Sources of Law -Pre Midterm

Question 1

Common law

Answer 1

The body of law made by judges via case law decisions which become legal precedents

Question 2

Case Law

Answer 2

refers to the decisions that judges make after they hear about a dispute in court

Question 3

Appeal

Answer 3

Once a case goes to a hearing and is decided by a judge in a lower court, then the parties can decide of they will appeal the judges decision in a higher court. If they do, then then higher court will decide:
• Whether they will hear the case; and, if they do,
• Where the lower courts decision was reasonable or, in some instances, correct about the law
Case law can clarify what has been written in statutes, &/or add to a common law area, or develop new law

Question 4

Written judicial decisions (judges decisions) or case law reports often include

Answer 4

• A brief description of the facts of the case as presented by each side &/or decided by the judge
• A review of any relevant statute and other case law in the area
The judge’s decision in the case and his/her reasons

Question 5

Precedents & Stare Decisis

Answer 5

• A precedent is a legal case establishing a principle or rule that a court or other judicial body may, and in some cases must, utilize when deciding subsequent cases with similar issues or facts
• They are used to ensure that common disputes are resolved in common ways - thus referred 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
‘binding’ vs ‘influential’

Question 6

Trial Courts

Answer 6

• At the trial level, the court will hear the evidence of witnesses, the arguments of counsel as to what they think the judge should decide one way or other and reasons for decision, and any ‘motion’ that the parties bring
• A motion is a request for a decision on a procedural issue which arises during the trial. It is used to determine appropriate next steps in a trail proceeding
The judge will make ‘rulings’ on motions, for example - whether a parent can get temporary custody of his/her child before the case is finished; whether or not a piece of evidence will be allowed in court

Question 7

Appeal Courts

Answer 7

• Do not hear evidence from witnesses
• Lawyers file documents for the judges to read and consider that include the decision made by the trial judge and transcripts of the trial where relevant
• Appeal judges listen to oral submissions of lawyers about what went on at the trial level and why, in their opinion, it was/was not reasonable or correct
• Often there is a panel of 3 judges that hear the appeal so they can discuss the issues amongst themselves before deciding
• At the SCC parties need to apply for ‘leave to appeal’ &, if allowed, there may be a panel of judges up to 9
Decisions of SCC are binding on all lower courts

Question 8

The Judges Role in trial court

Answer 8

• To decide the facts of the case from the versions/evidence presented (if no jury); and,
To make a finding of law from the arguments and legal precedence’s provided by legal counsel

Question 9

The juries role in trial court

Answer 9

To decide the facts of the case from the versions/evidence presented -do not write decisions- do not decide the ‘law’