Canadian Legal Heritage

Jurisprudence The term jurisprudence means, literally and traditionally, practical wisdom about law. It is the intellectual capacity to frame and apply laws according to sound theoretical principles.

It is also used to refer to abstract legal philosophy This includes: Legal rules Legal rules Norms Norms Legal systems Legal systems Institutions Institutions

It includes topics of : legal reasoning legal reasoning decision making decision making legal validity legal validity legal rights legal rights legal interpretation legal interpretation

There are 3 major approaches to these topics: 1. Legal Positivism 2. Natural Law 3. Legal Realism.

Legal Positivism Legal positivism focuses solely on recorded or documented problems. It rejects issues of moral or political content of law as part of jurisprudence. It is the written law

Natural Law Theory Law Morality Morality God God

According to Natural Law Jurisprudence According to Natural Law Jurisprudence All written laws must be made to conform with universal principles of: Morality Morality Religion Religion Justice Justice

A law that is not fair and just may not rightly be called "law."

ABORTION ABORTION ABORTION

Legal Realism Legal realism can be exemplified by: critical legal studies critical legal studies feminist legal theory feminist legal theory socialist legal theory socialist legal theory

It concentrates on the empirical realities of: Law Making Law Making Legal Application Legal Application Law Enforcement Law Enforcement

Example: How the law supposedly serves certain races, genders and class interests rather than others.

Province Aboriginal People Percentage of General Population Aboriginal People as Percentage of Prison Population Level of Overrepresentation (col. 3/col. 2) Atlantic Quebec111 Ontario Manitoba Saskatchewan Alberta BC Yukon

Jurisprudence is also used to refer to the general: Legal Legal Moral Moral Political Political Economic Economic Policies and principles embodied in a body of law or a body of legal decisions. legal decisions. Example: PMs Omnibus Crime Bill

Primary Sources of Law Customs and Conventions: Customs and Conventions: These are unwritten rules followed primarily for These are unwritten rules followed primarily for reasons of traditions rather than laws which provide reasons of traditions rather than laws which provide the details of how a government operates. the details of how a government operates. Note: These are not laws but they are part of the legal system

Example: The Prime Minister gets representation from across Canada for his/her cabinet positions

Religion The courts have people swear on the bible. The national anthem “God keep our land” The preamble to the Constitution refers to “the supremacy of god” Question: Should the reference to God be taken out of the national anthem? Official Version 1980

1906 " O Canada! Our fathers' land of old Thy brow is crown'd with leaves of red and gold. Beneath the shade of the Holy Cross Thy children own their birth No stains thy glorious annals gloss Since valour shield thy hearth. Almighty God! On thee we call Defend our rights, forfend this nation's thrall, Defend our rights, forfend this nation's thrall."

1908 " O Canada! in praise of thee we sing; From echoing hills our anthems proudly ring. With fertile plains and mountains grand With lakes and rivers clear, Eternal beauty, thos dost stand Throughout the changing year. Lord God of Hosts! We now implore Bless our dear land this day and evermore, Bless our dear land this day and evermore."

1908 " O Canada, our heritage, our love Thy worth we praise all other lands above. From sea to see throughout their length From Pole to borderland, At Britain's side, whate'er betide Unflinchingly we'll stand With hearts we sing, "God save the King", Guide then one Empire wide, do we implore, And prosper Canada from shore to shore."

1927 O Canada! Our home and native land. True patriot love in all thy sons command. With glowing hearts we see thee rise, The True North strong and free! And stand on guard, O Canada, We stand on guard for thee. O Canada, glorious and free, We stand on guard, we stand on guard for thee. O Canada, we stand on guard for thee!

How about… "O Canada! Our home and native land! True patriot love in all thy hearts command. With glowing hearts we see thee rise, The True North, strong and free! From far and wide, O Canada, With Rights and Liberty. Let’s keep our land glorious and free ! O Canada, we stand on guard for thee. O Canada, we stand on guard for thee."

Social/Political Influences The law and lawmakers take into account the changing beliefs of society. The law evolves along with Canadian culture. The law and lawmakers take into account the changing beliefs of society. The law evolves along with Canadian culture. Landmark Case Landmark Case R. v. Lavallee R. v. Lavallee

1918 Women get the vote 1929 Recognized as persons 1958 Pay Equity Act 1968 Royal Commission on Status of women 1982 Sexual equality included in Charter 1983 Rape replaced by sexual assault 1985 Indian Act repealed to restore the status of Aboriginal women who married non-Aboriginal men 1986 Family Law Act gives women more rights to property and support after divorce 1988 Supreme Court strikes down abortion law 1990 Lavallee case establishes battered woman syndrome defense 1993 Anti-stalking law added to Criminal Code Significant Changes in the Law for Women 1994 Supreme Court (Daviault) rules that extreme drunkenness can be used as a defence in sexual assault casesdrunkenness 2005 Man acquitted of sexual assault with sexomnia defence 1978 Leary Rule – Self-Induced intoxication is not a defence

R. v. Leary, [1978] 1 S.C.R. 29 (Leary Rule) A person may still be held liable as the act of inducing intoxication (self-intoxication) can be substituted for the requirement of mens rea.. A person may still be held liable as the act of inducing intoxication (self-intoxication) can be substituted for the requirement of mens rea..

The Leary rule was challenged in 1994 in the case of R. v. Daviault where an exception to the rule was made for an accused who was so intoxicated he was in a state akin to automatism.

Example: one may speak of the jurisprudence of Canadian tort law, meaning the underlying principles on which Canadian tort law is based. The Vastness of Jurisprudence

Example 2: One may speak of the jurisprudence of the Supreme Court concerning freedom of expression, meaning the principles which underlie the series of the Court's decisions concerning freedom of expression. One may speak of the jurisprudence of the Supreme Court concerning freedom of expression, meaning the principles which underlie the series of the Court's decisions concerning freedom of expression.

Jurisprudence ideally is an interdisciplinary subject, needing the skills of both a lawyer and a philosopher.