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Historical Influences to the Canadian Legal System

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Jason Sahlani

on 28 July 2014

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Transcript of Historical Influences to the Canadian Legal System

Historical Influences to the Canadian Legal System
Our laws reflect British and French laws, which in turn were influenced by Greek and Roman law. And Greek and Roman law were themselves influenced by notions and concepts of private property that came from the ancient kingdoms of Mesopotamia.
In 449 BCE a Roman legal commission drew up a code of traditional Roman laws that were inscribed on 12 tablets that were then displayed in front of the Forum (largest public square and also in the same area that the Roman Senate met).

Shockingly, the code was called the Law of Twelve Tablets
Aboriginal Influences
British Influence
French Influences
Primary Sources of Law
So let’s start there…
The Code of Hammurabi
The Greek Influence
The first Europeans to practice democratic ideals in the political and legal systems, the Greeks practiced what we would call today “limited” democracy.

For example, citizenship in the city-state Athens was limited to native-born men over the age of 18 while women, foreigners and slaves were excluded from political life and this was important because Athenians expected citizens to take active roles in politics.
One of the most important influences to the Canadian legal system from the Greeks was their use of juries when people were tried for crimes.

Juries were made up of their fellow citizens and were quite large.

No Judges or lawyers participated in these trials and the defendant acted as his own lawyer and the jury itself was the judge with verdicts decided through a secret ballot. If the defendant was found to be guilty his accuser would recommend one penalty and the defendant another and another secret ballot would be taken to decide the punishment.
What are the two most important important principles found in our legal system that had roots in Ancient Greece?
Roman Influences
Organized by topic and covering just about every aspect of Roman life (including marriage, court cases, property rights) any Roman who needed to know any part of the law of the land could walk to the Forum and consult this code.

As Roman laws became more numerous and complex even the best-informed citizen couldn’t know the law thoroughly and it was at that point that the state began to train specialists to advise citizens who needed to use the legal system.

By the 6th century CE Roman law had so many volumes of commentary that even trained lawyers (specialists) had trouble using them and so, in order to create a more manageable system the Emperor Justinian ordered that all laws be collected together and organized in to one code.

The Code of Justinian was published in 529 CE and became the standard body of law throughout the empire.
What are the two most important aspects of the Roman legal system that we can see in the Canadian legal system?
Long before any contact from Europeans, First Nations, Aboriginals and Inuit peoples had their own legal system but it was not one that was written down but instead was passed along using the oral tradition, at times using legends or stories.

Why do you think legends/stories were used?
Gayanashagowa - Iroquois for “great binding law”. Provided a system of checks and balances by giving every man and woman in the Confederacy a voice in tribal affairs. The framers of both the US constitution and the Charter of the United Nations referred to the Gayanashagowa when drawing up their own legal documents

Eg. Powers of the war chief were kept in check by those of the peace chiefs and ALL chiefs were appointed by the clan mothers who also had the power to remove any chief who did not act in the interest of the people.
Can you think of any examples from contemporary society of a system of checks and balances?

What are some of the differences you noticed between the historical influences we’ve looked at so far?
No country has had a greater influence than Great Britain, including fundamental rights such as trial by a jury of one’s peers, presumption of innocence and the Rule of Law (which we will look at more in depth shortly).

But before that...in medieval England there was no standard in deciding a person’s guilt or innocence and systems ranging from local custom to superstition were used to judge citizens.
Trial by Ordeal - Torturing a person to determine their guilt or innocence. One method was to force the accused to hold a hot bar of iron. The burned flesh would be bound and once the wrapping was removed, if the wound was healing, then the person was found to be innocent. If the wound got infected, however…

Trial by Combat - Accused and Accuser would fight until one defeated the other with the belief being that God would favour the innocent and demonstrate the guilt of the parties by granting the innocent the strength to win.
But obviously these were ridiculous methods of achieving justice. Do you think they even sterilized the bandages?
Things changed in the 11th century thanks to a guy named William the Conqueror, who gave his barons (landholders) authority to settle disputes. This system did away with some superstitious customs but was terribly inconsistent in judgement from place to place.

One century later (12th) King Henry II tried to bring consistency to his lands by training a group of individuals to act as circuit judges who went form place to place and held ASSIZES (traveling courts) to hear cases. He also established the jury system.
Over time these judges recorded the information of each case they heard along with what their decisions and punishments handed out were and thus began a system that relied on precedent to decide similar cases in the future by all traveling judges.

This became what we know today as case law or common law, as it was to be applied in a common fashion throughout the land.

The right to trial by jury was expanded by Henry’s son, John, who was forced to sign the Magna Carta by rebellious barons.
The Magna Carta
Quebec was settled by the French and as such those settlers implemented the French Civil law as opposed to the legal system the British settlers brought with them or the existing laws of the land.With roots in Roman law, French civil law (laws dealing with personal relationships) was arranged into codes by topics.

In 1763 Quebec became part of the British empire and in 1774 the Quebec Act was passed, establishing a system in Quebec where British criminal law, along with a British colonial government, was put in to effect in the province but the French civil law codes remained in effect.
The French Civil Code was based on the Napoleonic Code, created by the famous tiny general Napoleon Bonaparte.

Under the French Civil Code precedents are not as important as they are in a common law system. Rather, judges must refer to the Code itself, and scholarly interpretations of the Code, when making decisions.

Which system do you think is better? Think about your answer then turn to someone in your area and discuss it with them. Volunteers can share
Secondary Sources of Law
Statute Law

A statute can be defined as any law passed by the Federal of Provincial governments.

At the Federal level:

A statute first takes the form of a written bill that has to pass three readings in the House of Commons, then must pass three readings in the Senate. If passed, it is then given Royal Assent (signed by the Governor General) and proclaimed law.

At the Provincial Level:

Provincial Legislatures can also enact statutes in certain areas of law. Whereas the federal government has jurisdiction, or law-making authority, over currency, defence and criminal law the Provincial governments have jurisdiction over areas such as health care, property rights, civil rights and municipalities.
Canada’s legal system is the outcome of historical developments that stretch back thousands of years. The system’s cumulative values, beliefs and principles are based on actions and decisions of the past.

The parts of the legal system that have the longest historical development and represent the system’s cumulative values, beliefs and principles are known as PRIMARY SOURCES OF LAW.
Canada’s laws reflect this country’s Judeo-Christian religious heritage. The primary source for this heritage is the Old Testament of the Christian Bible.

When Christian missionaries and colonists came to Canada in the 16th and 17th centuries they brought their religion with them, which would have profound effects on the development of Canadian Law.

Consider the preamble to the Charter of Rights and Freedoms:
“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

This wording reflects the fact that a majority of Canadians profess a belief system that assumes the existence of God as the supreme being and, as such, the original source of law.
Canada is not the only country whose law reflect a religious heritage:
Many countries in the Middle East, Africa and Asia base their laws on the teachings of the Qur’an.
Some laws in India are influenced by Hinduism
Some of Japan’s laws by Shintoism

Are there any others you can think of?
Canada’s laws also reflect the influence of moral philosophy or ethics.

Moral Philosophy deals with the distinction between right and wrong in human behaviour and while morality is often connected with religion that is not always the case…atheists can have a strong moral sense too!

So, in essence, laws are write affirmations of what society as a whole considers good and bad behaviour.

BUT…whose notions of good and bad are codified?
Other laws, such as those against public nudity, reflect society’s MORAL VALUES. As moral values change, these laws may be changed as well.

Current laws that enshrine a society’s values in written rules and regulations that have been formulated by legislators and judges. These laws reflect:

Lawmakers include Members of Parliament and judges who render legal decisions
3 Sources of Secondary Law (Listed in level of importance)
Statute Law
Case Law

Constitutional law is the most important source of Canadian law and if a statute (such as laws found in the Criminal Code) is found to conflict with it then that statute must be revised or repealed.

Statute law supersedes case law (judicial decisions) except for when statutes are found to be unconstitutional.
The Constitution

Embodies the values and principles that Canadian law has derived from primary sources such as philosophy, religion and tradition.

Constitutional law is the body of written and unwritten laws in Canada that set out how the country will be governed. This type of law sets out the distribution of powers between the federal government and the provinces and embodies certain important legal principles.

Written Parts of the Constitution

British North America Act, now known as the Constitution Act, 1867, which created the Dominion of Canada.

According to the Act’s preamble, Canada was to have “a Constitution similar in Principle to that of the United Kingdom.”
This means that Canada inherited many ideas, customs, conventions, values, and principles of law from Britain that were not always spelled out in written clauses but were understood from centuries of experience and case law.

In 1982 the Constitution was patriated, which means that Canada now had the right to amend its own constitution rather than having to rely on permission from Britain. This right was entrenched in in the Canadian Charter of Rights and Freedoms.

2 Important Principles

Judicial Independence - Judges function independently of the government that appointed them, their decisions reflect their own legal interpretations and not government policies.

Parliamentary Supremacy - The Parliament, as the representative body of the Canadian people, has the supreme power of making Canadian laws.

An Example:

Suppose the government of Alberta created a provincial currency called “Oil Bucks”. The federal government would ask the courts to strike down the statute that created the currency on the grounds that Alberta had acted ultra vires, or beyond its power under the constitution, in making a law for which it had no constitutional authority.

FYI, if a statute is within the power of the province, it is considered intra vires.
Statutory Interpretation

Judges interpret laws through cases referred to them and have developed a number of rules to help them with statutory interpretation:

Mischief Rule: Helps judges understand a statute better by focusing on the problem or mischief the statute was intended to correct.
Internal Aids: Information found in the statute itself, such as sections that define legal terms used in the statute itself, or a preamble that explains the statute’s purpose.
External Aids: Legal dictionaries and scholarly articles.

Case Law

For most cases, Judges have to render a written decision or explanation of their ruling. These decisions form a substantial body of case law. This is accomplished, in large part, through the setting of precedent.

Precedent - a legal decision that MUST be followed in subsequent similar cases.

Stare Decisis - Latin for “to stand by the decision”. This means that a precedent must be considered when ruling on a case with similar circumstances and must be followed if it was set by a higher court than the one in which the case is being heard.

Precedents do not need to be followed if:

- the precedent in questions comes from another province
- the circumstances of the case are too dissimilar
- times have changed to such an extent that the precedent is outdated
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