CLU 3 M Development of Canadian Law Unit

CLU 3 M: Development of Canadian Law Unit 1 History of the Law. PP#3

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 Parliamentary law is still in process of being written down

You be the Judge! “It is better that ten guilty persons escape than one innocent suffer. ” Sir William Blackstone, Commentaries on the Laws of England, 1756 1. How does William Blackstone’s notion of justice compare to our notion of justice today? Explain your opinion

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

Feudal System Church Grants land to nobles in return for loyalty and King military service Provide land in return for Nobility loyalty, protection and military service Knights Food, ‘stuff’ & Tax Are provided with land in return for protection and military service Landless – are provided with protection and a place to live in return for labour, Serfs – Peasants loyalty and military service if needed

Law within the Feudal System Common Law • Lords (Nobles land) • Lord ran estate as he saw fit Manor / Estate 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 13 th century some judges were appointed to travel throughout England (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 • This common-law system was introduced to North America by 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

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 • Elements of a Criminal Citation R. v. Bates (2000), 35 C. R. (5 th) 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 Civil Citation Langille et al. v. Mc. Grath (2000) 233 N. B. R. (2 nd) 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)

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 – all have the right to appear before a court within a reasonable time – released or tried by own peers

Magna Carta 1215 CE Examples: • 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. 2. What is feudalism and how did it work? Why were the king’s courts or assizes preferred to the manor courts of the feudal lords? How is the rule of precedent used in today’s system of law? How is a citation useful in law? What is common law? Explain the significance of statute law as a source of law 3. 4. 5. 6.