3. Aboriginal Legal Heritage
• Oral tradition
• Established practices
• General approach: healing
• Collective responsibility
4. Treaties and Trade
• “Title” and “Rights”
• Treaties
• Canadian policy of assimilation
5. Treaties and Trade
example
3. Every Indian or other person who engages in or assists in
celebrating the Indian festival known as the quot;Potlachquot; or in
the Indian dance known as the quot;Tamanawasquot; 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 ...”
An Act Further to Amend The Indian Act, 1880 S.C. 1884, c. 27.
6. Influence of Aboriginal Law on
European Law
• Indirectly, by influence on European Philosophers
• Directly, by influencing Canadian law and
practice
7. 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 community.
8. Influence of Aboriginal Law on
European Law
718.2 A court thatexample a sentence shall also take into
imposes
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.
9. 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
10. French Criminal Procedure in
Canada
• Inquisitorial System:
• Judge also investigates the complaint
• Rule of evidence
• Trial in absentia; Sentence in absentia
11. 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: Restored French civil law
12. 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
13. 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
14. 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
15. 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
16. Roman Catholic Church
• Ecclesiastical courts enforced “canon law”
• Some canon law has survived into 20th Century
• Concept of personal agency and responsibility
17. 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
18. 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
19. 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
21. Joining of Common Law and
Equity
Rules of law and equity
96.(1)Courts shall administer concurrently all rules of equity
96.
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.
Act,
Courts of Justice Act, R.S.O. 1990, C.43.
22. 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
23. 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)
