The Organization of Law - A. Courts
Courts are key dispute-resolution institutions, entrusted with the responsibility of presiding over contentious cases (and, in some cases, also issuing advisory opinions).
The basic hierarchy of courts in Canada is as follows:
- Supreme Court of Canada
- Specialized federal courts
- Federal courts
- Appellate courts
- Provincial and territorial superior courts
- Provincial and territorial courts
The Organization of Law - B. Legislatures and Admi
Legislatures make laws - laws that are then interpreted and applied by courts. In Canada, this lawmaking power is distributed between Parliament, i.e. the House of Commons and Senate, and the various provincial legislatures. Again, sections 91 and 92 of the Constitution Act, 1867 play a crucial role in this distribution of power.
Administrative bodies are specialized boards, tribunals, and other agencies to which a significant degree of decision-making authority has been delegated through federal or provincial legislation. These bodies are typically provided with considerable discretionary authority, and they often also exercise quasi-judicial power. They must abide by Canadian law, including the Charter of Rights and Freedoms and basic principles of procedural fairness. Their decisions are capable of being reexamined by courts of law under certain circumstances.
Precedent (stare decisis)
In its most basic sense, the term “precedent” (interchangeable with “stare decisis”) refers to the binding nature of court decisions.
In practice, what this means is that if a court articulates a legal rule, that rule will often be binding upon other courts in the future. This is especially the case for decisions rendered by high-level appellate courts.
Among other things, precedent ensures a measure of consistency and predictability in legal decision-making. This, in turn, is generally believed to reinforce the rule of law
Three Models of Criminal Law and Justice
Retribution—This is about punishment or collective, society-wide retaliation. “The state is expected to be the agent of vengeance on behalf of the victim” (Vago and Nelson, 140).
Incapacitation—“Lock him up!” The basic idea here is that the person convicted of a crime and sentenced to jail is thereby rendered incapable of committing another crime, at least for a certain period of time (during which, hopefully, some kind of rehabilitation is attempted).
Deterrence—This refers to the way in which criminal sanctions deter a convicted criminal from repeating her or his offences; or, more broadly, to the way in which criminal sanctions serve as cautionary warnings to all members of society, encouraging them not to engage in criminal behaviour.
Criminal Law in Canada
Each crime is composed of two “elements”:
The actus reus, or the physical act in question, and the mens rea, the mental state that accompanies this act.
State prosecutors must be able to prove the existence of both the actus reus and the mens rea in order to establish that the accused is guilty of the crime.
Key Terms in Criminal Law
“Presumption of innocence”: The accused is presumed to be innocent until he or she is proven guilty.
“Burden of proof”: State prosecutors are obligated to prove that the accused is guilty. It is not the obligation of the accused to prove that he or she is innocent.
“Beyond a reasonable doubt”: The (high) standard that a state prosecutor must meet in order to make out his or her case against the accused.
Royal Commission on the Donald Marshall, Jr., Pros
“The criminal justice system failed Donald Marshall, Jr. at virtually every turn, from his arrest and wrongful conviction in 1971 up to—and even beyond—his acquittal by the Court of Appeal in 1983. The tragedy of this failure is compounded by the evidence that this miscarriage of justice could have—and should have—been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner.” (250)
Commission on Systemic Racism in the Ontario Criminal Justice System
“Since people with limited social and economic opportunities are most likely to be policed, prosecuted and punished as criminals, racialized people are more likely than white people to be in conflict with the law.” (253)
Green’s “Crown Culture and Wrongful Convictions”
“Wrongful convictions are best understood as the product of multiple system failures. Each presents its own constellation of factors that contribute to the miscarriage of justice. But there is a disheartening familiarity about them: incustody informants, non-disclosure, mistaken identification, false confessions, ‘junk science’, the mishandling of alibi witnesses and, of course, ‘tunnel vision’.” (258)
A key factor at the basis of wrongful convictions is what Green, like many others, terms “Crown culture”, a shared mindset among state prosecutors “that places paramount value on winning, that confuses its functions with those of the police, and that stubbornly resists the prospect of factual error” (258). This is particularly problematic in light of the enormous power, especially discretionary power, that vests in the Crown
Barrett’s “Expanding Victims’ Rights in the Charte
The adoption of the Charter of Rights and Freedoms in 1982 made an enormous difference in connection with victims’ rights. It was on the basis of the “rights revolution” inaugurated by the Charter that victims were endowed with the formal right to receive information about criminal investigations and prosecutions, that measures were introduced to reduce the threat of “secondary victimization” to sexual assault victims, that children and disabled persons were entitled to testimonial aids of various kinds, that the entitlement to victim impact statements (i.e. statements prepared for the proceedings that involve the accused’s sentencing) were bolstered, that victims’ rights of standing (i.e. rights to participate directly in proceedings) were augmented through statute, that new support services were created for and made available to victims, and that more robust and straightforward compensatory mechanisms were established for victims.
Hunt’s “Law, State, and Class Struggle”: A Marxist
Class power needs state authority in order to garner “legitimacy”: “In class societies the economic and social dominance of an exploiting class does not sustain itself automatically. The exploiting class always strives to turn itself into a ruling class by means of an institutional structure, the state, which operates to sustain and to reproduce that position. While the state is a product of class antagonism it takes on the appearance of being an entity which stands above society and which embodies the interests of the community as a whole.” (232)
Brute coercive force is never enough to sustain and preserve “legitimate” authority; ideology is always needed: “Direct coercion will often play a major part in the establishment of a new system of class power, but, however much it continues to depend on physical repression, it will strive to promote other means of consolidating its domination.” (234)
Law is integral to this process of ideological legitimation of class power: “Law plays an important role in sustaining the domination of the ruling class because it operates both as a form of coercive domination and of ideological domination.” (234)
“Manufacturing consent”: “The means by which assent is produced are ideological in that it involves the production and dissemination of ideas that affect social practice through the determination of the social consciousness of individuals, groups, and classes.” (236)
David Trubek on Max Weber’s Theory of Law and Capi
“Legalism supported the development of capitalism by providing a stable and predictable atmosphere; capitalism encouraged legalism because the bourgeoisie were aware of their own need for this type of governmental structure.” (283)
“It is not enough for the capitalist to have a general idea that someone else will more likely than not deliver more or less the performance agreed upon on or about the time stipulated. He must know exactly what and when, and he must be highly certain that the precise performance will be forthcoming. He wants to be able to predict with certainty that the other units will perform. But given the potential conflict between their self-interests and their obligations, he also wants to predict with certainty that coercion will be applied to the recalcitrant. The predictability of performance is intimately linked to the certainty that coercive instruments can be invoked in the event of non-performance.” (285)
At root, in the common law tradition, there are three areas of private law, i.e. the law that regulates relations between private parties (rather than involving the state as a public party). These are contracts, property, and torts.
Contract law formalizes and upholds deals or bargains between private parties.
Property law formalizes and protects claims by private parties to ownership and effective control over things.
Tort law is the body of law that deals with non-criminal harms or injuries caused by one private party to another private party, typically by way of nuisance (e.g. I play loud music in my house and my neighbours are bothered by it) or negligence (e.g. I am a bartender and serve you a pint of mud instead of a pint of Guinness).
Contracts formed through online means are both similar to and different from contracts formed through other means, like face-to-face bargaining or negotiation by way of traditional mail.
They are similar in the sense that they too must have all the basic constituent elements of a contract—elements like offer, acceptance, and what lawyers term “consideration”. These elements help to formalize deals or bargains; in their absence, the deal or bargain in question cannot be enforced as a contract. In this respect, they are no different from any other contract.
However, online contracts are different from other contracts in that they are concluded purely through electronic means. This often increases speed and efficiency. But it can also generate a significant degree of uncertainty about the terms of the contract—what it is and is not.
“Consumer distrust arises primarily out of concerns over safety and security of the website and a lack of confidence with the parameters of the bargain itself—an issue directly impacted by the clarity of the contract formed online.” (Conklin, 290)
Rudder v. Microsoft Corp. (Ontario Superior Court,
“[T]here is no fine print as that term would be defined in a written document. The terms are set out in plain language, absent words that are commonly referred to as ‘legalese’.” (288)
“[T]he potential member is presented with the terms of membership twice during the process and must signify acceptance each time.” (288)
“To give effect to the plaintiffs’ argument would, rather than advancing the goal of ‘commercial certainty’, to adopt the words of Huddart J.A. in Sarabia, move this type of electronic transaction into the realm of commercial absurdity. It would lead to chaos in the marketplace, render ineffectual electronic commerce and undermine the integrity of any agreement entered into through this medium.” (289)
Donoghue v. Stevenson (UK House of Lords, 1932)
“Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” (297)
“[A] manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.” (298)
The key to adjudication is the adversarial process—the assumption that the parties are adversaries, or “enemies”, each advancing the strongest possible arguments on the basis of the relevant law in order to “win the case”. The aim of the parties, whether public or private, is not to facilitate the discovery of truth. Rather, the aim of the parties is to make the best possible case, either on behalf of the action or in defence against the action. To the extent that the truth “comes out”, that is incidental to the process. It is not the explicit goal or purpose of the process.
Alternative dispute resolution (“ADR”)—The use of conflict-resolution mechanisms different from and considerably less adversarial than full-fledged adjudication. These mechanisms are known by different terms—terms like “mediation”, “arbitration”, “negotiation”, and “conciliation”. These mechanisms do not assume that the parties are “enemies”. Rather, they assume that the parties will work together in order to resolve their dispute without having to resort to a court of law. A “mediator”, “arbitrator”, “conciliator”, etc. oversees the process, ensuring that the parties work toward a mutually acceptable settlement.
Neil Brooks’ “The Judge and the Adversary System”
“The adversary system rests on the principle of party-autonomy. That is to say, that the parties have the right to pursue or dispose of their legal rights and remedies as they wish.” (327)
“The adversary system rests on the principle of party-prosecution. This principle holds that the parties have the primary responsibility to choose without interference from the judge the manner in which they will go forward with their case and the proofs they will present for the judge’s consideration in adjudicating the dispute.” (327)
“[T]he adversary system can be seen as reflecting the political and economic ideology of classic English liberalism in three ways: by its emphasis upon self-interest and individual initiative; by its apparent distrust of the state; and by the significance it attaches to the participation of the parties.” (329)
Kent Roach’s “Wrongful Convictions: Adversarial an
In the inquisitorial system, judges, prosecutors, etc. attempt to determine the truth. In the adversarial system, the court’s role is limited to that of a referee between the two adversaries —which, in the criminal context, consists of the prosecution on the one hand and the defence on the other.
“Compared to continental [European] systems, the adversary system places less of a premium on the discovery of truth about allegations of criminality and more on resolving disputes in a manner where parties have a formal opportunity to present their case and make decisions in their own self-interest. Many of the reforms advocated to respond to wrongful convictions, particularly the creation of commissions to investigate claims of wrongful convictions, would add inquisitorial features to adversarial systems.” (349)
Torstein Eckhoff’s “The Mediator and the Judge”
“The mediator should preferably look forward, toward the consequences which may follow from the various alternative solutions, and he must work on the parties to get them to accept a solution. The judge … looks back to the events which have taken place (e.g. agreements which the parties have entered into, violations which one has inflicted on the other, etc.) and to the norms concerning acquisition of rights, responsibilities, etc. which are connected with these events. When he has taken his standpoint on this basis, his task is finished.” (357)
Both adjudication and alternative dispute resolution have their pros and cons:
“By mediating one may weaken the normative basis for a later judgement and perhaps also undermine confidence in one’s impartiality as a judge; and by judging first one will easily reduce the willingness to compromise of the party who was supported in the judgement, and will be met with suspicion of partiality by the other.” (359)
Jane Dickson and Sebastien Malette’s “The Indigeno
Pursuant to section 718.2(e) of the Criminal Code, judges are required to “take into consideration … [a]ll available sanctions, other than imprisonment, that are reasonable under the circumstances and consistent with the harm done to victims or to the community … , with particular attention to the circumstances of Aboriginal offenders”.
In R. v. Gladue (1999), the Supreme Court of Canada shed light on what section 718.2(e) means and how it ought to operate: “the Court pronounced that the section is meant to be remedial, that is, it is intended to ‘remedy’ the problem of over-incarceration of Indigenous people, and that this is to be achieved by requiring ‘judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavor to achieve a truly fit and proper sentence in the particular case’” (379).
Owen Fiss’ “Against Settlement”
“Settlement is … the civil analogue of plea bargaining: Consent is often coerced; … the absence of a trial and judgment renders subsequent judicial involvement troublesome; and although dockets are trimmed, justice may not be done.” (388)
For Fiss, an important part of the problem with alternative dispute resolution is that it is a private affair yielding a private settlement, whereas adjudication is a public affair governed by a public court that is dedicated to upholding public norms and values.
Andrew McThenia and Thomas Shaffer’s “For Reconcil
“Fiss’s argument rests on the faith that justice—and he uses the word—is usually something people get from the government. He comes close to arguing that the branch of government that resolves disputes, the courts, is the principal source of justice in fragmented modern American society …. Justice is not usually something people get from the government. And courts … are not the only or even the most important places that dispense justice.” (392-94)
“[S]ettlement is neither an avoidance mechanisms nor a truce. Settlement is a process of reconciliation in which the anger of broken relationships is to be confronted rather than avoided, and in which healing demands not a truce but confrontation.” (394)
R. J. Gathercole’s “Legal Services and the Poor”
“Civil legal aid has generally followed one of the two models—Judicare or legal services. The Judicare model utilizes members of the private bar as the prime deliverers of legal services. They are paid on a fee-for-service basis, usually in accordance with a specified tariff. The administrative responsibility for most Judicare plans is assigned to the legal profession. … The legal services model … stresses the use of full-time salaried lawyers and non-legal personnel operating from offices located in low-income communities, generally of the ‘storefront’ variety. Emphasis is placed on providing legal services in areas of prime concern to the poor—welfare, housing, unemployment insurance, workers’ compensation, small claims, domestic disputes— providing assistance to groups and organizations in the community, education programs and law reform activities such as lobbying and test case litigation.” (402-3)
The 2013 “Access to Civil and Family Justice: A Ro
The report identifies a number of important gaps in access to justice:
- “Many people have everyday legal problems” (424)
- “The poor and the vulnerable are particularly prone to legal problems” (424)
- “Problems multiply” (424)
- “Legal problems have social and economic costs” (425)
- “Legal aid funding and coverage is not available for most people and problems” (425)
- “The cost of legal services and length of proceedings is increasing” (425)
- “Cost is a major factor” (425)
- “Self-representation” (426)
The report advocates what it characterizes as a “culture shift”. Among the key points that the report makes in this regard are the following:
- “Put the public first” (427)
- “Collaborate and coordinate” (427)
- “Prevent and educate” (427)
- “Simplify, make coherent, proportional and sustainable” (427)
Duncan Kennedy’s “Legal Education as Training for
“Law schools are intensely political places despite the fact that they seem intellectually unpretentious, barren of theoretical ambition or practical vision of what social life might be. The trade-school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand, all these are only a part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.” (447)
“The intellectual core of the ideology is the distinction between law and policy. Teachers convince students that legal reasoning exists, and is different from policy analysis, by bullying them into accepting as valid in particular cases arguments about legal correctness that are circular, questionbegging, incoherent, or so vague as to be meaningless.” (447)
Charles C. Smith’s “Who is Afraid of the Big Bad S
“[T]he construction of a ‘bleached’ or overwhelmingly white profession requires us to consider the agents behind the bleaching/whiteness. In other words, who is ‘bleaching’ the legal profession? Or keeping it white? Why? How is this being done? And what must be done to change this?” (455)
“Given the number of studies, reports, policies, task forces, programs, and so forth, one might expect that the legal profession would be much further along in addressing issues of its racialized composition. … The legal profession, for all its attention to issues of race, lags well behind these other professional fields and so, once again, we are gathered to discuss this fact.” (455-56)
Harry W. Arthurs’ “Will the Law Society of Alberta
First, Arthurs has a distinct theory of law and social change. He believes that legal developments generally follow from extra-legal developments, i.e. developments outside the law. Social relations change. Economic relations change. Political relations change. And with them so too do legal relations change. These “external”, or extra-legal, changes are, Arthurs suggests, “the primary drivers of internal change” (463).
Second, Arthurs notes that professions are founded on two basic assumptions—(1) that its members “know things other people do not”, and (2) that “professionals be allowed to do things forbidden to other people” (463).
Third, Arthurs believes that both of these premises are under increased pressure: “Lawyers share knowledge less and less with other lawyers, and more and more with people in adjacent lines of work. And lawyers adhere less and less to common codes of conduct, live less and less within a common professional culture, behave more and more like other people, and enjoy dwindling, though still considerable, autonomy.” (463) It is in this sense that he speaks of “the decline and fall of legal professionalism” (463).
W. Neil Brooks and Anthony N. Doob’s “Justice and
“The jury has been described as serving one of two separate functions. It can be seen as an institution designed to ensure the accuracy of fact finding in the adjudication of disputes, applying to the facts of the dispute the law as given by the judge; or it can be seen as an institution which has the right to construe or ignore a relevant rule of law in a case in which its application would not be in accord with the notions of justice and fairness prevailing in the community.” (470)
“[I]n practice it is clear that the jury can ignore the strict application of the law and respond to the unique aspects of each case that comes before it. The jury deliberates in secrecy, they do not give reasons for their verdict, they are in no way accountable for their verdict, their decisions do not establish a precedent that is binding on future cases, and in criminal cases if the jury’s right to determine the facts gives them an almost unlimited discretion in returning whatever verdict they choose.” (471-72)
Justice Kent’s “Embracing Change: How NJI Adapts t
“Today, trials make up a much smaller portion of my work—but how those trials have changed! Jury charges are more complex, and they happen not only at the end of trial, but throughout the trial. Sentencing has become a longer, more involved process. The extent of scientific evidence presented has expanded and requires a careful analysis of its quality. Although the cases we do are structured in the context of an adversarial system, the emphasis is more on settlement than trial. In fact, the demand for judicial dispute resolution is higher than for trials. … Judging today occurs in a more diverse society—one that demands respect from those who judge, not just from those who are being judged.” (492)
Bora Laskin’s “The Meaning and Scope of Judicial I
“A fundamental principle has pervaded the judicial role since it took root in the reign of Queen Anne. It was established—not without fits and starts—that Judges would no longer hold office at the pleasure of the Crown, at the pleasure of the government. They would have the security of tenure, once assigned to their position, and would hold office during good behaviour to the age of retirement. Their duration in judicial office would no longer depend on governmental whim, and they could be removed only for judicial misbehaviour. What this imported, as it evolved over the years, was the separation of the executive and the judiciary; no admixture of the one with the other; no mixture of the judiciary in politics or political controversy; correspondingly, no intermeddling of the executive with the judiciary; each branch was to be independent of the other, left alone to carry on its separate duties.” (494)
Justice McLachlin’s “The Relationship Between the
“The media, reporting accurately and fairly on legal proceedings and judgments, including criticism, even strong criticism, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself. On the other hand, inaccurate, unfair or sensationalized reportage—fortunately rare in Canada—has the potential to distort the public’s view of the justice system and undermine public confidence in the rule of law.” (498)
McLachlin claims that the Supreme Court tries to ensure fair and accurate reporting of its decision by (a) making its decisions as clear as possible, (b) providing headnotes for each decision, (c) having its “executive legal officer” provide journalists with briefings on each case, and (d) ensuring that all of its proceedings are televised and available on CPAC.
Justice Wilson’s “Will Women Judges Really Make a
“If the existing law can be viewed as the product of judicial neutrality or impartiality, although the judiciary has been very substantially male, then you may conclude that the advent of increased numbers of women judges should make no difference, assuming, that is, that these women judges will bring to bear the same neutrality and impartiality. However, if you conclude that the existing law, in some areas at least, cannot be viewed as the product of judicial neutrality, then your answer may be very different.” (503)
Wilson thinks that many areas of law, such as criminal law, are organized around a “male perspective”. Others, on the other hand, evince no specific gendered perspective; she counts contract law, property law, and business law among these other areas. (504)
She believes that a “female perspective” needs to be brought into law and legal adjudication in order to balance and counteract the historically dominant “male perspective”.
Competing Theoretical Perspectives on Law - A. Leg
Legal positivists typically argue that law cannot be understood independent of the state.
Legal positivists argue that law must be understood “on its own terms”—that is, as a body of norms which is fundamentally autonomous and which stands at a remove from considerations of morality, politics, economics, et cetera. In particular, for legal positivists, there is no necessary connection between law and morality.
Many (though not all) legal positivists seek to provide an account of law as a “system”.
Legal positivists set themselves against all those who argue that law is best understood as an outgrowth of some broader conception of social justice or the common good.
Competing Theoretical Perspectives on Law - B. Leg
Legal realists seek to debunk the idea that law involves relations between self-standing, autonomous legal actors, each endowed with a unitary and clearly discernible “will”.
Legal realists reject the notion that law should be understood as an essentially “natural” order.
Many legal realists are committed to the idea of “indeterminacy”. The basic idea here is that legal adjudication is never “determinate”, in the sense of yielding consistent and predictable decisions that adhere to a pre-existing logic of some kind.
Legal realists often believe that their approach demands close, “scientifically” reinforced examination of the actual behaviour of judges, as well as purposive, pragmatic assessment of the costs and benefits of competing policies, institutional structures, and dispute-settlement procedures.
Competing Theoretical Perspectives on Law - C. Cri
Critical legal studies is marked by a total loss of faith in the internal coherence and immanent rationality of the law and of legal argumentation and adjudication. The critical legal theorist is determined to ***** law of its traditional “halo of naturalness and necessity” (Roberto Unger).
Some (though not all) critical legal theorists push legal realist suspicions about the “determinacy” of law and law reasoning so far that they view law and legal reasoning as completely “indeterminate”.
Critical legal theorists nearly always aim to erase, or at least to cast serious doubt upon, the boundary between law and politics (or policy) .
There is a distinct focus in critical legal studies on the experiences of the oppressed, the vulnerable, and the marginalized—on all those with little or no bargaining power, or who are pushed to the margins. Law is typically regarded as part of the problem, not as a straightforward “solution”. Hence the close affiliation of critical legal studies with feminist legal studies, critical race theory, and many Marxist approaches to law