Legal Cultures in Canada (2) Flashcards
What are the 3 primary influences on Canada’s legal system?
Indigenous legal traditions
Common law (English)
Civil law (French)
Combination of these 3 makes our legal system completely unique
What are the 3 predominant environmental influences on Canadian law and legal system?
- Socioeconomic Development
- Political Beliefs and Ideology
- The Culture of the Legal System
Explain the influence Socioeconomic Development (3)
Does not affect legal system in a uniform way
Urbanization and industrialization alter relationships in society and thus impact conflict and its resolution (breakdown in community and social control mechanisms calls for more formal law)
Courts assume some of this role, but so do other dispute resolution mechanisms (we are so removed from the courts that we don’t really trust them)
Explain the influence of Political Beliefs and Ideology (2)
Increasing respect for liberal ideas of equality, human rights and dignity shape access to justice (ie. legal aid), the law and legal system, despite our conservative history
Distrust of government as guardian of rights shifts this responsibility to the courts (need protection from the government like in cases of residential schools)
Explain the influence of the Culture of the Legal System
Roots in British common law and French civil law
Most important common law influences on Canadian legal system: Centrality of the judiciary and power of lawyers
Centrality of the judiciary: in common law, we rely on precedents which adds muscle to the bones of the statutes and laws (stare decisis); common law is bound by previous case decisions unless it can be proved that the cases are different; sentencing is different by case; rely on government to keep rights separate from government
Power of lawyers: give them a high status with high expectations and a lot of respect, a special place in society due to these; lawyers are allies that fight for you and the best outcome
How does Burrows explain traditional Indigenous law in Canada law? (3)
Historically, they ran trade and therefor they couldn’t be affected by the French or British and “ruled the day”
Today, we see a return to many approaches within Indigenous law like the rise of restorative approaches (an understanding of conflict that people are invested in); understands the best way to resolve is in a way that ensures there is some balance between parties and a middle ground (not a win/lose situation); as seen in the Anishinabek Nation who see the Earth as a living subject
Indigenous people’s court
How does L’Heureaux-Dube explain French and British influence?
Explicated where French and British legal cultures and traditions converge and differ
French culture gave us civil law, British culture gave us common law and Canadian culture is a unique combination of both
How did we obtain this mixed system? (4)
Both French and British came to Canada and brought their systems
Post-1760, British granted New France (Quebec) right to retain its language, religion and laws while the rest of Canada had British common law
Quebec Act incorporated a civil code in Quebec in 1774
Constitution Act, in BNA Act, preserves civil law through provincial jurisdiction in Quebec over property and civil rights (covers virtually all civil law matters of importance)
What does this mean for Quebec?
Quebec has both civil and common law while the rest of Canada has a common law system
Public law (criminal law) is managed through common law whereas private law (civil law) is governed through the Quebec civil code
Problem: any appeals to the SCC will be handled in the common law court and the two systems are very different
What are the differences between common law and civil law traditions?(4 v 4)
Common Law Tradition
• Law resides in cases (in precedent and judicial interpretation)
• Cases decided by reference to precedent
• Cannot disregard precedent (unless distinguished)
• Cases are key
Civil Law Tradition
• Civil code is the foundation and the primary organizing source of law
• Cases decided by reference to letter and spirit of the law
• Judges are free to disregard precedent
• Legal scholarship is key
What happened with Quebec and the Supreme Court?
SCC tried to unify private law by importing common law principles into civil law terrain but Quebec refused to adhere to common law
SCC finally stated they couldn’t use common law in civil law cases so they must be interpreted using civil law (created the Desrosiers Principle)
What is the Desrosiers Principle?
A court needs to address those appeals consistent with the legal field in which the decision was made (based on case where Mr. Desrosier died working in Ontario and wasn’t treated with civil law)
What are the 2 factors of stare decisis in Quebec?
- Judiciary in Quebec administer a ‘mixed system’
2. Judiciary in Quebec structured very similarly to those outside Quebec, so some overlap inevitable
What did Bouchard and Taylor says about Adjustment and Accommodation? (2)
Resolution of conflicts over rights often a balancing act
Best outcome: a compromise which achieves minimal infringement of all parties’ rights
