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1303 foundations Law

Introduction to Law
History 101 - Basics
History informs our civics which informs the law
Indigenous peoples: first here. Variety across country. British/French came afterwards (colonies).
European colony  british system of gov and law for most of country.
o Upper Canada – ON, Lower = QC. Flow of st Lawrence determined upper/lower
 French system for certain elements of QC. Private law is diff legal system.
 Evolved over time to a constitutional monarchy with liberal democracy
Liberal democracy
 Gov by the people
o Representative democracy
 Gov accountability
o Unelected parts of state accountable to elected. (elected at top; civil servants underneath)
o 3 branches of state (exec, legis, judic)
 Purpose is for oversight and protection. Power exercised in accordance to law
Canada’s Constitution
 Constitutive  way society can imagine and form itself
 Federal system of state
o Divided powers between fed gov and prov (what they can do and what they are responsible for)
o Eg, Defense = fed, healthcare = prov
 Charter added to constitution in 1982
 Written and unwritten aspects
o Unwritten inform on how things are interpreted
 Key principles
o Democracy, federalism (doesn’t say how federalism works), constitutionalism and rule of law (con is
supreme), and protection of minority rights (there is some protection for minorities)
 Has to be interpreted and spoke for by the courts.
 Con is like a living tree  capable of growth and expansion within limits.
o Con can be (and has been) amended.
o can be changed only through special amendment procedures that require the substantial consent of
provincial and federal governments.
Rule of Law
Fundamental aspect of our law is the rule of law
Everyone is subject to the law (no one is above it)
 Manifest for example by:
o Substantive limits on legislation – courts can intervene if attempt to pass laws; courts can strike down
o Arbitrary exercises of statutory power (is it provincial or federal leg).
o Can only exercise powers given by law. Cannot do something when the powers of the law do not grant
 Eg, constitution, legislation, crim law, civil law
 Need a legal basis for something to work
o Independence of judiciary to help ensure rule of law
Types of Law
 Public law: how legal relat are structured between indvd and state and state institit
o Crim law, con law, regulatory law, tax law
Private Law: govern relat between legal persons in society
o Contracts, torts, property
o Corporations are legal persons
o Natural persons are people
Sources of Law in Canada
Canada is bijural (uses common law and civil law)
 Common law
o Judge-made law; developed in courts. Application of precedent by deciding present cases through
referencing previous decisions  establishes rules for future decision.
o “unwritten law” as it’s not contained in any one authoritative code.
o Comes from England
o Basic idea of using the common law (past decisions) for a decision on a dispute
 Reasons for decisions are the law
o Precedent can change over time; need to balance precedent so that there is stability and change
(understanding the way it was done is the wrong way)
o Past decisions need to be binding
 Civil law
o Not to be confused with ‘civil law / crim law’
o Codifying system of law (QC largely governed by civil law).
o Utilizes civil codes. Starting point is always the code. Code is a complete and authoritative law, subject
to interpretation.
o Legislation stipulates certain rules and principles. Interpreted by courts.
 Statutory law
o Created by parliament/legislature (not the same as “written law”)
o Modern; shift during 20th C from common law to statutes with the creation of the modern
administrative state
o Agencies/bodies often delegate to legislate within scopes/principles
o Can supersede common law (doctrine of legislative supremacy)
 If something happens (decisions) gov doesn’t agree with, they can pass a law against it
 Two are often reacting to each other (eg, tax law)
 Gov implements tax law. Someone finds loophole, Judge agrees he shouldn’t pay. Then
gov closes loophole.
 Common law often backdrop
 International law (if applic)
o Need to determine if it applies  is it applicable in canada
o Eg, law of the sea; united nations declaration of indigenous people.
o Treaties: form of international law where the parties agree to be bound by it.
 Fed/prov gov has to pass legislation for everything in their power in order for it to work. Other
countries same.
o Customary Law: something that has happened over time; expectations build the norm.
 Indigenous legal systems
o Varied. What is law and what is the relationship to social norms. They would have had laws, but not in
the terms of common/civil law.
Common Law and Equity
 Historical, courts of justice were made up of:
o Court of common please
o Court of chancery
o Other courts
 Corrective when common law was harsh (unjust outcomes), it would intervene to do justice
Courts now fused (not separate); court is court of law and equity
Fluid, pragmatic, conscious based
Discretionary  court decides whether or not you deserve the relief; never have to grant it
Do have principles about how relief should be considered, but not what relief can be granted
Customs and Values
 Customary and communal norms
 Can be accepted if continuous, certain, reasonable, and followed
 Basis often social, political or institution consequences
o Form of policy argument
 Underlying idea of justice for the law.
o Law is about values; look at whose values are being imbedded in the law and whose interests they
Conquered vs settled
 Conquered refers to how the law came here, through treaties.
o [Europeans did not “conquer” Canada; treaties were signed where aboriginals gave up their land]
 Settled refers to nobody there
Statutes/legislation are interchangeable
 Produced by legislatures
 Statutory law includes statutes/legislation and what the executive does (rules around them)
Equity  location where considered/granted fused, but still separate concepts
 In ever civil cause or matter commenced in the Court, law and equity shall be administered therein according to
the rules in this section
Public law vs private law overlap example
 Parliament passes law changing common law on property
 Wills  there is a common law presumption that if you had a will prior to marriage, it would be invalid after
marriage. Some provinces changed the presumption (BC removed, NB modified)
Legal Ethics and Professionalism
Introduce key overarching concepts of professional ethics, including the idea of an ethical trilemma and the various
ethical traditions that lawyers might draw upon to resolve such trilemmas in both the commercial and criminal law.
Sources of lawyer’s Ethics
 Case claw and legislation
 Rules of professional conduct – contained in codes of conduct
 Law society discipline
 Principles / norms of lawyering
Focus will be on last one
What are the sorts of things lawyers do?
Lawyer’s different roles
 e.g. advocate, advisor, employee, employer, entrepreneur, public servant
 e.g. collaborator, deal-maker, expert, facilitator, negotiator, translator/storyteller (translate someone’s story to
a legal context), friend
Lawyer’s different contexts
 e.g. solo (solo practitioners), private firms (can be small to big), government, in-house, non-lawyer, academy,
public interest, communities
What means for lawyer and various people interact with
 e.g. power dynamics, relationships, duties, etc.
A Lawyer’s web of relationships
 Perfect world - obligations to client A should not impact obligations to client B
o Don’t live in perfect world. Complex web of relationships.
o Other obligations need to be considered
 Law society
 Partners
 Canadian society
 Personal obligations
 Associates
Ethical Competencies:
1. be able to recognize the possibility of competing ethical obligations;
2. accept that we will have to exercise discretion and judgment;
3. to develop processes to help us calibrate these competing obligations;
4. to justify the decisions we ultimately choose;
5. have the courage to follow through on our decisions.
3 professional norms:
 Loyalty: zealous advocate working for your client.
o Neutral to client’s goals. Amoral agent. Act in a partisan way to accomplish goal.
o Client’s need champions and that is the lawyer’s role.
o Loyalty must have it’s contraints. Ethics apply those constraints
 Justice: A lawyer must encourage public respect for and try to improve the administration of justice
o the practice of law implies, on the part of the lawyer, a basic commitment to the concept of equal justice
for all within an open, ordered and impartial system
 Integrity: A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients,
tribunals, the public and other members of the profession honourable and with integrity.
o Not just a private issues; a public one as well.
o Duty to client, court, state; duty to himself that he shall be a man of integrity.
Creates a tripartite
 3 sides are pulling away from each other - trilemma
 How do you resolve it to make it work
Virtue Ethics - …
Utilitarianism – greatest good for greatest #. Cost analysics
Kantian – everyone should be treated as an end, not as a mean
Post modernism – no right answer; everything is in context to the situation. Least worst option taken.
Assume you are a lawyer who works for the Department of Justice. You have been seconded to the Department of
National Defence. The Deputy Minister of the Department of National Defence has asked for a meeting. She explains
that Canada has a problem – what to do about “returning terrorists.” The Deputy Minister points out that several other
jurisdictions have decided that it is permissible for their militaries to kill such terrorists before they return to their home
country. She also points out that this has become politically challenging because opinion polls indicate that a significant
majority of Canadians do not want such terrorists to be allowed to return home and agree with the decision taken by
Canada’s international partners.
The Deputy Minister seeks your advice.
Write down your intuitive answer.
Loyalty – kill. Loyal to client, DND. DND’s client is general public.
Justice – not kill. Equal justice for all.
Integrity – duty to client, court, state.
 Get facts
 Discover ethical rules/principles
 Consider underlying philosophy/spirit
 Ascertain the client’s interests, wishes and rights
 Consider interests of other side, or other affected parties
 Consider one’s duties to the state, the court, the profession, colleagues
 Identify own personal values
 Identify the choices available
 Calculate the possible consequences of each of the choices:
o Short/long term
o Benefits/harms/inconveniences
o Means and ends
 Identify the scope of your discretion
 Discuss with others (if appropriate and/or possible)
Engage in self reflection
Identify priorities
Choose/implement course of action/inaction
o the result
o the processes
o develop institutional mechanisms for future scenarios
Indigenous Issues
Graydon Nicholas – first law class; 1st indig law in nb. Judge. LG
Trudeau – history doesn’t matter. We are all equal when you think we are equal
Peace pipe – noni politicians not taking it seriously
More sensitivity now but root problem still exists
Land acknowledge
 living and breathing rights that are being exercised right now
 no modern treaty – they did not cede land
 treaty – mutual exchange between Ind and non-Indg
o there were numerous peace and friendship treaties between 1726 & 1761 signed by mik wolast and
passama FN
o we are all treaty people (NonI)
1960 FN allowed to vote
o Settler ignorance “you are allowed to vote”
Robert Harris – Kent Monkman painting
 Fathers of confederation should include Indg
 Miss Chief Eagle Testikle
TRC: you cannot rewrite history but you can impact the future
 Education is what you got us here, and education is what will get you out
o Residential schools issues
o Understand where they come from will impact future
o Learn about indg persepectives; understand who we are as Canadians (we are treaty people)
 Gives a good roadmap for where we go from here; 94 recommendations
o Child welfare, education, language and culture, health, justice, museums and archives, media, sports,
business, newcomers
o Rec 27: we call upon the Federation of Law Soc of Can to ensure that lawyers receive appropriate
cultural competency training, which includes the history and legacy of res school, the UN declaration on
the rights of I peoples, treaties and ab rights, Ind law, and Ab-crown relations.
o Rec 28: we call upon law schools to require all law students to take a course in Ab people and the law
Elsipogtog: RCMP move in on peaceful protesters
2013 Oct – NB licensed SWN to explore shale gas on crown land
 FN, we never ceded our land. we demand to be consulted and part of the project
 Arrested all the women on the highway that day during protests
 Protesting resource development as their treaty rights were not being acknowledged
 Police were not peaceful (not local police; qc); snipers, guns, etc
C Act 1982
Sect 31.1 the existing aborig and treaty rights of the aborigs peoples of Canada are hereby recognized and affirmed
Reconciliation is the goal
nonI people constitutionalized the rights not knowing what they were doing
treadeau opposed section
put in in existence because of western premiers
2 Conceptions of Sovereignty
 noni law. Hierarchal.
 FN doesn’t share view. Lateral. Land is not a commodity; there to benefit future.
o Land is for our children
 Root of conflict between I and nonI
NonI Law
 Performative – words become statutes
 Hierarchial
 Text-based
 Based on land ownership
 Backed by the state (Hobbes) – rcmp can remove those who don’t comply
 Abstract sovereignty model
I Law
 Organic
 Comm based
 Narrative and story based
 Shared resource model
 Backed by community consent
 Distributive
 Use and occupation sovereignty model
NonI law fits more with how nonI see the world
Law school teaches you another system of law; one that runs the show
Constitutions should reflect ALL members of the social contract
 Sect 34 is an attempt to decolonize the country and include all citizens in the nation state known and Canada. I
people have been purposely excluded from the body politics:
o Indian act 1876  live on reserves, can’t vote, residential schools
 Still on the books. Dictacts who can own property, will property, run business on reserve, voting
o Residential schools operated until 1996
 Strip FN of culture and language
 Odds of dying in res school 1/25; WWII 1/26
 Children taken from homes and put in schools
o Reserve system
 Taken from the land and put on reserves
 Purpose is to bring in people who have been excluded
 Need to understand the probelme and the tentative steps necessary
 Various institutions have been facing up to their responsibilities since the 1980
 Christian churches have apologized
 Royal Commission on Ab Peopled exposed the harm done by the res school system and recommended an
Gov Can issued apology and set up a fund
PM Harper apologized June 2008  vastly different from P Trudeau in 1984
2011 interim report of the truth and reconciliation commission  2015 final report
Settler Myth has been challenged  displaced I people; we don’t own the land.
o Treaties mean relationships; all benefit
What can I do:
o Pay attention
o Ask for explanation
o Books: The inconvenient Indian
o A tribe call red  dance party
o Watch: Dancing around the Table: P2
Conquered vs Settled
No aborig were conquered. Gov “negotiatied treaties” with Ab to give up their land
Negotiated in good faith for military alliance. Brit needed FN help to beat French
Once the wars were over, good faith gone
UN decl  you have a right to self gov. origin Can US NZ Aus would not sign
 Can signed on a few years ago; without understanding the implications on the provs (prov says they don’t need
consent from FN, just to consult)
Lawyering in Complex Societies
Questions to Consider:
More Content Questions for Readings
What is the rationale for the 5 habits for cross-cultural lawyering? (i.e. why are they important?) How do they relate to
professionalism and legal ethics?
What are the 5 habits for cross-cultural lawyering? How would they play out in the real world?
o What are different models of lawyering?
o How are they similar?
o How are the different?
o How do they interact with the requirements of professionalism and legal ethics?
o What is appropriate in what context?
 What is the role (or potential role) of morals in legal ethics and professionalism? In practice when giving legal (or
other) advice?
 How did lawyers achieve their current status/role?
Overarching / Putting Together Questions
 How do the readings assist with how to lawyer in complex societies? (overarching point of section question)
 What considerations/issues should come into play? Why?
Bryant/Peters Articles
Competence  need to bridge gaps between cultural differences
Reading 1: Eugene A Forsey, How Canadians Govern Themselves (10th ed.)
 Canada is a Constitutional Monarchy
 Constitution Drafted from 1864-1867
 Queen as Sovereign
o Governor General exercises Queen’s powers as her rep
o PM recommends GG; GG appointed by Queen
o GG powers exercised on the advice of the HC
 Canada as a federation (10 largely self-governing provinces 3 territories with less self government)
Parliamentary Government
 NS 1st to secure representative government in 1758; PEI in 1773; NB in 1784; Upper and Lower Canada in 1791;
and NFLD in 1791
 Nova Scotia first to have responsible government, meaning answerable to the majority of the assembly in 1848.
New Brunswick and the Province of Canada later in 1848; PEI 1851;NFLD 1855
 Federally there was Parliament, the GG representing the Monarch and an upper house, Senate
 Provincial there was a legislature and LG representing the monarch and originally upper house in all provinces
except Ontario although these were slowly abolished or new provinces did not adopt an upper house.
How Parliamentary Government Works
 LG provincial equivalent of GG. GG/LG governs through a cabinet, headed by PM/Premier.
 If an opposition party gets a majority of seats, the GG calls on the leader of that party to from government.
 If no party gets a clear majority, the party with the most seats can form government with the consent of the
opposition (a minority gov)
 If a cabinet is defeated in the HC on a motion of censure or want of confidence the cabinet must either resign or
call for the dissolution of parliament by the GG
 GG can refuse a request for the dissolution of Parliament in exceptional circumstances (i.e the PM asks for
dissolution before parliament has met after an election)
 Above the role of mayor there are not fixed terms for elected officials (although its expected there are elections
every four years)
 A cabinet has no fixed term it serves from the moment the prime minister is sworn in until he/she resigns dies or
is dismissed.
 If a PM dies or resigns and the PM’s party still has a majority, the GG finds a new PM.
o Defeat Opposition leader is asked to form government.
o Death or resignation  the majority party would pick someone from the party.
 Cabinet consist of a varying number of ministers (National – 13 to 40; provincial 10 to 30+).
o Most cabinet ministers have portfolios (in charge of particular department like defense or agriculture)
and accountable to the HC for their particular departments
o Ministers answerable to HC/legislature.
o If the minister does not agree with a particular policy they must accept and defend it, try to change it, or
resign. This is known as “the collective responsibility of cabinet”
o Cabinet is responsible for most legislation. It has the sole power to introduce bills spending public
money or imposing taxes. House cannot initiate increased taxes without a recommendation from the GG
A Federal State
Federal state: brings together a num of political communities w/a common gov for common purposes, and
separate state/provincial gov for the particular purposes of ea community.
o Canada  provinces
Confederation is sometimes used to mean a league of independent states (eg USA); Canada different – founding
“a new nation”.
Federation as a way to keep the distinct character of the Provinces (i.e Quebec as French speaking roman
catholic with a civil law system)
There was distrust between Quebec by Western provinces; however, fear of American invasion or economic
strangulation made a strong union necessary
Federalism as a way to bring small sparsely populated communities
Creating a state with a strong central government, but also autonomy for the federating communities
Our Constitution
 The British North America Act, 1867 (renamed the Constitution Act, 1867) brought Federation and Canada into
o Although a British Act, it was largely created by rep of Canada; no British rep took part in the devel.
o Nods to British influence include the name Dominion, and sections 26 to 28 which break a deadlock
between house and senate (used only once in 1990; Mulroney invoked section 26, appointing 8
additional senators to pass GST)
 1926 the imperial conference recognizes Canada as an entirely independent state.
o This gives rise to feelings we should be able to amend our constitution from 1927 to 1981 attempts
failed mainly due to provincial disagreements.
o 1982, The constitution Act, 1982 adds to and amends our constitution.
 The constitution as a skeleton or our governing process with various other legislation (i.e elections act) and
practises as (responsible government) other systems that form the whole of the body.
Canadian and American Government
 Both democracies/federal states
 Constitutional monarchy vs. republic
o Parliamentary cabinet government vs. presidential congressional government
 US – President as head of state and head of government
CAN – Queen official head of state (rep by GG, who is actual head of state), PM head of government
o Can – head of state can protect parliament & the people against PM/ministers who may try to make
themselves masters (eg, refuse continuous series of general elections)
 No fixed terms in Canada whereas the US has fixed terms, making it very difficult to remove a sitting president
before his 4 years are up
 CAN – Head of government comes from the legislature in the Canadian system. In can Executive are subordinate
to Legislature. States very strict separation between congress and pres.
 US – head of government and the legislature are separate and elected separately (often creating opposing
parties in the legislature and cabinet)
 US – Pres & members of the cabinet cannot be a member of either house of Congress. They cannot introduce a
Can – PM & ministers must be a member of one house or the other (by custom, not law). Bills must be
introduced by a minister (or his/her rep)
 US – Pres fixed term 4 years; senators 6 years (1/3 every 2y). Majority in Senate or House of Rep can be
majority of opposing party to Pres.
o The house and senate can add, remove, or change amendments in introduced legislation mangling it
beyond recognition.
Can – gov has the sole right to introduce or change legislation; must only worry about an up or down vote from
the majority of the house of commons
o Major impasses in Canada cause the parliament to be dissolved. Whereas conflicts persist for fixed
terms in the US. HC cannot be at odds for more than a few weeks at a time.
Higher rate of decentralization in US federalism (i.e elected judges, heads of states) than Canadian federalism
(appointed judges from the central government; appointed LGs in the provinces. Feds have power to wipe
provincial laws off the books)
Courts tend to have widened federal powers in the US, while they have tended to give more power to provinces
in Canada.
The Rule of Law and the Courts
 Rule of law means the everyone is subject to the law (nobody is above it).
 3 cornerstones of our system of gov: Responsible government, federalism, and the rule of law.
 Even legislators are only able to create laws within the framework of The constitution Act,1867
 The courts keep authorities from getting above the law (unlawful acts, exercising powers law did not grant
 Independent judiciary: judges (appointed by GG on advice of cabinet) can only be removed if both houses of
Parliament (HC, Senate) ask for removal; removal done by GG.
o The principle of the independent judiciary is older than even responsible government. The Act of
Settlement, 1701 made it so a monarch could not remove a judge without the consent of both the
legislature and senate. In 3 centuries only 1 judge has been removed.
o This means decisions made by judges against the government wishes cannot be punished
o By Constitution, almost all courts are provincial (created by provincial legislatures))
 Courts interpret the Constitution
 They can determine what is federal and provincial jurisdiction
 With the addition of the Charter of Rights and Freedoms the role of judges has become more important in that
they tasked with preserving the rights enshrined in the charter
 The supreme court has 9 justices (3 must come from the Quebec Bar)
o Established by an Act of Parliament in 1875
o Hold office until age 75
o Final decision on constitutional questions & defined classes of important cases of civil & crim law, &
appeals on decisions from prov courts of appeals.
The Institutions of our Federal Government
Queen appoints Governor General on advice of PM.
Normally holds office for 5y. GG does the functions of the
Legislative Branch (Queen in Council) debates, makes, alters
and repeals laws. (Parliament, GG, Senate, House of
Commons). Think about the future & public interest; where
we are going. Laws affect everyone.
Executive Branch (Queen in Council) administering &
enforcing the law. Develops ideas for new laws (bills).
Elected people  “the government”; PM, Cabinet Ministers
chosen by the PM, and federal depts, crown corps.
Judicial Branch (Queen on the Bench) interprets and applies
the constitution and laws. (courts and judges). Judges make
laws through their decisions.
Free of influence from the other 2 branches. Retrospective –
looks at the past to figure out what to do. Impact is localized.
Apply principles from past issues to determine outcome.
Executive branch is subordinate to Legislative branch
All 3 branches have law making abilities, but still have separate roles  separation of powers
 Prevents overstepping institutional roles
The Senate
 105 members: 24 from the maritimes (10 NS, 10 NB, 4 PEI); 24 from QC; 24 from ON; 24 from the Western
provinces (6 ea from MN, SK, AB, BC); 6 from Newfoundland and Labrador; and 1 each from Yukon, the
Northwest Territories and Nunavut.
o There is provision also for 4 or 8 extra senators in the case of a deadlock between the Senate & HC
 Senators are appointed by the Governor General on the recommendation of the PM.
 Can initiate bills, except bills providing for expenditure of public money or imposing taxes.
 Bill must be passed by Senate to become law.
o They can reject bills created in the house, but it is rare (examples are 1988 when it rejected NAFTA until
it was sent to an election)
 The Main work of the Senate is done in its committees where it goes over bills line by line and hears testimony
from interested parties.
 The senate can also act as an investigative body, investigating important public concerns in a variety fields and
producing reports which can be used in the crafting of legislation.
o Cheaper when done by Senate, compared to Royal Commissions or task forces, because its members are
paid already and it has a permanent staff at its disposal.
The House of Commons
 The major law-making body.
 Members are elected by their constituency via largest # of votes.
Parliamentary seats are allotted on the basis of population, and every province must have at least as may
members in the Commons as it had in the Senate before 1982.
Political Parties
 Voluntary associations of people who hold broadly similar opinions on public questions
 Needed for our system to work.
 The party that wins the largest number of seats in a general election ordinarily forms the government.
o GG asks leader to become PM.
o 2nd largest party becomes official opposition. Holds gov accountable.
 If it has the most seats but not a clear majority, it may still be able to form a minority government with the
support from other parties.
o If the party in office before election only earns the 2nd largest # of seats during election, it still has the
right to meet the new House of Commons and see whether it can get enough support from the minor
parties to give it a majority of votes in the House and continue governing.
 A party with 12 or more seats is a recognized party and gets public money for research. Why? To create new
ideas and effective criticisms of current institutions.
The Prime Minister
 Position not created by law, but recognized by law; PM is generally an MP though this is not necessary (only a
 Chooses (appoints) ministers and ask for resignations.
o If the minister refuses to resign, the GG will remove the minister at the request of the PM.
 PM has the option to decide on policy that most/all other ministers oppose. Does not require a majority vote.
 Generally leads the discussion of party platform.
The Cabinet
 Members must be or become members of the Queen’s Privy Council.
 Privy Councillors are appointed by the GG on the advice of the PM
o Membership is for life, unless a member is dismissed by the GG on the same advice.
o Always members: cabinet ministers (current & former), the Chief Justice of Canada and former chief
justices, and, usually, ex-Speakers of the Senate and of the House of Commons.
 All members of the cabinet must be members of the HC or must win seats.
o Senators cannot sit in HC, and members of HC cannot sit in the Senate.
o PM may put a senator from a prov that does not elect any gov supporters, or get some member from
another province to resign his/her seat then try to get a person from the “missing” province elected
there. PEI has often gone unrepresented in the cabinet for years at a stretch.
Living Government
 Can gov is dynamic; ever changing and is evolving as we progress as society and through changes brought about
by the legislative process and supreme court decisions.
o Changes in the provinces (economic or otherwise) change the dynamics of federalism
o Urbanization and urban intensification is driving change as well
o The will of the people is the most important factor in changes in Canadian government.
Reading 2: Craig Focese and Aaron Freeman, The Laws of Government: Legal Foundations of Canadian Democracy
Two key principles of “liberal” democracy:
1. Government by the citizenry (indirectly)
2. That government by the citizenry cannot become a tyranny of the majority.
A. Government by the People
Democracy: “that form of government in which the sovereign power resides in the people as a whole, and is
exercised either directly by them…or by officers elected by them.” (oxford dict)
Characterized by universal suffrage and election of representatives
o “the recurrent suspicion that more than half the people are right more than half the time”
While a government by the elite (intellectual or otherwise characterized by Plato) may seem desirable it is
humanities inclination towards injustice that makes democracy necessary
“democracy as the worst form of government… except all the others” (E B White)
Democracy solves the excesses of the ruling class are held in check
Democracy solves the succession problem (not dependant on inheritance; not an oligarchy)
Democracy can solve corruption or imprudence by “throwing the bums out”
B. Democracy and Limited Government
 Majority rule does not always come up with the right policies and sometimes it creates detrimental policies that
could harm people.
o The democratic will of the majority stops where the rights of the individual and the minority begin.
o Hence liberal democracy accepts that the government ought to not to tread on certain rights. (i.e the
government can’t make laws that infringe on free speech)
 Thus, liberal democracy is therefore, a system that accepts the majority opinion while limiting how that opinion
can be expressed in policy.
C. Democracy and Accountability
 Accountability: “the obligation to render an account of, and accept responsibility for, one’s actions, both the
results obtained and the means used” (Auditor General of Canada)
 Elections as imperative to a representative democracy (i.e free, fair and reoccurring)
 Second tier of accountability is making unelected bureaucrats beholden to their elected counterparts.
 Checking the majoritarian impulse of the elected are institutions that protect rights (the courts)
o Judicial independence protects courts
o Courts are meant to uphold the law and create fair frameworks through which the elected majority can
exercise its governing power (i.e ethics laws, finance laws, enforcing the charter)
Reading 3: Craig Forcese et al, Public Law: Cases, Commentary and Analysis (4 th ed.)
Public law is a involves the study of regulations, laws, the constitution, agencies, boards, commissions, tribunals, policies
etc. and how they are used by the government to deal with real world problems. (It’s a lot of shit so it’s better to break it
down into smaller “building blocks”)
Basic Building Blocks
A. Sources of Law
 Canadian law as very pluralistic not only in terms of its basic structure but also the sources of its law
 At the most general level there are 4 main sources of laws in Canada:
1. The common law federally and in most province, derived from the English legal system
2. The civil law system that codifies private law in Quebec, influenced by the French Napoleonic Code
3. International Law, the various conventions and treaties that “received” into Canadian law
a. Stems mostly from conventions (treaties) and the form of customary international law.
4. Numerous Indigenous customary legal systems.
 Canada is a Federation (w/2 levels of gov), creating a division of powers between fed/prov; allowing for two
systems of law to operate simultaneously in Quebec
B. Origins of Law
 Legal pluralism means more than just different historical origins. It also means stemming from different
institutions, meaning an authoritative source. (i.e a government)
 Generally speaking, in Canada these authoritative sources are various legislatures and the courts.
 Canadian Law usually distinguishes between private and public law
o Private Law: about relationships between legal persons – individuals (“natural persons”) and
corporations (“artificial” or “juridical” persons) and it deals with rights and obligations between those
 Private law rights and obligations can arise from voluntary agreements in contract law, from
principles of equity (restitution), and from principles found in tort law.
o Public Law: focuses on relationships between individuals and the state, and between different
institutions within the state.
 Constitutional, administrative, criminal and other areas of regulator law (eg, enviro & tax) as
public because these areas of law contain rules that define the scope of gov authority and the
ways it is exercised.
 Public law also regulates the portioning of power in a federal state (division of powers).
 The major difference between the two:
o Because they are different categories does not mean that private and public law are mutually exclusive.
They often mix.
o State can also have private law responsibilities and roles (eg, acts negligently); may also have a role in
relation to the implementation of private law relations existing between persons.
Drilling Down: The Workings of Public Law
Pluralism in Public Law
 Which comes first: Public law or the State? This is an especially difficult question in Canada for historical reasons
that law were brought over by colonists prior to statehood
 The state and public law emerge somewhat simultaneously in an organic fashion public law is not necessarily
and end product of the state.
Branches of the State
 Key actors in Public Law:
1. Legislature: the ultimate decision-making body at the Federal or Provincial level within their respective
2. Executive: more than just the Prime Minister and Cabinet, it also encompasses the Crown (the Queen and
the GG), the civil service, the military, the police and many decisionmakers in the administrative and
regulatory state. (i.e tribunals whose power has been delegated by statutes)
o Regulator functions are delegated (through statutes) to administrative and regulatory tribunals
o (legally speaking) largely subordinate to parliament/ legislatures.
3. Judiciary: Is different from the executive and legislature in that it is staffed differently (appointment vs
o They do two important things:
 adjudicate disputes in either the public or private sphere.
 review actions of the other branches to ensure they act lawfully.
 These 3 are replicated in the function of federal government and replicated again in provincial and territorial
The Common and Civil Law Traditions
Reception of European Law
 European models of law adopted because Canada was a Colony
However, it is a little more complex in that how laws were adopted in the new world were much more
dependent on the way new colonies came to be (i.e whether they were settled, conquered or ceded by the
indigenous people) in case of conquest or cession aboriginal laws often remained intact.
France claimed much of the BNA territory
o ON QC were originally part of New France.
o Conquered by E in 1759; ceded by France 1763
o English law was initially imposed on new colony of QC; Quebec Act, 1774 restored French civil law.
o Constitutional Act, 1791 divided QC into 2 prov – Upper Can & Lower Can.
Western prov & maritimes considered settled, not conquered (ignoring indigenous population)
Dates of receptions are not defined for some prov  no obvious statutory source
Privy Council was the final court of appeal
Nature of Common and Civil Law
 Common law: British; a system of law based primarily on judicial decisions (judge-made law).
o Two major themes of common law:
 Judges do not make the law but merely declare it.
 All relevant past decisions are considered evidence, and judges use these precedents to infer
what is the true law in a given instance.
o Canada no longer relies solely on case law; statutes are another source of law .
 Civil Law: French; relies less on judgements and precedents and more codified laws and legislation.
o Judgments are based primarily on interpretation of the code and statutes (established laws)
o Civil law in Quebec has adopted some aspects of common law (ex. Quebec judges are chosen from the
Bar as opposed to going to a special judiciary school like in most Civil jurisdictions.)
 Because Canada has two law systems operating simultaneously it is “bijurial”
Common Law and Equity
 Common law is different from Equity (the body of law developed by the Court of Chancery prior to the courts
dismantling around 1873).
o Originally separate from the CL courts; developed in tandem
o Original function was to provide a corrective to the perceived harshness of the CL.
 The equitable jurisdiction was a pragmatic, conscience-based system of laws, that was antiformal and
antiestablishment. Cases were decided according to rules of equity and fairness and there was no formal
 Any court should have a bit of equity and consider people and their particular circumstance as well as the
generalities of codified formal processes.
 Equitable jurisdiction: property (trusts, married women’s property, equitable rules related to transfer); contracts
(specific performance & injunction remedies, undie influence, mistake, misrepresentation); procedure (set-off
and account); guardianship; commercial matters (fiduciary duties, subrogation and contribution)
 The rules of common law and equity are now applied concurrently in all superior courts
Statutory Law
Statutory Law: Parliament and the provincial legislatures have ability to enact new statutes to displace the common law,
by enacting statutes in underdeveloped areas.
Contracts, torts and property are areas where the common law is used frequently because there is little in the way of
statutory law to effect change in these areas
Statutes and the Common law: a complex mix
One basic principle of common law is that statutory rule supersedes the common law
In some cases this is easy to determine where a ruling was made and then statute was introduced expressly
forbidding an action (I.e a judge rules that a man can’t be fined for vaping under a nosmoking by law but then
statute is introduced that forbids vaping in areas where smoking is forbid)
A major example of statute overriding common law is same sex marriage where the Civil Marriage Act, 2004
overrides centuries of common law defining marriage as a union between one man and one woman. (See
Halpern vs.Canada)
Recurring Constitutional Principles in Canadian Public Law [Foundational Public Law Principles]
1. Rule of Law: All exercises of legitimate public power must have a source in law, and every state actor is subject
to constraint of the law.
2. Constitutional supremacy: the constitution is the supreme law of society
3. Parliamentary supremacy: If parliament has the power to do something, then they have supremacy
4. Federalism: Parliamentary supremacy in Canada is subject to the divisions of law making powers or jurisdictions
between a national Parliament and legislatures of the provinces; prov/fed have diff expected roles
5. Separation of Powers: 3 institutional branches at the federal and provincial levels (legis, exec, judic)
6. Judicial independence: judges need independence from the legislative and executive branches of the state in
order to perform its constitutional functions.
7. Democracy: ability to freely elect people, with the notion of majority rule
8. Protection of Minorities: the protection of minorities tempers the notion of majority rule, especially in relation
to language, religion, and education rights; but also through more general rights and liberties.
9. Indigenous rights: an appreciation of the status of indigenous peoples, the question of self-governance, and the
rights of Indigenous people in Canadian society and law.
Principles Underpinning Public Law
 The purpose of public law is to remove arbitrariness from state action.
 The law is supreme over gov officials & private individuals
o As gov officials have the power to make laws; as such, they are subject to legal obligations that go
beyond the ordinary citizen.
 Requires the creation and maintenance of an order of positive laws, which preserves and embodies the more
general principle of normative order.
 2 components:
o constitutional law: places limits on the law-making activities of the state and state actors. A set of
ground rules for law-making, with constitutional law being supreme over non-constitutional law
o administrative law: law that ensures that state officials act within the authority granted by statutes.
 officials only have power to act in society within the limitations statutes place on them.
159-162 (Start at "E. The Principle of the Separation of Powers", and stop at "In Ontario v Criminal Lawyers' Association
of Ontario)
172 ("C. Unwritten Principles of the Constitution")
Law Commission of Canada , Crossing Borders: Law in a Globalized World
The Separate Species of Law
 Domestic Law :
o the type people are accustomed to dealing with.
o Legislation enacted by legislature in Parliament, or made as regulations
o also comes in the form of the common law (outside QC)
The pinnacle of domestic law is constitutional law, as it has dominion over statutory law and common
International Law :
Two major types of international law
o international treaties: lawmaking contracts between states; parties agree to be bound by. (also called
convention, covenant, agreement, charter, and satute)
 Between 2 states – bilateral. Between 3+ states – multilateral treaty
 once a treaty is signed/ratified  bound by it.
 Canada is a dualist jurisdiction  separate entities of law: international and domestic
 Domestic legislation is required to implement treaty into law (federal matters by fed; prov by
 If treaty law is not implemented into domestic law, policy-makers need not abide by the treaty
under the terms of domestic law. Remedied by delaying ratification until laws are revised to
meet compliance.
o customary international law: binding on all states, except those that have rejected the law to the point
the rejection is a norm
 formed by general and consistent state practice, with a sense of legal obligation (opinion juris).
 Once a rule becomes recognized as customary law, it is automatically part of common law.
 Customary international law can be overturned by a statute that is inconsistent with it.
 If this happens, Canada may be in violation of its international obligations.
 If customary international law is part of the common law, its existence as domestic law
is a matter determined by the courts exclusively.
 Conflict and legitimacy issues can arise when international law is disputed (domestic law
is applied; relying on expert testimony from international lawyers/acedemics)
Legal Ethics and Professionalism
Lawyers’ Ethics and Professional Regulation
Guidance in determining ethical conduct
 Case law and legislation
o Place constraints on what lawyers can/not do
o Most significant doctrinal source of guidance for lawyers
 Rules of professional conduct
o Every provincial law society has rules of professional conduct
o Covers client selection, advocacy, competence, fees, conflicts of interest, confidentiality, advising clients,
interacting with judges, the business operation of a law practice, etc.
o All Canadian law societies, except QC, have adopted a version of the Federation of Law Societies of
Canada’s Model Code of Professional Conduct.
 Law society disciplinary decisions
o Decisions are publicly available through law society websites, Quicklaw and CanLII.
o Provide insight into the meaning of provisions of the Codes of Conduct.
o Indicate how law societies generally define professional misconduct (misconduct by the lawyer when
practising law) and conduct unbecoming (misconduct by the lawyer outside of his/her legal practice).
o Tend to address a narrow range of conduct; concentrating mostly on clear legal violations.
 The principles (norms) of lawyering
o Important sources of guidance when making decisions when the other sources are not sufficient
When the rules of professional conduct saying that the lawyer “may” do something
When rules of conduct and case law leave decisions entirely within the lawyers discretion
When there is a perceived gap between the obligations imposed by the law governing lawyers
and the obligations of ordinary morality
When information is required to be kept confidential; however, ordinary moral principles would
require disclosure in order to prevent harm to 3rd parties
Some Ways of Thinking about “Ordinary” Ethics
 Lawyers’ ethics is lined with general ways of thinking about what being ethical requires.
o Not just about applying “ordinary” ethics to legal practice.
two dimensions of ethics:
 ethics as a series of rules that constrain human behaviour
 ethics as a set of aspirations that, ideally, we attempt to achieve.
General philosophies of ethics, like lawyers' ethics, attempt to explain and justify ethics in both senses.
Virtue Ethics
 Aristotle
 Individuals possess virtues (or vices) which orientate them towards (or away from) ethical conduct.
o Some virtues include respect, dignity, compassion, justice, fairness
o Eg, a person with the virtue of compassion will be inclined towards compassionate action.
 Virtuous action will arise where an individual both possesses the virtues essential for such action and has the
practical judgement essential for applying those virtues.
 A lawyer possessed of the virtues necessary for legal practice will resolve an ethical dilemma through exercising
judgment about how those virtues are appropriately balanced in the circumstances.
Utilitarianism (Consequentialism)
John Stuart Mill
 Human beings want to maximize their self-interest
 Premise that a society in which overall human interests are maximized is the best; “the greatest good for the
greatest number”
 The most ethical action is that which is likely to do the greatest good for the greatest number (or the least
amount of harm to the fewest number)
 Requires Agent neutrality  the preferences of one person must not be privileged over the preferences of
 Ethical analysis can be done after the fact
Kantian/Deontological Theories of Right Action
Immanuel Kant
 Strongly rule-based
 If a rule applies to a circumstance, the rule shall be applied regardless of consequences
 Humans have the capacity for reasoning: freedom of choice and action. The existence of free will and the
capacity to reason means that personal choice will not be determined by personal desires and impulses.
o Any moral rule must respect this fact.
o Categorical imperative  principles that guide your actions apply under all conditions (no exceptions)
 Treat people as if they have rationality (free will), as an end (having the capacity to be moral)
not merely as a means (only for your benefit).
 Notes the impossibility and/or implausibility of most traditional approaches to questions such as “what does it
mean to be ethical?”
Central assumption is that the world is unknowable. View is understood from the position of the single person
A person cannot be removed from his or her desires and impulses; a person may choose not to pursue them, but
their existence will necessarily shape and inform that person’s assessment.
Ethical decisions must be made through individual judgment and moral intuitions through the subjective
viewpoint of the individual making them.
o Knowing what is good, even for one’s self, is a situated assessment.
o An ethical individual will take responsibility for a decision that s/he makes (a decision made without the
attempts to follow a rule or an assessment of consequences), and be accountable for it.
 There are various values and various ways of identifying which values are important
 Not relativism; does not accept that all values are equally valid/important
 Ethical decision making includes weighing and measuring different (occasionally conflicting) values in different
circumstances, and the application of those values.
Lawyer / Legal Profession Role
Questions to Consider:
 What is the role of a lawyer?
 What is the role of the profession? Why makes law a profession?
 What are the ideals of the professions? Why are they important? Challenges?
 What are some of the interests and considerations at play for both lawyers and the profession?
 What are professional ethics? What informs them? What are the interactions with morality?
 What potential options/strategies are available to lawyers? In what situation would one use particular options?
The Legal Profession in a Smart and Caring Nation: A Vision for 2017
Former GG Rt Hon David Johnston
 Oath  “…I shall protect and defend the rights and interests of such persons as may employ me.”
o “I shall neglect no one’s interest…”
o “I shall not pervert the law to favour or prejudice anyone…”
o “I shall seek to improve the administration of justice”
 Duties to the client, justice and public interest
o Special responsibility for the quality of justice
 3 elements to any profession’s social contract
1. The profession is characterized by specialized knowledge hat is taught formally and obtained by
experience and under supervision
2. The state gives it a right to have a monopoly and to control entry and exit standards and competence
and, to some degree, fees
3. It has a responsibility to society to serve beyond the needs of specific clients
 Social contract the legal profession has with society
 Challenge – changing times.
3 apprenticeships of the profession:
1. The cognitive: the intellectual aspect of the law; knowledge of the law, its thinking and doctrine
2. The practical: the competent practitioner
3. The ethical-social: refers to identity and purpose. Who are we, and why do we do what we do
Statement of Core Principles of the Legal Profession
Adopted by ~100 bar associations and international organizations 2005
3 fundamental principles of a justice system governed by the Rule of Law, for which the legal profession, in the public
interest, is committed to:
1. An impartial and independent judiciary, without which there is no rule of law
2. An independent legal profession, without which there is no rule of law or freedom for the people
3. Access to justice for all people throughout the world, which is only possible with an independent legal
profession and an impartial and independent judiciary
These core principles shall not yield to any emergency of the moment.
Basic Principles on the Role of Lawyers
Access to lawyers and legal services
 All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights
and to defend them in all stages of criminal proceedings
 Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access
to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction
of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other
opinion, national or social origin, property, birth, economic or other status.
 Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor
and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the
organization and provision of services, facilities and other resources.
 Governments and professional associations of lawyers shall promote programmes to inform the public about
their rights and duties under the law and the important role of lawyers in protecting their fundamental
freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to
enable them to assert their rights and where necessary call upon the assistance of lawyers.
Qualifications and training
 Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have
appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of
human rights and fundamental freedoms recognized by national and international law.
 Governments, professional associations of lawyers and educational institutions shall ensure that there is no
discrimination against a person with respect to entry into or continued practice within the legal profession on
the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin,
property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the
country concerned, shall not be considered discriminatory.
 In countries where there exist groups, communities or regions whose needs for legal services are not met,
particularly where such groups have distinct cultures, traditions or languages or have been the victims of past
discrimination, Governments, professional associations of lawyers and educational institutions should take
special measures to provide opportunities for candidates from these groups to enter the legal profession and
should ensure that they receive training appropriate to the needs of their groups.
Duties and responsibilities
 Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the
administration of justice
 The duties of lawyers towards their clients shall include:
Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far
as it is relevant to the legal rights and obligations of the clients;
o Assisting clients in every appropriate way, and taking legal action to protect their interests;
o Assisting clients before courts, tribunals or administrative authorities, where appropriate.
Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold
human rights and fundamental freedoms recognized by national and international law and shall at times act
freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
Lawyers shall always loyally respect the interest of their clients.
Guarantees for the functioning of lawyers
 Governments shall ensure that lawyers
a) Are able to perform all of their professional functions without intimidation, hindrance, harassment or
improper interference;
b) Are able to travel and to consult with their clients freely both within their own country and abroad;
c) Shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for
any action taken in accordance with recognized professional duties, standards and ethics.
 Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately
safeguarded by the authorities
 Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions
 No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the
right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance
with national law and practice and in conformity with these principles.
 Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral
pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
 It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and
documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance
to their clients. Such access should be provided at the earliest appropriate time.
 Governments shall recognize and respect that all communications and consultations between lawyers and their
clients within their professional relationship are confidential.
Freedom of expression and association
 Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular,
they shall have the right to take part in public discussion of matters concerning the law, the administration of
justice and the promotion and protection of human rights and to join or form local, national or international
organizations and attend their meetings, without suffering professional restrictions by reason of their lawful
action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct
themselves in accordance with the law and the recognized standards and ethics of the legal profession.
Professional associations of lawyers
 Lawyers shall be entitled to form and join self-governing professional associations to represent their interests,
promote their continuing education and training and protect their professional integrity. The executive body of
the professional associations shall be elected by its members and shall exercise its functions without external
 Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective
and equal access to legal services and that lawyers are able, without improper interference, to counsel and
assist their clients in accordance with the law and recognized professional standards and ethics.
Disciplinary proceedings
Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate
organs, or by legislation, in accordance with national law and custom and recognized international standards
and norms.
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and
fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be
assisted by a lawyer of their choice.
Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established
by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an
independent judicial review.
All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other
recognized standards and ethics of the legal profession and in the light of these principles.
Guiding Lawyers To Be the Best They Can Be: The Fundamental Ideals of the Legal Profession
The practice of law as a profession has always been thought of this way; was one of the original “professions”.
Ideals that bind lawyers together into a profession
 Special learning/knowledge
 Perform services to both the individual and to the collective welfare of society
 Guided by a shared set of norms or fundamental ideals
Changes in the practice of law that must be taken into account
 Big business of law; larger firms engage in more vigorous competition
 Law has become global
 Become more complex and specialized, reflecting the society it serves
 Law is no longer reserved for privileged white men
 Impacts of technology, changing the way lawyers work and interact with their clients, the courts and each other
The central elements of a lawyer’s professional duty have remained substantially unchanged
 Constant refrain throughout history  the fundamental ideals of the profession are in decline or being lost
Modern vision of the fundamental ideals of the legal profession (set of qualities and personal characteristics to which all
lawyers should aspire):
 Excellence in legal scholarship (central to the vision) – lawyers must satisfy advance educational requirements;
they must learn how to think like lawyers and learn be learned in the discipline of the law; have the skills
necessary to apply that knowledge successfully.
 Integrity – guarding the client’s confidences, keeping the client’s money, dealing with colleagues, or making
representations to the course.
o All lawyers collectively shoulder responsibility that the legal profession as a whole discharges its role
with integrity
 Independence – bring to the service of the client the independence of the lawyer’s best professional judgment,
unaffected by extraneous influences. Necessity to avoid conflicting interests that may impair loyalty to the
client. Professional judgment must be independent of what the client might wish it to be.
Independence, regarding the profession as a whole, also encompasses a high degree of autonomy from external
controls other than those imposed by self-regulation.
Lawyers are expected to act in a courteous, dignified and civil manner towards the public they serve, other
members of the profession, and members of the judiciary. Civility advances the client’s cause in a way that
maximizes the chance that it will be listened to by others, including courts.
Leadership – been seen historically as a fundamental value to which all lawyers should aspire. From simple
matters to those involving the most profound human experiences, lawyers are called on to play this role.
Aspire to achieve a balance between the dichotomy of the law as profession and the law as business – just as it
cannot be denied that much is expected of lawyers as members of a proud and learned profession, it cannot be
ignored that the practice of law is a way of earning a living. The best lawyer is dedicated to serving the public,
while considering income and status as worthy—but not primary—goals.
Why the pursuit of the fundamental ideals matter:
 Rule of law depends on it. The successful resolution of individual legal disputes requires that lawyers manifest
these characteristics so far as they can.
 Improvement of the justice system. If laws and procedures are to change in order to continue to deliver the just
and fair outcomes that a changing society requires and expects, lawyers must continuously aspire to these goals.
 Public’s confidence in the justice system itself. The public expects that these values will inform a lawyer’s work
and conduct. If lawyers fall significantly short of the best they can be, and if, as a consequence, this expectation
is disappointed, faith in the justice system is eroded at a great cost, not just to the system, but to the rule of law
that depends on it.
 Personal job satisfaction and personal fulfillment depend on it. Pursuit of these goals need to be seen by
members of the profession as an important and shared objective.
 Significant Challenge: the rise of the practice of law as a business.
o Rise to the prominence of national mega-firms with their magnetic allure for the best and brightest of
the younger members of the profession.
o Measure of success tends to focus exclusively on profitability with income expectations becoming the
primary driver of legal activity.
o Notions of corporate governance, firm branding and aggressive marketing techniques are now
commonplace in the practice of law.
o Risks lawyers seeing anything but the narrowest aspects of professional values, the most minimal
compliance with rules of professional conduct necessary to escape discipline, as a luxury that can no
longer be afforded in the frantic scramble to do law as business.
 Technology: the pace of the practice of law grows relentlessly faster. Time for research and reflection,
considered judgment, and service becomes increasingly rare.
 Increasing diversity of the profession.
o Refers to the proliferation of specialities
 Increasing complexity of the law made this inevitable
o Consequence: lawyers no longer share an identical professional culture (compared to historically simpler
and more homogeneous bar)
o Compounded with the dramatic growth in the size of the legal profession. Increase in number of
younger lawyers results in fewer role models and mentors. But this may be balanced by the idealism
that younger lawyers bring with them (high hopes of using the practice of law to make a difference)
 Enhanced public scrutiny. Mistakes are widely publicized and transgressions are relentlessly pursued. Adds to
the challenge of maintaining the public’s trust and the profession’s confidence in itself.
Sustainable Professionalism
Traditional narrative change
Lawyers are looking for ethically sensitive ways to practice law  greater responsibility for the welfare of parties
other than clients
Seeking ways to practice law that allow them to get home at night and on weekends.
Pursue meaningful career rather than necessarily a total life in the law
Students seeking to work in areas that that fit with their personal, political and economic preferences.
Law societies/regulatory bodies are slowly changing the time-honoured shields of ethically suspect client
Bench/bar are taking an interest in addressing a perceived growing lack of professionalism
Public is increasingly skeptical of the distinction that continues to be drawn between legal ethics and “ordinary
standards of moral conduct.”
Clients are more interested in methods of alternative dispute resolution
Taken together, they are forming a new discourse for lawyers and the legal profession that is seeking to become
personally, politically, ethically, economically, and professionally sustainable. It is a discourse that makes
meaningful space for a lawyer's own principles, interests, and life preferences.
It rejects stories of lawyers, collectively, as members of a relatively homogenized profession and who,
individually, are single-tasked "hired guns" focused on only one interest "in all the world."'"
Lawyers need another story-a sustainable story-that captures those complex realities and provides for a
meaningful prospect of broad-based buy-in.
Competing Interests:
 Client interests
o any notion of professionalism must make robust space for the realization of a client's legal interests in a
free and democratic society.
o lawyers will not foist their own values on the client, nor will they work with clients in ways that offend
their own moral convictions.
 Lawyer interests
o Pecuniary interests: lawyers want to get paid (fairly) for their hard work and service provided
o Non-pecuniary interests: expectations for a fulfilling life as lawyers and members of society. Balancing
work/home/friends, social and political affairs.
 Ethical and professional interests (of lawyers and the profession)
o Lawyer’s role as one that should pursue “social justice” by avoiding dishonourable or morally
reprehensible conduct
o Recognize and celebrate the diversity of the bar – no longer homogenized
o “last lawyer in town” objection  if all lawyers moralize about the causes of their clients, there is a good
chance that clients with unpopular causes will not be able to find lawyers to take their cases.
o In the context of the civil dispute resolution system, almost all cases settle. All lawyers must take into
account the varied practice contexts of all non-courtroom lawyering experiences.
 Public interest
o Social responsibility  refrain from collectively harmful action
o Maintaining the legal justice system
o Responsibility to do good in the world
o avoid doing harm
o facilitate access to justice  not a reality for most people
Legal Ethics, Jurisprudence, and the Cultural Study of the Lawyer
 how an individual should act in his role as a lawyer ≠ moral questions
 if we want to explain how an individual should act in his role as a lawyer, we would want to know what law is.
law is not simply a governing instrument (as is generally supposed) and it is certainly not a normative order
founded in reason (as traditional natural law proponents argue)  it is a cultural practice of sociopolitical life.
o How we govern ourselves, individuals and collectively, as members of a community
o Law is a community’s (culture’s) method of practicing politics
Liberalism as Ideology
 Liberalism is a set of beliefs and values that lie at the foundation of a political program.
 Liberalism emphasises the individual and the individual’s natural rights, a social order organized around
principles of democratic constitutionalism, an economic order organized around principles of a free market, and
a claim of universal applicability that accompanies a teleology of progress.
 Ideology, not a science; does not represent truth.
Pragmatic Assorted Strategies: How Canadian Cause Lawyers Contribute to Social Change
Basil Alexander
Advocacy strategies available to cause lawyers: law reform, education and capacity building, use of the media, and
community work and engagement.
Where lawyer works affects approach:
 Issue-based legal clinics or non-profit orgs  more likely to engage with a variety of strategies.
 Private firms  focus more on litigation.
o May utilize media, relevant community stakeholders as part of a case, or include activies related to
serving on a BoD (due to personal interests)
Law reform
 producing reports and position papers regarding problems, why reform is needed, and solutions.
 produce submissions to legislative committees
 involved in related academic research to provide deeper insight and draw attention to often misunderstood
 They can be involved with lobbying governments and legislative members directly
 Sit on advisory committees
Education and capacity-building
 public education programs for those affected by an issue so that they could become more familiar with their
rights and potential options
 educating those who provide direct services to an affected community (eg, community legal advocates who are
not legally trained)
 involved in law school education, through courses, intensive programs and clinics.
 Through political interactions, lawyers educate decision-makers about terminology and the key concerns
General litigation and summary advice for affected individuals
 Such services occur particularly in issue-based clinics whose focus is on assisting underserved and disadvantaged
 Private practices regularly doing public interest work
Advocacy through the media
Role of media  disseminate information, inform public, gain public support for important issues and work.
developing and maintaining an organization’s reputation and ongoing contact with media can contribute to
perception, credibility and continued interest from both the media and the public.
o Becoming a “go to” contact for media
Engagement and work with relevant communities
 Serve on a BoD
 When specific communities are part of an organization’s mandate, the organization tends to engage quite
extensively with that community
 Advisory group
 Providing legal advice to non-legal organizations
 Activists; engaging in organizing and demonstrations
Indigenous Issues
1984 Federal Provincial Conference of First Ministers on Aboriginal Constitutional Matters was a tumultuous and
antagonistic process that pitted Prime Minister Pierre Elliot Trudeau and the First Ministers—who refused to include
Indigenous inherent rights to self-government in the Constitution—against First Nations, Inuit and Métis leaders, who
would not back down from this historic opportunity to enshrine Indigenous rights.
Lawyering in Complex Societies
The Five Habits for Cross-Cultural Lawyering
 The logic through which we give meaning to the world
 Learned from our experiences, sights, books, songs, language, gestures, rewards, punishments, and relationships
 home, schools, religious org, and communities
 Gives us values, attitudes and norms
 Cultural groups/norms can be based on ethnicity, race, gender, nationality, age, economic status, social status,
language, sexual orientation, physical characteristics, marital status, role in fam, birth order (eg, cultures where
oldest son mean something), immigration status, religion, accent, skin colour…….
Cross-cultural lawyering
 The lawyer’s and the client’s ethnic or cultural heritage comes from different countries, and where their cultural
heritage comes from socialization and identity in different groups within the same country
 Awareness aids in avoiding stereotyping and assumptions
 Shared culture  better able to predict or interpret; mistakes likely to be smaller misunderstandings
Establishing Trust
 Can be more difficult when culture is different
 Can create distrust
o Client’s culture distrust outsiders or lawyer’s culture
o Lawyer mistrust client
 Negative reaction fr client  “difficult” client label
o Lawyer may be sending signals that reinforce stereotypes; interpreting behaviour incorrectly
 Unconsciously failing to provide full advocacy
o Should assess whether concept of insider-outsider helps explain reaction
Accurate Understanding
 Cultural differences often cause us to attribute different meanings to the same set of facts
o Goal: attribute action/words to what the speaker intended
o Eg, nodding. Agreement vs just listening.
 “Let me know if you don’t understand”  client blame self for lack of understanding
 “Let me know if I’m not being clear”  client blames lawyer for poor communication
Organizing & Assessing Facts
 Culture determines credibility
 “wandering all over the place”  categorize information differently
o May not be linear time related stories
Individual and collective
 Distinction between individual and collective cultures  may be the most important concept to grasp
 Individualistic culture: individual goals; “do their own thing”; assert themselves
o US/CAN  Ethical rules of confidentiality – lawyer w/individual client; may prohibit from representing
group or considering group concerns.
 Collectivist culture: think in terms of the group; work for the betterment of the group; integrate individual and
group goals. Group membership is used to predict behaviour. Silence plays more important role in
o Culture may create shame on group (eg, family) if pled guilty to a crime
Legal Strategy and Decision Making
 Determining strategies to respect client’s cultural norms
 Clients fr cultures that punish those challenging the gov may avoid pursuing simple matters
 Clients from cultures who often challenge gov may be seen as difficult/belligerent
 Cultural differences may cause us to misjudge a client or to provide differential representation based on
stereotype or bias.
Culture-General and Culture-Specific Knowledge
 Should study the culture/language of the client group
o Culture-specific knowledge, politics, geography, and history may shed light on client’s legal issues,
relationship w/lawyer and process of decision making.
Habit 1: Degrees of separation and connection
 Consciously identify the similarities and differences between their clients and themselves
 Pinpointing and recording similarities and differences
o Brainstorm, as quickly as possible, as many similarities and differences between the client and himself
 Ethnicity, economic status, marital status, race, social status, role in family, gender, language,
immigration nationality, sexual orientation, religion, education, age, physical characteristics,
time, individualistic/collective, in/direct communication
 allows lawyers to see clients as individuals with personal, cultural and social experiences that
shape the clients’ behaviour and communications
 Analysing the effect of similarities and differences on professional distance and judgment
o Able to identify relationships that need more or less professional distance
o Many differences  ask “are there any similarities that I am missing?”
Negative judgments are more likely to occur when the client and lawyer see the other as an
o Determine what we share with the client about ourselves
Analyzing the effect of similarities and differences on gathering and presenting information
o Lawyers usually ask questions based on differences that they perceive between their clients and
themselves. Don’t ask questions re choice client made that they would make themselves
Habit 2: Rings in Motion
 Identifying and analyzing how cultural differences and similarities influence the interactions between the client,
the legal decision makers, the opponents, and the lawyer
 Info considered relevant mixture of client/opponent/lawyer and legal system’s perspective. If differ, info may be
gathered, presented and weighed differently.
 Pinpoint and record similarities and differences in the legal system-client dyad
o Does client share values/norms of legal system & decision makers
 Pinpoint and record similarities and differences in the legal system-lawyer dyad
o Does lawyer share values/norms of legal system & decision makers
 Pinpoint and record S&D of opponents to legal decision makers/clients/lawyers
o Bring about creative solutions
 Analyze the effect of S&D
o Goal = consciously examine influences
o What does a successful client look like to the decision maker?
o Identify legal strategies
o Assess client credibility
o Identify how my biases shape the inquiry
Habit 3: Parallel Universes
 Explore multiple alternative interpretations of client behaviour – alternative explanations
 Remind self we lack the facts to make the interpretation
Habit 4: Red flags and remedies
 Focuses on cross-cultural communication
 Avoid using routine responses to client
 Little planning
 Pay attention to:
o Scripts, especially those describing the legal process
o Introductory rituals – pay careful attention to verbal/nonverbal signals fr client
o Client’s understanding – use active listening techniques & look for feedback client is understanding
o Culturally specific info about client’s problem – client’s view of problem, advice seeked from, solution
seeked, others affected.
 Red flags:
o Client appears angry, bored, disengaged or uncomfortable
o Lawyer dominating convo
o Lawyer not taking notes for many min
o Client using lawyer’s terminology instead of opposite
o Lawyer judging client negatively
o Lawyer bored/distracted
 Corrective measures:
o Turning convo back to client’s priority
o Seeking greater detail about priorty
Client explain concerns more deeply
Asking for examples of critical encounters that illustrate the problem & explore one in depth
Ask client to describe solution
Using client’s words
Habit 5: Camel’s Back
 Many factors that may neg influence interaction
 More likely to stereotype when stressed (unable to monitor for bias)
 Take a break, eat/drink; acknowledge negativity, identify personal issue
Road Back In: Community Lawyering in Indigenous Communities
Zuni Cruz
Different models of Lawyering
 Lawyer assuming broad control over the solution
 Lawyer is expert & gives legal persepctive
Client centered lawyering
 Individual-centered lawyering; not taking the community into consideration; client/lawyer work together
Community based lawyering
 Consideration of client’s community and culture [non-legal influences that affect the client]
o Client as a part of the community, not an individual
 Represent clients in definable communities
 Working with communities, not independent of them
 Lawyer is aware of issues in community that affect client’s decisions
 Gathering information re community [not from client]
o Always be aware of your place in relationship to community [you are an outside]
o Be respectful of the info obtained and how it should be used
 Consider client’s relationship to community
 Conflict between a subgroup and its community
o Requires understanding the legal issue from a historical, cultural, social and political perspective as well
as a legal perspective.
o Client-centered approach would see the legal issue as the main focus/sole issue.
All are appropriate depending on situation
context specific
Client-centered & community 
Client is expert in situation, lawyer is expert in law
Legal Advice as Moral Perspective
Robert K Vischer
What is the role (or potential role) of morals in legal ethics and professionalism? In practice when giving legal (or other)
 Morals need to be discussed to avoid any potential misunderstandings/miscommunications
 Acknowledge both your’s/client’s moral perspectives
 Can apply to personal morals, what lawyer believes client’s perspective is, and professional morals
Advice given is often influenced by moral perspective; attorney should be open and honest about that with the
o Disregards client’s needs and circumstances; legal strategy is built around presumptions of the legal
 Moral offense is hidden under the disguise of amoral legalism
 Failing to provide relevant moral considerations to the attention of the client;
 Ignoring factors that could potentially influence client’s decision & have influenced attorney’s
Influenced by perception of client’s moral perspective
o Client unable to correct misconception
Disputable moral claims should be brought to the client’s attention; to provide the client a broader basis for
evaluating the advice and making a fully informed decision
3 moral perspectives
o Personal
o Reflective
o Professional
Model Rule 1.0  "lawyers are morally accountable for their conduct as lawyers.”
o Purpose: bring attention to lawyer’s moral duties
The Canadian Lawyer in the Twenty-First Century
Ian Holloway
 Common law began w/o lawyers
 Lawyers started out as common people – interpreters
 Later 1800s legal profession started taking the shape it is today – law firms, active player in business
o Legal agent (just act for someone and do what they wanted to make it work) to legal profession (trusted
How did lawyers achieve their current status/role?
 Industrialization; big business
 As more laws were created – specialized fields develop; laws become more complicated
 Major events (buying house, marr, div) became complicated
Potential Role of Trauma for Clients and Lawyers
Questions To Consider:
What is the potential role/impact of trauma for clients?
 anxiety and depression, intense anger towards self/others, formation of unhealthy relationships, denial, impaired
self-expression, disassociation,
 ST consequences: re-experiencing, acting/feeling event is recurring, avoidance of stimuli (inc thoughts, feelings,
convos, activities, places, people)
 LT consequences: ST consq, chronic guilt/shame, sense of helplessness, sense of being permanently damaged,
distrusting others/relationships, vulnerability to re-victimization, becoming a perpetrator of trauma.
What are potential ways to approach that?
 Interact with client to minimize re-traumatization
 Validate feelings/emotions
 Focus clients who avoid talking about the trauma
 Assist clients in remembering significant details
 Anticipate clients who are late or noshow; work with them
 Define the role of legal advocate (not therapist/social worker)
 Being transparent with the client about the process
 Build trust
What is the potential role/impact of trauma for lawyers?
 Advocate for the client; not therapist or social worker  aware of responsibility
 Vicarious trauma
What are potential ways to approach that?
1. Identify trauma
a. Be aware of how It will affect you
2. Adjust the relationship with the client
3. Adapt litigation strategy  make the situation as predictable as possible; planning a break if becomes too
emotional; enlisting the support of a support person/professional
4. Prevent vicarious trauma
a. diversify and manage case load
b. workplace culture that acknowledges vicarious trauma (supervision, peer support, open communication)
i. talk to someone who has ethical obligations - confidentiality
c. self care
Essential Components of Trauma Informed Judicial Practice
 Opportunity for engagement and no script
 Guarantee physical/emotional safety
 Treating with dignity/respect
Teach and Reinforce
 Encourage skill-building/competence by acknowledging strengths and underlying positive intent of behaviour
The Pedagogy of Trauma-Informed Lawyering
Trauma-informed practice
 Family, criminal, immigration, juvenile, veterans’ rights law
 trauma-informed: to be educated about the impact of interpersonal violence and victimization on an individual's life
and development.
o Goal to reduce the possibility of retraumatization
 What is wrong with you  what happened to you
o Accusatory vs compassionate
 identify trauma and adjust methods of engagement based on client’s trauma
o aware the client is vulnerable and emotional; demonstrate patience and affirmation to build trust
o Maintain appropriate boundaries
o Assist clients in identifying supports and interventions
 Trauma can affect how the client interacts with the lawyer; their actions and behaviours manifestations of the
 Client’s trauma can affect lawyer
o Develop tools to manage its effects and employ methods of self-care to avoid vicarious trauma
Approaching trauma-informed lawyering
1. Identify trauma
2. Adjust the relationship with the client [how you engage; how to get the whole story]
3. Adapt litigation strategy  make the situation as predictable as possible [desensitize them]; planning a break if
becomes too emotional; enlisting the support of a support person/professional
4. Prevent vicarious trauma
d. diversify and manage case load
e. workplace culture that acknowledges vicarious trauma (supervision, peer support, open communication)
How do the trauma readings assist with how to lawyer generally and in complex soceity
More information and more effective tool-kit
More aware of the experiences you may encounter and how to prepare/deal
Try to come up with trauma-informed approaches to the following:
• “Your drug screen is dirty.”  shows the presence of drugs
• “Did you take your pills today?”  “I’m a failure” – are the meds working well for you
• “I’m sending you for a mental health evaluation.”  “I must be broken/crazy” - refer you to dr to help us learn how
to support you
• A judge conducts a sidebar conversation with attorneys.  suspicion, betrayal, what are you talking about – tell
them what is happening and why. We have to discuss some issues regarding your case
• A judge asks a participant to explain her behaviour or the impact of abuse without acknowledging the impact of
others in the courtroom.  intimidation/fear of abuser in courtroom, fear of reaction from family/friends in
courtroom. Do when courtroom is empty or approach the bench.
Question form and answers available on LMS in “Potential Role of Trauma for Clients and Lawyers”
 “A traumatic experience occurs when an individual subjectively experiences a threat to life, bodily integrity or
sanity.” “…renders an individual’s internal and external resources inadequate, making effective coping impossible.”
 flight, fight, freeze
4 common behaviours: anxiety and depression, intense anger towards self/others, formation of unhealthy
relationships, denial
ST consequences: re-experiencing, acting/feeling event is recurring, avoidance of stimuli (inc thoughts, feelings,
convos, activities, places, people)
LT consequences: ST consq, chronic guilt/shame, sense of helplessness, sense of being permanently damaged,
distrusting others/relationships, vulnerability to re-victimization, becoming a perpetrator of trauma.
Psychological effect on brain  fight flight freeze  decision making impaired
Vicarious Trauma
 Compassion fatigue, secondary trauma, secondary stress trauma
 Response to working with traumatized clients; Preoccupation with a client’s story
 Avoidance/numbness to the trauma or persistent hyperarousal [heightened alertness to threat]
 Disruption to schema: safety, trust, esteem, intimacy and control [psychological needs]
 symptoms include: denial of clients' trauma, over-identification with clients, no time and energy for oneself
o feelings of great vulnerability, experiencing insignificant daily events as threatening, feelings of alienation,
social withdrawal, disconnection from loved ones, loss of confidence that good is still possible in the world,
generalized despair and hopelessness, loss of feeling secure, increased sensitivity to violence, cynicism,
feeling disillusioned by humanity, disrupted frame of reference, changes in identity, world view, and
spirituality, diminished self-capacities, impaired ego resources, and alterations in sensory experiences.
o Sleep disturbances, sadness, anxiety, difficulty concentrating, irritability, lack of empathy, fatigue,
 5x for lawyers compared to dr, social workers, therapists [2/3 lawyers]  higher likelihood of drug/alcohol to cope
 Protect against / coping
o Recognize symptoms and be aware of experiencing them. Seek counselling
o Self-care – exercise, eating, holidays, hobbies/interests
o Find support [mentor/colleagues] – debrief, connect, talk about it
o Create a ‘trauma filter’  don’t watch/listen/read violent/depressing mediums
Compassion Fatigue in the Legal Profession?
Janice Mucaloy
 Vicarious trauma
Transforming Compassion Fatigue into Compassion Satisfaction: Top 12 Self-Care Tips for Helpers
Francoise Mathieu
12 tips for self-care
1. Take Stock-What’s on your plate?
2. Start a Self-Care Idea Collection
3. Find time for yourself every day – Rebalance your workload
4. Delegate - learn to ask for help at home and at work
5. Have a transition from work to home
6. Learn to say no (or yes) more often
7. Assess your Trauma Inputs
8. Learn more about Compassion Fatigue and Vicarious Trauma
9. Consider Joining a Supervision/Peer Support Group
10. Attend Workshops/Professional Training Regularly
11. Consider working part time (at this type of job)
12. Exercise
Establishing a Trauma-Informed Lawyer-Client Relationship
Kraemer / Patten
 Children’s brains develop responses to childhood trauma  behave in ways that can make connecting/bonding with
lawyer more difficult
 Impact variables  age, severity, duration of trauma, gender, cultural identity, availability of supports
Building Relationships
 Impaired sense of safety: survival mode, even in safe environment; Appear maladaptive or hyperaroused
o Constant or triggered
o Appear jumpy, frequent outburst, confrontational, aggressive;
 Dissociation: indifferent, shutting down, avoidance
 Controlling emotions: difficult to do; self-regulation skills under-developed; overly impulsive
 Lack of trust: history – adults not a source of safety; attempt to provoke & bring negative “inevitable” treatment
 Positive  build trust; change views on self, expectations of others, and future
Communication and Counseling
 Difficulty processing information; distracted; focused on safety/survival
 Difficulty expressing self; development of sequential memory & language [re emotions] impaired
o Stories can be long, non-sequential, confusing, emotionless
 Difficulty sharing experiences  historically discouraged, not believed; feelings of “deserved it”; fam loyalty
 Impacts decision making  difficulty understanding cause-effect [historically harmed w/no cause]
trauma-informed “stance” principles
goal  “avoid exacerbating the client’s impaired sense of safety, difficulty with trust, and negative beliefs about herself
and her relationships with others.”
1. Transparency: age-appropriate transparency.
2. Predictability: shapes expectations of relationship & legal process  case milestones, client decisions
necessary, upcoming events
3. Client control: empower client with decisions; counteract feelings of powerlessness
4. Reliability: be reliable
5. Proactive support: anticipate issues; consult supports to identify triggers
6. Patience: demonstrates your commitment to the client
Role Definitions & Boundaries
 Clearly define your role early  creates predictability
 Explain services provided/not & expected outcomes/accomplishments
 Differentiate yourself from others
 Explain client’s role & potential decisions
 Define situations where you may advocate against client’s wishes
 Explain client has power to make decisions
 Explain confidentiality & limits
 Identify yourself as reliable
 Explore client’s assumptions about lawyer-client relationships
 Repair breaks in the relationship
Preparing For / Responding to Triggering
 Triggering  severe reaction to trauma; intense & immediate reaction evoked by a recall of trauma
o Common triggers: unpredictability, transition, loss of control, feelings of vulnerability, loneliness, rejection,
sensory overload, confrontation, embarrassment/shame, intimacy, positive attention
 Reactions: outbursts; difficulty understanding questions; difficulty communicating narrative; “don’t remember”;
distant, shuts down; regressive behaviour;
Approaching a trigger
 Address the distress
 Avoid confronting/escalating
 Help them feel in control and safe; reassure reaction is normal
 Discuss trigger & and attempts to anticipate in future
 Suggest trauma-focused therapy
Courts, Cases, and Arguments
The Practical Guide to Legal Research
Nancy McCormack
Primary Source of Law
Statutes, regulations, delegated legislation and legal instruments, judicial decisions, and administrative tribunals
decisions. Only primary have the force of the law
Relative Weight of Sources
 The Constitution: supreme law. governs the division of powers between fed/prov, guaranteed fundamental rights
and freedoms
 Statutes: laws passed by the legislature
o Subject to interpretations
o Can be altered:
 amendments/appeals
 judicial or administrative tribunal interpretations
 declarations of constitutional invalidity (striking down)
 limits on the meaning of specific words/passages (reading down)  words/passages not beyond
the powers (ultra vires) of the gov passing the legislation
 Regulations: details on how statutes are to be implemented  definitions, licensing/registration/insurance
requirements, figures/diagrams, performance specifications, exemptions, forms.
 Judicial Decisions: common law. absence of statutes or interpretation of statutes
 Administrative Tribunal Decisions: not courts of law – enforce only specific statutes.
o Only binding on particular case it is hearing; not law, but can be persuasive
 Concurring & Dissenting Opinions: concurring opinions may differ in reasoning.
Reception of English Law
Date the colony received the English law as their own  varies by prov
New statutes passed in England were applicable.
prior to, UK courts applied. After that point, the laws created by the colonies are in effect, not the laws of England.
English laws that carry over  passes a law that is intended to apply to entire commonwealth
 Judicial Committee of the Privy Council; some decisions still apply (eg, women’s right to vote)
 A decision of the house of lords is binding on the colonies – highest of law
 1933 crim appeals, 1949 civil appeals (last case heard 1959)
Jurisdiction binds statutes & case law to that area/prov
Decisions from other jurisdictions may be persuasive
o Foreign law – if law not developed yet in Can or disagreement on how law should develop
Secondary Source of Law
Legal encyclopedias, books, journal articles, blogs, websites, treatise, journal articles
 Commentaries that explain/interpret primary sources of law; typically written by legal scholars and lawyers
 Start with secondary; will lead you to primary & provide context
 Treatise & journal articles  may be used in court to persuade.
 May be biased  consider more than 1 author
 Can be persuasive
Prioritizing Research
Court Structure: hierarchal. Higher court is binding.
 SCC: Final court of appeal.
Chief justice + 8 judges
Court of appeal
 Federal courts: matters specified in federal stats
(eg, immigration, navigation, intellectual prop, tax,
NB - C Q Bench
defence, security, international relations)
Trial level – matter assigned by parl
most fed gov decisions can be challenged in court
NB - Prov court
Appellate court – 3 roles: ensure fed law is applied
consistently nationally; conduct judicial reviews of specified
Prov admin
fed decision makers; provide avenue of appeal
Tax Court – cases under federal tax and revenue legislation
 Prov/Terr courts:
Appeal – 3 judges, appointed by feds
Superior – most serious crim/civil cases, 1st appeals, fam
can hear a case in any area (unless limited by stat/rule); judges appointed by fed
Inferior – [prov court]. handle most cases; judges appointed by prov
Administrative Tribunals and Boards – disputes over the interpretation and application of laws and regs
 may just have a policy role
 Less formal; not part of court system; not same independence as courts; (eg, law society,
rentalsman, human rights tribunal)
 “judged”/decision makers appointed by prov; not same protections as courts (tenure, financial, etc)
 Not bound by precedent
Fed/prov doesn’t mean the same in the judicial system  unified system
 There is federalism between feds/provs as to how courts are set up and function
 Prov/terr superior courts can deal with both prov and fed matters
o Not just federal courts  only exclusive jurisdiction for certain and sometimes concurrent for certain federal
things (focuses on particular things (immig appeals, intellect prop, maritime law, patents; reviews/appeals
from fed admin trib)
o Inherent jurisdiction  hear cases in any area, except where limited by statute/rule
o Federal courts’ jurisdiction is statutory (not inherent)
 Inferior courts: only jurisdiction granted by statute/legislation [eg, criminal code is federal, but heard in
Jurisdiction also refers to when a court has authority over a case [can decide a case and enforce decision]
Personal jurisdiction: does the court have jurisdiction over the person or the events [geographical]
o 14 geographical jurisdictions in Canada: 10 prov, 3 terr, 1 national
Subject matter jurisdiction: deal with the topic [eg, intellectual property is federal, even if the event happens in nb]
o General jurisdiction: prov superior courts  hear a wide variety of cases
o Limited jurisdiction: specialized [eg, tax court]
Core jurisdiction of superior courts  2 public law powers:
o Constitutional law jurisdiction: can rule on the constitutional validity of all ordinary laws
o Administrative law jurisdiction: supervise the activities of the executive gov to ensure they act w/in
their statutory authority
*note court names have changed over time*
S96  feds appoint judges of superior courts in provs
S 101  fed create general court of appeal for Canada and establish new courts “for the better administration of the
laws of Canada”
Court of first instance: trial the case is first held at
 Criminal cases: Crown [R] v Defendant
o V = versus
 Civil cases or tribunal
o Plaintiff (sometimes applicant)
o Defendant (sometimes respondent)
o V = and
 Fed/prov gov referred to by name  R only for criminal
Appellate/review courts: review a decision already made
Appeal Possibilities:
1. Automatic right of appeal
a. An appeal judge dissented on how the law should be interpreted
b. Prov appeal overturned an acquittal
2. A right to seek leave [permission] to appeal
(appellate court hears appeal after hearing submissions)
3. No right of appeal
4. No further appeal because there is no higher court
How appellate court approaches depends on issue for appeal
 Facts  defer to trial court since didn’t hear evidence (e.g. witnesses)
 Law  no deference to trial court  same position and key
Appellant – person who doesn’t like prior decision; initiate appeal
Respondent – responds to appeal
[order of names may not change in title]
Number of Judges/People Heard Before  usually odd numbers
 Prov inferior or superior court  typically 1 judge
 Appeal courts  min 3 judges [sometimes/rarely 5]
 Supreme Court of Canada  5 to 9 judges
 Administrative tribunals  usually 1 or 3
Department of Justice, Canada’s Court System
[additions above]
ADR, private commercial arbitration, appearing before administrative boards and tribunals
Domestic Violence Courts: established to improve response times
Sentencing Circles
Others are joined in the process  sit in a circle to discuss
 The offence
 Contributing factors
 Sentencing options
 Reintegration into society
Judicial Independence
Separation of powers  Judiciary is separate from executive and legislative
Decisions are free from influence
Chief Justice of the court decides if that court will hear the case [not politically decided]
3 components:
 Security of tenure
o Eligible to serve until 75
o Can only be removed after an independent investigation & joint address
 Financial security
o Sufficient compensation guaranteed [removes potential from outside financial pressure]
 Administrative independence
o No interference in managing the legal process and exercise judicial functions
Judicial Role
Making sure society runs in accordance
with the rules
Craig Forcese et al, Public Law: Cases, Commentary and Analysis
Examples of precedent
 Interpreting a statute or constitutional
 Common law reasoning (e.g. not covered by or overruled by statute)  basis of prop, contracts, torts
Gradual and tailored to past specific circumstances
 Retrospective
 Practical pragmatism
Contrast to legislation
 Usually future oriented, more general, practical application uncertain, and not all circumstances may be anticipated
Common Law and Precedent
 Judge’s consider decisions from prior cases [where the material facts are the same] in deciding a similar case
o Providing an explanation helps judge coms to a conclusion & justifies the results
o Precedent – facts A B C  A B material, C immaterial
Future case – facts A B only must be material; if a new fact D is material, then prior case may be of value as
an analogy, but not a direct authority
Question – what if future case has A B and C material
Principles from prior cases derive from the judge’s reasoning, and can also derive from interpretations of
statutes or constitutional provisions.
o Those principles construct precedent
Bound to SCC decisions (privy council prior to SCC, if not overruled by SCC)
o Minority opinion not binding
o SCC decision for another jurisdiction not binding
Purpose of precedent:
o Creates stability, fairness and consistency  expectation of predictability
o Eliminates sources of error, such as judicial bias
o Symbolic role – recognizes relationship between courts and legislature
stare decisis: “let the decision stand”
o judges must follow precedent of a similar case [fr a higher court within the jurisdiction]
o creates consistency, fairness and predictability
o Why/Rationales
 Stability and certainty  more predictable; preserves status quo
 Economizes what do and info needed
 Minimizes arbitrary/idiosyncratic decision-making  fairness in decision making
 Like cases treated alike; different cases treated differently
 Can be tailored to circumstances
 Promotes efficiency re: what courts need to hear
 Eliminate/reduces sources of error (e.g. judicial bias) & eliminates need to develop new answers for
questions on which already ruled
o Issues
 Can’t be too rigid  might fail to meet changing needs
Similar cases must be considered if there is a precedent at the same level of court or outside the court’s jurisdiction
o Exception: a new legal issue is raised and where there is a change in the circumstances or evidence that
fundamentally shifts the parameters of the debate
When you don’t want the precedent:
o Something different
o New element  refrain by modifying precedent by adding/narrowing/explaining
o Distinguish current case from previous case  if different, no precedent; if no basis for distinguishing the
cases, judges must state previous cases were wrongly decided [not available to lower courts]
 Can’t distinguish  wrongly decided [can only do for decisions not binding on you]
Appeal courts not required to follow prev decisions of same court, but typical to
SCC not bound by own prev decisions
Binding precedent: [mandatory precedent] must be followed by the courts  common law
 Higher court precedents are binding on lower courts in same line
Concurring and/or Dissenting Opinions
 Majority opinion: determined outcome of the case; most concurring judges
 Only majority decision is binding
 Author = “the court”  “big deal” – on behalf of all the judges.
 Minority opinion: concur with outcome, but on different legal rationale, or a different view on some issues
 Plurality opinion: no majority; opinion with most authors or concurring judges, even though it’s less than half
the # of judges hearing the case
 Dissenting opinion (dissent): when a judge has a different opinion than the majority; explains a vote in favor of
the losing side
Only happens in appeals
If the area of law is in development, the dissent can become a basis of a decision in future cases
Can agree in part and dissent in part; eg “agree with everything, but not this part…”
Persuasive precedent: judge can choose to follow [given no conflict w/a binding precedent], but not required to follow
 Used when court needs to decide how to develop law or when there is no binding precedent
 Can be a case outside of jurisdiction/line
 Jurisdiction consideration: where is it from; the higher up in the line the precedent is, the more weight the
precedent will have [level of court]
 Newer tends to be weightier; but also an older one used recently
 Judge’s reputation – is he known well, expert in specific field,
 Unanimous has greater weight compared to split decisions
 Thorough and convincing analysis of facts and existing precedent better than cursory summary [cursory summary 
no details, one line – “this case stands for x”, value of case is low)
When precedent is at the same level
 Appeal courts  not obliged to follow own decisions, but reluctant to overturn
o Some appeal courts have to follow own precedent; check jurisdiction
 Trial courts  generally try to be consistent to avoid multiple versions of reasoning/law  doesn’t always happen
 SCC  does not need to follow precedent
 Trial courts may reconsider higher court rulings if:
o New legal issues is raised
o There is a change in circumstances or evidence that “fundamentally shifts the parameters of the debate”
Only parts of a decision is binding
 Ratio decidendi: reason of deciding; binding rule for precedent; reason for decision  the point of law raised
and decided by the judge, and what was used to make that decision
o Question of fact: did it happen
o Question of law: is it unlawful [why]
 ratio decidendi; only this serves as precedent
o Question of remedy: what should be done
 Identifying Ratio decidendi:
o Old way  Here’s the issue, a bunch of facts, and solutions; ea judge wrote own decision
o New way  often stated explicitly
 Does the new case resemble the precedent case
o If so, and you don’t want to be bound, try to distinguish
o Different ways of interpreting the binding case
 What’s the central guiding principle
 Is there more than one guiding principles
 Do you interpret the principles widely or narrowly
What rule of law is the decision based from
How is it found
For which courts is it an authority for  trace its subsequent history
Obiter dicta: things said by the way; everything else
o not binding (quest fact/remedy) but persuasive
Legal argument when there is a precedent
Tools to get around an unfavourable precedent case [researched]
Can’t ignore case
Articulate the ratio decidendi of the case differently
The reason for the decision (legal proposition) was obiter dicta (comments not binding)
 Exception: appellate court expresses a considered opinion on a point of law
Higher court decision or the introduction of a new statute overrules the precedent case
The cases are factually distinguishable
 Restrictive distinguishing: treating as material to the earlier secision some fact, present in the earlier
case, which the earlier case regarded as immatrial.
 Non-restrictive distinguishing: material difference of facts between current case and precedent case.
Precedent case has a built in public policy factor, may be able to argue that public policy has changed.
There is another precedent of equal weight which stands for the opposite proposition.
Equity is not a part of common law precedent – equity is at the discretion of the court
Per incuriaum: precedent is questionable [eg, subsequently overruled or doubted in other cases; based on faulty
interpretations of earlier cases; scope is unclear; social conditions changed; precedent academically criticized]
Legal argument when there is no binding precedent
Legal reasoning used when there is no binding precedent:
 Rely on a non-binding precedent from another jurisdiction.
 Review foreign law to determine whether there may be underlying differences in principles
 careful of foreign law and applicable
 apply first principles
 go beyond first principles (common sense; basic rights; democracy; etc) and develop argument that
decided cases evolved to general principles that covers case
 Form a legal argument from first principles. Identifies legal principles from decided cases – factualy
circumstances may be different, analytically they are the same.
 Go beyond first principles and instead develop an argument that the decided cases have evolved to a general
principle which covers the immediate case.
Legal proposition  the reason for the decision
First principles: basic ideas of common sense, common rule
What you are looking for:
 Decisions are made up of materials facts and law
o Cases must be decided same way when same law and same material facts
o Question of whether same material or immaterial facts?
o Legally material facts may recur  what precedent / stare decisis concerned about
Court will never say “policy”  see it as the “stuff” executive/legislature do
Looking at Law: Canada’s Legal System
Barry White
[notes above]
Stare Decisis and Techniques of Legal Reasoning and Legal Argument
[notes above]
Question – what if future case has A B and C material
The Law School Book: Succeeding at Law School
Allan Hutchinson,
Margaret McCallum, Synthesis: Legal Reading, Reasoning, and Writing in Canada
Unpublished decisions  not adding to the common law
Narratives in Case Law
1st: what happened
2nd: events defined by legal system and its response
Who are the parties?
What happened?
When & where did it happen?
Why did it happen & why did it result in litigation?
How does the claimant want it resolved?
comparable questions about the legal system’s response.
What court considered the case
Which judges wrote the opinions
When the did the court rule
Where does it appear
Appeal: which courts have considered this case before [may be more than 1 response if reading an appeal]
Whose decision am I reading, and what was the decision
Who wrote the opinion(s)
When did the court rule
Where does this opinion appear
What has this court decided
Why did this court rule this way
How did this court respond to the rulings
Cases consist of a story and its moral [prediction].
Story = real-world narrative
Moral/prediction = the court’s response, assigning a legal meaning to the real-world facts & setting a precedent
Ramsey Ali, The ABCs of Law School: A Practical Guide to Success Without Sacrifice
Focus on learning how to read the cases; not memorizing
 Why has the case been assigned  syllabus topic & casebook TOC  gives idea of what to focus on
 Cases vary in importance  historical background or context vs leading cases
o Historical background = longer; don’t focus on
o Read case after class to determine importance
o Prior to class review headings or another’s summary
o Summarize case into a couple lines
 Resource  papers written by your professors
Allan Hutchinson, The Law School Book: Succeeding at Law School
Assessing the facts of a case:
 Literal: the literal meaning of the rule or facts
 Purposive: underlying purpose of precedent; what are they trying to do [bigger picture]
Narrow: the rule/principle is expressed in limited terms, in such that it would be diffiuclt to apply to another
case, and the precedent would have to be distinguised
Statement of Facts
 General: the facts of the case are described generally and vaguely; compatible with a variety of different rules
 Specific: the facts are described with detail and focus on specifics that it is difficult to make them fit almost any
rule of formulation
Old/Modern Authorities
 Old: The rule/principle is so old that it either must be followed or it no longer applies to moder society
 Modern: the rule/principle is so recent that its worth to the law has not been established and it cannot yet br
considered to be a stanble feature of the common law, or so recent that it responds directly to the conditions of
modern society and deserves to be taken most seriously on that account.
Involving Policy
Strict vs Flexible
 Strict: it is easier to enforce a firm/strict rule; creates certainty and predictability; less inconsistency
 Flexible: easier to tailor it to an individual situation
Competence – is the court competent or not [suited for the case]
 Competence: courts are able to deal with the issue
 Incompetence: courts are unable to deal with the issue because it involves matters of social justice that need to
be settled by an institution with a broader democratic mandate [reuires specialized knowledge]; matters have a
long-term, structural implication for social ordering.
Formal: everyone is the same; rule applied so that everyone is treated the same
Substantive: treat people differently to create better equality; rule applied so that everyone is equal, but by
treating differently situated groups or individuals; otherwise would compound inequalities that already exist
 Freedom: persons should only be held responsible for those acts they have chosen to perform, blameworthy,
cause foreseeable and intended harm, could not have been avoided. Entitled to engage in harmless activity with
little gov interference
 Security: persons who are injured or interfered with through no fault of their own are entitled to protection,
help or compensation from other persons or society at large, or the government has a responsibility to monitor
and regulate people’s activities in order to preserve the freedom of others
 Flexible: better able to respond to changes; standard/rule encourages good conduct and deters bad; allows
personsons/corporations to respond better to changing social and market conditions; facilitates greater
interaction ad freer competition; will not inhibit personsos or corporations from creative or innovative
 Stable: creates stability; leave persons/corporations confused as to the limits placed on their behaviour
Cost-Benefit Analysis
 Incentives: rule/principle increases/decreases costs incurred, but costs are outweighed by benefits
 Disincentives: rule/principle increases/decreases costs incurred, and costs are not outweighed by benefits
Distributive Considerations
 Redistribution: rule/principle places additional burdens on one group of persons is justified because that group
is better able to afford the costs, or because greater opportunties or entitlements will redound to the advantage
of a less advanted group
 No distribution: places additional burdens on one group; not justified because that group will usually be able to
spread or pass on that burden to others, including those very groups intended to benefit.
 Paternalism: imposes duties/responsibilites on persons is favoured because these duties are in the best interest
of those persons, or because certain structural conditions prevent those persons from making informed
 Anti-paternalism: imposes duties/responsibilites on persons is not favoured because no one is ever in a better
positioin than the personsns involved to assess those persons’ best interests without imposing their own
interets, or because interfering in one area will lead only to problems and injustices elsewhere.
John Hollander, The Civil Courtroom
Rapport: key – trust and respect
Building rapport:
1. Be punctual
2. Use appropriate facilities [location/environment]
3. Be prepared – shows competency
4. Be understood – use plain/understandable language
5. Communicate – regularly communicate to show you are in control, that you care; builds confidence
6. Be practical – come up with arguments that make sense; what works in theory may not work in practice
7. Be affordable/timely
8. Be honest
9. Be open-minded
10. Be level-tempered
Client relations
 Inform the client of their chance of success
 Inform your client if you don’t agree with the their choice of solution
 Inform your client if you are not the appropriate lawyer for them
Allan Hutchinson, The Law School Book: Succeeding at Law School
4 Ways to find Cases & terminology
 Full case
o CanLII, BAILII other LIIs [legal information institutes]  full text; better for current cases
o Case reporters
o Quicklaw & Westlaw  full text
 Casebook  edited versions of key cases w/commentary & questions
 Textbook
o Commentary
o Some better than others  Kent Roach (criminal), Peter Hoggs (constitutional) [authorities]
o Will include citations, but need to check cases
 Annotated statutes  Statute provisions with short summaries/references of cases that refer to
o Martin’s annual criminal code; Watson and mcgown ontario civil practice
o Includes provisions on statutes (“the rules”), and provide links to cases, other sections of the code, and a
synopsis of the code (or some books – couple lines on the case)
How to find a case  Canadian Guide to Uniform Legal Citation, McGill Law Journal
At minimum, will have in some form:
• Name of case (style of cause)
• Court who made decision
• Year
• Where to find it
• Case reporter info or court’s neutral citation (recent)
Case Reporting
Citation example
Horsley v. MacLaren, [1972] S.C.R. 441.
Horsley v. MacLaren (1972), 22 D.L.R. (3d) 545 (S.C.C.).
judgment of the Supreme Court, found in the vol for 1972 of the Supreme Court Reports, p 441,
and in volume 22 of the Third Series of the Dominion Law Reports commencing at p 545
First read the case to determine the parties, the event, and the outcome
“by their next friend”  legal term for adult/relative/guardian when parties are minors
“with costs”  end of decision states who pays cost of bringing the case or appeal
 Usual rule – loser pay winner 2/3 or ¾ of the actual costs incurred by the winning party
Why Use Case Method?
• Historical reason  judges make law through their reasons
• Practical reason  know/learn how an abstract rule apply to specific situations
• How rules apply
• Where might be unclear
• Where might lead to unexpected outcomes
• Training to think that way
Leading cases  often lots of other cases follow or explain
Orin S Kerr, “How to Read a Legal Opinion: A Guide for New Law Students”
Legal opinion – Case Report – Judicial Decision/Opinion
 What the case is about
 Relevant legal principles
 Applies the law to the facts
What’s In A Decision/Judgment?
• What the case is about
• Reasons for the judgment
• Discussion of the relevant legal principles
• Applies the law to the facts to reach a ruling in favour of one side or other
• Disposition – what did the court decide. Often short
• For example, result can be
• Damages (award of money)
• Injunction (refrain from doing something)
• Other remedies depending on case/law [eg, law passed that it is unconstitutional]
SCC  has written/oral submissions available on website for recent years
The Caption
 The title/name of the case
 last names of the parties
o Criminal law – R [rex, regina]
 Dates of hearings & date of judgment
 Name of court; Present: names of judges
The Case Citation
 Tells you the year of the decision, the name of the court that decided the case, the “reporter” in which the
opinion was published with the pg #.
2017 ONCA 383 (CanLII)
ONCA – Ontario Court of Appeal
The Headnote
 Not written by the judge. Don’t quote the headnote.
 Catchwords – italicized at beginning of case
 A brief summary of a legal principle or rule discussed in the case report, as well as the legal issue
 Can also include information on legislation or other case reports that are relevant to this case, and whether this
case is on appeal.
 Reference to the decisions of prior court hearings (if an appeal), decision of current case, names of counsel for
current case
May include summary of counsels’ arguments [older English report]
The Author of the Opinion
 Name of the judge who wrote the opinion. [often refers to himself as ‘the court’]
 Often last name, J  J = judge or justice. CJ – Chief Justice
OR “per curiam” (by the court) – common view among all judges
The Facts of the Case
 First part of the body of the opinion presents the facts of the case – what happened. Includes procedural history
 No rules on what must be included.
The Law of the Case
 2 stages
 General legal principles
 May give background to help understand the context and significance of the court’s decision.
Cite to: to refer to a previous decision to support their decision, or reference an “authoritative
source” that is neither caselaw nor statute (eg, company policies).
Distinguish: discusses an earlier case, but decides that it is not relevant here.
 Applies the legal principles to the facts of the dispute.
Why decision was made in favour of one party
The Outcome
“Holding” or disposition at the end of the opinion; sets out the court orders.
Concurring and/or Dissenting Opinions
How Refer to Judge
• In writing:
• As the Court
• In person:
• Old: “My Lord” / “My Lady” (not really used any more)
• Usually: “Mr./Madam Justice” or “Justice”  Superior Courts
• Depends on jurisdiction/judge
• Certain courts/contexts: “Your Honour”  Provincial/Territorial Courts
Lawyer  attorney, counsel, barrister, solicitor
Trial  full hearing of everything  completely disposes of case
Motion  hearing of a particular issue/part of case
• Can be procedural or substantive  depends on context/nature
• Covered in Civil Procedure
Result of both trials/motions  decisions
Lawyer  attorny, counsel, barrister, solicitor
Trial  full hearing of everying; deals with everything, and everything is resolved
Motion  hearing of just part of the case [can be procedural or substantive]
Result of both trials and motions  decisions and reasons
Costs  loser typically pays a portion of winner’s litigation costs [civil cases]
What to Learn From Reading A Case
• Know the material/relevant facts
• Know the specific legal arguments made by the parties
Know the disposition
Understand the reasoning of the majority  what are they doing?
• Interpreting constitution? Statutes? Common Law?
• Method of reasoning?  stare decisis
• Following statute? Incorporating public policy grounds? Something else?
Understand significance of majority opinion
• What comes out of the case?
• How can it apply in other situations? Hypotheticals
Understand concurring/dissent opinions
• Evaluate  strong or weak?
Maureen F Fitzgerald, Legal Problem Solving: Reasoning, Research and Writing
FILAC/IRAC/ILAC  Conceptual framework to help you understand cases
 Helps understand key points
 Won’t have time to do it for every case  will do more as you start out
 Facts Issue Law Analyze Communicate
Issue Rule Apply Conclusion
Issue Law Apply Conclusion
The Legal Problem-Solving Process - FILAC
Factual analysis [Analyze the facts]
Find the legally relevant facts [the facts the courts will take into consideration at trial]
 WWWWWH; separate relevant from irrelevant facts; summarize facts
 Aware 1st attempt will not be complete
Step 1: Gather and organize the facts
Brainstorm what happened  who is involved; what happened [in/directly]; where and when; why did it occur;
how did it occur
PEC method (parties, events, claims)
 Parties: who are the people involved
What are their roles/occupations
What the the relationships
What are their special characterists
 Events: What occurred
What is the nature of the location where it occurred
How did it occur
 Claims: What are the parties issues
What are the parties claiming
What are the injuries or harm
What will the defence to the claim likely be
Step 2: Identify the legally relevant facts
 Determine the broadest area of law that applies  narrow down relevance
 Separate the legally relevant facts from irrelevant facts
Step 3: Formulate the facts
 Restate the facts [relevant facts + additional facts that aids in understanding the situation]
 Chronologically or importance  whichever is best suited for reader
 Leave out emotional facts
 Use objective language [adjectives/descriptives demonstrate bias]
 State assumptions; missing facts & relevance
Determine the legal issues
Issue determination: converting facts into legal issues
 What are the legal questions that must be answered in order to solve this legal problem?
Step 1: Determine Applicable Areas of Law
Methods to determine which areas of law might apply to a set of facts.
 Using subjects of law courses
 May be useful when the problem fits clearly within the subject area
 2 issues: Law school courses do not cover the range of the law.
Legal problems rarely fit neatly into the subject divisions
 Brainstorming
 As a group, developing a list of words/phrases describing possible legal issues
 Word association  listing words from the facts presented & giving synonyms/antonyms, related words
& categories
 Work from broader categories of law towards narrower subcategories
 Using Commentaries
 Sources in the law library
 The Canadian Encyclopedic Digest
 Halsbury’s Laws of Canada
 Texbooks
 Journals
 Internet – narrow and inconsistent; difficult to navigate
 Combining Secondary Sources  sources categorize the law differently
Step 2: Identify the General Legal Issues:
Enables you to formulate the general issues and arrange them in a logical pattern  forms an outline for your research
Broad questions generated from reading the law generally in relevant areas
Step 3: Formulate the Specific Legal Issues
Legal issue: a question arising from the facts that demands an answer in law.
 Include enough info to find the answer in the library
 Legal issue [question] = facts + law
 Factual issues just the facts; answered without referring to the law. Do not contain questions about the law.
 Sub-issues: necessary components of larger issues. [eg, sub-issues of guilty of a crime = mens rea (intent) &
actus reus (act)]
 Often elements of cause of action.
Law/Analysis  Bigger Picture Questions/Approaches (Rather Than Just Case)
Importance of authority? Why?
How fit with others? Logical Connections?
How apply to other cases? Hypotheticals?
Any themes/trends in case? With others?
Able to harmonize themes/trends?
SI Strong, How to Write Law Essays & Exams
4 step method of legal analysis and writing that provides a practical and proven method of answering law school essay
and exam questions.
1. Identify the issue in question
a. Spot legal controversies, contstruct an argument, respond to questions asked
2. Presentation of the rule
a. Identify the relevant legal authority regarding each of the legal issues
3. Apply the facts of the problem in light of the legal authority presented
a. Discuss the extent to which the facts live up to the general legal stndard identified in your discussion of
the rule
4. Identify the conclusion of your argument
a. Weigh up the different strands of legal though, decide which of your aguments are most compelling and
introduce any relevant theoretical points.
Margaret Z. Johns & Clayton S Tanaka, Professional Writing for Lawyers
Legal Research Synthesis
After defining which laws are applicable  think about the problem
 What’s the most important authority? Why?
 What’s the next most important authority?
 How do the authorities fit together?
 How do they apply to your case?
 What is the most ligical order for presenting them?
Group the dissimilar and conflicting authorities into main themes
State in 1-2 lines the most promising argument for the client
Express as a rule of law
Summarize the policy reasons for the rule
 Would the policy be furthered by applying the rule to your case?
 Does the rule represent the current trend of the law?
 Do the authorities support this argument?
 What are the most persuasive supporting authorities?
Do the same for the opponent’s argument
Identify links between the authorities
Maureen F Fitzgerald, Legal Problem Solving: Reasoning, Research and Writing
Case Brief – puts it all together
Paul M Perell, “Stare Decisis and Techniques of Legal Reasoning and Legal Argument”
See above
English Courts – Pre-Judicature Act
pre-judicature act  Separate common law and equity courts
Before 1873 when it was fused into 1 court
Common law key parts
house of lords – at the top; highest of law
exchequer chamber – equivalent of court of appeals
Exchequer – 1st version of a tax court in the UK; getting money for the
king’s bench – superior court of inherent jurisdiction (they deal with
common pleas – common law cases that didn’t involve the monarch (2