1. HISTORICAL INFLUENCES ON CANADIAN LAW

2. Influences On Canadian Law
Although Canadian law reflects aspects of Mosaic, Greek, Roman, and French law, it is English Common Law that has had the most influence in Canada.
We use an adversarial system of law
Legal battle between two opposing sides to find truth
Different than inquisitorial system
When judge is the fact finder– to find truth

3. Early British Law
When the Romans left Britain (around 410 CE), the law in Britain began to reflect local customs and traditions, which included:
Trial by ordeal
Trial by combat

4. Trial By Ordeal
Used when a lord sitting in judgment was unable to reach a verdict of guilt or innocence based on facts and witnesses
God was the judge, since it was believed that evil could never triumph over good;
Examples:
trial by hot iron – the accused was forced to hold a hot piece of iron; the burn was bound for days, and if the wound healed by the time the bandage was removed, the person was declared innocent;
trial by hot water
trial by cold water – thrown in water; sink = innocent, float = guilty

5. Trial By Combat determined guilt or innocence by duel
it was presumed that God was on the side of the righteous party and the victor was innocent
forerunner of modern day adversarial system
the judicial process whereby two opposing parties match wits in a battle of legal professionals

6. The Feudal System FEUDALISM – a system of decentralized government.
Until 1066, there was no unified system of law – it was based on the customs and rules of independent villages.
In 1066, feudalism became the system of government in Britain after the Battle of Hastings, which was won by William the Conqueror
Tried to slowly standardize law

7. Common Law
King Henry II’s solution to the inconsistencies was to appoint a number of travelling judges, called circuit judges, to visit villages and hold court to resolve local disputes. The courts were called an eyre.
Over time, the laws and punishments became “common law” because they were common to all people;
As a result, the circuit judges began to________________ ______________________, which helped to establish the ___________________________________
__________________ was a way to organize common law – as the number of cases and decisions of judges increased, there was a need _________________________________.

8. Common Law - Precedent
Common law is based on the important principle of ______________________.
A precedent is something that has ___________________________.
In legal terms, it is a legal decision that serves as an _____________ and_____________________ in subsequent cases with similar facts.
As case law developed, it became easier for judges to follow precedent.
This led to the principle known as _________________________, which means “____________________________________” in Latin.
Essentially, the judge of one court would apply the _____________ made by the judge of another court, provided ________________________________.
The process of applying stare decisis developed into the ____________ _________________________________, which is used today.
Under the Rule of Precedent, a judge looks at ________________in earlier cases with _______________________________, and then makes his/her ruling accordingly. If they agree with the earlier precedent set, then it is followed; if not, then they set new precedent by breaking with “tradition”.

9. Appeals
If people were dissatisfied with court decisions, they could APPEAL to the monarch, who had the authority _________ _______________________.
Today, we still have an appeal process of applying to a higher court to have the decision reviewed.
BUT today appeals must be based on the basis of ______________ or ____________, not just because you don’t like the decision.

10. Assignment Use pages 19– 21 of the textbook to complete the following:
Explain the importance of the Magna Carta for the people of Britain.
Define RULE OF LAW and HABEAS CORPUS.
Explain why the Rule of Law is an essential concept of justice in Canada’s legal system.
Explain the importance of statute law as a source of law.

11. Legal Reforms
King Henry’s legal reforms also included setting up a jury system, in which the members of the jury heard the cases, but did not decide on a verdict (this was left up to the judge).
All of King Henry’s legal reforms eventually led to the downfall of the monarchy’s power: since the courts were making the law, then the king was no longer the maker of the law; if the king was no longer the maker of the law, then perhaps he didn’t rule by divine right; if the king did not derive his power from God, then perhaps he was not above the law!!!
Citizens revolted, and in 1215, Henry’s son, King John, was forced to face the reality of limited power and signed the MAGNA CARTA (a charter of political and civil rights)
The signing of the Magna Carta was the first step in establishing individual basic rights for the people of England;

12. Impact of the Magna Carta
The Magna Carta recognized the principle of the RULE OF LAW, which gave everyone equality before the law, and stated that no one was above the law – everyone was subject to the law. From this point on, the law applied to EVERYONE!
Another component of the Magna Carta was the writ (legal order) of HABEAS CORPUS.
a court order designed to prevent unlawful arrest by ensuring that anyone detained is charged before a court within a reasonable amount of time.
Its purpose is to secure the release of people who are unlawfully imprisoned.
This right is so important that it has been entrenched in our Charter of Rights and Freedoms.

13. Other Influences – the French
Napoleonic Code – code of laws introduced by Napoleon; also known as the French Civil Code
Regulated civil matters such as property, wills, contracts, and family law
All laws are codified in statutes
The French Civil Code forms the foundation for law in Quebec – the Quebec Civil Code

14. Other Influences – Aboriginal Law
Recognition of early land claims and treaty rights
The idea of RESTORATIVE JUSTICE – a legal system that requires an offender to “restore” justice by recognizing, accepting, and taking real responsibility for his/her actions
Emphasis on community involvement and rehabilitation