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Chapter 2

Chapter 2. Primary and Secondary Sources of Canadian Law. 1. Primary Sources of Canadian Law. Those parts of the legal system that have the longest historical development and represent the system’s cumulative values. . Religion & Morality. Religion.

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Chapter 2

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  1. Chapter 2 Primary and Secondary Sources of Canadian Law

  2. 1. Primary Sources of Canadian Law Those parts of the legal system that have the longest historical development and represent the system’s cumulative values.

  3. Religion & Morality

  4. Religion • Religion is the adherence to codified beliefs and rituals that generally involve a faith in a higher power (God). • A moral code of a religion is (usually) prescribed by a higher power. • Also referred to as a faith or belief system.

  5. Canada has a Judeo-Christian heritage. • Colonists (early settlers) of Canada were mostly Christian. • What is Judeo-Christian?

  6. Judaism Moses Abraham Ten Commandments / Torah (Part of old testament) Christianity Jesus 0 Abraham Moses Bible Islam Jesus 0 Moses -1525 Abraham -2100 570 Mohammad Qur’an Hammurabi of Sumer 1728

  7. Monotheistic (one): Judaism, Christianity, Islam • Polytheistic (many) ex. Hinduism • Atheist (none) ex. Buddhism, Atheism • Agnostic (…?...)

  8. The Ten Commandments • Believed to be revealed to Moses atop Mount Sinai. • Accepted by Jews, Christians and Muslims.

  9. Division of the Ten Commandments by religion/denomination

  10. The Lord’s Day Act 1906: The Lord’s Day Alliance a lobby group! The Lord’s Day Alliance pressured Wilfred Laurier’s Government to pass The Lord’s Day Act (1906). The L.D.A. prohibited business transactions (and more) on Sundays. R v. Robertson and Rosetanni 1962 -failed (Bill of Rights-1960) R v. Big M Drug Mart 1982 - Successful (Canadian Charter of Rights and Freedoms-1982) Examples of the direct influence of religion on Canadian law.

  11. (Continued) Some influences of religion on Canadian law • The pre-amble of the Canadian Charter of Rights and Freedoms: “…and recognizes the supremacy of God…” • Murder • Theft • Perjury • Nudity • Gambling • Prostitution

  12. Morality • Morality refers to the concept of human ethics which pertains to matters of good and evil —also referred to as "right or wrong“. • Personal morality defines and distinguishes among right and wrong intentions, motivations or actions, as these have been learned or developed within each individual. Link to morality

  13. Influence of Morality on Canadian Law • Discussion: Since Canada is a secular country and laws are not currently based on religion, could we suggest that the following were originally regulated by the influence of religion, but then reassessed based on human morality? • Murder, theft, perjury, full nudity, abortion, adultery, homosexuality, euthanasia, man-boy relations, incest, polygamy, other...

  14. All approximate “BCE” Before the Common Era “CE” Common Era Year 0 Canada becomes a country 1750 BCE 1867 CE 0 1525BCE 400-300 BCE 2011 CE 570 CE Jesuswas Born Romans Greeks Hammurabi Today Muhammad Moses Future Past

  15. Historical Influences King Hammurabi/ Ancient Civilizations Greek Roman British French Aboriginal

  16. Our laws reflect British and French laws; which were influenced by Greek and Roman laws; which were influenced by Ancient Kingdoms of Mesopotamia (Iraq). • ex. the concept of private property

  17. King Hammurabi (app. 2000 BCE) • Hammurabi is known for the set of laws called Hammurabi's Code, one of the first written codes of law in recorded history. These laws were written on a stone tablet standing over six feet tall that was found in 1901. Owing to his reputation in modern times as an ancient law-giver, Hammurabi's portrait is in many government buildings throughout the world. Babylon was a city-state of ancient Mesopotamia, sometimes considered an empire, the remains of which can be found in present-day Al Hillah, Babil Province, Iraq, about 85 kilometers (55 mi) south of Baghdad.

  18. Greek Influences (app 400 BCE)

  19. Greek soldiers on the battlefield

  20. The Greeks are considered to be the first Europeans to practice democratic ideals in political and legal systems. • Practiced a Limited democracy: • citizenship was limited to native born males over age 18. • Women, slaves and foreigners excluded. Voting was not just a right, but a serious civic duty.

  21. People accused of crimes were tried by a jury composed of their fellow citizens; • To avoid bribery, juries were very large. Socrates was tried by a Jury of 501. Trial by jury is entrenched in the (CCRF): s.11 guarantees the right to trial by jury. (In Canada juries are always regular citizens) • The jury being composed by fellow citizens is an example of citizen participation; Citizen Participation is entrenched in CCRF: s.3 guarantees the right to vote and run for office.

  22. There were no judges or lawyers. • The defendant was his own lawyer and the jury was the judge. • A verdict would be decided by secret ballot. • If found guilty, the defendant would propose one punishment, and the jury another. • Another vote would be held to decide on which punishment would be conferred!

  23. In summary, 2 principles adopted from the Greeks: • Trial by Jury • Citizen participation

  24. Roman Influences(app 400 BCE)

  25. Code • Code:A systematic collection of laws, written down and organized into topics. • Codified • Codification

  26. In 449 BCE, a Roman Legal Commission drew up a code of traditional Roman laws on 12 tablets and displayed them in the city center for all to see. • Referred to as The Law of The Twelve Tablets • Organized into topics and covered almost every aspect of life including marriage, court cases, property rights.

  27. After some time, the laws became very complex and convoluted. • The Romans began training specialists in the law. • What we call…Lawyers!

  28. In 529 CE, Emperor Justinian ordered all laws collected and organized into an organized code. • The Code of Justinian • Published and distributed throughout the Roman Empire.

  29. In summary, From the Romans, Britain adopted: • The principle of Presumption of Innocence • Lawyers • Code

  30. Aboriginal Influences

  31. Aboriginal Influences • Aboriginals had their own legal systems before contact with Europeans. • Different tribes formed a union (1150 CE) with a constitution called “Gayanashagowa” • Allowed every man and woman to vote. • Seneca · Cayuga · Onondaga · Oneida · Mohawk · Tuscarora Iroquois for ‘Great Binding Law’

  32. Framers of the US constitution and the Charter of United Nations referred to the Great Binding Law.

  33. In Canada today, under terms of the Indian Act (1876), most aboriginal peoples have the authority to make and enforce their own municipal by-laws on reserves. • Reserves within provinces do not ‘deal’ with provincial governments, they deal directly with the federal government.

  34. In the legislature of Nunavut, our newest territory, Consensus is the preferred method of decision making. (coming to a general agreement, after lengthy discussion) As opposed to Majority wins in a simple vote.

  35. British Influences

  36. Britain had the greatest influence on Canadian law. • Before becoming an independent country, Canada was a British Colony. • Immigrants from Britain brought British law with them. • Britain laid an egg and that egg was Canada. Pg.42 Dimensions

  37. Inconsistent systems of adjudication. • Trial by ordeal/Trial by combat • 11th century- William the Conqueror gave judicial authority to barons (landholders). • 12th century- King Henry II established assizes (traveling courts) and jury system. • common law system (precedents). • His son, King John signed the Magna Carta in 1215 (Rule of Law & innocent until proven guilty)

  38. French Influences

  39. http://www.collectionscanada.gc.ca/firstworldwar/025005-2700.011-e.htmlhttp://www.collectionscanada.gc.ca/firstworldwar/025005-2700.011-e.html

  40. Quebec was settled mainly by immigrants from France. • In 1773 Quebec became part of the British empire and with the passing of the Quebec Act, Quebec: • Quebec retained the civil code from France (Le Code civil Napoleonic Code) • But must adhere to British (common law system) Criminal Code and British style government.

  41. Civil Code is not bound by precedent. For each case, the code (statute) is applied. • Its as though every case is new and we will look directly at the statutes rather than at precedents.

  42. The Influence of Customs and Conventions

  43. Customs and Conventions • A custom is a long standing way of doing something. • A convention is a political custom. A convention can attain the force of law. • See Case: “Patriation of the Constitution” The role of Prime Minister is a convention Governor General being a Canadian Citizen is a Convention

  44. “Patriation of the Constitution” • Pierre Trudeau attempted to unilaterally patriate the constitution, then add the CCRF and an amending formula 8 provinces upset, 3 challenged Fed Gov in court. • 3 questions: • Will all this affect our provincial powers?YES it sure will! • Is this legal and constitutional?YES but… • Does the PM require our consent?YES …by convention • PM and Premiers returned to the negotiations table • finally 9/10 provinces signed and agreed. (Not Quebec)

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