You may wonder what legal research is and why do it? Legal research is about learning and understanding the law. A judge can only give you what you are entitled to under the law. By knowing the law, you can develop a stronger, more convincing argument.
- 5.1 Researching Legislation and Case Law
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Case law is the previous decisions of judges in earlier cases. You might have heard the term “precedent”. Precedent is when a decision made by a judge becomes the standard for how other judges at lower courts make decisions. Laws are not always clear. They can be interpreted in different ways. A judge must decide how to interpret the law. Case law helps to guide judges on how to interpret the law and make decisions in a case.
Imagine there is a law saying: You cannot ride your bike on major roads without a helmet. If the law does not define what “major” roads are, a judge must decide. Now, imagine that a previous judge wrote a decision saying that: Roads with 4 or more lanes are major roads. This creates a precedent for judges of lower courts, and deserving of respect by judges of the same level. It is case law. Other judges making decisions about bike helmets and roads will usually use this judge’s 4 lane definition to make decisions.
Legislation is also law. Case law provides guidance on how the legislated laws should be interpreted. As you can see, using case law to support your case can help the judge understand how to interpret the law in your favour. The key to using case law is to be sure to use cases that support your claim. To do this, you need to be able to research past cases. When you are representing yourself in court, this kind of legal research is difficult, but important.
Imagine, for example, that you are able to find a recent case from your jurisdiction where the situation is like yours and the decision is the same as the one you want. Providing this information to the judge may be very persuasive in helping to support your case.
At the same time, it is important not to ignore cases that clearly do not support the outcome you want. There is a good chance the Crown will use those cases. You need to be able to say why these cases do not apply in your situation, in other words, you need to distinguish those cases. If you are finding lots of cases that do not support the legal argument you are making, you may need to reconsider your position.
Where to find case law
When you go about doing your research, be sure to use the resources within your community. Courthouse libraries are often able to help you locate case law. There are also online databases where you can search for cases. A good free online case law database is CanLII. See Section 13: Resources for more information.
- 5.2 Choosing the Right Case
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Before you start your research, you have to know what you are looking for. There are four keys to success for choosing the right case(s).
- Similar facts
- Best outcome
- Court
- Date
- Similar facts: You want to find cases that have facts or issues that are like those in your case. If you find these cases, you can use them in court and ask the judge to decide your case in a similar way. Present cases where the facts are like your case and the decision is the same as the outcome you want.
- Best outcome: You need to find cases that relate to the outcome you want. For example, if you want the judge to agree that the other guy consented to the bar fight, you will search for a case where consent disproved assault. Select cases where the outcomes of the cases are the same as the outcome you want. However, you shouldn’t ignore case decisions that are not in your favour. Think of ways that your case is different than (distinguished from) the less favourable case or why that case should not apply in this scenario.
- Court: The next most important consideration is the level of the court and the location. In Canada, higher level courts can override the decisions made by lower level courts. Decisions from a higher-level court, are binding on lower level courts. Decisions from the same level, or lower level, of court can be persuasive but are not binding, meaning they could help convince a judge to decide the same way, but the judge is not required to follow that court’s decision.
The Supreme Court of Canada is the highest court in Canada. Each jurisdiction (province or territory) in Canada has its own courts. Usually these courts include the court of appeal (the highest court in each province or territory), superior trial court and provincial / territorial court. If you cannot find a decision from the Supreme Court of Canada or from a court in your jurisdiction you can search courts from other provinces. Decisions from different provincial / territorial courts are not binding. Those decisions are to be respected, but may or may not be followed.
When searching for case law, select decisions from the courts in this order:- Supreme Court of Canada.
- Courts in your jurisdiction, in order of importance: appeal, superior trial, provincial court.
- Courts from other provinces (court of appeal, superior trial, provincial / territorial).
- Date: The date of the decision is the final consideration when selecting cases. Keep in mind that each of the other three points is a higher priority than this one.
What happens if you find two decisions from the same level of court with similar facts and outcomes? Look at the date. Select cases where the decision is most recent. A judge may put more weight on a decision from last year than a decision from the 1990s.
Also, make sure the decision has not been overturned. When a decision is overturned, it means that a higher court has ruled that the decision is no longer good law. Over time, our society changes and so does the interpretation of laws. Be careful when using any case that is more than 15 or 20 years old. The law may be out of date and the interpretation of the law may have been overturned.
Case Study
Imagine, hypothetically, that you are preparing for a trial in BC Supreme Court.
There is a law that states: You must have some trees in your front yard.
What does “some” mean? The law is not clear. So, you research case law. You find 2 cases.
- Case 1: Alberta superior trial court says “some means at least 3 trees”.
- Case 2: BC Court of Appeal says “some means at least 1 tree”.
Which case is best?
The most important case will be the BC Court of Appeal. That case is binding on BC Supreme Court. Thus, according to BC case law, you must have at least one tree in your front yard.
If you had found a Supreme Court of Canada case that said “some means at least 2 trees”, you would select that case because it is from a higher level of court. The judge would need to follow this case.