Chapter 2 Primary and Secondary Sources of Canadian Law

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

• 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.

• Canada has a Judeo-Christian heritage.

• Colonists (early settlers) of Canada were mostly Christian.

• What is Judeo-Christian?

Jesus0

Abraham

Abraham-2100

Abraham

Moses

Moses

Moses-1525

Hammurabi of Sumer

1728

Jesus0 570

Mohammad

Ten Commandments / Torah (Part of old testament)

Bible

Qur’an

Judaism

Christianity

Islam

• Monotheistic (one): Judaism, Christianity, Islam

• Polytheistic (many) ex. Hinduism

• Atheist (none) ex. Buddhism, Atheism

• Agnostic (…?...)

The Ten Commandments

• Believed to be revealed to Moses atop Mount Sinai.

• Accepted by Jews, Christians and Muslims.

Commandment Jewish (Talmudic)****

Anglican, Reformedand other Christian

Ortho-dox

Roman Catholi

c/ Luthera

n**

1. I am the Lord your God 1 preface 1 1

2. You shall have no other gods before me

2 1

You shall not make for yourself an idol 2 2

3. You shall not make wrongful use of the name of your God

3 3 3 2

4. Remember the Sabbath and keep it holy

4 4 4 3

5. Honor your father and mother 5 5 5 4

6. You shall not murder* 6 6 6 5

7. You shall not commit adultery 7 7 7 6

8. You shall not steal*** 8 8 8 7

9. You shall not bear false witness against your neighbor

9 9 9 8

10. You shall not covet your neighbor's wife

10 10 10 9

You shall not covet anything that belongs to your neighbor

10

Division of the Ten Commandments by religion/denomination

Examples of the direct influence of religion on Canadian law.

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)

(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

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

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...

Jesus was Born

0

TodayHammurabi

2011 CE1525BCE

1750 BCE

RomansGreeks

400-300 BCE

Canada becomes a country

Moses

1867 CE

“BCE”Before the

Common Era

“CE”Common Era

Year 0

Muhammad

570 CE

FuturePast

All approximate

Historical Influences

King Hammurabi/ Ancient Civilizations

GreekRoman British French

Aboriginal

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

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.

Hammurabi (also known as Hammourabi)

Born c. 1795 BC (middle)

Died c. 1750 BC (middle)

Occupation Monarch

Title King of Babylon

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.

Greek Influences (app 400 BCE)

Greek soldiers on the battlefield

• 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.

• 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.

• 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!

2 principles adopted from the Greeks:

• Trial by Jury

• Citizen participation

In summary,

Roman Influences (app 400 BCE)

Code

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

• Codified• Codification

• 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.

• After some time, the laws became very complex and convoluted.

• The Romans began training specialists in the law.

• What we call…Lawyers!

• 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.

From the Romans, Britain adopted:

• The principle of Presumption of Innocence

• Lawyers

• Code

In summary,

Aboriginal Influences

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’

• Framers of the US constitution and

the Charter of United Nations

referred to the Great Binding Law.

• 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.

• 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.

British Influences

• 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

• 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)