Judicial Decisions and the Common Law (7) Flashcards
What are the 3 origins of Canadian law?
Civil law
Common law
Indigenous traditions
Explain the influence of civil law traditions in Canada (2)
Roman influences - twelve table in 450 BC where a set of quasi-legal principles for solving disputed between the poor and wealthy were codified and accessible to all; also created different focuses of law (family, estate, contract, etc)
Quebec also gave us the civil code
Explain the influence of common law traditions in Canada (2)
Norman invasion in which Norman the conquerer in 1066 initiated unification of English courts
Shires of England had 3 levels of courts (lowest for peasants and petty complaints, middle for land-owners and criminal/civil matters and highest for titles elites with most important conflicts) with no courts of appeal
What are some important developments over time in common law? (3)
King’s Peace - state assumes prosecutorial rights (some crimes are so harmful that it’s considered a crime against the king himself so he has the right to prosecute)
Juries - judgment by a jury of your peers as they understand you best
Stare Decisis - “stand by the decided case”; intended to unify the law into a single set of rules for the entire kingdom
Explain the influence of indigenous traditions in Canada (4)
Treaties - fundamentally altered Canadian law
Distinctive practices
Intent (guilty mind, from Huron)
Principles of restorative justice and restitution (due to cross cutting ties, trying to avoid blood feuds, etc)
What are the 2 sources of Canadian law?
- Subsidiary sources: general and specific customs (path to the beach always used for years, establish so long it acquired the force of law) and books of authority (scholarly sources)
- Principle sources: legislation and precedent
Explain legislation (3)
Probably the single most important source of law in Canada
2 levels of legislation in Canada according to the Constitution Act - federal and provincial
It is the deliberate creation of legal precepts by a body of government that gives articulate expression to such precepts in a formalized legal document
Explain precedent (3)
Cases previously decided, those decisions binding on lower courts and subsequent decisions
Judges are asked to adjudicate first, law-making secondary
Importance of precedent lord in the desire of law to make life predictable
What is the difference between legislation and precedent?
Judicial decisions are justifications for applying a certain rule; judges can’t change law (stare decisis); judges don’t have to worry about what the community will think
Legislation needs no justification, only intent; they can change the law anytime they want; they answer to voters and the public
How does precedent exist in a hierarchy? (2)
The only way a piece of case law can bind every court in the country is if it was in the Supreme Court of Canada (and the only way to get out from under it is to differentiate)
The lower in the courts you go, the less important the decision (interesting since most work is done in the lower courts)
Explain stare decisis (2 components)
Two components to judicial decisions
- Ratio dicendi - the grounds for the decision; reasoning of the judge
- Obiter dicta - statements made in passing
Ratio dicendi is what matters and stare decisis requires similar facts and similar issues
What are Morton’s 2 things about the value of precedent and stare decisis?
- Certainty and continuity
- Rule of law, not a rule of men (law applied uniformly; all arguments must be explained in reference to previous precedent)
What is Llewellyn’s double doctrine of precedent?
Said precedent doesn’t actually give us a lot of predictability as decisions can be based on agreeing with precedent or disagreeing with it
- Strict view of doctrine of precedent: legal council may distinguish cases based on the hard facts
- Loose view of doctrine of precedent: focuses on language used by the court
Both are completely legitimate and some cases can lead to contradicting interpretations of the same case
