Crim135 - Topic 4.docx

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CRIM 135
Graeme Bowbrick

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, 1 offence o “Precedent” #1: female, 20, black hair, 1st offence [probation] o “Precedent” #2: male, 23, blond hair, 8 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 II. Legal Reasoning  Statutes: The Rules and Principles of Statutory Interpretation 1. The Problem of Ambiguity  we hope they are clearly written, but sometimes there are certain passage that are unclear  Statue can be ambiguous  Give rise to more than one possible meaning  Use judges to resolve ambiguity when problem arise in cases 2. The Fundamental Principle: Determining Legislative Intent  Judge is obligated to find legislative intent behind the law – what it means,
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