Historical Influences on Canadian Law
Aboriginal Influences First settlers arrived presuming land was uninhabited When discovered natives, assumed were a group lacking intellect, yet had religious, social institutions and legal systems All based on “oral tradition” foreign to Euro settlers Great Binding Law Six Nations together created oral constitution Covered legalities such as: Treason, emigration, Principles of justice and fairness(similar to our modern civil rights documents) Land equity and democratic rule U.S founding fathers borrowed concepts from the Great Law of Peace Today we utilize their concept of restorative justice in our legal system
Inquisitorial System Presiding judge is not a passive recipient of information responsible for supervising the gathering and search of evidence necessary to resolve the case. questions the witnesses, including the respondent or defendant. Attorneys play a more passive role suggest routes of inquiry for the presiding judge follow the judge's questioning with questioning of their own. Attorney questioning is often brief because the judge tries to ask all relevant questions
Adversarial System system of law, generally adopted in common law countries, relies on the skill of each advocate representing his or her party’s positions involves a neutral judge or jury, trying to determine the truth of the case. works on the theory that the two opponents in a case, or their lawyers, will work harder than anyone else to produce evidence favorable to his/her side and no one else has as strong a motive
Adversarial System cont’d Prides itself on the belief that it is better to let one hundred guilty persons free than to convict one innocent individual. Apply concept of the Golden Thread The presumption of innocence Proof beyond a reasonable doubt Right to remain silent.
Adversarial vs. Inquisitorial System
Methods of Adjudication in the Middle Ages Guilt or innocence decided by divine intervention God would be the judge Rulers came up with creative ways to allow God to reveal his judgements
Trial by Ordeal Guilt or innocence determined by subjecting the accused to a painful, unpleasant, usually dangerous experience. The test was one of life or death and the proof of innocence was survival. God would intervene if innocent
Ordeal by Fire Accused walked barefoot across a distance of hot burning coals of about nine feet or hold a piece of hot iron Innocence was established if there was no injury; Or wound would be bandage and examined by a priest a few days later
Ordeal by Water Witch hunts – women submerged in water (sank innocent / floated guilty) Accused would dip hand into boiling water to retrieve a stone Depth would be up to the elbow Takes place in church under the gaze of god Hand would be bandaged and examined for blistering a few days later
https://www.youtube.com/watch?v=ZTzh1oT0b_8
Trial by Combat Accused challenged accuser to a duel Assumed God would intervene on the part of the innocent-winner presumed innocent or right Presumed to be the precursor to our own adversarial system(exchanged physical battles with battle of wits) Ordeal and combat declined as society moved away from staunch religious/spiritual beliefs http://www.youtube.com/watch?v=i6zGEBhJMHA
Trial by Oath
Adversarial vs. Inquisitorial System Group Activity Assume your group has been assigned the task of creating a new system that uses the best of both systems. What aspects of each system would you apply to your new system of justice? What methods of adjudication would your system use? What kinds of punishment would your system employ? What would you call this new system?