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Critical Thinking: the role of logical reasoning in appellate advocacy

Critical Thinking: the role of logical reasoning in appellate advocacy. Workshop for the University of Calgary Moot Court Society Dana Hagg, Student-at-Law at HMC Lawyers LLP dhagg@hmclawyers.com October 25, 2018. Roadmap. Very brief review of the Alex decision

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Critical Thinking: the role of logical reasoning in appellate advocacy

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  1. Critical Thinking: the role of logical reasoning in appellate advocacy Workshop for the University of Calgary Moot Court Society Dana Hagg, Student-at-Law at HMC Lawyers LLP dhagg@hmclawyers.com October 25, 2018

  2. Roadmap • Very brief review of the Alex decision • Questions of fact versus questions of law • What role does precedent play in appellate advocacy? • What role does logical reasoning play in appellate advocacy? • How to orient yourself within the case law so you can lead the Court down the most persuasive path

  3. 1. Very brief review: the Alex decision

  4. Criminal Code: impaired driving 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, […] (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

  5. Criminal Code: demanding a breath sample 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood […]

  6. Criminal Code: evidentiary shortcut 258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 […] (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), […] evidence of the results of the analyses so made is conclusive proof [of the accused’s BAC].

  7. 2. Questions of fact versus questions of law

  8. Decisions bind all lower courts Trial courts (make factual findings)

  9. Questions of fact vs questions of law “Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. […]” Canada (Director of Investigation & Research) v Southam Inc (1997), [1997] 1 SCR 748, [ 1996] SCJ No 116 (SCC) at para 35 per Iacobucci J.

  10. Questions of fact vs questions of law “[…] A simple example will illustrate these concepts. In the law of tort, the question what" negligence" means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. […]” Canada (Director of Investigation & Research) v Southam Inc (1997), [1997] 1 SCR 748, [ 1996] SCJ No 116 (SCC) at para 35 per Iacobucci J.

  11. Questions of fact vs questions of law “I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.” Canada (Director of Investigation & Research) v Southam Inc (1997), [1997] 1 SCR 748, [ 1996] SCJ No 116 (SCC) at para 35 per Iacobucci J.

  12. Mixed fact and law? Or just a question of law? “For questions of mixed fact and law, the correctness standard applies to extricable errors of law (such as the application of an incorrect principle) because, again, a review on the standard of correctness is necessary to allow appellate courts to fulfill their role. However, where it is ‘difficult to extricate the legal questions from the factual’, appellate courts defer on questions of mixed fact and law.” Ledcor Construction Ltd v Northbridge Indemnity Insurance Co, 2016 SCC 37 at para 36.

  13. Mixed fact and law? Or just law? “There is no bright-line distinction between questions of law and those of mixed fact and law. Rather, the degree of generality (or 'precedential value')is the key difference between the two types of questions […]” Ledcor Construction Ltd v Northbridge Indemnity Insurance Co, 2016 SCC 37 at para 36.

  14. Summary: questions of fact vs. law

  15. Question of fact or question of law? • Section 254(3) of the Criminal Code requires that an officer have “reasonable grounds to believe” that a person is driving while impaired before demanding a Breathalyzer sample • Question of LAW • The police officer believed that Mr. Alex still had alcohol in his body • Question of FACT

  16. Question of fact or question of law? • The police officer had reasonable grounds to believe that Mr. Alex had alcohol in his body • Question of LAW: the question of whether a legal standard has been met is a question of law (R v Biniaris, 2000 SCC 15) • Mr. Alex blew a 140 • Question of FACT: the underlying facts to which the legal standard is applied are entitled to deference by the appellate court (R v Shepherd, 2009 SCC 35)

  17. 3. What role does precedent play in appellate advocacy?

  18. “[I conclude] that the decision in Rillingcontinues to apply until and unless it is explicitly rejected by the Supreme Court of Canada.” R v Alex, 2014 BCSC 2328 at para 56. “Given that Rillinghas not been reversed by the Supreme Court of Canada – despite opportunities to do so – it is my view that we are bound […] While many Canadians would find the application of Rillingin 2015 to be surprising, if not shocking, I hasten to emphasize that accused persons are unlikely to be prejudiced by this conclusion. In all the circumstances, I conclude that […] the presumptions of identity and accuracy in s. 258 remain governed by Rillingunless and until the Supreme Court of Canada sees fit to overrule it.” R v Alex, 2015 BCCA 435 at paras 3 and 53.

  19. 4. What role does logical reasoning play in appellate advocacy?

  20. If the SCC does whatever it wants, why does logical reasoning matter? From the competition rules: “Ultimately, this is not an exam or test of your legal knowledge; it is a competition in oral advocacy.” “The best mooters do not lecture or talk at judges, but engage them in a structured conversation. Your job is to convince the judges of your position […]”

  21. If the SCC does whatever it wants, why does logical reasoning matter? In order to win, you must do two things: • Make the Court want to find for you; and • Appeals to emotion • Furthering the fair and efficient administration of justice • Upholding the rule of law • Show them how to find for you by showing them a path through the law.

  22. Showing the Court a path through the law Six aspects of oral persuasion: • Credibility • Conviction • Cognitive clarity: how we listen • Appeals to emotion and leeways • Concreteness • Persuasive burden = distance x resistance The Honourable John I Laskin, “What persuades (or, what’s going on inside the judge’s mind)” (2004), 23 Adv Soc J 1 at 4.

  23. Showing the Court a path through the law Persuasive burden = distance x resistance “The best arguments are those that reduce the costs of persuasion. […] Minimize the legal distance we must travel to agree with you, and minimize our resistance to being moved. […] Aim for a reasonable solution to the dispute. Give the court narrow, not adventuresome, grounds to decide in your favour, and narrower, not broader, rules to adopt.” The Honourable John I Laskin, “What persuades (or, what’s going on inside the judge’s mind)” (2004), 23 Adv Soc J 1 at 7.

  24. 5. How to orient yourself within the case law so you can lead the Court down the most persuasive path

  25. Reading the cases? From the competition rules: “You are not expected to read any other cases referenced in the Alex decision in their entirety. The information about other cases provided within the decision itself is sufficient. The way to do well in this competition is to organize your submissions well, present them persuasively, and respond to questions from the judges effectively.”

  26. READ EVERY CITED CASE WINNERS KNOW THE LAW

  27. Approaching a new legal problem When I first get a problem for a moot (or in legal practice!), I approach it as follows: • Read the case under appeal • Note down questions, themes, and controversies • Also any lower court decisions leading to that case • Read all of the authorities cited in the case • Orient yourself within that body of jurisprudence • Note down controversies, trends, themes, cases that are cited frequently (leading authorities) • Read the case under appeal again • Distill the real issues and greatest friction points for the court • Write down a list of the key questions • Read all of the authorities again • Flag and highlight key passages • Classify the authority • Summarize the key points and work them into your oral submissions • Your arguments will change as you practice your oral submissions! • Rinse and repeat steps 3-5 until the night before the moot, then go get a good night’s sleep.

  28. Classifying legal authorities I usually classify authorities by writing on the front page whether the case is: • Helpful, adverse, or neutral • “On point” (fully decides the issue), relevant, or irrelevant • A leading case–is it cited frequently in other authorities? • Or has it been subsequently ignored or overturned? • Factually analogous • Or is it distinguishable? • Well-reasoned • Dissenting opinions are gold mines for (oftentimes forcefully) well-reasoned, cogent arguments Not all of these distinctions matter for every case, but usually a “landscape” will emerge that shows you the clearest and most direct path to success.

  29. Appellant’s case? Respondent’s case? Neither? Both? An ambiguous statutory provision is presumed to comply with the Charter Bell ExpressVu Ltd Partnership v Rex, 2002 SCC 42 at para 61.

  30. Appellant’s case? Respondent’s case? Neither? Both? “Ultimately, all participants in the justice system must work in concert to achieve speedier trials. […] The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. It is in the interest of all constituencies — those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal — to make the most of the limited resources at our disposal.” R v Jordan, 2016 SCC 27 at para 116.

  31. Appellant’s case? Respondent’s case? Neither? Both? “A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations […] It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that [the Charter guarantee of being tried within a reasonable time] is not a hollow promise.” R v Jordan, 2016 SCC 27 at para 49.

  32. Appellant’s case? Respondent’s case? Neither? Both? “[…] while the absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test […], it does not render inadmissible certificate evidence [in an impaired driving prosecution].” R v Rilling(1975), [1975] SCJ No 72, [1976] 2 SCR 183 (SCC) at para 5.

  33. Appellant’s case? Respondent’s case? Neither? Both? “Ordinarily, what is done ‘pursuant’ to a statute is done following the authority of the statute.” Dastous v Matthews-Wells Co (1949), [1950] SCR 261, 12 CPR 1 (SCC) at para 52.

  34. Appellant’s case? Respondent’s case? Neither? Both? “Today, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27, [1998] SCJ No 2 (SCC) at para 21.

  35. Questions?

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