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Common Law

Sources of Law

  1. Statutes/Legislation (government)
  2. Common Law/ Case Law (courts/judges)
  • Common Law - the body of law made by judges via case law dicisions which become legal precedents for other decisions
  • Case Law
    • refers to the written decision a judge makes after hearing a dispute in court.
    • can clarify what is written ins tatutes and/or add to the common law area, or develop new law.

Developing the Common Law

  • Once a case goes to a hearing and is decided by a judge in a lawer court, then the parties can decide if they will appeal the judges decision in a higher court.
  • If they do, then the higher court will decide:
    • Whether they will hear the case; and if so,
    • Whether the lower court’s decision was reasonable or, in some instances. ‘correct’ about the law.
  • If a decision is made by a higher court then it becomes a legal precedent to be followed by lower courts.

  • Written judicial decisions (Judge’s decisions) or case law reports often inclue:
    • A brief description of facts of the case as presented by each side and/or decided by the judge
    • A review of any relevant statute and other case law in the area
    • The judge’s decision and reason for the decision
    • Comments not directly realted to the Judge’s decision, but helpful to others reading the case, known in legal terms as the ‘obiter dicta’ of the decision.

Precedents & Stare Decisis

  • Precedent:
    • a legal case establishing a priciple or rule that a court or other judicial body may, in some cases MUST, utilize when deciding subsequent cases with similar issue or facts
    • used to ensure that common disputes are resulved in a common ways – thus reffered to as the common law.
    • 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 of upper courts; decisions of higher courts are binding on lower courts

Hierarchy of the Courts

Heirarchy of the Courts

Trial Courts

  • The court will hear
    • evidence of witnesses
    • arguments of counsel about the evidence and what the judge should decide in the case
    • any motions that the parties bring.
  • Motions
    • a request for a decision on a procedural issue arising during trial
    • used to determine appropriate next steps in trial proceedings
    • Judge makes rulings on motions, e.g. whether a parent can get temporary custody of child before the case is finished
  • Judge’s Role
    • to decide that facts of the case from the versions/evidence presented (if no jury)
    • To make a finding of law from the arguments, legislation and legal precedents provided by legal counsel for the facts of this case.
    • If a Jury:
      • To decide the facts from the evidence presented by the lawyers for the parties.

Appeal Courts

  • Do not hear evidence from witnesses (akready heard at trial)
  • Lawyers file documents for judges to consider that include decision s made by the trial judge and trial transcripts
  • Judges listen to orial submission of lawyers about what went on at the trial level and why, the lawyer’s opinion, it was/was not reasonable or correct
  • Often a panel of 3 judges who discuss the issue amongst themselves vefire deciding.

  • The process to appeal
    • At the Supreme Court of Canada level parties need to apply for ‘leave of appeal’ and if allowed, there may be a panel of judges up to 9 to consider the issue.
    • Only grant appeal permission if:
      • Unique legal issue or
      • Involves issue of national importance.
    • Decisions of SCC are binding on all lower courts
    • Decisions of SCC are final –no more appeals
    • The only way SCC decisions can be changed is if the legislature revises/creates legislation to change the precedent created by the caselaw.
  • Judge’s Role
    • Court of Appeal level
      • Usually 3 judges sit each case
    • Supreme Court of Canada (SCC Level)
      • Usually 9 judge’s sit each case
    • To determine if the trial judge made an error of law/principle in the trial judge’s findings
    • Judge’s do not need to agree – majority rules – write a “Majority Opinion” which is the decision in the case
    • Judge’s who disagree with majority will write “Dissenting Opinions”

Court of Appeal’s Job

  • Look at all info provided to them by the lawyers for parties
  • Decide – the sentence was not demonstrably unfit
  • The sentenceing judge considered all relevant factors
    • A. Consideration of factors was balanced – no over or under emphasis
    • B. Balancing of factors entitles to deference – the appeal court deffered to trial judge
    • C. Sentence not ‘Demonstrably unfit’ - may be lenient

The Powers of the Appeal Courts

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