Chapter Two Flashcards
Aboriginal Legal System
Legal system before contact with Europeans.
Transmitted orally from , sometimes transmitted through legend or stories to make easier to remember and inspire the listener to respect for the law.
Common Law Rules of Reception of English Law
Three most relevant to Canada:
Settlement
Conquest or Cession
Adoption
Aboriginal Legal System
Before contact with Europeans
Not written
transmitted orally from generation
some - transmitted through legends and stories to inspire listener to respect the law
How did Gayanashagowa come about?
Iroquois for “great binding law”
Confederacy - 1142 CE
between two chiefs - Dekanawida & Hiawatha
Took 40 years to convince tribes to form union together
What did Gayanashagowa mean for the people?
Checks and balances - gave every man and woman a voice in Tribal Affairs
Power of was chiefs kept in check by Peace Chiefs
Chiefs appointed by clan mother - could be revoked if they didn’t act in the best interest of the clan.
When did the Great Binding Law finally get written down?
in the 18th century
The US Constitution and the Charter of United Nations refer to the Iroquois Great Binding Law in drawing up their own legal documents.
Imperial Statute
Law passed by the English Parliament applying to an overseas English colony.
Conquest or Cession
The transfer of a colony from one country to another.
What is the second type of law when the English colonize?
Common Law colonization law - if laws already existed in the colony they would continue until changed by English government. If no legislature, English law could be imposed.
Adoption
3rd way English Law could be received into British colony
A colony’s law would pass a reception statute that adopted English law as of a certain date.
Reception of English and French Law into Canada’s Provinces and Territories
Quebec east to NFL English and French laws introduces by settlement or cession.
Ontario west and the territories - they were adopted through reception statutes
Reception of English and French Law - Newfoundland and Labrador
Canadas first colony
Discovered as early as 1500s
1583 Sir Humphry Gilbert claimed the island for England
Last to join Confederation - March 31, 1949
Reception of English and French Law - Nova Scotia
Originally part of French Acadia
French colonist first settled in 1600’s - 1713 Treaty of Utrecht
English acquired Nova Scotia through cession
Joined Confederation one of first three - July 1, 1867
Reception of English and French Law - Prince Edward Island
Originally settled by French - Treaty of Utrecht
1763 ceded the island to English by the Treaty of Paris
English acquired the island by cession
admitted to Canada July 1, 1873
Reception of English and French Law - New Brunswick
Originally settled by French Colonist part of French Acadia
1763 ceded by the Treaty of Paris
Became part of Nova Scotia but became a separate colony in 1784
Reception of English law by settlement not by cession
New Brunswick like Nova Scotia one of 3 original colonies joined the Confederation and admitted to Canada on July 1, 1867
Reception of English and French Law - Quebec
1763 France ceded Quebec in the Treaty of Paris
1791 Constitutional Act separated Quebec into two colonies Upper Canada (Ontario) and Lower Canada (Quebec)
Quebec joined Confederation and admitted to Canada on July 1, 1867
Civil code of Quebec
Quebec’s current civil code came into effect on January 1, 1994, replacing the Civil Code of Lower Canada from 1866
Reception of English and French Law - Ontario
Adopted English Law in 1792
Ontario joined Confederation and admitted to Canada on July 1, 1867
Reception of English and French Law - Manitoba
1869 Sir John A Macdonald negotiated with the Hudson Bay Company to purchase western landholdings - area transferred to Canada 1870
Fifth province to join Confederation on July 15, 1870
Reception of English and French Law - Saskatchewan
Reception date for English law was 1870
Joined Canada on Sept 1, 1905
Reception of English and French Law - Alberta
Reception date for English law was 1870
Joined Canada on Sept 1, 1905
Reception of English and French Law - British Columbia
1858 reception date for English law - after Vancouver Island & British Columbia colony’s merged.
Joined Confederation on July 20, 1871 - 6th province
Reception of English and French Law - Yukon
Reception for English Law was 1870
Reception of English and French Law - Northwest Territories
Reception for English Law was 1870, entered into Confederation that same year
Reception of English and French Law - Nunavut
Created April 1, 1999
Reception for English Law was 1870
Prelude to Confederation in 1867
Three conferences
1864 in Charlottetown
1864 in Quebec City
1866 London England
Federalism
in Canada, the division of state powers between the federal Parliament in Ottawa and the legislatures of the provincesand territories
An American not English political idea
Unitary Government
a form of government whereby one supreme authority governs the whole county. - Like Britains system
Quebec and Maritime provinces didn’t want this system
John A Macdonald and the New Federal Government
He felt like the American constitution gave too much power to individual states
this convinced him that Canada’s federal government had to be stronger that the provinces.
Post-Confederation Problems
Canadians unable to amend BNA Act
Did not contain and entrenched bill (or charter) for its citizens
Thirdly it was created without consulting Indingenous people.
Chief Dan George, “Lament for Confederation,” July 1, 1967
Pg 35
Interpreting the Constitution: The Role of the Privy Council
Supreme Court Act 1875 established xthe Supreme Court of Canada - But still not the highest court
Judicial Committee of Privy Council
The highest appeal authority for colonies in the British Empire; excercised final appeal for Canada until 1949
Judicial review on federalism grounds
process by which a court reviews the constitutionality of legislation based on a division-of-powers analysis, that is, by determining whether one level of government has attempted to enact legislation in an area assigned to the other level under the Constitution
ultra vires
if legislation is declared ulta vires(that is, outside the juristiction of the enacting authority.
a necessary implicatin of having split legislative jurisdiction in a federal system.
Patriate
Removes a nation’s legislation or constitution from the control of the mother country and bring it under the control of the nation itself.
Pierre Trudeau 1980 - SCC held that Trudeau’s action to seel a proposed amendment to the BNA Act was legal
but a substantiall measure of provincial consent was necessary by constitutional convention for Trudeau to proceed further.
Aboriginal people and women
Aboriginal Peoples and the Patriation Process
Interests and treaty rights left out of the original BNA Act
Government acceded to the pressure from Aboriginal peoples ot have their rights entrenched in the guaraanteed by the new Constitution
Canada Act
March 29, 1982
Constitution Act
April 17, 1982 which also contained the Canadian Cherter of Rights and Freedoms
Constitutional Law
law dealing with the gevernmental powers and structures, and civil liberties
