By: Jade Qiu

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HISTORY OF CANADIAN LAW

INTRODUCTION

• While Canada is a relatively young country, our true legal history can be traced millennia back

• Our legal system and laws are influenced by and based upon the principles of numerous ones that came before us

• This presentation will cover the historical laws and legal systems that laid out the basis of contemporary law in Canada

ANCIENT LAWS

• The most primitive examples of a system of guidelines use to govern a society

• Many deal with matters such as marriage, trade, slavery, and various punishments for crimes

• While the physical documents themselves were not discovered and translated well into the AD, many of the concepts present in these survived one civilization to another via trade and cultural exchange, and some of these even came to influence society as we know it today

RELIGIOUS LAWS

• These laws are amongst the most ancient of legal codes, as nearly all civilizations, first and foremost, have been religious and venerated some form of deity

• Religion played an integral part in maintaining and managing stable societies, as these laws are believed to be the Word of God and must be obeyed.

• Canada is founded upon largely Judeo-Christian principles and practices, and still is to this day. Therefore, many of the morals laid out in Judeo-Christian texts still permeate our laws and society

CODE OF HAMMURABI (~1772 BC)

• Ancient Babylonian law code, issued by King Hammurabi

• One of the oldest deciphered documents of considerable length

• A primitive example of a constitution

Figures on the top of the Hammurabi stele

CONTENTS• 282 laws that covers subjects of religion,

military service, trade, slavery, the duties of workers, code of conduct and laws

• Deals both private and public matters in humane ways, and includes almost everything that is present in ancient Babylonian society

• One of the earliest examples of the presumption of innocence

• Most famous for the concept of lex talionis (retributive justice; “If a man put out the eye of another man, his eye shall be put out”)

The code written on a clay tablet

INFLUENCE

• Survived to influence various other (Syro-Roman and Mahommedan) laws in Mesopotamia, and eventually the West. European nations adapted many aspect of the code, including Britain, whom Canadian law is influenced by.

• Ideas present in the code, such as crime & punishment (albeit not as severe) and authority of state are concepts found in Canadian law today

The code on diorite stele

THE TEN COMMANDMENTS (~14TH-12TH CENTURY BC)

• A set of biblical principles in regards to ethics and worship

• Revealed to Moses on two stone tablets by God on Mount Sinai

• Is of great importance to Judeo-Christianity

Depiction of Moses with the Ten Commandments

CONTENTS

1. You shall have no other gods before Me.

2. You shall not make idols.

3. You shall not take the name of the LORD your God in vain.

4. Remember the Sabbath day, to keep it holy.

5. Honor your father and your mother.

The Commandments are split into 10 laws:

6. You shall not murder.

7. You shall not commit adultery.

8. You shall not steal.

9. You shall not bear false witness against your neighbor.

10. You shall not covet.

INFLUENCE

• Canadian law has a strong base in Judeo-Christian principles, and the Ten Commandments play fundamental roles in Judeo-Christianity.

• While we are now a secular nation and the rules regarding worship do not stand necessarily, there are still restrictions on shopping hours on Sunday (the Christian Sabbath day)

• Much of our society and law are based on the principles laid out by the Commandments regarding ethics (obvious ones being ‘thou shalt not kill’ and ‘thou shalt not steal’, versions of which are found in our Criminal Code)

The Ten Commandments on parchment

ROMAN LAW

• At that point in time, Ancient Rome had one of the most comprehensive laws and legal systems

• Roman law served as a basis for legal practice in Western Europe, and much of the Latin terminology is still in use today.

• English and North American common law were also influenced heavily by Roman law

THE TWELVE TABLES (449 BC)

• Ancient Roman legislation

• The foundation of Roman Law

• Created so the Plebian class would not revolt against the elite Patricians

• Deals with matters concerning court, judgment, and various other aspects of Roman society, as well as introducing some of the most basic elements of modern law:

No one holds power over anyone else before the law

The accused is innocent until proven guilty.

The accused has a right to defend himself and to know his accuser.

INFLUENCE

• Western law derives from Roman law, and the Twelve Tables in particular was a fundamental piece of legislature. English common law was also influenced by Roman law, both by its concepts and, most notably, its legal terminology.

• North American legal systems, Canada specifically, are directly based on the English common law, which in turn is based on Roman law

Display of the Twelve Tables

CORPUS JURIS CIVILIS (529-534 AD)

• Trans. “Body of Civil Law”

• A comprehensive collection of fundamental laws

• Issued by Justinian I in an attempt to systematize Roman law

Mosaic depiction of Justinian I

CONTENTS

The Juris Civilis contains four parts:

1. Instituiones: An introduction of the whole field of Roman Law

2. Digesta: The most important part, containing of laws intended for practionioners and judges

3. Codex: Compilation of imperial legislation since Hadrian’s rule

4. Novaellae: A collection of later imperial legislation that were never officially collected

INFLUENCE

• Like the Twelve Tables, Juris Civilis was a fundamental piece in Roman law with great influence in Europe, and by extension Canada

• Bracton’s treatises “On the Laws and Customs of England”, a significant treatises in regards to common law, was heavily influenced by the concepts in Juris Civilis

• Played huge part in creating the Napoleonic Code, which the Quebec jurisdiction is based upon

Copy of the Juris Civilus

ENGLISH LAW

• As a former colony of Britain, English law has a direct influence on our legal system

• Many Canadian laws are modeled after and based upon previously existing English ones

The Royal Courts of Justice on the Strand in London

COMMON LAW (SINCE 1189 AD)

• Legal concepts and institutions developed from Norman law due to the Norman conquest of England

• Relies on judicial precedents (stare decisis) instead of statutes

• Precedent: A method in which the court bases its decision on rulings on the rulings of similar cases in the past.

Red indicates countries that practice common law

INFLUENCE

• Due to the historical connection to England, English common law was spread to Canada during colonization, and was used in New Brunswick, Newfoundland, PEI and Nova Scotia before Confederation

• Common law is in use today in Canadian courts in all provinces and territories, excluding Quebec Yellow indicates regions that practice common law

Red indicates regions that practice civil law

MAGNA CARTA (1215 AD)

• Trans. “The Great Charter”

• Forced onto John of England by his subjects, the barons, in an attempt to limit his powers as King following the feudal system

• Considered one of the most influential and famous documents in English legal history

CONTENTS• Contains 63 clauses, many of

which concerning England’s legal systems

• Guarantees right of due process

• Demands that everyone obey the ‘rule of law’: all people and institutions are subject to the law, and no one may be above it, not even the King

• Makes reference to habeas corpus, a writ that requires a person under arrest to be brought before a judge or into court

Depiction of John of England signing the Magna Carta

INFLUENCE

• The signing of the Magna Carta was a part of a process that led to the rule of constitutional law

• The Charter impacted generally on the states that evolved from the British Empire, and was used as a model by many colonies, including Canada, when developing their own legal systems

• The ‘rule of law’ became a foundation of English law, and by extension, Canadian law as well Page one of the Magna Carta

THE FIRST STATUTE OF WESTMINSTER (1275 AD)

• Contains 51 clauses, and covers the whole ground of legislation

• Includes the Freedom of Election Act 1275, which states that free elections are not to be disturbed, and no one is forced to vote

• Also states people should be treated fairly and equally, regardless of social status

INFLUENCE

• Like many other aforementioned English laws and legal systems, ideas from the Statute of Westminster were brought over to Canada and influenced the creation of our own legal system

• While acts such as the Freedom of Election Act are not in force in Canada (it is force in the UK), the influence can be still seen; in Canada voting is not made mandatory, and everyone is treated equally under the law

PETITION OF RIGHT (1628)

• A major English constitutional document, regarded as one of the most influential in the nation

• Sets out specific liberties of the people that the King is forbidden from infringing upon, and restrictions such as:

Forced billeting of soldiers

Non-Parliamentary taxation

Unfair imprisonment

Restrictions on the use of martial law

INFLUENCE• Despite debates on its legality, in England

it stands as one of the most famous pieces of constitutional documents, on the same level as the Magna Carta

• It remains in effect in the UK, and due to Imperial legislature, it has heavily influenced the laws of Commonwealth nations, thereby Canada

• Arguably is described as the founding of Britain’s modern constitutional monarchy, which of course is the same constitutional monarchy in Canada

The Petition of Right

HABEAS CORPUS ACT (1679 AD)• A law passed by British Parliament to define and strengthen the writ of habeas corpus

• Habeas corpus: trans. ‘may you have the body’, an ancient legal action that allows a person to challenge their detention before a court, and ensuring their right to be released from unlawful detention, provided that they have the evidence of such

• Although several other Habeas Corpus Acts since have been passed, this remains as one the most influential statutes in English constitutional history

INFLUENCE• The Act is still in effect in the UK, and following Britain, habeas corpus rights are a part of

the legal tradition that Canada inherited

BILL OF RIGHTS (1689)

• A restatement of the Declaration of Rights presented by the British Parliament to the sovereigns of England

• Laid down the limits and requirements of the Crown

• Set forth the rights and certain freedoms of Parliament

• The Bill reflected the ideas of British thinker John Locke

Depiction of William and Mary, sovereigns of England

INFLUENCE

• It served as the predecessor to many bill of rights amongst the Western world, including the Canadian Charter of Rights and Freedoms

• It gave the Parliament more power, and had a huge impact leading to the establishment of constitutional monarchy, which is still in effect in Canada

A page from the Bill of Rights

CANADIAN LAW

These past and present laws regarding Canada contribute directly to shaping our

legal system and society as it is today

QUEBEC ACT (1774)• Issued by British government

• Deals with the governance of Quebec

• Granted religious freedom for the French Roman Catholic majority of Quebec

• Restored French civil law and British criminal law in Quebec

INFLUENCE

• It was the first of many laws regarding Quebec and recognizing its unique status within Canada

THE CONSTITUTION ACT/ BRITISH NORTH AMERICA ACT (1867)• A major part of the Canadian constitution

• Created Canada as a federal dominion, granted right to self government

• Defined the operations of the Government of Canada, including:

Federal structure

House of Commons and The Senate

The justice system and the taxation system

INFLUENCE• It was the precursor to the Constitution Act of

1982 and the Canadian Charter of Rights and Freedoms, which is in force today Front page of a copy of the Act

• Codifies most criminal offenses and procedures in Canada

• Establishes the right for Parliament to interpret and apply criminal laws in Canada

CRIMINAL CODE OF CANADA (1892)

INFLUENCE• The Criminal Code is still in effect in Canada,

although amendments have been made to it

The Criminal Code

STATUTE OF WESTMINSTER (1931)• An act passed by the British

Parliament

• Established legislative equality for the self governing dominions of the British Empire (e.g. Canada)

• Granted Canada legislative independence from Britain

INFLUENCE

• Established the relationships between members of the British Commonwealth and the Crown

Mackenzie King with the premiers of Ontario and Quebec

CANADIAN BILL OF RIGHTS (1960)• Issued by PM Diefenbaker

• Provided Canadians with quasi-constitutional rights

• The earliest declaration of human rights in Canada on a federal level

INFLUENCE

• Gave way to the Canadian Charter of Rights and Freedoms

• Still in effect, although widely recognized as relatively ineffective due to the creation of the Charter

OFFICIAL LANGUAGES ACT (1969)• Legislation in Canada that defines English

and French as the two official languages in Canada, thereby having equal status

• A piece of legislative keystone that contributed to Canada’s official bilingual status

• Recognized Francophones (and in relation, Quebec) as a unique, yet equal entity

• Succeeded by other language acts in Quebec such as the Bill 101, which made French the official language in Quebec

INFLUENCE

CONSTITUTION ACT (1982)• Introduced in 1982 as part of the process of patriating the Canadian constitution

• Made several amendments to the BNA, 1867

CANADIAN CHARTER OF RIGHTS AND FREEDOMS (1982)

• A bill of rights that ensures fundamental rights for all people living in Canada

• Spans the first 35 sections of the Constitution Act, 1982

CONTENTS

• The Charter is split into sections dealing with various issues, such as:

Fundamental Freedoms

Democratic Rights

Mobility Rights

Legal Rights

Equality Rights

Official Languages of Canada

Minority Language Education Rights

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