The Case of Viola Desmond

In our history there are many fascinating legal cases. Consider the case of Viola Desmond. It might surprise you.

In 1946 in New Glasgow, Nova Scotia, a young woman attended the movies while she waited for her car to be repaired. She asked to purchase a main floor ticket at the cost of $0.40 a ticket. She was not permitted to buy a main floor ticket because she was not white. Instead, she was sold a balcony seat ticket at $0.30. She refused to sit in the balcony. The owner of the theatre brought in the police chief and she was arrested. As there was no actual law permitting segregation based upon race, she was charged with tax evasion. The difference between the costs of the two tickets was $0.10. The difference in the tax paid on the ticket was $0.01. She was found guilty of tax evasion and was fined $20.00. She decided to mount a legal challenge but was unsuccessful. The Nova Scotia Supreme Court dismissed her appeal. Despite the fact that she was unsuccessful, the case was well known and helped to raise public awareness of racial issues.

Viola Desmond: Black business owner who challenged the practice of racial segregation in Nova Scotia.

Winnipeg Free Press [Public domain], via Wikimedia Commons

This case is a shocking reminder of the racism that was prevalent in Canada at the time. In the case of Viola Desmond the justice system failed to protect her right to equality. This would be considered unacceptable now. The values of most Canadians include a belief that all people should be treated equally under the law. Canadian law has changed and developed since this time. A shift in attitudes or values is not the only factor that may prompt legal change.

To learn a bit more about Viola Desmond, watch this clip:

Helen Betty Osborne

There is another case that you may find shocking.

In 1971, Helen Betty Osborne was residing with a family in The Pas, Manitoba while she finished her high school education. At the time, there was no high school in her home community. Nineteen year old Helen belonged to a Cree community known as Norway House, located at the northern end of Lake Winnipeg. This young woman had plans to become a teacher. Unfortunately, her plans were not realized.

Please read the following excerpt from the provincial Aboriginal Justice Implementation Commission that reviewed her murder, the subsequent investigation and the trial proceedings. Be aware that you may find this case upsetting.

This reading is the introduction to a lengthy report that investigated the racism, sexism, social status of the perpetrators and the indifference of the community that characterized this case.

As in the case of Viola Desmond, the death of Helen Betty Osborne, is a disturbing reminder that justice has not always been served in this country. This case resonates because our justice system is founded on principles of equality and fairness. Generally, Canadians hold the belief that all people should be treated equally under the law. In the two cases above the principles of equality and fairness are not evident.

Factors that Influence Legal Change

The cases above prompt us to ask questions and to consider the ways in which the law and the justice system have developed over time. There are a number of different factors that influence change.

Click on each of the images below to see some of these factors and how they influence legal change.

Notice that all of the examples here are relatively recent. It is also important to keep in mind that Canadian law has also been broadly influenced by our history, philosophy, religion, culture and politics. Canada has been shaped by the Parliamentary and legal traditions of Great Britain for example. Take a moment to read the following article, Traditions of the Court.  There are several interesting practices that are part of our judicial process.

Magna Carta

It can be useful to reflect upon historical events to discover where our laws have come from and the ways in which they have changed. One document that was important to the development of our justice system in Canada is the Magna Carta. It is a good example of a political development that has shaped our legal system.

View the video "Magna Carta" for a little background on an important document. It introduces several fundamental principles of the Canadian justice system including the rule of law. Our system is based upon the belief that the law should apply equally to all people.

Please continue your investigation into the influence on our legal system by reading the following article.

Here is another fun clip that you might enjoy:

Magna Carta

Please respond to the following questions.

1. Why was the signing of the Magna Carta legally significant?
2. Define the following words: autonomy, ratified, arbitrary, codify.
3. Re-read the four (4) key principles contained in the Globe and Mail article. Explain the importance of each to the justice system.

Let's continue with our inquiry about the origins of law in Canada. Please read the following excerpts from the Department of Justice website called "Where our Legal System comes from."

The common-law tradition

The influence of explorers and colonial powers is evident in systems around the world.

Canada's legal system derives from various European systems brought to this continent in the 17th and 18th centuries by explorers and colonists. Although the indigenous peoples whom the Europeans encountered here each had their own system of laws and social controls (we talk more about those below), over the years the laws of the immigrant cultures became dominant. After the Battle of Quebec in 1759, the country fell almost exclusively under English law. Canada's criminal and civil law has its basis in English common and statutory law, except for Quebec where the civil law is based on the French Code Napoléon.

The common law, which developed in Great Britain after the Norman Conquest, was based on the decisions of judges in the royal courts. It evolved into a system of rules based on “precedent.” Whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases. The common law is unique because it cannot be found in any code or body of legislation, but exists only in past decisions. At the same time, common law is flexible and adaptable to changing circumstances.

The civil-law tradition

The tradition of civil law is quite different. It is based on Roman law, which had been scattered about in many places – in books, in statutes, in proclamations – until the Emperor Justinian ordered his legal experts to consolidate all the laws into a single book to avoid confusion. Ever since, the civil law has been associated with a “civil code.” Quebec's Civil Code, first enacted in 1866 just before Confederation and amended periodically, was recently thoroughly revised. Like all civil codes, such as the Code Napoléon in France, it contains a comprehensive statement of rules, many of which are framed as broad, general principles, to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to the Code, and then refer to previous decisions for consistency.

The two meanings of the civil law

The term “civil law” is used to mean two quite different things, which can be a little confusing at first for people trying to understand the justice system. Sometimes the term is used in contrast to “common law” to refer to the legal system that is based on a civil code, such as the Justinian Code or the Civil Code of Quebec. In its other sense, civil law refers to matters of private law as opposed to public law, and particularly criminal law, which is concerned with harm to society at large. It is usually clear from the context which type of civil law is intended. The Quebec Act of 1774 made Canada a “bijural” country, one with two types of law. The Quebec Act stated that common law was to be applied outside Quebec in matters of private law, while similar matters in Quebec were to be dealt with under Civil Code law. For public law, on the other hand, the common law was to be used in and outside Quebec.

Aboriginal traditions

Aboriginal peoples in Canada have also contributed to our legal system. Aboriginal rights and treaty rights are recognized and protected under the Constitution. Aboriginal rights are those related to the historical occupancy and use of the land by Aboriginal peoples; treaty rights are those set out in treaties entered into by the Crown and a particular group of Aboriginal people. Reserves, for example, are the responsibility of the federal government. Aboriginal customs and traditions have also contributed to new ways of dealing with people, such as healing and sentencing circles, community justice and restorative justice. Many of these customs and traditions have been adopted in aspects of the the Canadian legal system.

Defining the Law

1. Define the following words: precedent, bijural, federation, statute, regulation.
2. What is common law? Describe an advantage of the common law system.
3. Explain your understanding of the two (2) meanings of “civil law.”
4. Describe the process through which a bill becomes a law.
5. What is the difference between an Aboriginal right and a treaty right? What is the same?