Roots of Canadian Law

Roots of Canadian Law

Canada was originally a colony of Britain. Therefore, the legal system today models the one used in this country. The British legal system is quite different from other systems. Britain was never conquered by Rome or France. Therefore, these civilizations had no influence on the development of British law.

COMMON LAW: Originated in medieval England on the following basis: Ownership of property; wealthy barons owned large tracts of land; either granted to them or taken by force each ruled own territory with own set of laws called baronial law or FEUDAL LAW

Unfortunately, there was no standard of law. Each Baron would judge things as they saw fit as well. A case decided by one baron might have a totally different outcome from another. Trials were also rather brutal. Trial by ordeal or Trial by combat were often used. In trial by combat, the person not killed was declared just. In ordeals there was not really any way to win...

Why/How did the barons each create their own bodies of law? King William of Normandy took over rule in 1066; gave large tracts to nobles. Nobles parceled out land to vassals Each responsible to protect people and administer lands; each Lord set up their own set of laws that they felt worked for them. My land... My rules.

In an attempt to standardize legal treatment, the king established the Curia Regis a group of advisors to the king who exercised both administrative and judicial functions. They travelled through the realm to offer an alternative forum for resolving disputes. It was far more consistent, and offered the defendant a trail based on rules of evidence or trial by a jury. Courts were temporary, and called Assizes.

The judges travelled the country and then returned to the king. In discussions, they learned what was common in solving similar problems. Standards developed. Judges agreed to record cases and agreed to look back on similar cases and handle a current one in similar ways. I Make the Laws around here! Sorry

However, sometimes the rules were applied so strictly that worthy claims were denied by the common law courts. As a result, Courts of Equity evolved in England, to which people could take their claims if they could get no results from a common law court In Courts of Equity, rules of fairness rather than strict legal rules of precedence were applied to give justice to people.

In time, this is how the English legal system was organized: a. The Court of Common Pleas (Assizes) King's courts; set up by the king's men to hear and resolve less serious offences; minor criminal matters b. The Court of the King s Bench Originally the appeal court for Common Pleas. Permanent one in London; others temporary. For serious crimes like murder, etc.

c. The circuit judges (traveling): circuit judges tried serious crimes and heard appeal cases in remote places. Supervised the courts called the Assizes d. The growth of Common Law circuit judges would return to London; discuss cases with other judges; gradually developed common law (law based on case decisions). Formally called Stare Decisis

e. Courts of Equity If common law was too strict; Equity Courts set up by King; Church officials acted as judges to promote fairness; Equity Courts changed the law. In regards to the operation of the rule of precedent or stare decisis. How would you succinctly define it? Why would people begin to like this rule?.. Rule of precedent is the practice of applying the verdict and sentence in one case to all other cases with a similar set of facts

Advantages: it provided consistency and fairness in legal decisions Quick and efficient method The accused knows what he/she is up against before the trial even starts. All people are treated equal; a way for the judge to stay objective DISADVANTAGES: A lawyer can make any plausible argument in a case to prove case Cases may be outdated that even finding law principle is a stretch What if there is no precedent? There is always a need for records.

Therefore, Common Law is: Law applying to the whole nation. Law based on customs and past legal decisions. Law that is followed by all lower court judges. Case law

Statute Law Because the king ultimately claimed all the land, he considered himself above the law. This was tolerated until 1215, when King John was forced by the nobles to sign the Magna Carta. This contract subjected the king to the rule of law, as well as provided for new judicial solutions. Which, for example, prevented people from being unlawfully detained without trial (known as Habeas corpus ) The Magna Carta. Buy your own copy for only $24 Million

The signing of the Magna Carta by King John in 1215 A.D. is considered to be one of the great turning points in English legal history. Why is this event important for us today?... http://www.youtube.com/watch?v=rrohcatv ylc King John subjected himself to the rule of law (forced into it) Rule of law became supreme Habeas corpus no imprisonment without trial No taxes without approval of parliament Trial by jury of peers established

Even with the Magna Carta, the power rested only with the king. Henry III asked nobles to advise him, but when that proved ineffective, a Parliament was formed. Over time, parliament moved power from the high nobles and under its own control. It gained the power to enact legislation and create Statutes, or laws enacted by legislatures. This served two purposes: 1. Identified and clarified Common law 2. Gave a way to amend and change Common law.

In time, Statute law came to replace common law in areas of Criminal Law Business and Commercial Law

Other influences to Canadian Law: Aboriginal Peoples: The Great Binding Law: The recorded Constitution of the Iroquios Confederacy ( originally laws were passed orally) Similar rights and principles of modern civil rights documents. France: ( Quebec) Civil Law ( Code Civile)