Administrative note

My emailandy@kaplan−myrth or techlaw@uottawa.ca

My office hours location

Today:

History and Heritage

of the Canadian

Legal System

Aboriginal Legal Heritage

• Oral tradition

• Established practices

• General approach: healing

• Collective responsibility

Treaties and Trade

• “Title” and “Rights”

• Treaties

• Canadian policy of assimilation

Treaties and Tradeexample

3. Every Indian or other person who engages in or assists in celebrating the Indian festival known as the "Potlach" or in the Indian dance known as the "Tamanawas" is guilty of a misdemeanor, and shall be liable to imprisonment ... and any Indian or other person who encourages ... an Indian or Indians to get up such a festival or dance, or to celebrate the same, ... is guilty of a like offence ...”

An Act Further to Amend The Indian Act, 1880 S.C. 1884, c. 27.

Influence of Aboriginal Law on European Law

• Indirectly, by influence on European Philosophers

• Directly, by influencing Canadian law and

practice

Influence of Aboriginal Law on European Law

example718.718.718.718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Influence of Aboriginal Law on European Law

example718.2718.2718.2718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

French Settlement in Canada

• 1663: Stable French settlements

• New France subject to the Paris Coutume

• Private Law

• Fairness over certainty

• Feudal system of land−holding

French Criminal Procedure in Canada

• Inquisitorial System:

• Judge also investigates the complaint

• Rule of evidence

• Trial in absentia; Sentence in absentia

Royal Proclamation, 1763

• 1760: England conquers New France

• Royal Proclamation of 1763 by George III:

• Created reserved land for Aboriginal people

• Imposed English law in Quebec

• Barred Roman Catholics from government

• Unsuccessful

• Quebec Act, 1774: Restored French civil law

Quebec Act, 1774 to 1866

• French elected assembly

• But real power with English Governor

• Differed in language, heritage, religion, occupation

• 1791: Upper and Lower Canada

• 1841: United Province of Canada

• 1866: Paris Coutume replaced with Civil Code

British Legal History

• Law has existed since “ time immemorial” is

“common law”

• One act, two wrongs:

• Against the injured party; and

• Against the king’ s peace

• Today: Tort vs. Criminal law

British Legal History, continued• Property Law:

• Initially, ownership = possession

• Later, charters and deeds

• Courts: Collective enforcement through “hundreds”

• Resolution of disputes:

• Collective responsibility

• “Loveday”

• Trial by ordeal

• Trial by compurgation

William the Conqueror and the Normans

• Property Law:

• Feudal land−holding – “ landlords” and “ tenants”

• Crown ultimately held all title

• Land held in “ fee simple” , or “ life estate” .

• Reversion to the Crown

• Real vs. Personal property

Roman Catholic Church

• Ecclesiastical courts enforced “canon law”

• Some canon law has survived into 20th Century

• Concept of personal agency and responsibility

Common Law Courts

• Henry II (1154 − 1189)

• Permanent judges

• Circuit courts

• Civil law, criminal law, habeus corpus

• Three courts:

• Court of Exchequer

• Court of Common Pleas –> limited jurisdiction

• Court of King’ s Bench –> inherent jurisdiction

Common Law Courts

• Still no written laws

• Courts began practice of stare decisis

• System of writs

• order by Chancellor

• Writs were “ forms of action”

• Obsession with form over substance

Equity at the Court of Chancery

• Response to Common Law’ s obsession with form

• Common Law remedy: only damages

• By late 1400’ s, Court of Chancery emerged

• Developed Law of Equity

• Fairness, personal circumstances

• More remedies available

Equitable Remedies

• Specific performance

• Injunction

• Rewrite or rescind contracts

• Subrogation

Joining of Common Law and Equity

Rules of law and equityRules of law and equityRules of law and equityRules of law and equity

96.96.96.96.(1)Courts shall administer concurrently all rules of equity and the common law. R.S.O. 1990, c. C.43, s. 96 (1); 1993, c. 27, Sched.

Rules of equity to prevailRules of equity to prevailRules of equity to prevailRules of equity to prevail

(2)Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails. R.S.O. 1990, c. C.43, s. 96 (2); 1993, c. 27, Sched.

Courts of Justice ActCourts of Justice ActCourts of Justice ActCourts of Justice Act, , , , R.S.O. 1990, C.43.

Political Developments and the Courts

• Parliament composed of regional representatives

• Acted as court of last resort

• 1332: Split into House of Commons and House

of Lords

• Lords retain judicial function today

• Parliamentary Supremacy, Responsible

Government, and Judicial Independence

Adoption of English Law in Canada

• Date of Introduction vs. Date of Reception

• Continued oversight by Judicial Committee of the

Privy Council until 1949

• Confederation through the BNA

(Constitution Act, 1867)

For next class…

Some Divisions of Law

• Pages 73−81