Sources of Law
- Statutes/Legislation (government)
- 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
- 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
- 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.
- 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.
- 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 level
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