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LAW401 Study Guide - Provincial And Territorial Courts In Canada, Estoppel, Criminal Procedure


Department
Law
Course Code
LAW401
Professor
Moin Yahya

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FOUNDATIONS OF LAW CAN
Trial and Appeal
At Trial
Facts (as found by finder of fact) + law (as found by trial judge)  verdict or judgment
Appeal
Examines trial judgment
Appeal examines  Findings of Fact  Application of Law  Outcome on Appeal
trial judgment - Trial finder of fact - No deference - Uphold (appeal
receives deference (exceptions) dismissed)
- Reverse (appeal
granted)
Trial courts where facts are created, appellate courts are where law is created
Appeal Judgment
Judgment authored by court with majority and dissent OR unanimous.
oJudgment – decision of the court (Canada)
oAppellate usually 3 judges, SCC usually 9
oDissent sometimes articulates another way of looking at the case – disagrees with the
majority. The dissent, a lot of times, will explain what happened in the case. A lot of
dissents eventually become the majority.
Usually dissent much clearer and better written decision
Sometimes (most), the Justices sign their names, and sometimes (few), it is signed Per Curiam
(By the Court)
Case becomes precedent with the facts as stated in the case only relevant facts for future parties.
Law may be changed, affirmed, extended, retracted or overturned, etc.
oAppeal judge can keep the law as it is
oSometimes may change the law – by extending application, entrenching application, or
completely changing it
oOnce case comes out it is binding on all courts below it in that jurisdiction (but may be
persuasive for other jurisdictions)
oPersuasive in Alberta – House of Lords (England), US
The case is binding on all lower courts in that jurisdiction.
The case may be persuasive for all other jurisdictions.
Law
Appeal case becomes the law on the question raised in that appeal

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The law may be made by the judges or made by the legislature (provincial or federal or other)
oRatio – relevant to the case
oDicta – irrelevant to the case
Case law or statutory law
oOver time, built up a body of cases come to us that tell us what the law is
oLegislature can pass laws statutory laws (e.g. Criminal Code of Canada)
Courts interpret statutes – the case becomes precedent and part of the law
oCourts interpret a statute (say “this is what this word means”)
Next case at trial must apply the law as in the case, if the facts are similar
How do we know if they are similar?
oAnalogies and distinctions
Next appeal will either say the facts are similar or not (and if not, what law to apply)
Case 1 Case 2 Case 3
Rule 1 Rule 1, or new Rule 2 Rule 1, 2, or new 3
No one can tell you the law, they can predict with reasonable certainty, but it can always
change
The Common Law
Statutes, Judge-made Cases, Cases Interpreting Statutes and Previous Cases
English system of judge-made law
oOver time those judgments became the common law of the people
oCommon – came from the people, not written by anybody
System of legal reasoning
Supremacy of precedents (that can be overturned by new precedent, statute, or both)
Sometimes refers to older days of the law
oWhen? Long time ago – the good old days
oBefore Parliament or Legislature started codifying something
Important to:
oLearn how to read cases

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Spend time interrogating cases
Have to read it with an exacting eye
oLearn how to interpret statues
oLearn how to read cases interpreting statues
oKnow how courts think to predict outcomes of new cases
The Civil Law
Civil Law: privacy of the Code
Europe (not UK) plus Quebec (and Louisiana?)
Other systems: mix of common law and civil law
Shariah law, traditional aboriginal law (in Canada and elsewhere), mixtures of all of the above
Common Law Civil Law
Judge-made law based on precedent Codified system of laws
Uses analogical reasoning from statutory
provisions
Legislation is the primary source of
law
Adversarial in nature Judge is both the decider of fact and
law
Example: No Pets Allowed
No pets allowed (statute)
No pets allowed, except small ones that fit in cups (accepted by the courts)
An Introduction to Legal Reasoning, Levi
I. Legal reasoning
Basic pattern of legal reasoning is reasoning by example
oThree-step process, described by precedent:
1. Similarity is seen between cases
2. Rule inherent in the first case is announced
3. Rule of law made applicable to second case
Finding of similarity or difference is the key step in the legal process. The determination of
similarity or difference is the function of each judge.
The kind of reasoning involved in the legal process is one in which the classification changes as
the classification is made. Rules arise out of a process, which, while comparing fact situations,
creates the rules and then applies them.
Laws are molded for the specific case
Reasoning by example shows the decisive role, which the common ideas of the society and the
distinctions made by experts can have in shaping the law. It brings into focus important similarity
and difference in the interpretation of case law, statutes, and the constitution of a nation.
II. Concepts move into and out of the law:
1. Creation of the legal concept, which is built up where cases are compared
oThe court fumbles for a phrase and several phrases are tried out.
2. The concept then becomes more or less fixed
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