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Week Three.doc

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Simon Fraser University
CRIM 135
Graeme Bowbrick

TOPIC #3 – LEGAL REASONING I. Legal Reasoning and Case Law: The Doctrines of Precedent and Stare Decisis Case Law (sometimes referred to Common Law) - 2nd major source of law - Every time a judge makes a decision, they create a case law o They don’t just give a bare bones decision (such as “guilty”), they provide reasons in writing (especially in higher courts) o Judge will set out facts about the case, also set out the relevant law, then set out legal issues that need to be resolved (disputes), then judge will indicate decision, and set out reasons for their decisions, and within the reasons we find the case law. (Case law emerges from the reasons for the decision) o Conflicts between elective representatives and unelected representatives (judges are appointed) Legislative law conflicts case law?  Legislative law always win, can do anything they want as long it’s part of the constitution  Laws are made by elected representatives should prevail over other laws - Ex: If there is a common law that’s centuries old (sky is blue) and government passes legislation against it, legislation wins (sky is black act) -> the sky is black in legal situations - Legal Reasoning 1. The Concept of Precedent o Precedent: basic ideas that judges should treat similar cases in a similar way  Previously decided cases, serve as law to be followed by future cases, meaning that the judge is obligated from the facts of the past case and present case should have the same decision (treating similar cases the same)  Central principle for legal system  Principle that a judge must follow a judge from a previous case and the law and the act are similar in both cases  Look only at the facts that are relevant and are similar enough to the previous case  We like this because it allows certainty and predictability in case law = stability • How? (Certainty) in a sense that we know (Ex: upcoming pianist and a potential career in front of here, and someone slams your car door, you sue them for negligence, the lawyer researching case law since you asked how much you can get from this, (ex hands critical) , find the range of compensations from previous cases o Able to predict the compensations before heading to trial (Predictability) 2. The Concept of Stare Decisis o Stare decisis: precedence of higher courts must be followed by lower courts in the same jurisdiction, a rule of how precedent should operate o Differ from precedent o Case law sometimes referred to be common law (vast body of judicially law made common law legal system extends back about 800 years in Britain – inherited precedence from Britain) o Legislation more important forms of law (since 150 years ago) o Before: common law was more important • Now: Lives more governed by legislation • If they speak English, they go by common law ( means they used to be under the British influence) 3. The Operation of Stare Decisis: Binding Authority vs. Persuasive Authority (a) Binding Authority: o A court is only bound to follow decisions from higher courts in the same jurisdiction (b) Persuasive Authority: o Another Court in a different jurisdiction can’t just be ignored (might constitute persuasive authority) o When it doesn’t fall under binding authority, judges can choose to follow reasoning in another case even though they aren’t bound to (might be able to persuade the judge to follow the decision of another case, or judge might find the reasoning in other case to be persuasive) o How do we know what a judge will find persuasive? o Similar facts & laws 1 (i) Nature of the Other Jurisdiction - Hierarchy of jurisdictions, (some jurisdictions are view as highly persuasive to our courts, highly unpersuasive, and somewhere in between) o Most persuasive jurisdictions to BC Supreme Court: Other Canadian jurisdictions (other provinces, federal courts have high persuasive value because these jurisdictions area similar to ours (some constitution -> very similar in legal framework in which they operate)  Second: England (inherited legal system from British, High Court until 1949, court systems similarities)  Three: Other British Commonwealth Jurisdiction (50-60 members) • Democratic, and have well developed sense of law and legal systems (Australia and sometimes New Zealand; less because it’s so small) - Four: other foreign jurisdictions: Japan, Germany, France - USA: approximately where England is (ii) Level of Court - The higher the court, the more persuasive 4. Issues in the Operation of Precedent and Stare Decisis (a) Predictability and certainty vs. rigidity - Rigidity: if we too strictly adhere to Stare Decisis, law might get frozen in time (decision made many years ago applied today -> no change to account for the passage of time) (b) Are courts bound by their own precedents? (Same level of courts) - Judge isn’t bound to follow the decisions of their own level of courts (most of the time) 5. Avoiding Precedents: The Art of Distinguishing - Arguing that something that isn’t precedent - Distinguishing from the previous case • EXAMPLE: Criminal sentencing (assault) A judge trstng to decide a proper sentence, for the convict, female 25 o Present case: female, 25, brown hair, 1 offence  Number of offences is relevant for the time of sentencing  Propose precedent 1 is similar due to first time offending  Age doesn’t matter, hair Colour doesn’t matter  Precedent 2 is different due to 8 conviction (material relevant) • Would distinguish between the two due to material fact o “Precedent” #1: female, 20, black hair, 1st offence [probation] th o “Precedent” #2: male, 23, blond hair, 8 offence [jail 2 months]  Look at relevant f
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