1. Historical Influences on Canadian Law

2. 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

3. 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

4. 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

5. 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.

6. Adversarial vs. Inquisitorial System

7. 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

8. 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

9. 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

10. 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

12. 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

13. Trial by Oath

14. 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?