Ch. 4 Judicial Decision-Making

Question 1

Tremblay v. Daigle

Answer 1

Tremblay applied to get an injunction because girl wanted an abortion. Quebec judge interpreted the fetus as a human. Daigle went and had an abortion. Case became moot. SC still looked at it and one guy was pissed but justice Justine told him to look at it from a women perspective.

Question 2

Define De Novo

Answer 2

“as if it were new”, as when an appellate court decides questions of law without reference o what the trail judge decided in a case.

Question 3

Factors that influence/determine the path judges take in the importance of legal factors (2)

Answer 3

1) Traditional Approach - Emphasizes the importance of legal factors
2) Legal Realism - Argues other factors may play a prominent rile, including the judges own policy preferences, their personal attributes, & external factors

Question 4

Decided to Take a Case: The Appellate Court’s First Decesion. Two choices the courts can take

Answer 4

1) Appeal of leave

2) appeal of right

Question 5

Discretionary Jurisdiction

Answer 5

Appeal by right - Courts can choose which cases they wish to decide from among the cases brought to them by litigants requesting a hearing.

Question 6

Decided to Take a Case: The Appellate Court’s First Decesion- What discoveries did Roy Flemming discover from the Supreme Court of Leave analysis (2)

Answer 6

The public importance
appeals linking the lower courts decision to provincial or federal government have interst were also more likely to be granted appeal of leave

Question 7

What are the 3 important steps in a trial decision?

Answer 7

1) Identify relevant facts
2) Identify the relevant law
3) Combining the law & relevant facts to produce right job

Question 8

What do appeal courts do? (3)

Answer 8

1) Review lower courts decision
2) Accept factums
3) hear oral arguments

Question 9

What does the Supreme Court do?

Answer 9

They clarify the law of lower courts

Question 10

Appeals by leave

Answer 10

The cases that require the courts spproval to be heard

Question 11

Appeal by right

Answer 11

Court has to hear based on your right. Can exersice Jurisdictionary Discretion however.

Question 12

The use of Panels at appeal courts. How many?

Answer 12

Heard typically by a panel of 3 judges to hear & decide a case. Clerks of court usually list a combination of judges.

Question 13

What is En Banc?

Answer 13

The decision to have a case heard by a panel of justices rather, than by the Court En banc (9judges)

ALL 9 JUDGES ROLE UP

Question 14

How many members of a panel have to hear a case at the Supreme Court Level usually?

Answer 14

May be heard by 5,7, and 9 but MUST BE ODD

Question 15

Under what circumstances must the En Banc appear?(2)

Answer 15

all 9 judges must appear when…

1) Charter is at issue
2) Interverner is present

Question 16

Oral Arguments & Preliminary Votes order for appellate courts

Answer 16

1) oral arguments

2) Preliminary vote

Question 17

Oral Arguments & Preliminary Votes order for appellate courts- How does the Supreme Court judges craft an opinion (2)

Answer 17

1) Dissent - Justice disagrees

2) Concurring opinion - agrees with outcome but not rational (broad applications for future)

Question 18

What are the determinants of judicial decision making?

Answer 18

Legal factors! (3)

Question 19

What are the determinants of judicial decision making? What are the legal factors that contribute to judicial decisions?

Answer 19

Legal Factors

1) Status
2) Precedents
3) Consitutional Provision

Question 20

Legal Factor that determine judicial decision

What is Stare Decisis ? (precedents) (2)

Answer 20

1) “Let the decision stand” A principle of judicial decision making suggesting that courts are bound by previous decisions & the decision of higher courts
2) Also means precedents

Question 21

Legal Factor that determines a judicial decision. What is Ratio Decidendi? (precedents)

Answer 21

The legal reasoning for the decision reached by the courts. (oppsite to obider dictum)

Question 22

Legal Factor that determine judicial decision- Obider Dictum (precedent)

Answer 22

Words found in a courts opinion that are not necessary to the decesion of the case. These worrds “said passively” are not part of binding precedent. (contrast to ratio decidendi)

Question 23

What are the 8 characteristics of the Framers Intent

Answer 23

1) Interpretation inferred from intent of framers. Ask: “what did the goverment intent”
2) Reffered to as the “original intent: in U.S. and tjose justices, who focus on framers intent are considered “originalist”
3) Examing record surronding drafting of legislation or constititution & legislation history
4) Intent restricted to time it was passed
5) Supporters argue its natural interperation (legal positivism)
6) Allow for the removal of personal beliefs or preferences
7) Allows for decison- making democratically because decision- making operationalizes the will of those electted majority
8) Promotes stability, predictability over time for litigants and players

Question 24

Opponents of Framers Intent

Answer 24

1) Meaning should be current & reflect todays societal values
2) Impossible to determine who the “framers” were
3) Intent of legislation is a group process not individual
4) Focus on the “intent” of an individual versus historical records produced by other allows for subjective jdugement

Question 25

Persons Case (Henrreta Muir Edward V. Attorney General)

Answer 25

The JPC (private council) took a very broad approach to interpretting the "British North America BNA act in the person case. 
Facts- PM refused to appoint women to canadian senate citing S.24 of the BNA Act that required the appointment of a 'qualified person" Interpreted person as men only lol

Question 26

The living tree Doctrine - Describe

Answer 26

The living tree doctrine has been entrached into canadian constitutional law since the Edward v. Canada / “person case”

Sankey stated in the 1929 decision: “the british north america act planted in Canada [is] a living tree capable of growth & expension within its natural limits.

This is known as the DOCTRINE OF PROGRESS INTERPERTATION. This means that the constitution cannot be interpreted in the same way as an ordinary statue. Rather it must be read within the context of society to ensure that it adapts & reflects change.

Question 27

What is the Frozen Concept?

Answer 27

The frozen concept reasoning runs contrary to one of the most fundamentsl principles of Canadian constitutional interpretation: Living tree doctrine

Question 28

Statutory Interpretation: Legislative Intent & Textualism
Define the Cardinal Principle in Statutor Interpertation

Answer 28

A legislation provision should be contructed in a way that best furthers its objective…… A judge must ascertain the intent og legislature in enacting the statues.

Question 29

How Should Justices Determine the Object of Statutory Person?

Answer 29

Through the Textual Approach

Question 30

How Should Justices Determine the Object of Statutory Person? Define Textual Approach

Answer 30

The Textual Approach suggest that text in the provision is authoritative - meaning the only realible intent of legislation is the text itself.

Question 31

Name the 3 characters of the textual approach

Answer 31

1) Plain/ clear meaning - justices interpertation of text is towards “ordinary sense”
2) Golden Rule - When text is obsurd/unjust use the golden rule to modify meaning.
3) Mischief rule - If the text is ambigious, the mischief rule allowss outside material to be introduced to guide the choice of the proper meaning

Question 32

Strategic Model of Decision- Making

Name the two strategies

Answer 32

1) Attitudinal Model

2) Strategic Model

Question 33

Strategic Model of Decision- Making

Describe the Attitudinal Model

Answer 33

The attitudinal model suggest that judicial outcomes are the product of the ideology of individual justices & the results of attidunial responses to specific case facts that can be triggered in different areas of law.

Question 34

Strategic Model of Decision- Making

Describe the Strategic Model

Answer 34

Strategic justices will write decision as close to their ideal ideiology as possible without provoking the executive & legislative to overturn. It’s basically modifying position to increase likelyhood for decision to be enforced

Question 35

Strategic Model of Decision-Making

How does Role Orientation influence in judicial decision manifest itself (2)?

Answer 35

1) Activism orientated

2) Restrain orientated

Question 36

Strategic Model of Decision-Making

How does Role Orientation influence in judicial decision manifest itself (2). Describe Activism

Answer 36

• Asseting an independent position in deciding cases, to review the action of the other branches vigoursly, to strike down acts the justice believes are unconstitutionaly
• Imposing far reaching remedies

Question 37

Strategic Model of Decision-Making

How does Role Orientation influence in judicial decision manifest itself (2)? Describe Retrain orientated

Answer 37

Prefers to defer to the legislature when interpreting the legislatures outcome

Rejects broad remedies, only correcting when absolutely neccesary.

Question 38

Is adjudicator of disputes, restraint or activist orientated?

Answer 38

Restraint orientated

Question 39

Is policy-making-orientation, restraint oe activist orientated

Answer 39

activist orientated

Question 40

Describe the Personal Attributes Model

Answer 40

The personal attributes model argues that judges career experience, education, partisan affiliation, social background, and other factors shape adjustices attitudes and those attitudes – the mebbeded factors can influence that justices decision