Introduction To Canadian Law

Introduction to Canadian LawChapter 1What is Law?

Law is a series of rules- rules that govern therelationships between individuals, rulesthat govern the state (country), and rulesthat govern the relationships of businessesand other associations that exist insociety.

Law is constantly changing As societies and cultureschange, their values andmorals change.“Law should be lookedupon as a runningstream, carrying society’shopes, and reflecting allits values.” Chief JusticeBora Laskin

As Law Students You will learn that thestudy of law iscomplex.Students must learnnot only about thelaw, but also aboutthe society that bindsall people together.

ANTI-SOCIAL ACTS When you break the rules of society, suchas by taking someone’s property,swindling someone in business ,obstructing a snowplow on city streets inwinter , speeding, then variouspunishments are prescribed.These rules, applied in our society, formthe law.

HOW DOES THE LAW AFFECTYOU? As an individual, you are free to do as youwant – except for those things which thelaw prohibits.Some people readily accept the ruleswhile others have more difficulty.It is for this reason that enforcement ofrules is often necessary.

Laws are different in eachcountry Every country has itsown laws.However, in somecountries, majordisputes may besettled by militarymight.Canadians aregoverned by the “ruleof law”.

What is the Rule of Law? This means that everydispute will be settled bya peaceful means,namely by “due process”in the courts, beforeappointed judges.A principle of Justicestating that the law isnecessary to regulatesociety, that it applies toeveryone equally and thatpeople are not governedby arbitrary power.

LAWS FROM THE PAST The ancient laws of other cultures haveinfluenced the development of CanadianLaw.In early societies, local customs andbeliefs were the law.Eventually, these laws had to be codified,or written down.

Code of Hammurabi This is one of the earliest knowncollections of codified laws.Hammurabi was the King ofBabylon around 1700 B.C.He had about 300 laws codifiedand inscribed on stone pillarsBasic premise, “an eye for an eye,a tooth for a tooth”Retribution – justice based onvengeance and punishment.Restitution – payment made bythe offender to the victim of acrime.

Other Ancient Laws Another ancient law isthe Mosaic Lawwhich came aboutaround 1400 B.C.These laws were theTen Commandmentsintroduced to thetribes of Israel byMoses.

And then there were theRomans The earliest Romancode of law, the Lawof Twelve Tables,was compiled around450 B.C., andinscribed on a dozenbronze tablets set upin the Forum.This set of lawsremained in use forover 1000 years.

Other Law Codes The Justinian Code was a second set ofRoman laws A.D. 565. The Emperor, Justinianmade the justice system available to everyone insociety- the rich and the poor. “You wereinnocent until proven guilty”.Later in the 18th century, Napoleon revised thelaws of France into the Code Napoleon whichis the basis for today's Quebec laws.

The Trials Trial by ordeal – used only when the sentence for guiltwas the death penalty, it required a person to undergotorture to determine guilt or innocence. Survive innocent, die guilty.Trial by oath helping – friends of the accused wouldswear on the Bible that he or she was innocent. Fromthis came the use of juries to decide cases.Trial by combat – determining guilt or innocence byhaving the parties fight a duel. From this came theadversarial system, the judicial process wherebyevidence is presented by two opposing parties to animpartial judge or jury.

Common Law In 1066, William the Conqueror defeated King Haroldat the battle of Hastings, and was in control of England.His grandson, Henry II, tried to bring consistency andfairness to the law.Judges (called circuit judges) traveled to villages to hearcases and began to record the cases and their decisions.(these traveling courts were called assizes)This helpedto establish a common method of dealing with similarlegal cases, which became known as “common law”,that is, that it was common to everyone. (aka. Caselaw)As these written reports became available, judges wouldfollow the precedent or example in deciding a casebefore them. This practice led to a principle known as“stare decisis” which means to “stand by the decision.”This led to the “rule of precedent”, applying a previousdecision to a case that has similar circumstances.

The Magna Carta The son of Henry II, King John, was forced to sign adocument called the “Magna Carta” in June of 1215.Also called the great charter, it established political andcivil rights for the people of England, based on the ruleof law. No one, not even the king, was above the law.Also from the Magna Carta came Habeas Corpus, fromthe Latin “you must have the body”, a court orderdesigned to prevent unlawful arrest by ensuring thatanyone detained is charged before a court within areasonable amount of time. This was to determine thevalidity of the arrest.The idea was to release people who were unlawfullyplaced in prison.Now a part of the Canadian Charter of Rights andFreedoms.

Laws in Canada Today The English Law is the foundation of theCanadian legal system, with the exception of thelaw of Quebec.So, Canadian law is base on the laws of Franceand England.French law was codified in extensive legal textsand is referred to as “civil code”.English law was not codified until much later inhistory and was known as “common law”

Common Law and Statute law Common law was judged in the courts withjudges trying cases. Common law is frequentlyreferred to as “case law”.It was combined with the Law of Equity, whereeach case must be judged on its merits.Eventually, many of these decisions werecodified and referred to as statute laws.Thus, the 2 main categories of law for all ofCanada, except Quebec, are common law (lawof equity) and statute law.

The English Law is the foundation of the Canadian legal system, with the exception of the law of Quebec. So, Canadian law is base on the laws of France and England. French law was codified in extensive legal texts and is referred to as "civil code". English law was not codified until much later in history and was known as "common law"