Precedent and Statutes (Week 9) Flashcards
What is s. 1 of the charter?
What is s. 33 of the charter?
- Reasonable limits clause
2. Notwithstanding clause
What are some differences between the courts (adjudication) and legislature?
Courts: focused, resolution (ends impt), reactive, equality of process
Legislatures: broad, problem solving, process value, social facts (political), speed and legitimacy
What are the three broad approaches to interpreting statutes?
Describe them
- Textualism - internal, literal way with simplest narrowest meaning
- Intentionalism - interpretive approach, finding intention internal/external
- Pragmatism - external, policy-objective, using text to answer questions
What are the four rules of statutory interpretation?
Describe them
- Plain meaning rule (literal rule) - literal meaning, dictionary definitions
- The golden rule - follow until doing so would lead to absurdity
- The mischief rule - looking for the mischief parliament was trying to deal with, find intentions
- Modern approach - entire context as intended by parliament, can be ambiguous
Describe the modern approach to interpreting statutes?
What are some weaknesses?
Words of an Act must be read in their entire context and in their grammatical and ordinary sense harmoniously with the object of the act, the scheme of the act and the intention of parliament
Emphasized legal meaning not “usual” meaning
Too much focus on legislative intent, focus on intent may discourage correction
What is the living tree doctrine of constitution interpretation?
Who said: “The BNA planted in Canada a living tree capable of growth and expansion within its natural limits”
Doctrine from persons case - constitution is organic and mist be read in abroad and progressive manner to adapt it to the changing times
Lord Sankley
What is stare decisis and what are Morton’s two main functions for this?
Like cases treated alike
- Continuity and certainty
- Guarantees rule of law not rule of men
What is ratio decidendi?
Obiter dictum?
The reason for the decision - has binding power
All other words outside the essential decision - is important to case but not decision
What are Atiyah’s two limitations on the doctrine of precedent?
What does she think about the way courts are bound?
Theoretically clear, often
1. Multiple reasons
2. Multiple judges
Higher courts bind lower courts and highest courts are not bound by its own decisions
What is true of the decisions which influence precedents?
They aren’t single decisions, but rather clusters - very few circumstances where rule changes dramatically always tend to follow cluster of past decisions
What is Llewellyn’s and the legal realist take on precedent?
Hint: 2 views
Strict view - narrowest view of a decision, used on unwelcome precedent, casting off the weight of past cases
Loose view - broadest view of a decision, used to capitalize on welcome precedent, using cases as spring-boards for your own argument
What does Llewellyn think about the doctrine of precedent?
Its janus-faced - one approach gets rid of a case and the other seeks to include cases to support claims, lawyers must seek to maximize both sides
What is the R. v Hasselwander case? Why is it relevant?
Uzi case - tried to get registered, can’t have it
Issue for court - whether the gun was capable of firing at an automatic rate, what does the court deem to be “capable”
Intent more important than literal meaning/rule
What is the R. v Scott case? Why is it relevant?
Robs store, arrested; no gun found - charged with robbery and fire arm
Couldn’t be charged with firearm because couldn’t tell if it was real or imitation - used golden rule, couldn’t punish Scott bc couldn’t distinguish real from fake
Courts need to be precise - law needs to be clear so you know when you’re clearly committing a crime
