The Historical & Institutional Context of Canadian Law Flashcards
1215 MAGNA CARTA
- “Great Charter”
- a feudal era charter governing feudal rights
- limited the authority of the monarchy
- established certain legal rights for barons
1648 PEACE OF WESTPHALIA
Marked the end of the Thirty Years’ War in Europe
- established concept of state sovereignty
THE ROYAL PROCLAMATION OF 1763
- transferred French territory to British control
- recognized Indigenous rights to land
- set the framework for treaties between the British and Indigenous peoples
1774 QUEBEC ACT
- Protected rights of French Canadians + religion (Roman Catholicism) and language rights
- Permitted the use of French civil law
THE CONSTITTUION ACT OF 1791
- Divided province of Quebec into Upper and Lower Canada
- Each section had its own legislature and legal system
ACT OF UNION, 1840
- Merged Upper Canada and Lower Canada into a single entity known as the Province of Canada
- Created a single legislative assembly to govern both parts
THE BRITISH NORTH AMERICAN ACT, 1867
- Created the legal foundation of Canada as a federation
- Created the Dominion of Canada
THE CRIMINAL CODE, 1892
Canada’s first unified set of criminal law
STATUE OF WESTMINSTER, 1931
Canada gained full control over its domestic and foreign affairs, becoming a self-governing dominion
THE CONSTITUION ACT, 1982
- Patriated the constitution (brought it under full Canadian control)
- Added the Charter of Rights and Freedoms
PUBLIC LAW
area of law concerned with public interest
(i.e. constitutional law, criminal law, taxation law, etc.)
PRIVATE LAW
area of law concerned with legal disputes
between individuals
(i.e. Tort law, family law, contracts, property law, etc.)
SUBSTANTIVE LAW
Governs how people behave in society. (i.e. criminal law)
PROCEDURAL LAW
Governs the rules of law and the procedures of the legal system (i.e. sentencing)
PRINCIPLE SOURCES
i) Legislation/statue law
ii) Case law/judicial decisions
SUBSIDIARY SOURCES
iii) customs
iv) books of authority
BRANCHES OF GOVERNEMNT & LAW
- Legislature
- Executive
- Judiciary
LESGISLATURE
creates and changes law
EXECUTIVE
executes laws/policies
JUDICIARY
implements law and dispenses justice
CANADA INVOLVES:
Parliament and the provincial + territorial legislature
THE LEGISLATIVE PROCESS
Federal bills are introduced:
i) First reading: bill is introduced in House of Commons or the Senate
ii) Second reading: followed by a debate,
iii) Committee review
iv) Third reading: final approval
v) Reviewed by Senate
CASE LAW
Based on judicial decisions that set legal precedents
CUSTOM
Long-standing practices that become law
BOOKS OF AUTHORITY
Legal texts written by scholars
CASE LAW/JUDICIAL DECISONS
developed by courts through precedents
INDIGENOUS LAW IN CANADA
- Canadian law is resistant to Indigenous legal orders
- Limits space in Canadian law for Indigenous law
INDIAN ACT, 1876
- Aimed to regulate Indigenous affairs, governance, land management, and assimilation into Canadian society
- the Canadian government uses it to administer “Indian Status”.
R. Gunn and Ponak
Lawful search and seizure
FEUDAL LAW
The legal system in the medieval period, where laws were linked to the feudal structure of lords and vassals
CASE LAW: DYNAMIC
Adapts over time as new cases and judgments shape the law
R v. Ipeelee (2012)
Influenced consideration into Indigenous background before sentencing
DRUGS & THE LAW IN CANADA
1908: Act prohibiting non-medical opium
1911 Opium and Drug Act: Expanded drug restrictions
1961 Narcotic Control Act: Updated laws on drug use and control
1997 Controlled Drugs and Substances Act: Regulates drugs and controlled substances
2012 Safe Streets and Communities Act: Toughened drug penalties
2017 Cannabis Act: Legalized recreational cannabis
FIRST NATIONS LAND MANAGEMENT ACT
- Empowers First Nations to manage their lands independently from the Indian Act
- Fostering self-governance and economic opportunities
- Allowing for cultural preservation
ON-RESERVE JURISDICTION
Governed by federal laws like the Indian Act (1876) and the First Nations Land Management Act
