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CRIM 135 Study Guide - Parliamentary Sovereignty, Golden Rule, Incest

2 pages58 viewsWinter 2013

Department
Criminology
Course Code
CRIM 135
Professor
Graeme Bowbrick

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TOPIC #4 LEGAL REASONING
I. Legal Reasoning Case Law:
1. The Concept of Precedent -
Judge must follow the decision in previous case, if facts and law are similar in both cases.
“Material facts” –Legally relevant facts.
Allows for certainty and predictability = stability
o Lawyer 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
Decisions of higher courts make precedent that lower courts must follow in the same jurisdiction
“rule 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
(a) Binding Authority:
o Must follow - A court is only bound to follow stare decisis if in same jurisdiction
(b) Persuasive Authority
o If precedent comes from diff jurisdiction, can choose to follow even though not bound to
o Might be able to persuade judge into following it or judge may find reasoning persuasive and choose to follow
Factors that influence How persuasive (if you are in BC):
a) Nature of the Other Jurisdiction
o No1. Other Canadian jurisdiction other provinces, federal courts, we operate under same constitution
o No2. Foreign court England. We inherited their system.
o No3. Other British common wealth jurisdiction „democratic‟ only, well developed sense of law and legal system. Eg Australia, New
Zealand
o No4. Other foreign jurisdiction non common wealth, but need democratic eg Germany, japan, italy
o (Problematic cannot fit anywhere, almost close to no.1) USA common law, but not British commonwealth; very similar to Britain
and we are very similar to them
b) Level of Court
o level of courts in that jurisdiction higher = more persuasive
o eg High English court, USA supreme court = highly persuasive
4. Issues in the Operation of Precedent and Stare Decisis
(a) Predictability and certainty vs. rigidity
o law get frozen in time law becomes too rigid and cannot adapt to new circumstances
(b) Are courts bound by their own precedents?
o Are the bound to follow same level precedents? Eg Supreme vs Supreme
o No. although not ‘bound to’, they usually follow because don’t want others to say it’s unfair. So they treat
themselves as ‘bound’ by their own precedents.
EXAMPLE ; women went to supreme court suffer disease assisted suicide she could decide when to die.
o 10 years ago Argue the law that ban assisted suicide is discriminating against a disable person because a normal person would‟ve
be able do so
o Last year another women did the same. The supreme court authorized her to do so. They said the denial of assistance suicide for
someone in these circumstances is a violation of her charted rights.
o This year Bc supreme court was persuaded
o Supreme do not always have to follow. PASSAGE OF TIME PRECEDENT GETS OLD AND COURT
RECONSIDER. 10-20 years later, this is possible.
5. Avoiding Precedents: The Art of Distinguishing
We want predictability but not rigidity, If need to argue it is different use distinguishing. Need to identify clear and relevant
differences.
EXAMPLE: Criminal sentencing (assault)
o Present case: female, 25, brown hair, 1st offence
o “Precedent” #1: female, 20, black hair, 1st offence [probation]
o “Precedent” #2: male, 23, blond hair, 8th offence [jail 2 most]
Defense/Crown dig up cases that they think should be precedent. They both argue whether it is distinguishable or should be precedent.
Would not look simply at ‘male/female’, ‘brown/black hair’ – not material facts. number of offence is most likely to be considered.
Will most likely use precedent #1
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