The Common Law & The Canadian Legal System 2022 PDF

THE COMMON LAW & THE CANADIAN LEGAL SYSTEM Craig A. Wallace, P.Eng. CIVL 402 2 HISTORY 3 England was fractured in the years before 1066, both in terms of its administrative system and its legal system. 4...

THE COMMON LAW & THE CANADIAN LEGAL SYSTEM Craig A. Wallace, P.Eng. CIVL 402 2 HISTORY 3 England was fractured in the years before 1066, both in terms of its administrative system and its legal system. 4 Harold was Crowned King in January of 1066, but his hold on power was weak. 5 Harold was killed at the Battle of Hastings. William of Normandy became King and appropriated all the land in England, which he then parceled out as “fiefs” to about 180 nobles, who “held” the land in return for “knight service”. This revolutionized patterns of landholding and military infrastructure. 6  The system of local government was largely unchanged, and much of the Anglo-Saxon legal system remained, such as trials and stare decisis. Stare decisis began as an informal system where judges would follow past decisions on the same questions of law and fact. This gradually became formalized and forms the basis of the common law; common law is precedent law. 7  Judge-made common law was the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. Since the 12th century, courts and parliament have both “made law”, although parliament was ultimately recognized in as being “supreme” (1689). 8  ADVERSARIAL SYSTEM While the nations of continental Europe continued to follow the inquisitorial method of justice – a judge or other official would ask questions of witnesses and come to a ruling -- English law gradually developed an adversarial system. 9 The Normans Brought Trial by Battle 10  Juries were introduced by the Danes to investigate and punish crimes. They were also used in Anglo Saxan England for taxation. Eventually the jury also became the body responsible for finding facts and issuing verdicts in disputes. Henry II (1133 to 1189) deserves a lot of credit for centralizing law and using juries to decide facts. 11  MAGNA CARTA 1215 A big deal? Looked at in American jurisprudence as a cornerstone of the rights of citizens. English authorities consider it to be more about quelling a revolt of the nobles. Most of the 63 clauses deal with the administration of justice, and the detail of feudal rights and customs. 12  MAGNA CARTA 1215 (cont’d) It placed limits on royal authority and made clear that the monarch was not above the law. Many copies were made and sent out to bishops and sheriffs across the country; four survive. Originally in Latin, it was translated into French which was the language of the ruling classes; not used in English for over 300 years. 13  MAGNA CARTA 1215 (cont’d) “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.” 14 What does this have to do with the law of Canada? Answer: The entire body of English law was "received" by most of Canada as a British colony. The exception was Quebec, which was a French colony and maintains a form of law related to French law -- the "Civil Code". 15  The governing principles that date from before the Norman conquest of England, Magna Carta and everything since, are applicable to courts in British Columbia. The same process occurred in other English colonies, including the United States. (After the American Revolution in 1776, the newly independent states adopted "reception statutes" that adopted the existing body of English common law.) 16  But Canada is a huge country, and presented some administrative problems not faced by England. The result was a federal system, where the power – and the responsibility – to create, and enforce laws are shared between the federal government and the provincial governments. 17 THE BRITISH NORTH AMERICA ACT (1867) The Act created a federal system and the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system and the taxation system. It also divided the power to make laws between the governments. 18  Federal Powers Provincial Powers trade & commerce banking direct taxation for provincial purposes direct & indirect taxation copyright municipalities currency Aboriginals and Indian reserves school boards hospitals the postal service naturalization property and civil rights census taking & marriage and divorce administration of civil & criminal justice statistics criminal law penalties for infraction of provincial national defence penitentiaries statutes the federal civil service interprovincial works and Prisons navigation undertakings celebration of marriage fisheries provincial civil service local works corporations with provincial objectives 19 Most of the law relevant to Engineers is property & civil rights: Contracts Torts (negligence law) Lien legislation As a result, the law relating to Engineers differs from province to province, particularly in Quebec. e.g., Lien laws are different, and limitation periods are different. Some exceptions: Airports Post offices Railroads Competition law 20  Each province has at least one trial-level court, which has "inherent jurisdiction", and a court of appeal. BC's principal trial court is the "Supreme Court of British Columbia". It is "supreme" in terms of its jurisdiction within the province. In Alberta, the Alberta Court of Queen's Bench is the principal trial court. 21 22 The British Columbia Court of Appeal hears appeals from the courts below. An appeal does not usually involve evidence; rather, evidence is heard in the trial court and, if one of the parties believes the judge misinterpreted the law as it applies to the facts found in the trial court, the Court of Appeal is asked to reverse the judgment. 23 All litigants have a right to apply for leave to appeal from a Provincial Court of Appeal to the Supreme Court of Canada. Leave is not always granted and few cases involving engineers are appealed to the Supreme Court of Canada. 24 440 Partners 1,800 Lawyers 4,000 Total staff QUESTIONS? 2,500 Legal professionals 50+ Offices worldwide* www.clydeco.com *includes associated offices 25