1.3 - Modern Legal History

England and France

The second phase of historical influences on Canada’s legal system to be considered here is the one beginning around 410 CE.  During this time, most of the key historical events shaping Canada’s legal system originated from England, France, and Indigenous peoples in North America.  This section will outline those influences from England and France; while section 1.4 will discuss Indigenous influences in more detail.

Early British Law

England was conquered by the Romans in 43 CE, setting the stage for the establishment of Roman law in England for the next 400 years.  After the Romans left England around 410 CE, British people turned to God to determine guilt or innocence in legal matters.  That is, they believed that if guilt or innocence was not obvious in the evidence, then God would naturally punish guilty people, while letting innocent people go free.

The British people believed that God would reveal guilt or innocence through the results of several tests of ‘chance’.  One method was trial by ordeal.  This was where an accused person was subjected to some kind of physical ordeal, usually involving either fire or water.  If the person survived, then the person was thought to be innocent; but if their wounds got infected or they died, then they were thought to be guilty.  They believed God allowed them to die because they were guilty.  Another method was trial by combat.  This method was similar to trial by ordeal, except it involved the accused person fighting a duel with their accuser.  Whomever survived was thought to be innocent, or ‘right’; but if they died, they were thought to be guilty, or ‘wrong’.  The third method used was called trial by oath-helping.  This method was used for less serious cases, and involved the accused person getting other people to swear an oath before God that they were innocent.  It was thought that people wouldn’t swear before God unless they believed it to be true; otherwise, they themselves might be punished by God.

Although these three methods of deciding cases don't seem logical, they did establish one key aspect of modern Canadian law - the adversarial system.  The adversarial system is a legal system based on two opposing sides arguing their cases in front of an impartial judge.  The adversarial system is one of the foundations of Canadian law.

Feudal Law

William the Conqueror, Duke of Normandy (France) invaded and conquered England in 1066, and established himself as the King.  He had absolute power - whatever he said was the law.  British people accepted his absolute power because they thought he had the divine right to this power.  Divine right is the belief that Kings are kings only because God made them Kings; so, whatever the King decided was accepted by the citizens as being what God wanted.

Once he had established his rule, William instituted a Feudalist system of government in England.  A feudal law system begins with the King claiming ownership to all the land in the country.  He then divides up some of the land into parcels, and appoints a nobleman to be in control of each parcel.  In exchange for this land, the noblemen become the King’s vassals (servants).  They pledge to be loyal to the King, and even to provide military service if necessary.

The lords and nobles themselves had vassals.  These were the peasants that the noblemen had living on their land, and who farmed the crops.  In exchange for being allowed to live on the land and farm the crops, these vassals were required to be loyal to the noblemen.  They provided a portion of their crops to the nobles, and also a portion was given to the Church.  Further, these peasant vassals were occasionally required to act as an army representing the nobles.

The noblemen acted not only as the local government, but also as the legal system.  Whenever any legal issues arose within their estate, the nobles acted as the judge to settle the matter.  Although this may have seemed like a good idea at the time, it wasn’t long before it became obvious that this system wasn’t a fair and just legal system.  For example, there were many inconsistencies in the decisions handed out from the many different nobles.  Different nobles from different estates would make different rulings on similar types of cases.  Also, some nobles were simply not making fair and just judgements.  As more and more injustices were experienced by British people, they began to protest the harsh and unfair legal system.

Word of these injustices and inconsistencies reached King Henry II, who combated this by appointing a number of traveling judges to hear cases instead of the noblemen.  These traveling judges were called circuit judges, and the traveling courts were called assizes.  Every once in a while, these circuit judges met in London to discuss their cases and experiences.  They recorded and studied each other’s legal decisions, allowing the judges to be more consistent.  This formed the basis of common law.

Common Law

As legal decisions in England were recorded and discussed among judges, a system of common law developed.  Common law is a system where legal decisions are based on similar cases that have been decided in the past.  Each time a unique legal issue was decided, this establishes a precedent (new standard) to apply to similar future cases.   ‘Stare decisis’ is the Latin word for precedent, and is often used in legal writings.  The use of precedent in the legal system was beneficial in that it provided predictability to legal issues.

As the common law system was developed, it was further refined when all case details and decisions were recorded.  Recording cases in this way (also called case law) allowed judges to read previous decisions (precedents), and apply the same legal principles to a current case that was similar in content.  Common law, precedent, and case law are vital components of our legal system to this day.

Magna Carta

The use of circuit judges and assizes did have some success in combating injustices handed out by noblemen; but there was still much injustice in England.  One source of injustice was often the Kings themselves.  For example, King John was particularly cruel and ruthless.  This angered the noblemen and Church officials, and they were successful in pressuring him to sign and enact the Magna Carta.  The Magna Carta is a charter that guaranteed basic rights to British citizens; including the right to justice, and the right to a fair trial.  In this way, the Magna Carta formed the basis of the Rule of Law, that is another foundation of the Canadian legal system.

Most of the discussion in this document so far has highlighted the British influences on the Canadian legal system.  It’s important to note that there was also a significant French influence.

Napoleonic Code

After the French Revolution, Napoleon Bonaparte revised the laws of France that had previously been based on Roman law, and he led the writing of the Napoleonic Code.  This collection of French legal writings was enacted in 1804, and formed the basis of French civil law.  It established a clear, easy to understand, and unbiased legal standard that governed people’s relationships with each other.  The Napoleonic Code directly influenced Canadian law; in that Quebec civil law is based on the Code.

Summary of Canada’s Modern Legal History

The discussion in this section has outlined three of the key sources of influences on the development of Canada’s legal system.  First, as a British colony, it should come as no surprise that the greatest single influence on the legal system in this country comes from England.  Much of Canada’s legal heritage is grounded in the evolution of the English legal system.  The second key source of influence comes from France.  The most significant influence from France is the Napoleonic Code.  Finally, Canada’s legal system has been influenced by the Indigenous people’s legal traditions.  These legal traditions will be the focus of section 1.4.