Caselaw and Jurisprudence
What is meant by Caselaw, Judgments or Jurisprudence?
This is a term meant to describe decisions that flow from the different courts in Ontario, Canada and Worldwide. These decisions are also referred to as “jurisprudence”(Body of Law) and “caselaw”. Naturally the most important decisions or caselaw or jurisprudence are court decisions that are written by the Chief Justices at the Supreme Court of Canada. Because the Supreme Court is the highest Court in Canada, the lower courts (all Provincial/Territorial Courts) must follow the decisions which have evolved from the Supreme Court of Canada (referred to as the doctrine of stare decisis). It is useful to read these decisions, especially those decisions which the Supreme Court has rendered regarding the Charter of Rights and Freedoms. The Supreme Court has stated that it is that Court which has exclusive domain to deal with questions arising from the Charter.
If you can begin to read and collect these decisions, they will be very useful while you are challenging your ticket in Court, during the trial or preliminary motion or objection.
A few significant decisions which may ultimately effect the outcome of your case:
Questions of Time Limits to bring your charge to trial:
Sections 11 (b) and 24 (1) of the Charter of Rights and Freedoms see Charter
Askov et al versus Regina (et al means “and others”) October 18, 1990 see Askov Decision
Regina versus Morin, March 26, 1992 see Morin Decision
Discusses Mens Rea, Reasonable Mistake as a Defence, Scope of defence of due diligence, Offences not requiring proof of mens rea but not strict liability offences, Discusses Absolute Liability, Strict Liability:
Regina versus Sault Ste. Marie – May 1, 1978 see Sault Ste. Marie Decision
A case decided in the Superior Court of Justice in Ottawa, Ontario on October 3, 2007 by Justice D. J. Power deals with section 218 (4) and Section 24 of the Charter of Rights and Freedoms in a case called Regina versus Daniel Robert Cassidy. Justice Power found that there were no valid grounds for the police officer, pursuant to subsection 4 of section 218 of the Highway Traffic Act to arrest Mr. Cassidy, since Mr. Cassidy had already provided his name, residential address and date to the police officer.
Discusses the “Defence of Necessity”:
Perka versus the Queen – October 11, 1984 see Perka Decision
Recent important Supreme Court decisions on the Canadian Charter of Rights and Freedoms:
Section 8 of the Charter: Everyone has the right to be secure against unreasonable search or seizure. See the April 9, 2009 Unanimous Supreme Court decision in see Regina versus Russell Stephen Patrick.
Manitoba Highway Traffic Act – section 95 (1.2) – The Provincial Court – Winnipeg Centre – January 27, 2009 (Queen v. Boyko, et al) – Photo Radar in a Construction Zone – Judicial Justice of the Peace, N. Sundstrom’s decision – here is an excerpt: “..In my opinion, the rule set out in 95 (1.2) will apply to any prosecution for speeding that occurs in construction zones and that any reduced speed sign that was placed there essentially to make the zone safer for workers – is enforceable only when workers are present. For all the above reasons given, the charges against the accused are dismissed”. This decision could be utilized by Ontario drivers in similar or identical circumstances. See story associated with this decision.
Speeding and the necessity of the Prosecutor to establish that regulatory signs (posted speed limit) were erected/posted and were unobstructed – See R. v. Etherington- B.C. Provincial Court – Traffic Division in Richmond B.C. on March 6, 1997 decided by sitting Justice of the Peace, Zahid Makhdoom.
Where can I find decisions/juriprudence and legislationa nd how can I submit them to the courts in my case?
You can submit the decisions from CanLII. In the past, for the typical layperson, the only way to access laws, which were specifically relevant to the issue, was to either purchase it at the Provincial or Federal publications bookstores. The legislation was always expensive and was only up to date, to the date that it was actually published. Whenever the legislation changed (and this happens frequently in Ontario) or was updated, you had to purchase the most recent law.
On July 25, 2007 the Legislation Act, 2006 came into being, and it was obvious (from a simple read) that the government was beginning to recognize that the age of the internet was upon us and wasn’t going away. The Act also provided more convenient and less expensive ways of obtaining legislation and including it in your submissions to the courts. The courts now accept copies of the Acts from the internet (Ontario’s “e-laws” which include Ontario statutes and laws):
Legislation Act, 2006 (see: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_06l21_e.htm#BK38)
PART IV PROOF OF LEGISLATION
35. (1) A copy of a source law or a consolidated law is an official copy of that law if,
(a) it is printed by the Queen’s Printer or by an entity that is prescribed under clause 41 (1) (a);
(b) it is accessed from the e-Laws website in a form or format prescribed under clause 41 (1) (b); or
(c) it is prescribed under clause 41 (1) (c) as an official copy. 2006, c. 21, Sched. F, s. 35 (1).
(2) Subsection (1) does not apply to a copy that is accompanied by a disclaimer to the effect that it is not intended as official. 2006, c. 21, Sched. F, s. 35 (2).
Official copies of source law as evidence
38. Unless the contrary is proved, an official copy of a source law is an accurate statement of that law.
Official copies of consolidated law as evidence
39. Unless the contrary is proved, an official copy of a consolidated law is an accurate statement of that law,
(a) in the case of an official copy described in clause 35 (1) (a), on the consolidation date shown on the copy;
(b) in the case of an official copy accessed from the e-Laws website in a form or format prescribed under clause 41 (1) (b), during the period indicated on the e-Laws website in respect of the copy when the copy is accessed;
(c) in the case of an official copy prescribed under clause 41 (1) (c), on the date or during the period prescribed under clause 41 (1) (d).
41. (1) The Attorney General may make regulations,
(a) prescribing an entity for the purposes of clause 35 (1) (a);
(b) prescribing forms or formats, including print-outs, on-screen displays or other output of electronic data, for the purposes of clause 35 (1) (b);
(c) prescribing official copies for the purposes of clause 35 (1) (c);
(d) prescribing the date on or period during which a copy prescribed under clause (c) is an accurate statement of a consolidated law.
See Ontario Regulation 413/08: see http://www.e-laws.gov.on.ca/html/source/regs/english/2008/elaws_src_regs_r08413_e.htm
Ontario Regulation 413/08 (as of November 27, 2008) reads as follows
OFFICIAL COPY OF LAW FROM E-LAWS WEBSITE
1. For the purposes of clause 41 (1) (b) of the Act, the following are the prescribed forms or formats of a copy of a source law or a consolidated law accessed from the e-Laws website:
1. An on-screen display of a copy viewed on or downloaded from the e-Laws website in HTML format or Microsoft Word format.
2. A print-out of a copy viewed on or downloaded from the e-Laws website in HTML format or Microsoft Word format.
What all of this means, is that you can now download copies of the law, from government e-laws websites and that this law can be introduced into the courts as “official copies of that particular law”. The formats that are accepted, can be see in Ontario Regulation 413/08. I have provided a link to the Legislation Act, 2006 (which provides the most recent consolidation (July 25, 2007 to December 14, 2009) of this law). The format or prescribed form, in which these laws can be submitted to and accepted by the courts, can be found in Ontario Regulation 413/08.
If you intend on relying on any part of the Highway Traffic Act or the Courts of Justice Act or any other Provincial Act, then copy them off of the official e-Law websites provided and you will be able to successfully use them in the courts when you are fighting your tickets in the courts. You will save a bundle of money and will always have access to the most up to date and relevant legislation (without having to purchase the entire Act, just to be in possession of the most recent change to one section of the same Act).
What is considered to be an official copy of a source law or consolidated law? (from the ServiceOntario e-laws site)
Section 35 of the Legislation Act, 2006 provides that the following are official copies of Ontario source law and consolidated law:
- A law printed by the Queen’s Printer.
- A law accessed from the e-Laws website in a form or format prescribed by regulation.
The Queen’s Printer (Publications Ontario) prints copies of source statutes in annual statute volumes and copies of source regulations in The Ontario Gazette, as well as copies of consolidated statutes and regulations.
On November 30, 2008, the following copies of source laws and consolidated laws accessed from the e-Laws website were prescribed by regulation as official copies of the law:
- An on-screen display of a law viewed on or downloaded from e-Laws in HTML or Microsoft Word format.
- A print-out of a law viewed on or downloaded from e-Laws in HTML or Microsoft Word format.
However, any copy of a law that is accompanied by a disclaimer stating that it is not intended to be official is not an official copy of the law.
HOW DOES A ONTARIO PROVINCIAL GOVERNMENT BILL BECOME LAW?
The following is adapted from Ontario Legislative Library guide. This is the process (and the steps) that a Bill takes from inception to becoming Law in Ontario:
See the following link which provides an indepth explanation of each step in the Bill process.