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Lecture 6


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Carleton University
LAWS 1000
Jane Dickson

Lecture 6 Legal Studies LAWS 1000C SOURCES OF LAW IN CANADA Required Readings: I. Course Reader, 8(a) (c). II. Sources of Law, in Nancy McCormack and Melanie R. Bueckert (2013). Introduction to the Law and Legal System in Canada. Toronto: Carswell, Pp.1730. Case: The case of the difficult mother. Sue lives at home with her elderly mother. Her mother suffers from dementia and a number of age related health problems. One night, Sue goes out to a party and gets drunk. She took enough money and paid the taxi and got home. When she gets home, her mom has a heart attack, but she also suffers from dementia and also has a bit of paranoia and has a fear of police, government officials, etc. so she does not want to call an ambulance. Sue just lost her last bit of cash for the taxi. She knows she is still drunk, but she needs to get her mom to the hospital and feels like she has no choice. She takes her mom to the hospital, parks outside, and hands her mom to the nurses. The nurse notices that Sue is very drunk. Sue sleeps in her car. Often police officers around the parking lot at hospital. The nurse tells one of the officers this woman drove her mom over and she is drunk. The cop looks for Sue and finds her passed out in the drivers seat of the car. He charges her with drunk driving and possibly some other things. Decide what the right charge should be? How will you defend Sue? Charge: Can she be charged? Yes. Nurse and police officers can judge she was drunk. Defence: She did not have care and control of the vehicle (hard to back up); or defence of necessity (if she did not do it, her mom would die). For a defence of necessity, it is important that it has to be the only option. Did the choice that she made, was that choice made in the complete absence of any other legal alternative? Other legal options: call an ambulance or call the police or call a friend with a car or the neighbour. She had many kinds of choices, but she made the worst possible one. Result: She goes to jail. TODAY: SOURCES OF LAW IN CANADA When we talk about sources of law, we necessarily in Canada are going to talk about the dominant European traditions and the indigenous traditions that inform and shape our approach to law and con sequencing and conflict resolution in this country. Origins of Canadian law reside within that European civil law approach, the British common law approach, and indigenous traditions, especially in upper and lower Canada in the period just before establishment of colonies Origins of Canadian Law: Civil, Common Law, Indigenous traditions Civil Law Tradition Goes back 6 centuries of practice in central Europe The earliest articulation of the civil law tradition is contained in something called the Twelve Tables, which emerged around 450 BC. The Twelve Tables were not a code of law, capturing every rule and being very detailed. They were a codification of a set of quasi legal principles that defined different ways of dealing with disputes between the two dominant classes of roman society Patricians and Plebeians. Up to 450 BC, before the Twelve Tables were created, the Patricians, as the educated class controlled the law. They had a monopoly on legal knowledge, which, as you can imagine, constituted a significant disadvantage for a Plebeian should they come into conflict with a Patrician. It is difficult to know your rights and understand how conflicts can be resolved if you have no knowledge of the law. If the person on the other side has all the knowledge of the law, you are going to be significantly disadvantaged. That moment of codification of those legal principles was an act of democratization of the law, because the law then became accessible to everyone. It was possible for all people to understand the law and process of dispute resolution. The twelve Tables are now understood as forming that basis of the roman law system.
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