Development of Canadian Law

Development of Canadian Law• Based upon the laws of Britain and France

• French Law – codified / written down (Napoleonic Code)

• British Law – was codified / written down much later

• British law has had the most influence on Canada• Queen, Courtroom Traditions (Bar, Robes)

Early British Law

• When the Romans conquered Great Britain in 43 CE, they imposed their laws. When the Roman legions left in 410 CE., Roman laws soon gave way to practices that followed local customs and traditions in Britain

• Examples…

Trial by Ordeal• deeply religious people of the Middle Ages believed that guilt or

innocence could be determined by God and that God would judge the guilt or innocence of the accused

• Torture to determine guilt and innocence• Trial by hot iron – hold hot iron & if wound heals… innocent• Also trial by hot water, cold water, swimming a witch• Purging by Water p.25 & question #1…

Trial by Oath Helping• Requiring friends of the accused to swear on the Bible that he or

she was innocent

Trial by Combat• Using a duel was used to determine guilt or innocence

Adversarial System• In present-day justice system, both sides battle in court to

determine guilt or innocence

Feudalism and Common Law• 1066 C.E. William, Duke of

Normandy invades and conquers England

• William becomes King of England

• Introduces feudalism • a system of government

where all the land belongs to the king and is divided up among his lords / nobles in return for loyalty and military service

• Divine Right of Kings – accountable only to God

Feudal System

King

Nobility

Knights

Serfs – Peasants

Church

Grants land to nobles inreturn for loyalty and military service

Provide land in return for loyalty, protection and military service

Landless – are provided with protection and a place to live in return for labour, loyalty and military service if needed

Are provided with land in return for protection and military service

Food stuffs

&Tax

Law within the Feudal System - Common Law• Lords (Nobles land) Manor / Estate• Lord ran estate as he saw fit also the judge

• Within the manor courts there was much injustice• People could appeal their case to the king where it would be heard

in an assizes (country court / kings court)

• By the 13th century some judges were appointed to travel throughout England - Assizes (country courts)

• They developed regular punishments for specific crimes – forming the basis of English common-law

• This new system was more ‘just’ therefore earning new respect

• Judges gather, discuss and record their decisions• Body of laws become “common law” (laws common to all citizens in

a country)• This common-law system was introduced to North America by

British colonists

Common Law and Precedent

• Rule of Precedent (When something has been done that can later serve as an example or rule for how other things should be done)

• Came about when a case and its decision became common knowledge in the English legal community

• Result – All judges who heard cases with similar facts would give similar decisions

• Established standards for judging offences• Originally relied on judges’ memory – unwritten law• Now all judgments are recorded and published – Case Law • Introduces a degree of certainty into the law

Stare Decisis• Recorded decisions became known as “precedent” leading to

the practice of “stare decisis” (to stand by the decision – or abide by decisions already made)

• Stare decisis evolved into the rule of precedent which means applying a previous decision to a case that has similar circumstances

Case Law• Each recorded case is given a title or citation

• Provides basic information on the case• Who is involved in the case• Is case public or private (civil law)• Year court decision was reached• Which court heard the case• Name of court reporter

• Intended to be easily retrievable in a law library

Case Law – citation format

R. v. Bates (2000), 35 C.R. (5th) 327 Ont. C.A.)

Regina or Rex (Latin for “queen” and “king”) represents society

verses (latin for against)

defendant (accused)

Year of decision

Vol. #

Name of reporter where case is reported (e.g. Criminal Reports

series Page #

Jurisdiction (federal, provincial or territory) and court (e.g. Ontario Court of Appeals

• Elements of a Criminal Citation

Case Law – citation format• Elements of a Civil Citation

Langille et al.

v. McGrath (2000) 233 N.B.R. (2nd) 29 (N.B.Q.B)

Plaintiff and others (Latin et alia for “and others”)

verses (latin for against)

defendant (accused)

Year of decision

Vol. #

Name of reporter where case is reported (e.g. New Brunswick Reports)

series Page #

Jurisdiction (federal, provincial or territory) and court (e.g. N.B. Court of Queen’s Bench)

In class task…• Skill Development: How to read case law citations• Complete the worksheets provided – use the resources and

instructions given

The Rule of Law• King John (1199-1216)

• considered himself above the law• Abused the power of his position

• (Nobility, clergy and freemen) forced King John to sign the Magna Carta (Great Charter) in 1215

• Magna Carta recognizes the principle of the rule of law

• King John and all other rulers to follow are subject to the law

• Equality before the law• Habeas corpus – “you must have the

body”• all have the right to appear before a court

within a reasonable time – released or tried by own peers

Magna Carta 1215 CEExamples:

• no free man could be imprisoned “except by the lawful judgment of his peers and by the law of the land”

• No Forcing widows to remarry

• No forcing villagers to build bridges over rivers

• No forcing knights to pay money to excuse themselves from guarding castles

• No confiscating the horses or carts of freemen

• No helping themselves to firewood that did not belong to them

Rule of Law continued• Canadians are governed by the rule of law

• Every dispute must be settled by peaceful means, either by discussion and negotiation or by due process in the courts

• Not allowed to settle disputes with violence• Government officials are not permitted to change or make up the

rules without consulting anyone else

• Our society believes that the concept of “might” is not right

Parliament and Statute Law• 50 years after the signing of the Magna Carta, in

1265, a group of nobles revolted against the king – demanding reform to the English legal process

• Wanted less power for the king and more power for themselves

• Resulted in representatives from all parts of England being brought together to form the first parliament

• Over the next 400 years, Parliament struggled for power with the monarchs of Britain

Parliament Replaces the King• 1688 – King James II attempted to restore Catholicism in England

• British public (clergy and nobles) revolted on that grounds that James was too pro-French, pro-Catholic.

• This gave way to the Glorious Revolution- a revolution with little violence

• James abdicated the throne and fled England• His daughter and husband, William of Orange (Netherlands) were made King

and Queen of England• 1689, Parliament passed the Bill of Rights guaranteeing free speech, free

elections, and freedom of assembly

• Parliament had triumphed – the institution that represented the will of the people

Statute Law

• Those laws that are created in parliament – by elected persons:

• MPs (federal – House of Commons)• MPPs (provincial – Legislature) • City Councilors (municipal – City hall)

• Statute Law (made in parliament) trumps Common Law (precedence law as determined by a judge)

• Why?

Recap• Common Law – is law based on judges’ trial decisions,

precedents, and reported case law

• Statute Law – is law made by governments

1. What is feudalism and how did it work?2. Why were the king’s courts or assizes preferred to the manor

courts of the feudal lords?3. How is the rule of precedent used in today’s system of law?4. How is a citation useful in law?5. What is common law?6. Explain the significance of statute law as a source of law