Canadian Law2204The influence of British Law

The Great Charter

Although Canadian law reflects aspects of earlier kinds of law, it is British law that has had the most influence in Canada.

The Rule of Law, a fundamental principle in Canadian law, is from the Magna Carta, a charter of political and civil rights signed in England in 1215.

British Law cont…

The present-day adversarial system of justice, where evidence is presented by two opposing parties to an impartial judge, is based on trial by combat, a duel between two parties to determine who is innocent that was introduced in England in 1066.

Our use of common law, is also a British tradition established during the reign of King Henry II (1154-1189). Prior to Henry II’s reign, there were no written rules to guide judges who traveled to towns and villages in order to hold court and resolve local disputes.

British Law cont…

The courts were known as assizes and the judges were called circuit judges. These judges had to rely on their common sense to determine what was fair and just. They eventually agreed that similar cases should be decided in the same way.

This practice led to the principle known as stare decisis, a Latin phrase meaning “to stand by the decision.” The process of applying stare decisis developed into the rule of precedent used today.

The record of these decisions formed the basis of common law, or case law, because the information was “common to all.”

Habeous Corpus

You MUST have the body

Doesn’t mean a corpse

You must be given an opportunity in front of a judge to determine the validity of your arrest or detention

The government (IE. prosecution / crown attorney) must present some evidence that the arrest was lawful. In other words, it has substance… it was based on real evidence eg. Eye witness report

This must be done promptly. They can’t lock you up for a long time while they build a case against you.

You may be released altogether, released on bail or other conditions, or not released pending trial.

Aboriginal Law Increasingly, Canada’s courts are recognizing the

Aboriginal system of justice that emphasizes community involvement and rehabilitation as an alternative to prison. Aboriginal peoples have a long tradition of rules that have been passed from generation to generation in an oral tradition of storytelling and myths.