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Questions and Answers
What principle did the adversarial system of justice emphasize in determining guilt or innocence?
What principle did the adversarial system of justice emphasize in determining guilt or innocence?
What was a significant outcome of legal reforms following the Magna Carta?
What was a significant outcome of legal reforms following the Magna Carta?
Which of the following best describes trial by combat?
Which of the following best describes trial by combat?
What does the writ of habeas corpus require?
What does the writ of habeas corpus require?
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What was commonly used in early British law for cases where a death penalty might be imposed?
What was commonly used in early British law for cases where a death penalty might be imposed?
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What was King Henry II's contribution to the development of common law?
What was King Henry II's contribution to the development of common law?
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Which of the following statements accurately describes Aboriginal laws?
Which of the following statements accurately describes Aboriginal laws?
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Which document is known as the Great Charter and played a crucial role in establishing the rule of law?
Which document is known as the Great Charter and played a crucial role in establishing the rule of law?
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Which level of government is responsible for enacting laws regarding marriage and divorce?
Which level of government is responsible for enacting laws regarding marriage and divorce?
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What is the primary purpose of the Canadian Constitution?
What is the primary purpose of the Canadian Constitution?
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Which of the following statements is true regarding provincial government powers?
Which of the following statements is true regarding provincial government powers?
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What is a bylaw?
What is a bylaw?
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What document established the Constitutional framework for Canada?
What document established the Constitutional framework for Canada?
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Under what condition can a law be declared unconstitutional by the courts?
Under what condition can a law be declared unconstitutional by the courts?
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Which of the following is a power held by Indigenous governments under self-governance agreements?
Which of the following is a power held by Indigenous governments under self-governance agreements?
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Which statement best describes the authority of municipal governments?
Which statement best describes the authority of municipal governments?
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What is the highest level of law in Canada according to the sources of law?
What is the highest level of law in Canada according to the sources of law?
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What was the primary role of the Constitution of the Iroquois Confederacy?
What was the primary role of the Constitution of the Iroquois Confederacy?
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What does the principle of stare decisis in Canadian common law refer to?
What does the principle of stare decisis in Canadian common law refer to?
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Which of the following Indigenous nations joined the Iroquois Confederacy in 1720?
Which of the following Indigenous nations joined the Iroquois Confederacy in 1720?
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What process allows a judge to establish a new precedent in Canadian law?
What process allows a judge to establish a new precedent in Canadian law?
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Which of the following represents a characteristic of common law?
Which of the following represents a characteristic of common law?
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What type of laws do local governments primarily create?
What type of laws do local governments primarily create?
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What is a significant feature of the oral tradition among Indigenous groups?
What is a significant feature of the oral tradition among Indigenous groups?
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What was the primary concern of Canadians during the US Civil War regarding future relations with the United States?
What was the primary concern of Canadians during the US Civil War regarding future relations with the United States?
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What significant event occurred in Canada on July 1st, 1867?
What significant event occurred in Canada on July 1st, 1867?
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Which of the following statements about the British North America Act (BNA Act) is true?
Which of the following statements about the British North America Act (BNA Act) is true?
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What was one of the main criticisms of the American system that influenced the framers of Canada's Constitution?
What was one of the main criticisms of the American system that influenced the framers of Canada's Constitution?
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What was the purpose of the meetings held by 36 men in 1864 in PEI and Quebec?
What was the purpose of the meetings held by 36 men in 1864 in PEI and Quebec?
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Which term best describes the governance model preferred by the framers of Canada’s Constitution due to the diversity and size of the country?
Which term best describes the governance model preferred by the framers of Canada’s Constitution due to the diversity and size of the country?
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Which leader was NOT mentioned as a supporter of the idea for a more independent Canada?
Which leader was NOT mentioned as a supporter of the idea for a more independent Canada?
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What central feature of Canada’s governance system was influenced by the British Parliament's structure?
What central feature of Canada’s governance system was influenced by the British Parliament's structure?
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What does the BNA Act state regarding areas not assigned to provincial jurisdiction?
What does the BNA Act state regarding areas not assigned to provincial jurisdiction?
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What are the terms used for laws enacted either within or beyond the legal authority of a government?
What are the terms used for laws enacted either within or beyond the legal authority of a government?
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What significant power did the federal government derive from the BNA Act in matters that affect peace, order, and good government?
What significant power did the federal government derive from the BNA Act in matters that affect peace, order, and good government?
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What did the Statute of Westminster achieve for Canada?
What did the Statute of Westminster achieve for Canada?
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What issue did the BNA Act present regarding constitutional amendments?
What issue did the BNA Act present regarding constitutional amendments?
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Which act was passed in 1931 that modified the British North America Act?
Which act was passed in 1931 that modified the British North America Act?
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Which of the following is a problem with the BNA Act?
Which of the following is a problem with the BNA Act?
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What does the term 'civil liberties' refer to in the context of the BNA Act?
What does the term 'civil liberties' refer to in the context of the BNA Act?
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Study Notes
Early British Law
- Trial by ordeal was a common legal practice in medieval England, where torture was used to determine guilt or innocence.
- The practice of "Trial by Oath Helping" involved friends of the accused swearing on the bible to verify their innocence.
- Trial by Combat was another practice prevalent in the medieval times, where parties would engage in a duel to determine the outcome.
- The idea behind trial by combat was that God would support the innocent party.
- The adversarial system of justice is based on the principle that individuals have the right to present their case in court.
- This system evolved from the concept that individuals may have different strengths and weaknesses but are nonetheless equal in the court of law.
- The modern adversarial system is based on mental ability, where lawyers utilize their knowledge and advocacy skills to argue their case.
- Common law originated with King Henry II. Disputes increased significantly, leading him to establish rules for fairness in legal proceedings.
- Without a codified set of rules, circuit judges relied on common sense for sentencing in similar cases.
- This led to the development of "case law" or "common law" which involved consistently applying similar punishments for similar offenses.
Legal Reform
- The modern jury system in early British law consisted of 12 jury members.
- Legal reforms ultimately led to limitations on the power of the monarch.
- Henry II was followed by his son, Richard I, and then by John.
- In 1215, barons pressured King John to sign the Magna Carta.
- King John ignored the provisions of the Magna Carta and was subsequently killed during the ensuing Civil War.
Rules of Law
- Also known as the Great Charter, it was significant in the establishment of individual basic rights.
- It acknowledged the principle of the rule of law.
Habeas Corpus
- Another key part of the Magna Carta, the writ of habeas corpus requires the authorities to validate any arrests made.
- This ensures that anybody arrested or detained without explanation must appear before a court.
- If the court finds unlawful imprisonment, the individual must be released immediately.
Aboriginal Laws
- The Indigenous peoples of North America had deeply rooted beliefs that recognized a creator and emphasized the importance of family and leadership.
- The Haida and Mi’kmaq established governments, religions, social structures and legal systems.
- Rules governing various Indigenous groups were passed down through generations via oral traditions, storytelling and myths.
- Around 1450, five Indigenous nations – Mohawk, Onondaga, Seneca, Oneida and Cayuga – came together to establish the Iroquois Confederacy.
- The Tuscarora joined in 1720, solidifying it as the Six Nations.
- The Iroquois Confederacy's Constitution, a binding legal document, outlined rights, duties and responsibilities of the people, including laws regarding adoption, emigration, treason and secession.
Sources of Law in Canada
- Laws in Canada originate from three sources:
- The Canadian Constitution (constitutional law)
- Elected government representatives (statute law)
- Previous legal decisions (common law)
- Constitutional law is at the highest level, with statute and common law being subject to its provisions.
- Any law that contradicts the Canadian constitution can be challenged in court.
- Statute law is enacted by elected representatives in both federal and provincial governments.
- Local governments also create statutes, called bylaws.
Common Law
- It has its roots in the early unwritten laws of England and has multiple interpretations.
- It designates that laws are universal and apply to all.
- It is also referred to as "case law" as it derives from judicial decisions in previous cases.
- It is constantly evolving and changing.
- Canadian courts follow the principle of stare decisis (the rule of precedent), wherein they rely on previous court decisions for similar cases.
- Judges can also create new precedent by distinguishing a case.
- This involves identifying a case as being sufficiently different from previous cases to warrant a new decision.
Statute law
- Examples of statutes enacted by federal and provincial governments include the Criminal Code, the Highway Traffic Act, and the Youth Criminal Justice Act.
- Many statutes are codified versions of common law decisions.
- They generally override previous common law.
- When a particular situation is not addressed by statute law, common law applies.
- Every level of government – Federal, provincial, and municipal – has the power to enact legislation, but only within its jurisdiction.
- Indian bands and Indigenous self-governing groups also have the authority to enact legislation.
Federal Government
- Enacts laws within its jurisdiction outlined in s. 91 of the Constitution Act, 1867.
- This includes criminal law, federal penitentiaries, employment insurance, banking and currency, marriage and divorce, and postal services.
- All Canadians are subject to these laws.
Provincial Government
- Enacts laws within its jurisdiction set out in s. 92 of the Constitution Act, 1867.
- These include laws related to hospitals, police forces, property rights, highways and roads, and provincial jails.
Local Governments
- Enact bylaws, which are regulations dealing with local issues such as fence height, snow clearing, and garbage collection.
Indigenous Governing Structure
- Indian bands, established under the federal Indian Act, function like local governments.
- Each band has some authority to make bylaws applicable to its reserves.
- These bylaws often regulate road and bridge construction and other public works within the reserve boundaries.
- Self-governance agreements between Indigenous governments and the federal government allow for greater autonomy.
- For example, the Niagara Nations in BC have the power to enact laws regarding marriage, adoption, healthcare and education.
Constitutional Law
- The Canadian constitution was enacted in 1867 (British North America Act) and amended in 1982 (Constitution Act).
- It establishes the responsibilities of each level of government and limits their powers.
- It overrides ALL other laws.
- If a law violates the constitution, courts can declare it unconstitutional and strike it down.
Canada’s Constitution
- A political document that outlines the framework of Canada's government and its identity.
- It was established in 1867 as an act of the British Parliament.
- Historical events significantly influenced Canada's path, such as the American Civil War (1861-1865).
- Many Canadians were concerned that the US would potentially attempt to take over North America after the war.
- Leaders such as John A. Macdonald advocated for a more independent Canada while maintaining ties with Great Britain.
- In 1864, 36 men met in PEI and Quebec to discuss unification.
- The proposal was to maintain ties with Great Britain but establish a new model for Canadian political and economic independence.
- New Brunswick, Nova Scotia, Quebec and Ontario agreed on a framework for union.
- The proposal was presented to Britain for approval.
- The British North America Act (BNA Act) was passed by the British Parliament in 1867 and proclaimed on July 1st, 1867.
- The act established Canada as a country, with John A. Macdonald becoming its first Prime Minister.
British North America Act, 1867
- The BNA Act remains a crucial component of Canada's Constitution.
- However, it was intended to be a constitution for a colony, not a fully independent nation.
- Canada did not have the independence to independently create its own laws until much later.
- Canada could not enter into international trade agreements without British approval and could not amend its Constitution without seeking permission from the British Parliament.
A Federal System
- The framers of the Canadian Constitution studied systems from other countries.
- The US model, which included a written Constitution and Bill of Rights, had experienced a bloody Civil War.
- John A. Macdonald argued that the US system granted excessive power to both the central government and individual states, leading to power struggles.
- The unitary system (one-level system of governance) of Great Britain, where power is centralized in one Parliament led by the Prime Minister, was also considered but deemed unfeasible due to Canada's vast size and diversity.
- The BNA Act stipulated that areas not specifically assigned to provincial jurisdiction fall under federal jurisdiction.
- These "residual powers" are outlined in Section 91.
- Parliament was also given the power to intervene in activities that normally fall under provincial jurisdiction, but which have national significance for "peace, order, and good government of Canada."
- This constitutional phrase allows the federal government to justify emergency powers if Canada's national security is threatened.
Doctrine of Ultra Vires and Intra Vires
- Both federal and provincial levels of government sometimes claim jurisdiction over the same areas, leading to potential conflict.
- In such cases, the courts are tasked with determining jurisdiction.
- If the court decides that a government (either provincial or federal) is acting within its jurisdiction, the legislation is considered intra vires, meaning "within the power" of the government to pass laws.
- If the government is found to be acting outside its legal authority, the legislation is considered ultra vires, meaning "beyond the powers" of the government to pass laws.
- For example, if a provincial government attempts to pass a law allowing the publication of names of youth accused of offenses, which is prohibited by the Youth Criminal Justice Act, the federal government could request the Supreme Court of Canada to declare the provincial law ultra vires.
Statue of Westminister
- The British North America Act has undergone amendments, with clauses added, deleted, or rephrased.
- The Statute of Westminster, passed in 1931, introduced significant constitutional changes.
- It granted Canada the right to autonomously create its own laws, independent of Great Britain.
- It also afforded Canada the independence to make its own agreements with other countries, including trade agreements.
- However, Canada was still unable to amend its own constitution without the approval of the British Parliament.
Problems with the BNA Act
- Despite the Statute of Westminster, Canada was still not a sovereign state.
- The BNA Act remained a British Act, residing in the British Parliament.
- This posed several issues:
- Every time Canada wanted to amend its constitution, it needed Britain's permission.
- Confusion arose regarding the division of powers between federal and provincial governments.
- There were concerns about the lack of constitutional guarantees of civil liberties (basic individual rights protected by law, like freedom of speech).
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Description
Explore the fascinating history of early British legal practices, such as trial by ordeal, trial by oath helping, and trial by combat. This quiz highlights how these methods shaped the adversarial system of justice we recognize today, originating from common law under King Henry II.
