Canadian Legal Canadian Legal HeritageHeritage

JurisprudencJurisprudence e

The term The term jurisprudencejurisprudence means, means, literally and traditionally, literally and traditionally, practical wisdom about law.practical wisdom about law.

It is the intellectual capacity to It is the intellectual capacity to frame and apply laws according frame and apply laws according to sound theoretical principles. to sound theoretical principles.

It is also used to refer to It is also used to refer to abstract legal abstract legal philosophy philosophy

This includes: This includes: Legal rulesLegal rules NormsNorms Legal systemsLegal systems InstitutionsInstitutions

It includes topics It includes topics of :of :

legal reasoning legal reasoning decision makingdecision making legal validitylegal validity legal rightslegal rights legal legal

interpretation interpretation

There are 3 major approaches to these There are 3 major approaches to these topics: topics:

1.1. Legal PositivismLegal Positivism

2.2. Natural Law Natural Law

3.3. Legal Realism. Legal Realism.

Legal PositivismLegal Positivism

Legal positivism focuses solely on Legal positivism focuses solely on recorded or documented problems.recorded or documented problems.

It rejects issues of moral or political It rejects issues of moral or political content of law as part of content of law as part of jurisprudence.jurisprudence.

It is the written lawIt is the written law

Natural Law TheoryNatural Law Theory

LawLaw

MoralityMorality

GodGod

According to Natural Law JurisprudenceAccording to Natural Law Jurisprudence All written laws must be All written laws must be made to conformmade to conformwith universal principles of:with universal principles of:

MoralityMorality ReligionReligion JusticeJustice

A law that is not fair and just A law that is not fair and just

may not rightly be called "law." may not rightly be called "law."

ABORTIONABORTION

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Legal RealismLegal Realism

Legal realism can be exemplified by:Legal realism can be exemplified by: critical legal studiescritical legal studies feminist legal theoryfeminist legal theory socialist legal theorysocialist legal theory

It concentrates on the empirical It concentrates on the empirical realities of:realities of:

Law MakingLaw Making Legal Application Legal Application Law EnforcementLaw Enforcement

Example: How the law supposedly Example: How the law supposedly serves certain races, genders and serves certain races, genders and class interests rather than others.class interests rather than others.

Province Aboriginal People

Percentage

of General

Population

Aboriginal People as

Percentage of Prison Population

Level of

Overrepresentation

(col. 3/col. 2)

AtlanticAtlantic 1.31.3 66 4.64.6

QuebecQuebec 11 11 11

OntarioOntario 1.41.4 88 5.75.7

ManitobaManitoba 10.610.6 5555 5.25.2

SaskatchewanSaskatchewan 10.510.5 7272 6.96.9

AlbertaAlberta 4.94.9 3636 7.37.3

BCBC 3.63.6 1717 4.74.7

YukonYukon 18.218.2 6767 3.73.7

Jurisprudence is also used to refer to Jurisprudence is also used to refer to the general: the general:

LegalLegal MoralMoral PoliticalPolitical Economic Economic Policies and principlesPolicies and principlesembodied in a body embodied in a body of law or a body ofof law or a body of legal decisions. legal decisions.

Example: PMs Omnibus Crime BillExample: PMs Omnibus Crime Bill

Primary Sources of LawPrimary Sources of Law Customs and Customs and

ConventionsConventions: : These are unwritten These are unwritten

rules followed primarily rules followed primarily for for

reasons of traditions reasons of traditions rather than laws which rather than laws which provide provide

the details of how a the details of how a government operates. government operates.

Note: These are not laws but they are part of the legal system

Example: The Prime Minister gets Example: The Prime Minister gets representation from across Canada representation from across Canada for his/her cabinet positionsfor his/her cabinet positions

ReligionReligion

The courts have people swear on the The courts have people swear on the bible.bible.

The national anthem “God keep our land”The national anthem “God keep our land”

The preamble to the Constitution refers to The preamble to the Constitution refers to “the supremacy of god”“the supremacy of god”

Question: Should the reference to God be Question: Should the reference to God be taken out of the national anthem?taken out of the national anthem?Official Version 1980

1906

" O Canada! Our fathers' land of oldThy brow is crown'd with leaves of red and gold.Beneath the shade of the Holy CrossThy children own their birthNo stains thy glorious annals glossSince valour shield thy hearth.Almighty God! On thee we callDefend our rights, forfend this nation's thrall,Defend our rights, forfend this nation's thrall."

1908

" O Canada! in praise of thee we sing;From echoing hills our anthems proudly ring.With fertile plains and mountains grandWith lakes and rivers clear,Eternal beauty, thos dost standThroughout the changing year.Lord God of Hosts! We now imploreBless our dear land this day and evermore,Bless our dear land this day and evermore."

1908 " O Canada, our heritage, our love

Thy worth we praise all other lands above.From sea to see throughout their lengthFrom Pole to borderland,At Britain's side, whate'er betideUnflinchingly we'll standWith hearts we sing, "God save the King",Guide then one Empire wide, do we implore,And prosper Canada from shore to shore."

1927

O Canada! Our home and native land. True patriot love in all thy sons command. With glowing hearts we see thee rise, The True North strong and free! And stand on guard, O Canada, We stand on guard for thee. O Canada, glorious and free, We stand on guard, we stand on guard for thee. O Canada, we stand on guard for thee!

How about…

"O Canada! Our home and native land!True patriot love in all thy hearts command.With glowing hearts we see thee rise,The True North, strong and free!From far and wide, O Canada,With Rights and Liberty.Let’s keep our land glorious and free !O Canada, we stand on guard for thee.O Canada, we stand on guard for thee."

Social/Political Social/Political InfluencesInfluences

The law and The law and lawmakers take lawmakers take into account the into account the changing beliefs of changing beliefs of society. The law society. The law evolves along with evolves along with Canadian culture.Canadian culture.

Landmark Case Landmark Case

R. v. LavalleeR. v. Lavallee

1918 Women get the vote

1929 Recognized as persons

1958 Pay Equity Act

1968 Royal Commission on Status of women

1982 Sexual equality included in Charter

1983 Rape replaced by sexual assault

1985 Indian Act repealed to restore the status of Aboriginal women who married non-Aboriginal men

1986 Family Law Act gives women more rights to property and support after divorce

1988 Supreme Court strikes down abortion law

1990 Lavallee case establishes battered woman syndrome defense

1993 Anti-stalking law added to Criminal Code

Significant Changes in the Law for Women

1994 Supreme Court (Daviault) rules that extreme drunkenness can be used as a defence in sexual assault cases

2005 Man acquitted of sexual assault with sexomnia defence

1978 Leary Rule – Self-Induced intoxication is not a defence

R. v. LearyR. v. Leary, [1978] 1 S.C.R. 29 (Leary , [1978] 1 S.C.R. 29 (Leary Rule)Rule)

A person may still be held liable as A person may still be held liable as the act of inducing intoxication (self-the act of inducing intoxication (self-intoxication) can be substituted for intoxication) can be substituted for the requirement of mens rea.the requirement of mens rea.. .

The Leary rule was challenged in 1994 The Leary rule was challenged in 1994 in the case of R. v. Daviault in the case of R. v. Daviault where an where an exception to the rule was made for exception to the rule was made for an accused who was so intoxicated an accused who was so intoxicated he was in a state akin to he was in a state akin to automatism. automatism.

Example: one may speak of Example: one may speak of the the jurisprudence of Canadian tort lawjurisprudence of Canadian tort law, , meaning the underlying principles meaning the underlying principles on which Canadian tort law is based. on which Canadian tort law is based.

The Vastness of Jurisprudence

Example 2: Example 2:

One may speak of One may speak of the jurisprudencethe jurisprudence of the Supreme Court concerning of the Supreme Court concerning freedom of expression,freedom of expression, meaning the meaning the principles which underlie the series principles which underlie the series of the Court's decisions concerning of the Court's decisions concerning freedom of expression. freedom of expression.

Jurisprudence Jurisprudence ideally is an ideally is an interdisciplinarinterdisciplinary subject, y subject, needing the needing the skills of both a skills of both a lawyer and a lawyer and a philosopher. philosopher.