3 Branches of Government
 Legislative
Makes Law
 Executive
Administers/Executes Law
 Judicial
Interprets and Applies Law
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Civil Litigation:
 Between private parties
Criminal Prosecutions:
 any government action for enforcement of criminal laws, including offenses, conviction for which could result in
imprisonment.
References:
 Opinions by court in absence of dispute
Private Law:
 Disputes between individuals
Public Law:
 *government is involved (all criminal law is public law)
 Individual and State (e.g. criminal law)
 State and state (e.g. constitutional division of powers)
Example: A police officer kills an individual
1. Officer charged with murder
Public law / Criminal
2. Family sues the police force for “wrongful death”
Public law / Civil
3. Family sues individual officer for “wrongful death”
Private law / Civil
Proceeding
Parties
Burden of
Proof
Civil
Criminal
Suit or Action or Litigation
Prosecution
Plaintiff (suing) or Defendant
(being sued)
Crown [R] v. Accused
Balance of Probabilities
Beyond a Reasonable
Doubt
Plaintiff’s responsibility to present facts to
support the claim
Verdict
Liable or Not-Liable
Guilty or Not Guilty
(Acquittal)
Order
Remedy (monetary damages,
declaration, injunction, etc.)
Sentence (Fines
Imprisonment, etc.)
Civil Case
a private case where someone sues someone else (suit or action)
1. Pleadings:
o Plaintiff (suing) files a pleading with the court
 Sets out the complaint against the defendant
 Sets out remedy the plaintiff is seeking
o A court officer issues the claim by affixing the seals of the court and signing the pleading on behalf of the court.
 Copies are then served to the defendant (being sued).
o Defendant must provide court with a statement of defence.
 If not, then likely found guilty.
o Plaintiff and defendant entitled to consult a lawyer. Lawyers often settled (98% of time) before trial.
2. Discovery
o Each party is entitled to examination for discovery before trial
o Clarifies claim against defendant
o
3.
4.
5.
Lets each side examine evidence the other side intends to use
Trial
o Plaintiff’s responsibility to present facts to support the claim against defendant.
o Plaintiff must prove that it is probable the defendant is liable (legally responsible).
o Balance of Probabilities: standard of proof for civil case.
o If facts justify the remedy, the court will hold the defendant liable.
Decision: Liable or Not Liable
o Plaintiff presents evidence against defendant: witnesses/documents.
 Defendant may cross-examine plaintiff’s witnesses.
o Defendant then presents own witnesses/documents.
 Plaintiff has right to cross-examine.
o Judge makes sure all evidence/questions relevant to case.
o Judge considers evidence and makes decision based on what is most probable.
 Alternative, trial by judge and jury
 Judge decides which law applies and explains evidence/laws to jury.
 Jury considers which version it believes and reaches a verdict.
Order: Remedy and Costs
o Monetary damages, declaration, injunction, etc.
o Note: Punitive damages are also known as exemplary damages. The amount of money awarded to the claimant in
civil litigation to punish the wrongdoer and to deter the wrongdoer and others from engaging in unlawful conduct
in the future.
Criminal Proceedings
Crime is considered an offence against society, so the state, or Crown, prosecutes the accused under public-law statute
 Criminal Code or Controlled Drugs & Substances Act
Summary Offences
Indictable Offences
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Minor offence
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Accused appears before provincial court judge for trial 
that will normally proceed immediately.
Maximum penalty is usually $5000 fine, 6 month
prison sentence, or both
1.
2.
3.
4.
5.
Arrest and/or Laying of Charges
o Must follow procedures to protect rights of Accused
o The Accused have right to consult lawyer
o Explain reasons for arrest and specific charge
Disclosure
o Preliminary Hearing: judge examines if there is enough evidence to proceed with trial. If not, case is dismissed.
o Election: Judge or Jury
 When the Crown proceeds by indictment, the defense must choose whether the matter will be heard
before the Provincial Court of Alberta or whether it will be heard before the superior court (the Alberta
Court of Queen’s Bench in Calgary).
Trial
Verdict: Guilty or Not Guilty
o Not Guilty: acquitted and free to go
Sentencing
o Guilty: judge decides on appropriate sentence
 Fine, restitution, probation, community service, imprisonment
 Two years or more = federal; less = provincial
o Judge does not have to convict, even if accused found guilty
 Absolute discharge
 Conditional discharge
 Obey conditions or face more severe sentence
 Does not receive a record for the offence
Facts and Law
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Serious offence
Three Choices
1. Judge hears case in provincial court
2. Have judge/jury hear case in superior court
3. Have judge alone hear case in superior court
Questions of Law
(E.g., Does the Highway Traffic Act apply in a parking lot?)
“Trier of Law” > (always a) Judge
Questions of Law: relates to the legal standard to be applied
 Relates to:
o a particular case or controversy
o how the law applies in a case
o what evidence is and is not both relevant and/or admissible
o what instructions to give to a jury
o Does it matter if the legal contracts are written down
 Trier of Law - makes sure the law is followed (always a judge)
o Administrative tribunals can count as triers of law

Questions of Fact
(E.g., How fast was the defendant driving in the parking lot?)
“Trier of Fact” > Judge or Jury with instructions from Judge
Questions of Fact
Relate to things that happen in relation to dispute before the court
Can only be resolved by a jury or by a judge on a bench trial, meaning a trial without a jury present
 E.g. was it stated between parties the hair was asked to be a rainbow?
 Was it windy that day?
 Did she do cartwheels that day
o Trier of Fact (can be a judge OR jury)
 Jury: to make findings of fact and get their instructions from the trier of law (judge)
o What happened in the case and what were the circumstances?
o
o
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questions of law are for the judge to decide
questions of fact are for the jury to decide
Mini Quiz
Example: Lady GooGoo agreed to pay a famous hairstylist, Vittle Salloon, $5000 for a haircut in the shape and colour of a large
rainbow.
The haircut looked great in the salon, but as soon as GooGoo stepped outside, a light breeze toppled the style. The strands of
coloured hair all mixed together, and the style was no longer recognizable as a rainbow.
GooGoo sues Salloon for ‘breach of contract’.
Which of the following best describes the proceeding?
Legislative
Criminal Law
Executive
Private Law
Which of the following might happen if GooGoo is successful?
Salloon will be found guilty
Salloon will be sentenced to a term of incarceration
Salloon will be ordered to pay damages
Salloon will have to pay a fine
Salloon alleges that his hairstyle was perfect, and that GooGoo destroyed the style by doing cartwheels in the street. GooGoo says
that she did not do any cartwheels, and that the wind ruined the style.
Whether or not GooGoo did cartwheels in the street is best described as:
A question of law for the judge
A question of fact for a judge or jury
A question of law for the jury
Which of the following best describes the "burden of proof" in this case?
GooGoo must prove her case beyond a reasonable doubt
Salloon must prove his case beyond a reasonable doubt

GooGoo must prove her case on a balance of probabilities
*plaintiff is the one who must bear the burden of proof*
Salloon must prove his case on a balance of probabilities
Appeals
Parties in an Appeal
 Appellants v. Respondents
o e.g. Plaintiff sues Defendant
o Judgment for the Plaintiff
o Defendant appeals
 Plaintiff (Respondent on Appeal) v. Defendant (Appellant)
 “Cross Appeal”
o Respondent makes claim against Appellant
(Defined by who first seeks to appeal the lower court’s decision)
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In 1975, the automatic right to appeal to it in civil matters was abolished. Appeals may now only be taken to the Supreme
Court with leave (permission) of the Supreme Court; or of the lower court whose decision is being challenged.
"As of Right"
o means there is an automatic right to appeal that is not subject to the court's discretion
"With Leave" (permission)
o Appeals may now only be taken to the Supreme Court; or of the lower court whose decision is being challenged.
Outcomes on Appeal
 Leave denied
 Decision affirmed
 Decision reversed
 New trial ordered
Where to Appeal (Structure of Courts)
1. Structure of Canadian Courts
1. Provincial Inferior Courts (s. 92(14))
 Within the purview of provinces
2. Provincial Superior Courts (s. 96) “section 96 courts”
 Trial Courts
 Courts of Appeal
3. Federal Courts (s. 101) “section 101 courts”
 Trial Courts
 Court of Appeal
4. Supreme Court of Canada (s. 101)
 Final Court of Appeal (since replaced JCPC 1949)
* note: tribunals are similar to a court trial - it is usually created through administration (federal or provincial courts) - this is
known as “empowering legislation.” Tribunals are commonly known as commissions or boards.
SCC Cases
The Supreme Court of Canada
 Established 1875
o Supreme Court Act
 Canada’s final court of appeal as of 1949
o Replaced JCPC in this role
 9 Justices
o 1 “chief justice” and 8 “puisne” justices
o 3 justices from Quebec (per Supreme Court Act)
o 3 justices from Ontario; 2 from western provinces; 1 from Atlantic provinces (by convention)
SCC Docket
 Appeals As of Right
o Criminal Code, s. 691
o Provincial Court of Appeal Decisions on Reference Cases
Leave
to Appeal

o Supreme Court Act, s. 40(1):
 Matter of public importance, or
 Significant legal question, or
 Any other matter the Court believes warrants its attention
o 3 judge panel
 References From Federal Executive
o Supreme Court Act, s. 53
Anatomy of an SCC Decision
1. Introduction/Overview
2. Facts of the Case
3. Concise Statement of Legal Issues
4. Procedural History (and arguments presented)
5. Summary of Applicable Legal Rules
6. Application of the Law to the Facts
7. The Court’s conclusion(s) and order(s)
Mini Quiz 2
Example: Lady GooGoo agreed to pay a famous hairstylist, Vittle Salloon, $5000 for a haircut in the shape and colour of a large
rainbow.
The haircut looked great in the salon, but as soon as GooGoo stepped outside, a light breeze toppled the style. The strands of
coloured hair all mixed together, and the style was no longer recognizable as a rainbow.
GooGoo sues Salloon for ‘breach of contract’.
Suppose that GooGoo’s suit is heard in a superior court in Newfoundland, and GooGoo is successful. Where can Salloon most likely
appeal this decision?
The Supreme Court of Canada, as of right
The Federal Court
The Newfoundland Court of Appeal
The Federal Court of Appeal
Any Provincial Court of Appeal
In Salloon’s appeal, GooGoo would be:
The defendant on appeal
The respondent on appeal
The appellant
The defendant
Suppose Salloon is successful on appeal. What might the appeal court order?
(1) Leave denied
(2) Decision of the lower court affirmed
(3) Decision of the lower court reversed
(4) New trial ordered
(5) Either (3) or (4)
(6) Either (1) or (2)
**Note: everyone is bound by Supreme Court precedent, however Supreme Court is not bound lower court precedent
Jurisprudence: What is Law?
Jurisprudence: the study of legal theory
o “a system or body of law”
e.g. “Roman jurisprudence”
o “the course of court decisions...”
e.g. “a tendency that has become apparent in the jurisprudence of the American courts…”
o “the science or philosophy of law”
o What is law?
o What is legal reasoning, and how does it work?
o What makes law ‘valid’ or ‘legitimate’?
o What is the relationship between law and morality?
o Are there times when we should disobey the law?
o What is the role of law in society?
Legal Theories
Positivism
Natural Law
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Law is the Command of the “Sovereign”
“The uncommanded commander”
Supreme authority
Self-governing
Backed by Threats
Generally Obeyed
o Consider….
A “true law” is a moral law
Universal moral truths
Widely accepted beliefs
An Unjust Law is Not Law At All
(Lex iniusta non est lex, Aquinas recalling Augustine)
Re Drummond Wren (1945)
Re Noble and Wolf (1948)
After purchase, applicant asks to invalidate covenant from land
stating, “not to be sold to Jews or persons of objectionable
nationality.”
Wolf sought to have covenant stating lands not to be sold to
“coloured race or blood” rendered invalid on grounds of public
policy, based on precedent in Re Drummond Wren
Ruling…
Ruling…
 Covenant found void because it is offensive to public policy:  Difference between Re Drummond Wren and this case as
“Any agreement which tends to be injurious to the public or
residents are seeking recreation and not shelter
against the public good is void as being contrary to public
 Judge says the judge in Re Drummond Wren evolved a
policy.”
new public policy *
o Conclusion is reinforced by wide official
o Danger in doing this because citizens will not be
acceptance of international policies
able to avail themselves of indisputable laws;
o No need to even consider the Racial Discrimination
renders all law vague and uncertain
o Gives judges too much discretion and power
Act (1944)
o Up to Legislature to determine what is best for
 Judge discusses public policy as a variable thing that
changes with the times
public good
o Though some instances of courts using public
 Courts may look at different Acts and public law as aid in
determining public policy
policy led to it becoming established law, that
Judge
cites
charter
from
United
States
that
Canada
signed
doesn’t justify doing it still

emphasizing human rights
Example of:
Example of:
1. Natural - “moral duty”
1. Positivism
a. Judge cites charter from United States that Canada
a. **Judge says the judge in Re Drummond Wren
signed emphasizing human rights
evolved a new public policy
b. If a court were to support this covenant, the
b. “not a subjective - public policy” - judge thought
consequence would be that sale of land could be
legislators should be the change makers
equally prohibited to other religions
c. Judge says the talk of public policy is too
c. Covenant found void because it is offensive to
complicated and should not be within the realm
public policy
of the courts
d. Conclusion is reinforced by wide official
2. Natural Law
acceptance of international policies
a. Moral duty to allow for freedom of contract - we
must allow those to create the contracts and
enact them
Re Drummond Wren [1945]
Re Noble and Wolf [1948]
Facts:
Worker’s Education Association (WEA) purchased a lot with

intentions of building a house on it and then raffle it off for
fund-raising.
 The land was restricted by a covenant pronouncing that it
was “not to be sold to Jews or persons of objectionable
nationality.”
 The WEA applied to have the covenant declared invalid
because the covenant was void as against policy
Facts:
 Individual cottage lots contained a covenant that the lands
shall not be sold or transferred to any person of the
“Jewish, Hebrew, Semitic, Negro or coloured race or
blood.”
 Relying on Re Drummond Wren, Wolf, an interested
purchaser of a cottage lot, applied to have the covenant
rendered invalid on grounds of public policy.
 However, other property owners defended the covenant
o
contravened the provisions of the Racial
Discrimination Act 1944
Held:
o Contravened the contemporary version of s.13 of
 Motion is dismissed and covenant is NOT void
Ontario Human Rights Code which prohibits the
publication or display of representations indicating  "In my view it is within the province of the competent
intent to discriminate on the basis of race or creed.
legislative bodies to discuss and determine what is best for
Held:
the public good and to provide for it by the proper
enactments"
 The covenant is void because it is offensive to the public
policy of this jurisdiction.
 "to expound and interpret the law and not to create the
law"
The argument of the applicant is that the impugned covenant is
 This is an instance of Positivism in which the ruling
void because it is injurious to the public good
insists on the separation of law and morality
o This is an instance of Natural Law in which the guiding
 Judge makes note that it should be the legislative
factors are based on morality (public good)
bodies who change the law
Note: Positivism and Natural are usually contrasted
Legal Realism
 Argues against Common Law - where rules are NOT neutral, objective and certain
o Law is NOT objective
o Legal rules are indeterminate
o Legal decisions reflect judges’ politics or moods
o …Reaction against legal formalism
o Judging is political:
“The life of the law has not been logic: it has been experience…
“The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if
it contained only the axioms and corollaries of a book of mathematics.”
- Oliver Wendell Holmes
o Judging is personal:
“[A] trial judge, because of overeating at lunch, may be so somnolent in the afternoon court-session that he fails
to hear an important item of testimony and so disregards it when deciding the case….
“Dickens’ lovers well remember Perker’s advice to Pickwick: ‘A good, contented, well-breakfasted juryman, is a
capital thing to get hold of. Discontented or hungry jurymen, my dear sir, always find for the plaintiff.’”
Eg. The law is what the judge ate for breakfast - think of a well-fed juryman who had a good v
bad breakfast and how it affects their actions
- Jerome Frank
Critical Legal Theory
1. Critical Legal Studies
o Marxist orientation
o Law’s function is to protect liberal market economies: this is not viewed as a positive thing
o Law is presented as real and objective (i.e. reified) in order to confuse and distract people (i.e. mystification)
“Law is presented as a reified system only to create a sense of mystification to the public”
2. Critical Race Theory (CRT)
o “[Law against discrimination] benefits whites by preserving a benevolent but fictional self-image….
o “At best, the law–by protecting blacks from blatant racist practices and policies, but rationalizing all manner of
situations that relegate blacks to subordinate status–regularizes racism.”
- Derrick Bell
o “The origins of property rights in the United States are rooted in racial domination….
o “The hyper-exploitation of Black labor was accomplished by treating Black people themselves as objects of property….
o “Similarly, the conquest, removal, and extermination of Native American life and culture were ratified by conferring and
acknowledging the property rights of whites in Native American land.”
- Cheryl Harris
3. Feminist Jurisprudence
o “The law sees and treats women the way men see and treat women….
o “It achieves this through embodying and ensuring male control over women’s sexuality at every level, occasionally
cushioning, qualifying, or de jure prohibiting its excesses when necessary to its normalization.”
- Catharine A. MacKinnon
o
o
o
4.
“ only worst practices of sexual domination are prohibited by law” - makes common place dominance
normal and permissible
“[I]t is probably impossible for a man to respond, even imaginatively, to such a dilemma [as whether to seek an abortion] …
“[T]he history of the struggle for human rights from the eighteenth century on has been the history of men….
“[W]omen’s needs and aspirations are only now being translated into protected rights.”
- Morgentaler (per Wilson J)
Critical Race Feminism
o “[D]ominant conceptions of discrimination condition us to think about subordination as disadvantage occurring
along a single categorical axis [of either race or sex]….
o “[T]his single-axis framework erases Black women…
o “[I]t could be argued that this failure represents an absence of political will to include Black women…”
- Kimberle Crenshaw
Law and Economics (or Economic Analysis of Law)
o Focus on Efficiency
Classical Law and Economics
Behavioural Law and Economics
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This assumers people are “Rational” actors
Always choosing best interest
Maximize well-being
Presumption of best choice
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Do not go by “visceral sense of fairness” to decide if there

should be hearings in immigration cases.
Instead, calculate “error costs” by assigning value to “the
probability of error and the cost if an error occurs.”
Eg. how much does it cost to deport someone v cost of this 
mistake for this to occur without a hearing? How much does
it cost to get this case into the court v the possible mistake
“The increment in error costs must be compared with the
direct costs of a hearing”
“The cost inquiries required by the economic approach are
not simple and will rarely yield better than crude
approximations, but at the very least they serve to place
questions of legal policy in a framework of rational inquiry”
- Richard Posner
Incorporates psychological insights into economic analysis
of law
Humans are NOT rational
Design system to encompass mistakes people inevitably
make
 Eg. Construction job risks
Structure that responds to maximize well-being combined
with the idea people are “Predictably irrational” (Dan
Ariely)
“Some critics of laws requiring specific workplace safety
measures say that such laws are objectionably
"paternalistic" and that it should be enough to warn
workers of the risks of an unsafe workplace.
“Behavioral economics suggests that warnings will lead
some workers to underestimate their own personal risks
and, thus, accept jobs that they actually would not want
to take if they” truly understood the risk of injury.
- Christine Jolls
What legal theory best aligns with these statements?
 The law just reflects human frailties. Whether or not a person goes to jail is less about the seriousness of the crime and
more about whether the judge happens to be having a bad day.
o Legal Realism
 “The law is important because it makes things more efficient. The best laws help the economy run smoothly, which makes
everyone better off.”
o Law and Economics (or Economic Analysis of Law)
“The
law is the law. Even a bad law must be obeyed.”

o Positivism
 “The law is all about preserving power. Rich, white men have always used law to keep themselves in charge and keep
everyone else down.”
o Critical Legal Theory / ?? mainly Race Theory (CRT)
 “The law is important because it enforces universal values, like that killing is wrong.”
o Natural Law
The Rule of Law
Limitation of government power
 Structures and constrains the use of power in order to make its impacts on citizens more predictable, acceptable and fair
 The rule of law demands that we be ruled by laws, impersonal rules set out in advance to guide our behavior
3 core ideals:
1. Curbs power of government; prevents it from becoming absolute
2. Protects rights and liberties of citizens
3. Promotes personal autonomy in that individuals can predict the circumstances when governments will interfere with their
lives, so they can plan accordingly
The core aim of the rule of law:
 Enabling citizens to plan their lives
 When exercise of power is predictable, we gain a certain amount of freedom and autonomy - we have a sphere within
which we can freely act
 Some theorists connect the rule of law to equality and dignity
Rex
 By looking at failures - we can see what is needed to create a good legal system
 Note: Fuller says that Rex never made any law
 Fuller falls onto the side of Natural Law - Morality of Law and to Fuller it is the Rule of Law
Fuller: Eight Principles/ Ways to Disaster When Making Rules
1. Generality: Failure to achieve rules at all; every decision arbitrary
a. Rules are for all
2. Publicity: Failure to publicize rules to all parties
a. Should not be kept secret and known to all
3. Prospectivity: Abuse of retroactive legislation; no rules would be forward-thinking
a. Punished on the basis of the past/Retroactive judgment - judgments should be prospective/ forward thinking
4. Clarity: Failure to make rules understandable
a. Usually on a spectrum based on wording or sets/groups of people based on their interpretation
b. Contingent on word interpretation
5. Non-contradiction: Enactment of contradictory rules
a. Both forbidding/required laws cannot co-exist
6. Possibility of compliance: Rules that require conduct beyond powers of affected parties
a. If the law asks for too much of a citizen - possible to integrate easily into their lives
7. Constancy over time: Frequent changes in the rules so that subjects cannot act accordingly
a. No radical or frequent shifts of the law - clear notice of change with less frequency to allow for consistency - think
PACING
8. Congruence between declared rule and official action: Mismatch between the rules as announced and their administration
 Example: Selected enforcement - eg. before full legalization of marijuana where enforcement is more relaxed although it
was technically still illegal
Raz’s List:
 The law should be prospective, open and clear
 Laws should be relatively stable
 Laws should be mostly general, but the making of any particular laws should be guided by open, stable and general rules
 The judiciary must be independent
 The principles of natural justice, such as a right to a fair hearing, absence of bias, and so on, must be respected
 Courts should be empowered to review the implementation of the other principles to ensure Rule of Law conformity
 Courts should be accessible
 Discretion in law application should not be permitted to pervert the law
Formal v. Procedural v. Substantive
 Fuller's account is formal because it is concerned with the form laws take - not their substance
 Raz’s list included procedural elements (eg. right to trial, independence of judiciary etc.
 Other theorists think that the rule of law must contain substantive demands as well, Laws content must be morally good eg must protect rights
Formal Rule of Law and Dignity
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Fuller argues that there is something inherently good about guiding behaviour through the rule of law
Sense of reciprocity between citizen and government.
o The government treats the citizen with respect by applying only rules that are known to advance their behaviour
According to a formal version of Rule of Law - judges promise the citizen conduct will be judged according to law
Judges are bound by the rule of law
Judges cannot appeal to their own views about justice
Weighing Values
 Value of constrained judiciary - predictability for citizens
 Value of defeating a bad law
Legalism
 Value of the rule of law can slide into the more problematic stance of ‘legalism’
 2 elements
1. Narrow - predictability-focused account of the rule of law
2. Overvaluation of that narrow account of the rule of law
 “It is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relation- ships to consist of
duties and rights determined by rules.” - Judith Shklar
 Legal thinking is isolated from other realms
 Rule of law is sometimes equated with law and order - with the demand for people to obey the law
2 Competing Ideals
 Substantive - can prevent injustice, but means a sacrifice in predictability
 Formal/Procedural - law is clear, but means accepting some injustices
Core ideas:
 Rule of law not rule of individual people
 Limitation of government power
 Stabilizing expectation and ensuring predictability
 Treating people equally before the law
 Leads to specific demands - fuller