Week 3- Sources of Law (Common law)

FRSC 1100H A Week 3

There are two primary sources of law in Canada

1. Statutes/Legislation made by governments

2. Common Law/Caselaw made by courts/judges

Common law defintion

the body of law made by judges via case law decisions which become legal precedents for other decisions

Case Law Definition

refers to the written decision a judge makes after listening to a trial in court

Case law can clarify what is written in….

statutes &/or add to or develop new common law

Developing the Common Law: Process of making common law

Once a case goes to a hearing (trial) and is decided by a judge in a lower court (judicial decision), then the ‘parties’ (via their lawyers) can decide, if they do not like the decision, whether they will appeal the judge’s decision to a higher court.

Developing the Common Law: If they do, then the higher court will decide:

1. Whether they will hear the case (give leave to appeal); and, if so,

2. Whether the lower court’s decision was ‘reasonable’ or in some instances ‘correct’ about the law.

Developing the Common Law: Case decisions made by the higher appeal courts become,,,,

legal precedent for lower courts.

A precedent is:

an appeal court decision establishing a principle/rule that relevant lower courts utilize when deciding subsequent cases with similar issues/facts

A precedent is  used to ensure that…..

common disputes are resolved in common ways – thus referred to as the ‘common law’

A precedent is: a tool to ensure…

fairness in the legal system as well as flexibility.

‘stare decisis’ –

the legal principle that requires lower courts to stand by/follow the legal precedents (case law) of upper courts; decisions of higher courts are binding on lower courts

The Hierarchy of the Courts

courts

often 2 levels of trial courts

one with provincially appointed judges and the other federally appointed judges e..g. Ontario Court of Justice & Superior Court of Justice - Ontario

What happens in Trial Courts :The court (J or J&J) will hear:

evidence of witnesses called by the lawyers;  arguments of counsel about the relevant evidence and law; and,  any ‘motions’ that the parties bring.

Motions definition

 a request for a decision on a procedural issue arising during trial

Motions used to determine…

appropriate next steps in trial proceeding.

Motions: J makes ______ on motions, e.g…..

rulings, whether a parent can get temporary custody of child before the case is finished; whether a piece of evidence will be allowed in court, etc

The Judge’s Role in Trial Court Where J is Trier of….

‘Fact’ & ‘Law’

The Judge’s Role in Trial Court: To decide the….

facts of the case from the versions/evidence presented (if no jury);

Where J is Trier of ‘Fact’ & ‘Law’: and To make a finding of….

law from the arguments, legislation, and legal precedents provided by legal counsel (whether jury or not) for the facts of this case.

in trial court, If a Jury, then, The Jury’s Role in Trial Court…

(the Trier of Fact)

The Jury’s Role in Trial Court: To decide the…

facts from the evidence presented by the lawyers for the parties

The Jury’s Role in Trial Court: To apply the facts to the…

law as instructed to them by J

What happens in Appeal Courts: Do not hear….

evidence from witnesses (already heard at trial)

Appeal Courts: Lawyers file documents for….

judges to consider (submissions/factums) that include the decision made by trial judge & trial transcripts (recording of trial proceedings)

Appeal Courts: Judges listen to…

oral submissions of lawyers about what went on at the trial level and why, in lawyer’s opinion, it was an error of the law

Appeal Courts: At provincial level often a panel of….

3 judges who discuss the issues amongst themselves before deciding

Appeal Courts: At provincial level often a panel of 3 judges who discuss the issues amongst themselves before deciding either:

Was decision a reasonable interp of law – ‘reseasonable std’? 10  Was the decision ‘correct’ –‘correctness std’?

At the Highest Appeal Court: for an ____ appeal

SCC

At the Highest Appeal Court: Parties need to apply for…..

‘leave to appeal’ (permission to appeal) &, if allowed, there may be a panel of up to 9 judges to consider the issue

At the Highest Appeal Court: Only grant leave to appeal permission if:

Unique legal issue; or,  Involves issue of national importance

At the Highest Appeal Court: Decisions of SCC are ______ on all lower courts

binding

At the Highest Appeal Court:Decision of SCC are…..

final- no more appeals

At the Highest Appeal: Only way SCC decision can be changed is if the….

legislature revises/creates legislation to change the precedent created by 11 the caselaw

How many judges at provincial court of appeal?

Usually 3 judge’s sit each case

How many judges at supreme court of canada?

Usually 9 judge’s sit each case

The Judge’s Role in Appeal Court: To determine if the…

trial judge made an error of law/principle in the trial judge’s findings

The Judge’s Role in Appeal Court: Judge’s do not need to….

agree – majority rules – write a “Majority Opinion” which is the decision in the case

The Judge’s Role in Appeal Court: Judge’s who disagree with majority will write….

‘Dissenting Opinions’

Judicial Independence: Judges are not easily…

removed from their jobs – security of tenure, remuneration, and administrative independence

Judicial Independence: Appointed until age…

75

Citing Cases & Excerpts Example 

R. v. Jacobson, (2006), 207 C.C.C. (3d) 270 at 289 (Ont.C.A.)

Title – R. v. Jacobson – note the title is italicised

 Year it was decided (2006)

 207 is the volume of the C.C.C. – Canadian Criminal Cases – a topical reporter where it can be found

 (3d) means the third series/edition of numbered volume

 The case starts at page 270 of that volume

 The excerpt cited is at page 289

 The cite should include the court e.g. Ontario Court of Appeal although it may be described in different ways. (e.g . Above or OCA)

“R” in title almost always…

criminal case (Criminal Code or provincial offence)

“R” represents the…

Crown/Rex or Regina/King or Queen

R.v Genaille, 2017 MBCA 38 (CanLII) Who are the Parties?

“Genaille” name of Accused/Defendant.

Where accused initials only e.g. Z.S. usually means a young person  Two names in the title - civil lawsuit (e.g. family, tort, contract, etc.). Names represent the two parties involved in the case e.g. Eccles v Bourque Judges’ names - 3 judges (Hamilton, Burnett, Mainella)  “JJA.” -‘J’ means Justice (Judge), ‘JJ’ = more than one judge (Justices), & ‘A’ means appeal, therefore ‘JJ.A.’ stated as ‘Justices of Appeal’ Court Names  e.g. MBCA = Manitoba Court of Appeal, SKCA = Sask. Court of Appeal, ONCA,OCA, Ont.C.A. = Ontario Court of Appeal, SCC = Supreme Court of Canada, etc

Written Judicial Decisions: Written judicial decisions (Judge’s decisions) or case law reports often include:

A brief description of facts of the case as presented by each side &/or decided by the judge

 A review of any relevant statute and other case law in the area (legal precedents to be followed)

 The judge’s decision and reasons for the decision –known in legal terms as the ‘ratio’ (reasoning of decision)

 Comments not directly related to J’s decision, but helpful to others reading the case, known in legal terms as the ‘obiter dicta’ of the decision

to win the appeal? In order to succeed, the Appellant (here the Defendant) must show:….

a.that the trial judge made an error, or errors, in principle (also called an error in law); and,

b.that the sentence imposed was harsh, excessive and demonstrably unfit.

R. v. Genaille – C/A decision? Court of Appeal: Looks at……

all info provided to them by the lawyers for parties

R. v. Genaille – C/A decision? Court of Appeal: Decides - the…..

sentence was not demonstrably unfit [para 9 & 10]

R. v. Genaille Court of Appeal: Decides - the sentence was not demonstrably unfit. What was their Reasoning?

The sentencing judge considered all relevant factors

R. v. Genaille The sentencing judge considered all relevant factors… (3)

a. Consideration of factors was balanced – no over or under emphasis

b. Balancing of factors entitled to deference – the appeal court deferred to trial Judge

c. Sentence not ‘demonstrably unflit’ - may be lenient

What are appeal judges asked to do? (4)

 Review the trial judge’s decision about convictions & sentence

 Determine if the tj made any error in principles/law

Add detail to the law to be applied in similar circumstances 

Make a decision about the verdict

appeal judges Decide if the tj’s decision should be:…. (3)

 Upheld = appeal would be ‘denied’

 Over-turned and sent back for reconsideration = appeal would be ‘allowed’ and sent back for a new trial/sentence by the trial court

 Over-turned and C/A imposes a new sentence = appeal would be ‘allowed’ and a new finding/sentence ‘imposed’

When Appeal Judges Cannot Agree….(2)

 Majority rules

 Dissenting opinion are shown after majority opinion in case decisions