The following are some vignettes of what life in Canada was like before the enactment of the Canadian Charter of Rights and Freedoms in 1982. I have been practicing long enough to have personal experience of pre-Charter defence and its tactics. This page will focus particularly on what the practice of criminal law was like both in recent and ancient past.
WRITS OF ASSISTANCE – The Canadian Charter of Rights and Freedoms was enacted in 1982 as part of the repatriation of our Constitution. Prior to that citizens had no constitutional rights of privacy or freedoms and the final appeal in criminal cases was to the Privy Council in England. In 1982 we became masters of our own laws. At that time there existed Writs of Assistance which was a special type of search warrant issued to a police officer for his or her lifetime. No judicial decision was necessary. Under this Writ the officer could order citizens to do whatever the officer wanted to assist him in the execution of his or her duties and use whatever physical force considered necessary. The officer had unlimited power unrestricted as to date, time or place to enter any premises the officer wished to. Damaged or destroyed property did hot have to be repaired or destroyed. The Charter changed this.
DISCLOSURE – Section 7 of the Canadian Charter of Rights and Freedoms provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The right to a fair trial is a principle of fundamental justice and requires the disclosure of the “fruits of the police investigation” as necessary to enable an accused person to make full answer and defend himself or herself against the charges that have been laid. The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the right to refuse to disclose information that is privileged or plainly irrelevant. Prior to the Charter the Crown had absolutely no obligation to disclose anything and in practice, a trial was like an ambush.
TRIAL BY ORDEAL – King Alfred the Great (849-99) brought a degree of much needed unity to the disparate Saxon kingdoms he presided over when he became King of Wessex in 871. No sooner had he taken the throne than his Book of Laws made its appearance. The resulting Saxon Law was still going strong over 300 years later. In those Saxon times trial by ordeal was a standard way of establishing guilt or innocence in the days before trial by jury became the norm. Ordeal was the Saxons’ way of ‘letting God decide’, the judicium Dei. There were a number of options of varying unpleasantness, one of which was ordeal by iron. Naturally enough the ‘court’ was a church. Present would be a sheriff of the shire, representing the peacekeeping force of the land, and a bishop, representing the celestial judge on high. The trial took place during Mass but the large chalice of hot coals burning near the altar wasn’t to keep the congregation warm. A rod of iron was thrust into the fire, made red hot and planted firmly into the accused’s outstretched hand. Three marks had been made on the floor and the accused was ordered to walk a distance of nine paces, which he was allowed to complete in three large stride before dropping the iron and stumbling to the altar, probably screaming, to be bandaged. Part two of the trial took place three days later, when the parties reassembled for the ceremonious removal of the bandages. If the hand was cleanly healing the culprit was pronounced innocent by a cry of ‘God be praised!’ If it proved to be uncleanly festering then guilt was the verdict.
A variation on the theme was the ordeal by hot water, in which the hand was plunged into a boiling vat to retrieve a ring or coin. On other occasions the hands were spared and walking the distance on hot ploughshares was implemented instead. By comparison, the ordeal by cold water, reserved for the lowly, was a doddle. In this the accused was bound and suspended from a rope, then lowered gently into the village pond. The idea was that God accepted the innocent fully into the waters, so incongruously it was the sinkers who were pardoned and the floaters who were guilty.
Trial by ordeal was abolished by Henry III in 1219.
‘Law’s Strangest Cases’, Peter Seddon
TRIAL BY BATTLE – ‘I am not guilty and this I am ready to defend with my body.’ The likelihood of such a staunch defence being offered today, except as pure bravado, is slim indeed. Not so in the Middle Ages, when the so-called trial by battle was all the rage. It was the battling Normans who popularised the practice in England after a little skirmish on Senlac Hill, near Hastings, on 14 October 1066. The Normans carried this penchant for battling into the legal system by formalising combat into a means of deciding guilt or innocence. Like trial by ordeal, it was seen as a religious rite, and the accused swore on the Bible that he was not guilty of the offence before submitting the decision to the will of God. Men were prepared to risk their lives over what seem in retrospect to be trivial offences, but, as the punishment for being found guilty might be losing a foot or a hand, having an eye gouged out or being put to death by a variety of horrific means, many were prepared to take a chance. Trial by battle generally entailed the combatants in being dressed in ordinary drab civvies, often unarmed, or at best given a wooden club or a sandbag to swing. The rules were simple. They fought to the death or nightfall, whichever came first. If both men still stood as the stars came out, then the accuser was said to have lost and was labelled a perjurer. The only other option was for either party to give up by crying ‘craven’ but as this amounted to losing the battle and accepting the resulting punishment, it was scarcely a popular choice. Although trial by battle fell largely into disuse by the end of the thirteenth century, the practice was, like many ‘laws’, never formally wiped from the statute books until the House of Lords abolished it in 1819 without a word of opposition. Strangely enough, lawyers about to face each other in court can still sometimes be heard to talk of ‘doing battle’.
‘Law’s Strangest Cases’, Peter Seddon