Conducting Legal Research

When reaching a guilty/not guilty verdict in any criminal case, judges rely on two things to guide their decision: the Criminal Code and common lawA system of laws based on precedent.

The first is legislation passed by Parliament and is constantly updated to keep up with society’s changing values, as shown by the legalization of cannabis in 2018. Common law is law that is not written but is instead based on precedentA court decision that is considered as authority for deciding subsequent cases or past rulings by the courts. It adapts to changing circumstances with judges enacting new legal doctrines or modifying existing ones.

The only province that doesn't rely on common law for non-criminal matters is Quebec. Its civil law is based on the French Code Napoléon (Napoleonic Code). The Civil Code of Québec contains a comprehensive statement of rules framed as broad, general principles to deal with disputes.

Any legal research a self-represented litigant (SRL) does about a criminal matter will involve the Criminal Code and common law.

Precedent is when a decision made by a judge becomes the standard for how lower courts make decisions. Keep in mind that laws are not always clear and can be interpreted in different ways. Common law, also known as case law, helps guide judges based on past decisions.

If you can show the court that past judges interpreted the law in a manner that benefits you, that will be an important step in advancing your arguments.

When doing legal research, SRLs should check online to see if there are any courthouse libraries in their communities. Another option is to check online databases such as Canadian Legal Information Institute (CanLII). This website allows you to search for decisions from every level of Canadian courts for no cost, which makes it a valuable resource for SRLs.

With CanLII, you must first identify the legal issue you are researching. A search for “assault” in the “document text” box will naturally bring up radically different results than “murder.” But it is always a good idea to use a handful of keywords to narrow the search from the beginning.

A simple strategy is to use “and” between your keywords, which tells the search engine you need all the keywords to be found in the search result. Putting consecutive words, such as “no criminal intent” into quotation marks directs the search engine to find the exact phrase in its results.

When looking at decisions, always read the headnote. It summarizes the case and lets you know if it applies to you. Once you find a relevant decision that seems to support your argument, you should check to see if it is still relevant, as a higher court may have overturned it. To find out if the decision has been overturned, type the name of the case into the “Noteup/Discussion” search bar, the third box on the CanLII home page.

You want to find cases where the facts are similar to your case, and the decision is the same as the outcome you want. But you also have to consider the court where the case was heard. In Canada, higher courts can overrule the decisions made by lower courts. The decisions from a higher-level court are then binding on lower-level courts through case law. If you find a case from the same level or lower court that supports your argument, it can be persuasive but not binding.

For reference, the Supreme Court of Canada is the highest court in the land. Each province or territory has its own courts. These courts include the court of appeal (the highest court in each province or territory), superior trial courts and provincial/territorial courts. Decisions from provincial or territorial courts are not binding except in their own jurisdiction