Legal Research and Writing in Canadian Context Flashcards

In Canadian criminal procedure, which document sets out the charges against an accused in a criminal trial proceeding on indictment?

Answer: The indictment

An indictment is the formal charging document in a criminal proceeding tried on indictment (the most serious offences) in Canada. It replaces the information (which is used for summary conviction matters and the initial stages of indictable offences) after the accused has been committed for trial or after a direct indictment.

Under the Canadian system, what is the difference between a 'summary conviction offence' and an 'indictable offence' under the Criminal Code?

Answer: Summary conviction offences are less serious, tried by a provincial court judge without a jury, with lower penalties; indictable offences are more serious with higher penalties and may be tried by jury in superior court

Summary conviction offences (Criminal Code s. 787) carry maximum penalties of 2 years less a day (now raised to 2 years for some) and are tried in provincial court. Indictable offences carry higher penalties, may be tried in superior court, and the accused may elect jury trial for certain offences. Hybrid offences can be treated as either.

The principle of 'audi alteram partem' is a foundational principle of natural justice in Canadian administrative and procedural law. It means:

Answer: The judge must hear both sides before making a decision

'Audi alteram partem' means 'hear the other side.' It is one of the two foundational principles of natural justice (the other being nemo judex in causa sua—no one should be a judge in their own cause). It requires that persons affected by a decision must have an opportunity to present their case before the decision is made.

In Ontario civil litigation, what is the purpose of a 'mediation' session under Rule 24.1 of the Rules of Civil Procedure?

Answer: To give parties a mandatory opportunity to attempt to resolve the dispute with the assistance of a neutral mediator before proceeding to trial

Rule 24.1 requires mandatory mediation in Toronto, Ottawa, and Essex (Windsor) for most civil cases. A neutral mediator facilitates negotiations between the parties to explore settlement. The mediator has no power to impose a decision—any settlement requires the parties' consent.

When conducting secondary legal research on Canadian constitutional law, which resource provides the most comprehensive topic-by-topic analysis of Canadian constitutional jurisprudence?

Answer: Hogg's Constitutional Law of Canada, or the Canadian Charter of Rights Annotated

Peter Hogg's Constitutional Law of Canada is the leading Canadian constitutional law treatise, providing comprehensive analysis of constitutional doctrine and case law. The Canadian Charter of Rights Annotated (Laskin) provides detailed annotation of Charter cases. Both are primary secondary research tools for constitutional law.

In a Canadian law school examination or NCA exam, which error most commonly causes marks to be deducted in a constitutional law answer?

Answer: Failing to apply the correct analytical framework in sequence (pith and substance → division of powers → Charter → s. 1 → remedy) and conflating different stages of the analysis

Constitutional law answers lose marks when students conflate the division of powers analysis with the Charter analysis, skip the pith and substance characterization, or jump to s. 1 justification before establishing a prima facie Charter breach. The sequence of analysis is critical and must be followed.