Law Times

Law Times • November 7, 2016 Page 7 www.lawtimesnews.com COMMENT Civil law heritage source of pride O f the three pillars of Canadian law, indigenous law, civil law and common law, the civil law is the second oldest. In the 17 th -century English colonies of Rupert's Land and Newfoundland, neither the common law as such nor any of the familiar institutions of English law were introduced; those would only come later. The situation in New France, comprising mainly Canada (the St. Lawrence Valley) and Acadia, was very different. The French crown first entrusted the task of colonization to the Company of New France, which was empowered to grant tracts of land (seigneuries) to colonial magnates in a semi-feudal form of tenure. In addition to granting land to habitants, the seigneur was to create courts possess- ing both civil and criminal jurisdiction, as existed in France. Indeed, some seigneurial judges retained the power of life and death down to the end of the French regime. Seigneurial courts dominated from the 1620s until 1663 when the CNF sur- rendered its charter and the king assumed direct control over the colony. The pow- ers of seigneurial courts were curtailed as newly founded royal courts began to take over the judicial scene. The French crown also created the Conseil souverain or sov- ereign council at this time. It served as the top appeal court in New France in addi- tion to exercising regulatory authority in areas not directly covered by royal law. Its members were not lawyers, but the king's attorney, who was usually a Paris-trained advocate, sat on it. The substance of the pri- vate law was contained in the custom of Paris, which was declared the only applicable custom in New France in 1663. Each province of France had its own "custom" or written code of local law. These focused mainly on the law of property, succession, family relations and matrimonial regimes. The population, though largely il- literate, was nonetheless famil- iar with much of the content of their regional custom. Criminal law was found mostly in royal edicts, particularly a 1670 ordinance that codified criminal procedure. French criminal process differed considerably from the English. It used the inquisitorial model, unfolded mostly in private, and depended much more on public prosecu- tion. It operated in a much more profes- sional way than English criminal justice at the same period — all capital sentences had to be confirmed by the Conseil sou- verain, for example. Although the jury was not part of French legal culture, criminal judges sat with two lay assessors who gave opinions about sentencing and thus pro- vided some community input. By 1700, the colony of Canada could boast virtually all the legal infrastructure of provincial France: three levels of court with two levels of appeal; regular crimi- nal justice; and numerous notaries, who handled most conveyancing and writ- ten transactions — all for a population of 14,000 Europeans. (Indigenous inhabitants still mostly followed their own laws.) The only miss- ing element was the advocate or French equivalent of barrister. The royal government barred them from the colony as poten- tial troublemakers. By the Conquest in 1760, the French legal tradition was deeply rooted. The seigneurial courts were abolished and Eng- lish criminal law was eventu- ally accepted after some initial confusion. But British attempts to ignore French law were strongly resisted. At the local level, the habitants and notaries car- ried on as before. The Quebec Act of 1774 thus confirmed a fait accompli. The establishment of English-style courts and civil and criminal procedure brought some infusion of English law and legal ideas. The British also introduced the profession of advocate as well as maintain- ing that of notary; both still exist in Quebec. But loyalty to the custom of Paris remained strong and many of its basic tenets could be found in the Civil Code of Lower Canada, adopted in 1866. The code combined a cer- tain economic liberalism in contract and property law (the seigneurial system hav- ing been abolished in 1854) with a heavily patriarchal family law. It was also bilingual, requiring the creation of an English civil law vocabulary, which endures today. Over time, the Civil Code was seen as an untouchable legal icon, and its values diverged from those of Quebec society. The Quiet Revolution changed all that. An entirely reformed code was proposed in 1977 and promulgated in 1994. Quebec is one of the few civil law jurisdictions ever to adopt a completely new civil code. Its values are much more in line with those of contemporary Quebec, especially in its commitment to gender equality and to re- spect for the dignity of all persons. For much of the 20th century, civil law and common law existed in the pro- verbial two solitudes. However, common law provinces have borrowed important doctrines from the civil law. For example, in the 1920s, contributory negligence was a total defence to a claim in negligence. Common law reformers looked to the civil law doctrine of comparative fault as a justi- fication for the reform they wanted. In the 1970s, Quebec adopted a marital regime of deferred community of property that al- lowed spouses economic autonomy during marriage and equal sharing at the end. Ev- ery common law province adopted similar reforms based on the Quebec model. Canada's 400-year-old civil law heri- tage should be a source of pride. Quebec law has shown itself to be adaptable and progressive, while Canada's civil law roots also provide important linkages to Euro- pean and Latin American jurisdictions that share that tradition. LT u Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. Carding regulations will shape legal landscape BY ANTHONY MORGAN O ver the last year, I've been frequently asked, "How do you feel about carding finally be- ing over?" My answer? "It's not. Carding has been regulated, not eliminated." As lawyers and judges, we should take a keen interest in how the government's new carding regulations will shape the legal landscape concerning the balance of power between police and civilians. Amid much media fanfare, about a year ago, the Ontario government released its draft regulations on carding and street checks. While there is no official def- inition, it refers to the police practice of discriminatory, unreasonable and/or arbitrary stopping, questioning and documenting of civilians who aren't suspected of being either involved in or connected to a crime, and in- definitely storing and sharing their personal identifying information in police service databases. After being released in October 2015, the govern- ment's draft regulations were subjected to province- wide consultations. This ultimately led the government to refine the regulations, and in March 2016, adopt a final version of the regulations into law. Acknowledging that the regulations were largely a response to years of public pressure from Ontario's black community, upon their adoption, Ontario's then-minister of Community Safety and Correctional Services, Yasir Naqvi, stated: "Arbitrary and race-based stops to collect and store personal information based on nothing more than the colour of one's skin are illegitim- ate, disrespectful and have no place in our society." Having since switched ministerial roles, now Attor- ney General Naqvi's comments echoed the position of human rights organizations and institutions that for years proclaimed the practice was not only intolerable but outright illegal. This loose consortium of allied ad- vocates included the Ontario Human Rights Commis- sion, the Canadian Civil Liberties Association and the Law Union of Ontario, among others. These organizations honourably added their voices to the calls from the African Canadian community to end carding on the basis that it had evidenced itself to be an expression of systemic anti-black racist policing, and also featured violations of Charter and Human Rights Code-protected rights, namely the rights to be free from unjust incursions from the police. This advocacy was bolstered by findings from the Toronto Star, which, in 2012 reported that, between 2008 and 2011, the number of young black men carded by Toronto police was 3.4 times higher than the popula- tion of young black men in the city. These findings were followed by a devastating and widely read 2015 Toronto Life article by journalist Desmond Cole, entitled: "The Skin I'm In." In his article, Cole recounts his experien- ces of being regularly stopped, questioned and/or docu- mented by police. The Star's carding findings and Cole's article marked pivotal turning points in the public campaign to end carding. Before they were published, however, at least one Ontario Superior Court Justice, H.S. LaForme, raised serious concerns about the practice, stating in the 2004 case of R v. Ferdinand: [19] One reasonable […] impression that one could draw from the information sought on these 208 cards […] is that they could be a tool utilized for racial profiling. [20] […] If the manner in which these 208 cards are currently being used continues; there will be seri- ous consequences ahead. They are but another means whereby subjective assessments based upon race — or some other irrelevant factor — can be used to mask dis- criminatory conduct […]. [21] This kind of daily tracking of the whereabouts of persons — including many innocent law-abiding per- sons — has an aspect to it that reminds me of former government regimes that I am certain all of us would prefer not to replicate. Before and since Justice LaForme's apt observations, carding has been challenged by members and organi- zations from the African Canadian community and its allies as being a cause and confirmation of racial profiling. Now, more than a decade since Ferdinand, the Ontario government has finally put regulations in place to address this practice. The new regulations will come into full effect on Jan. 1, 2017. They feature an explicit ban on the use of race or place (i.e., being in a "high-crime area") as a stand- alone justification for carding. Officers will be required to inform individuals that they have the right to know why they are being stopped and whether they have a legal obligation to speak with the officer(s). The regula- tions will also require officers to provide a receipt of the interaction, and they mandate that officers indicate the perceived racial background of the civilians they card. These are welcome advances that increase protec- tions of black, indigenous and racialized targets of this practice. The regulations create a new realm of jurispruden- tial uncertainty that lawyers, judges and jurists will be tasked with resolving. This is because the regulations will arguably spark a new generation of Charter litiga- tion that will create and force us to confront new con- stitutional questions — or old questions in new ways. For instance, how exactly will the regulations factor into interpretations of specific protections guaranteed under the Charter and the Criminal Code? Will the un- intended negative consequences of the regulations be resolved in ways that expand or restrict civilians' rights vis-a-vis the police? How will the regulations enhance or hinder the power of judges to elucidate or facilitate civilians' constitutional protections from the awesome powers of the state? Whether our answers enhance accountability, trans- parency, oversight and public confidence in police re- mains to be seen. As such, the new regulations don't mark carding's end for blacks or anyone else but rather the beginning of a new and uncertain turn toward a fresh attempt to achieve greater justice for all civilians in Canada. LT u Anthony Morgan is an associate at Falconers LLP. u SPEAKER'S CORNER That's History Philip Girard

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