizes and the judges were known as circuit judges Without a set of codified laws, the judges had to use common sense and their own principles of justice.
Common Law After a while, the judges noticed trends among legal issues and judgements so the judges decided that similar cases should be treated similarly to help establish a common method of dealing with law which became known as common law Each time a decision was made on a new case, it laid a precedent for future cases The practice led to the principle known as stare decisis meaning to stand by decision or abide to decisions past made
Common Law Henry II also set up the jury system that we know of today- 12 men would serve as a jury regarding land disputes As the circuit judges became more efficient, people began to question the need for a king if people could handle government matters on their own
Legal Reforms Henry II was succeeded by his son Richard and then his second son John King John was pressured by citizens to sign the Magna Carta in 1215 which limited the power of the king and protected rights of citizens The document declared that all humans were equal and no ruler could restrict the freedoms of people without reason or change someone s rights
Legal Reforms Another component of the Magna Carta was the order of habeas corpus which is Latin for you must have the body This section protects the unlawful arrest and detainment of any person by stating that a person must be allowed to appear before a judge or court within a reasonable amount of time This has been put into the Canadian Charter
Pre-Colonial Aboriginal Law Before the European settlers came to North America, the Aboriginal peoples had communities with established government and legal structures The rules regarding different groups were passed down from generation to generation in an oral tradition of story telling and myths
Iroquois Confederacy From 1450 to 1720, six nations- the Mohawk, Onondaga, Seneca, Oneida, Cayuga, and Tuscarora- joined together to create the Iroquois Confederacy, also known as the Six Nations The constitution of the Confederacy was eventually recorded in a written text known as The Great Binding Law
Iroquois Confederacy The Great Binding Law outlined the rights, responsibilities and duties of the people included in the Confederacy The constitution outlined many of the same principles of justice and fairness found in modern civil rights documents across North America
Canada's legal system now is a combination of: Codified law (laws made by elected federal and provincial representatives) Common law (judges' interpretations / stare decisis / rule of precedent) Aboriginal law (some principles used in sentencing and restorative justice) French law (influenced civil law in Quebec) Constitutional law
Statute Law A statute is a law or act that is passed by government Statutes are enacted by federal and provincial governments- they are common law decisions that have been formally written into law Any government can pass laws, but only within their jurisdiction (the legal authority to pass and enforce laws)
Sources of Law Constitutional Law Statute Law Common Law
Canada s Constitution All sources of law fall under the Constitution Pre-1860s: British North America was governed by Great Britain but many Canadians began to fear American invasion after the Civil War In 1864, a group of men met in PEI and Quebec to discuss unification as a country.
Canada s Constitution The British North America Act (BNA Act) was passed in 1867 which established the Dominion of Canada as a country under the leadership of John A. Macdonald The BNA Act did allow Canada to unify as a country, but laws were still made with Great Britain s approval
Canada s Constitution Macdonald struggled with creating a political system that would represent Canada On one hand, the USA had a sound Constitution and Bill of Rights. But because the states were given so much power they were engaging in a war among themselves On the other hand, Britain possessed a unitary system where power was centralized in one Parliament led by their prime minister. Due to the geographic size of Canada, this couldn t work
Canada s Constitution A compromise of the two resulted in the federal system where responsibilities would be split between the central government and provincial governments The two would share power, but the central government could overrule laws made in provinces if believed to be best for Canadians as a whole
Canada s Constitution The BNA Act set the jurisdiction and division of power for both governments, and sometimes the two governments would attempt to make laws in conflict with one another If this happened, the courts were called to decide whose jurisdiction it was The courts would decide whether a gov t was intra vires, which means within the power, or ultra vires, which means beyond the powers of their jurisdiction
Statute of Westminster Over the years, the BNA Act was amended and changed In 1931, the Statute of Westminster was added which brought 2 major changes: It gave Canada the authority to make trade agreements independently from Britain It gave Canada the authority to make its own laws independently from Britain
Problems! Although the new statute gave them control and independence, the Constitution was still a British Act which resided in Britain Each time Canada wanted to change the BNA Act, it still needed Britain s permission The BNA Act still did not lay a clear division of responsibilities among the different governments AND! The BNA Act never stated anything about civil liberties
Patriating the Constitution Pierre Elliott Trudeau promised to patriate (or bring home) the Constitution to Canada despite protests from many premiers In 1981, the premiers, prime minister and Aboriginal leaders spent 4 days fighting over a new constitution In the absence of the Quebec premier, the leaders came to a compromise which resulted in the creation of the Constitution Act, 1982
Constitution Act, 1982 The provisions of the BNA Act did not die in the new constitution, as the division of powers remained the same, but new elements were added such as: A principle of equalization (access to services for all) A clarification of responsibility for natural resources An amending formula for future changes to the Constitution A charter guaranteeing individual rights and freedoms The rights of Aboriginal people
Conflict! Quebec never signed or approved the Constitution Act, 1982 According to the Supreme Court, the people of Quebec were subjected to the rules of the Constitution Act and were protected by it This never sat well with many Quebec residents and led to 2 different referendums regarding separation from Canada