Administrative note

My email
andy@kaplan-myrth or
techlaw@uottawa.ca

My office hours location

 Today:

History and Heritage

of the Canadian
Legal System
Aboriginal Legal Heritage
• Oral tradition
• Established practices
• General approach: healing
• Collective responsibility
Treaties and Trade
• “Title” and “Rights”
• Treaties
• Canadian policy of assimilation
Treaties and Trade
example
3. Every Indian or other person who
engages in or assists in celebrating the
Indian festival known as the "Potlach" or
in the Indian dance known as the
"Tamanawas" is guilty of a misdemeanor,
and shall be liable to imprisonment ... and
any Indian or other person who
encourages ... an Indian or Indians to get
up such a festival or dance, or to
celebrate the same, ... is guilty of a like
offence ...”
Influence of Aboriginal Law on
European Law
• Indirectly, by influence on European
Philosophers
• Directly, by influencing Canadian law
and practice
Influence of Aboriginal Law on
European Law

example
718. The fundamental purpose of sentencing is to
contribute, along with crime prevention initiatives, to
respect for the law and the maintenance of a just,
peaceful and safe society by imposing just sanctions
that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from
committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to
the community; and
(f) to promote a sense of responsibility in offenders, and
acknowledgment of the harm done to victims and to the
Influence of Aboriginal Law on
European Law

example
718.2 A court that imposes a sentence
shall also take into consideration the
following principles:

(e) all available sanctions other than

imprisonment that are reasonable in the
circumstances should be considered for all
offenders, with particular attention to the
circumstances of aboriginal offenders.
French Settlement in Canada
• 1663: Stable French settlements
• New France subject to the Paris
Coutume
• Private Law
• Fairness over certainty
• Feudal system of land-holding
French Criminal Procedure in
Canada
• Inquisitorial System:
• Judge also investigates the complaint
• Rule of evidence
• Trial in absentia; Sentence in
absentia
Royal Proclamation, 1763
• 1760: England conquers New France
• Royal Proclamation of 1763 by
George III:
• Created reserved land for Aboriginal
people
• Imposed English law in Quebec
• Barred Roman Catholics from
government
• Unsuccessful
Quebec Act, 1774 to 1866
• French elected assembly
• But real power with English Governor
• Differed in language, heritage,
religion, occupation
• 1791: Upper and Lower Canada
• 1841: United Province of Canada
• 1866: Paris Coutume replaced with
Civil Code
British Legal History
• Law has existed since “time
immemorial” is “common law”
• One act, two wrongs:
• Against the injured party; and
• Against the king’s peace
• Today: Tort vs. Criminal law
British Legal History, continued
• Property Law:
• Initially, ownership = possession
• Later, charters and deeds
• Courts: Collective enforcement through
“hundreds”
• Resolution of disputes:
• Collective responsibility
• “Loveday”
• Trial by ordeal
• Trial by compurgation
William the Conqueror and the
Normans
• Property Law:
• Feudal land-holding – “landlords” and
“tenants”
• Crown ultimately held all title
• Land held in “fee simple”, or “life estate”.
• Reversion to the Crown
• Real vs. Personal property
Roman Catholic Church
• Ecclesiastical courts enforced “canon
law”
• Some canon law has survived into
20th Century
• Concept of personal agency and
responsibility
Common Law Courts
• Henry II (1154 - 1189)
• Permanent judges
• Circuit courts
• Civil law, criminal law, habeus corpus
• Three courts:
• Court of Exchequer
• Court of Common Pleas –> limited
jurisdiction
• Court of King’s Bench –> inherent
jurisdiction
Common Law Courts
• Still no written laws
• Courts began practice of stare decisis
• System of writs
• order by Chancellor
• Writs were “forms of action”
• Obsession with form over substance
Equity at the Court of Chancery
• Response to Common Law’s
obsession with form
• Common Law remedy: only damages
• By late 1400’s, Court of Chancery
emerged
• Developed Law of Equity
• Fairness, personal circumstances
• More remedies available
Equitable Remedies
• Specific performance
• Injunction
• Rewrite or rescind contracts
• Subrogation
Joining of Common Law and
Equity
Rules of law and equity
96.(1)Courts shall administer concurrently
all rules of equity and the common law.
R.S.O. 1990, c. C.43, s. 96 (1); 1993,
c. 27, Sched.
Rules of equity to prevail
(2)Where a rule of equity conflicts with a
rule of the common law, the rule of equity
prevails. R.S.O. 1990, c. C.43, s. 96 (2);
1993, c. 27, Sched.
Courts of Justice Act, R.S.O. 1990, C.43.
Political Developments and the
Courts
• Parliament composed of regional
representatives
• Acted as court of last resort
• 1332: Split into House of Commons
and House of Lords
• Lords retain judicial function today
• Parliamentary Supremacy,
Responsible Government, and Judicial
Independence
Adoption of English Law in
Canada
• Date of Introduction vs. Date of
Reception
• Continued oversight by Judicial
Committee of the Privy Council until
1949
• Confederation through the BNA
(Constitution Act, 1867)
For next class…

Some Divisions of Law

• Pages 73-81