Origins of Canadian Law

Traditions The structure and traditions of Canada’s legal process are based heavily upon the British model. There have been some changes to the process since Confederation but these changes are minimal. Similarities / Structure Coat of Arms: either federal of provincial depending on the court Judges wear grey and black striped pants or skirts, black waistcoats or jackets with heavy cuffs and buttons, and long black silk gowns (robes) that are open at the front Supreme court judges’ robes are red. Robes are worn for various reasons:  they identify an individual as a judge  they are a historical symbol of a system that has endured over time  they also remind the judge that when s/he is robed s/he is sitting as judge and must act in a certain way.

Traditions… A counsel bows both when entering a courtroom, and upon the judge entering the courtroom, as a sign of respect for the judicial office. A judge represents the Queen and the embodiment of sovereignty, and for this reason is accorded such respect. A court bow resembles a dignified nod. Technically it is called a “neck bow” during which the individual makes a slight inclination at the waist and drops his/her eyes.

Legal Basis British law evolved from older tribal rituals infused with Roman laws Trial by ordeal The accused was subjected to a test to determine innocence or guilt  Hold a hot iron  Dunking  Placing hands in hot oil / water Trial by Oath Helping Accused had to have someone swear before a group that the accused was innocent. Used for less serious cases  In Medieval Europe this was serious as belief in Christianity  Was not taken lightly Trial by Combat Used in Medieval times to settle disputes between individuals God protected the innocent and smote the guilty. This is the origin of our legal system – the adversarial system (judges watch two individuals “fight a case” and they decide) In places like France and Germany, the judges are allowed to interrogate witnesses.

The modern legal system developed from the manorial courts held by nobles. The duke / lord would often set up “court” to settle disputes among his serfs. Over time the monarchy took this role over and began to assign his representatives to travel through a region to hear cases. These were called circuit judges and these courts were called Assizes. Although by the 12 th century the law was being handled by “professionals”, there was little consistency.

Which Rules to Follow Judges resolved this by gradually writing down what decisions they had made in the cases presented to them. This became a “reference” guide for other judges so that they could act the same way. This is the basis of our legal system today  Case Law / Common Law  Is important that judges act with forethought because anything that decide can then be used in other cases.  The process is called Stare Decisis or “to stand by the decision”  Establishes Rule of Precedent

Noblemen and subsequently the circuit judges relied on a panel of peers to sit and help. The number was set at twelve and became the jury In 1215, the nobles of England rebelled and forced the king to sign a document placing checks on his power One of the things the Magna Carta (Great Charter) did was force the monarchy to establish Habeas Corpus Meant that the judge had the right to see a prisoner as soon as possible to determine if there was a case against the accused. The Crown (prosecutor) had to outline to the judge why they believe the person they have is guilty of a crime.

Aboriginal Law Before 1450 CE, most laws within the native community were transmitted through oral tradition. In 1450 CE, five aboriginal nations agreed to codify their laws and form a political alliance. Was called the Iroquois Confederacy Mohawk, Seneca, Onondaga, Oneida, Cayuga In 1720 the Tuscarora joined and it was renamed 6 Nations The set of laws were referred to as the Great Binding Laws and covered diplomacy, family rights and property rights