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Lecture 10

LAWS 1000 Lecture Notes - Lecture 10: Statutory Interpretation, Precedent, Small Claims CourtPremium


Department
Law
Course Code
LAWS 1000
Professor
Steve Tasson
Lecture
10

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LAWS 1000 B - Intro to Legal Studies - Lecture 10: The Formal Adjudication Process
Lecture 9: Sources of Law Part 2 (continued):
Precedent:
Judges use a variety of different approaches to interpret statutes (rules for statutory
interpretation)
There is a gap between what the parliament meant by the law and how these laws are
interpreted by judges
Some suggest that precedent actually isn't that good at predicting outcomes
*Remember stare decisis*
Like cases must be decided alike
Judges have some freedom but must follow this principle
Guarantees the rule of law as supposed to the rule of men
Ensures continuity
Precedent is not necessarily binding, it is persuasive
According to Morton, precedent provides a source of authority for judges
Anatomy of a Judicial Decision:
All legal decisions have a structure
Important distinction between:
Question of fact:
What actually happened?
It is the duty of the jury to determine questions of fact
Questions of law:
Does a law apply to this situation?
It is the duty of the judge to determine questions of law
Ex: Duress as a defense, the judge must decide whether duress applies
to the certain situation based on the facts presented, the judge then tells
the jury whether or not they can consider it as a defense
Precedent can be applied to cases that deal with the same questions of law- not
necessarily all the same facts
Two Basic Parts of a Judicial Decision:
Ratio decidendi:
Legal reason(s) for the judge's decision
This creates a precedent
Two Limitations of Precedent (According to Atiyah):
1. Judge's reasons are often difficult to interpret in a judgement (not
very clear)
This allows lawyers to re-interpret the judge's past
decisions and apply them to the new case
Judges may have multiple reasons for a judgement
Judges do not specify which reasons are most important
In the S.C.C, reasoning varies amongst judges

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2. It can be difficult to determine which courts bind which other courts
(ex: higher courts bind lower courts)
Obiter dictum:
Beside the point
It is rare to see an immediate change in law after only one case
A cluster of decisions in cases are what point to actual change (Atyah calls this
the organic growth of common law)
Binding Courts in Ontario:
Ontario Court of Justice:
In charge of minor criminal offenses
It hears approximately 600 000 criminal cases a year
They are spread out all over the province
Specific courts can be established to deal with specific issues
Ex: Youth Court, Drug treatment
Ontario Superior Court
In charge of major criminal offenses (ex: murder)
Handles all civil cases (ex: torts)
Subdivisions include: small claims, divisional, and family court
Ontario Court of Appeal:
Appeals move up in level
From the Ontario Court of Appeal to the Supreme Court of Canada
In the past, you could go beyond the S.C.C (ex: Privy Council in Britain)
Appeals are only allowed if there is enough justification for one
Appeal courts do not have to agree to hear a case and they don't have to give a
reason for not wanting to hear a case
The facts of a case are already established by the time it reaches the appeal
level, so the appeal judges are not deciding on questions of fact, but rather on
questions of law
Appeal courts do not consist of a trial (with witnesses), the process is mostly
done on paper
There is always a panel of more than one judge (S.C.C: usually 5 or 7 judges)
Federal Court
Deals with issues that are not criminal
Ex: administration, agencies
There is an important distinction between the trial level courts and the appeal courts
The only courts that bind lower Ontario courts are the Ontario Court of Appeal and the
Supreme Court of Canada
This means that the law can be applied differently throughout the country
However, all provinces are bound by the Supreme Court of Canada's decisions
(although the SC.C. is not bound by its own decisions)
Llewellyn (Legal realist):
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Two Views of Precedent:
Strict view:
Consists of narrowing the binding power of a past case that one doesn't
like
Casting off the weight of past cases, limiting the value of precedents
Ex: a case is being tried based on the notion of harm, using the
strict view, one would argue that a past case cannot be applied
because of the narrow notion of harm
Loose view:
Consists of taking a previous case that doesn't necessarily apply to the
current case and broaden its binding power to fit one's interests
Trying to bring as many precedent cases in as possible (expanding
precedent)
These two views demonstrate how precedent can be used in opposite directions
Idea that precedent is "Janus-faced"
Precedent looks back into the past as well as into the future
Lawyers work from the same set of cases but interpret them differently (using either the
loose or strict view)
Lawyers are trained to maximize on the value of precedents by understanding both
sides/views in order to be in a position to effectively bring forth their own case
Judges are not bound by the notion of precedent but they must refer to precedents and
provide reasoning as to why they do or do not use them in their decision
Precedent both stabilizes and allows for change
"People-and there are curiously many- who think that precedent produces or ever did
produce a certainty that did not involve matters of judgement and of persuasion, or who
think that what I have described involves improper equivocation by the court or
departure from the court- ways of some golden age- such people simply do not know our
system of precedent in which they live" -Llewellyn (pg. 164)
Essentially, we are never bound by the past
Questions to Think About:
Should judges consider the context of the statute or case before them? If yes, can
justice ever be "blind" or "neutral"?
If we admit that judges are not merely following a path cut by Parliament but making
their own, what source of legitimacy do they draw from?
Given what Llewelyn says, can we still think of law as a system of certainty, predictability,
and calculability?
Lecture 10: The Formal Adjudication Process:
Dispute Resolution:
Spectrum of dispute resolution processes:
Adjudication-courts (on one end):
■ Formal
Strict rules of evidence
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