Reasonable Doubt: Representing yourself and legal research, part two
This article will be the last in my series about representing yourself. In the fall, four new writers will join me who will write about such things as civil litigation, personal injury, immigration, residential tenancy concerns, municipal and bylaw issues, and social justice.
Last time, I wrote about researching case law. This is a skill that takes years to build and can never fully be canvassed in one 700-word article, so I have decided to devote two 700-word articles to the cause.
When researching case law, it’s important to understand the hierarchy of the courts in B.C. and Canada. This will help you choose the stronger cases to the present to the judge for your case.
Only one court in Canada writes judgments that are binding on the entire country. This court is the Supreme Court of Canada. If you have a case that explains why the law is on your side from the Supreme Court of Canada, you are in luck. Every judge that you go before in B.C. must take heed and apply the law the way the SCC applies the law.
(Whether or not the case applies to your situation will be a whole other argument, but if it does apply, then, in lawyer lingo, the case is “binding” on the judge of your court, and he or she must follow it).
In B.C., the top court is the B.C. Court of Appeal. It is most common for three judges of the Court of Appeal to hear cases and issue judgments. Any case on your side from the B.C. Court of Appeal will be binding on a judge at the B.C. Supreme Court and the B.C. Provincial Court. Similarly, any decision from the B.C. Supreme Court is binding on the B.C. Provincial Court.
If you can’t find a decision from a higher court that is in your favour, try to find decisions that were made by judges at the same level of court in your favour. These cases will be persuasive and help the judge in your case consider the relevant legal issues. Judges of the same level of court don’t technically have to follow one another, but as a matter of practice, they usually do in order to support consistency and predictability in law.
Cases from other provinces can also be persuasive if they deal with the same legislative scheme that we have in our province or if they deal with an issue that is not governed by legislation (ie a common law issue). There is an informal hierarchy here too—an Ontario Court of Appeal decision is likely to be more persuasive to a judge than a Saskatchewan Queen’s Bench decision (Quebec has its own Civil Code, so many of its decisions will not apply outside of Quebec). Also, we originally got our common law from Great Britain, and decisions from the House of Lords and English Court of Appeal still get plenty of attention in Canada.
But remember, if there is legislation that deals with your legal issue, then that legislation is of primary importance when doing your research. The reason for this is because the judge must apply the law as your elected officials have written it. The judge’s task is to fine-tune the application of the legislation to your case and determine how an act or a statute will affect you.
Finding cases on your side takes a long time and a familiarity with the search terms and area of law that you’re researching. This is why I recommend going to your local law library and making some valiant attempts at reading a (very likely boring) law text on your legal issue. Once you are familiar with the legal issues and legal terms in your case, you should consult a librarian on how to use online case law search engines for best results. If you’re not computer-savvy and prefer books, all law libraries carry legal journals (or reporters) that publish cases in print version.
You want to find recent cases on your issue that state what the current law is; this is important because something that may have been the law in 1970 (or even 2008) may have changed last week. You have to have the most up to date law you can get. Sometimes, the law has not changed since the early 1900s and your most recent case on the topic may be from 1930, but this is not common.
Again, if this seems like too much for you, consider hiring a lawyer to do the legal research aspect of your case.
Reasonable Doubt appears on Straight.com on Fridays. The column's writer, Laurel Dietz, is a criminal defence lawyer at Cobb St. Pierre Lewis. You can send your questions for the column to them at firstname.lastname@example.org.
A word of caution: Don't take this column as personal legal advice, because it's not. It is intended for general information and entertainment purposes only.