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Lecture

CRIM135, Topic #3 - Legal Reasoning

3 Pages
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Department
Criminology
Course Code
CRIM 135
Professor
Graeme Bowbrick

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TOPIC #3 – LEGAL REASONING I. Legal Reasoning and Case Law: The Doctrines of Precedent and Stare Decisis 1. The Concept of Precedent  Judge must follow the decision in previous case, if facts and law are similar in both cases  Judge is obligated (if facts and laws are similar enough) to follow the reasoning as articulated in the previous case  Previous decided cases serve as law to be followed by future cases  “material facts” – legally relevant facts  Allows for certainty and predictability = stability o Lawyers can research similar case precedent – can see range of compensation/punishment o Many lawyers do research, and many cases go through plea bargaining instead because lawyers can predict what might happen if case went to trial 2. The Concept of Stare Decisis  Precedent of higher courts must be followed by lower courts – in the same jurisdiction  ‘rules about how precedent operates’  11 courts jurisdiction – each province is their own jurisdiction & federal jurisdiction  Supreme court of Canada – jurisdiction is entire country so their decision is binding on whole Canada 3. The Operation of Stare Decisis: Binding Authority vs. Persuasive Authority Influence of case law not in same jurisdiction (a) Binding Authority  Must follow – a court is only bound to follow stare decisis in same jurisdiction (b) Persuasive Authority  If precedent comes from a different jurisdiction, can choose to follow even though not bound to  Might be able to persuade judge into following it – or judge may find reasoning persuasive and choose to follow (i) Nature of the Other Jurisdiction  Persuasiveness of other jurisdictions (hierarchy): 1. Other Canadian jurisdiction – other provinces, federal courts, we operate under same constitution 2. Foreign court – England, we inherited their system 3. Other British Commonwealth jurisdiction – ‘democratic’ only 4. Other foreign commonwealth jurisdiction (ii) Level of Court  Level of courts in that jurisdiction – higher is more persuasive  Ie. High English court, USA supreme court 4. Issues in the Operation of Precedent and Stare Decisis (a) Predictability and certainty vs. rigidity  law get frozen in time – law becomes too rigid and cannot adapt to new and changing circumstances (b) Are courts bound by their own precedents?  Are the bound to follow same level precedents? i.e., supreme vs supreme  NO, although not ‘bound to’, they usually follow because don’t want others to say its unfair 5. Avoiding Precedents: The Art of Distinguishing  if want to argue its not precedent, need to argue it is different – use distinguishing. Need to identify clear and relevant difference  EXAMPLE: Criminal sentencing (assault) st o Present case: female, 25, brown hair, 1 offence o “Precedent” #1: female, 20, black hair, 1st offence [probation] o “Precedent” #2: male, 23, blond hair, 8 offence [jail 2 mos]  If previous case is analogous, use as precedent  If not, eliminate  Physical features and gender does not count; 8 offence counts II. Legal Reasoning and Statutes: The Rules and Principles of Statutory Interpretation 1. The Problem of Ambiguity  Sometimes certain passage is unclear  Lack of clarity will give rise to more than one meaning  Use judge to resolve ambiguity 2. The Fundamental Principle: Determining Legislative Intent  Judge is obligated to find the legislative inten
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